Section 656.25(e) provides that the employer's rebuttal
evidence must rebut all of the findings in the NOF and that all
findings not rebutted shall be deemed admitted. On this basis,
the Board has repeatedly held that a CO's finding which is not
addressed in the rebuttal is deemed admitted. Belha Corp.,
88-INA-24 (May 5, 1989) (en banc); Salvation Army,
90-INA-434 (Dec. 17, 1991); Michael's Foods, Inc.,
90-INA-411 (Nov. 14, 1991); Oliver & Becica, AIA,
90-INA-274 (Oct. 30, 1991); D.C. National Cab Co., Inc.,
89-INA-294 (May 22, 1991); Felix Shepeluk, 90-INA-294
(Mar. 5, 1991); Judith Eisenberg, 88-INA-234 (Feb. 19,
1991); Schwinn Bicycle Co., 90-INA-39 (Nov. 5, 1990);
M. Sky Construction Co., 89-INA-340 (Oct. 29, 1990);
Faten Zaky, 89-INA-353 (Aug. 24, 1990); Cook County
Hospital, 89-INA-64 (Mar. 6, 1990); Kamali Oriental
Rugs, 89-INA-151 (Feb. 21, 1990); International
Construction Consortium Inc., 88-INA-496 (Jan. 4, 1990);
Our Lady of Guadalupe School, 88-INA-313 (June 2, 1989);
Lewis University, 88-INA-75 (June 20, 1988). Seealso 20 C.F.R. § 656.26(a)(4).
The following cases provide examples of responses of
employers that were found to be admissions or generally
inadequate under § 656.25(c)(3). Thus, denial of
certification was affirmed where the employer:
addressed only part of the deficiency asserted in the NOF,
Tarna of California, 88-INA-478 (June 6, 1989)
(where the CO proposed to deny certification based on the
unlawful rejection of three appli-cants and the employer's
rebuttal addressed the rejection of only one applicant, the
CO's allegations concerning the other two were deemed
admitted).
only made generalized assertions,
Winner Team Construction, Inc., 89-INA-172
(Feb. 1, 1990) (where employer's rebuttal merely averred
that its application was made without attempt to circumvent
the law, and that it had experienced difficulty in its
attempt to fill the job, the deficiencies cited in the NOF
were deemed admitted).
merely complained about the cost of recruitment,
Leyva Architectural Staff and Stone, 89-INA-288
(Mar. 18, 1991) (in response to alleged recruitment
violations).
referred to documents not in evidence,
Leyva Architectural Staff and Stone, 89-INA-288
(Mar. 18, 1991) (employer referred to a non-existent letter
concerning the prevailing wage issue).
made unsupported assertions,
Sun Valley Co., 90-INA-391 and 90-INA-393 (Jan.
6, 1992) (employer challenged CO's prevailing overtime wage
determination; the record did not support the employer's
contention that no overtime would be worked).
Sun Valley Co., 90-INA-394 (Jan. 6, 1992)
(failure to document experience requirement for other
employees hired by the employer).
or failed to produce any new evidence.
Sun Valley Co., 90-INA-391 and 90-INA-393 (Jan.
6, 1992) (employer offered no evidence challeng-ing the CO's
prevailing overtime wage determination).
Ted Tokio Tanaka Architect, 88-INA-334 (June
27, 1989) (rebuttal that does no more than cite to clearly
inadequate data already in the record is, in effect, no
rebuttal at all).
An employer's inadequate rebuttal may be excused where it
was not provided with sufficient notice of the alleged defect,
such as where the NOF was ambiguous, see Chapter 17, II
(Notice of Findings), or where the CO introduced new evidence, or
new argument for the first time in the FD, see Chapter 12,
C, 2 adn 12, D, 2 (Final Determination).
Seealsosupra Division II, G, 3, d in
regard to an untimely rebuttal resulting from inadequate notice
of the alleged deficiencies.
The regulations at 20 C.F.R. § 656.25(c)(3) require
that the CO specify a date thirty-five calendar days after the
issuance of the NOF by which an employer must mail its rebuttal
evidence.
The NOF must specifically and explicitly set forth the
deadline for receipt of rebuttal evidence. Failure to do so by
the CO is grounds for remand for consideration of
"untimely" rebuttal. J. Michael & Patricia
Solar, 88-INA-56 (Apr. 6, 1989) (en banc).
The Board has applied § 18.4 of the Rules of Practice
and Procedure for Administrative Hearings Before the Office of
Administrative Law Judges, 29 C.F.R. Part 18
to calculate the time period for filing a timely rebuttal. Thus,
where the CO improperly failed to consider rebuttal evidence
which was due on a Saturday, but filed on the following Monday,
the case was remanded for consideration of the evidence. The
panel held that 29 C.F.R. § 18.4(a), which states that the
next business day is included in a time period which expires on a
Saturday, Sunday, or federal holiday, is applicable to the
computation of time for submitting rebuttal in labor
certification proceedings. Famous Brothers Jewelers,
90-INA-34 (July 18, 1991).
CompareDelmar Family Dental Center, 88-INA-132
(Sept. 26, 1988) (en banc), discussed in Chapter 24, II, B
(Request for Administrative-Judicial Review), holding that 29
C.F.R. § 18.4(c)(3) does not extend the deadline for filing
requests for review to forty days after the date of the Final
Determination because the labor certification regulation
specified thirty-five calendar days.
Where the FD is based on untimely rebuttal, the employer
obviously has had no prior opportunity to submit evidence to
support a contention that it filed a timely rebuttal, and it is
an abuse of discretion for the CO not to reconsider. See
Chapter 22, VI, B, 2 (Reconsideration by CO).
Section 656.25(c) directs the CO to advise the employer in
the NOF that rebuttal evidence or argument must be mailed to the
CO, by certified mail, before a specified date thirty-five
calendar days from issuance of the NOF. The requirement for
submitting documentation by certified mail is not a mere
technicality, but rather an important provision designed to
prevent disputes over whether a rebuttal was timely mailed.
Park Woodworking, Inc., 90-INA-93 (Jan. 29, 1992) (en
banc).
In Engineering Measurement Co., 90-INA-171 (Mar. 29,
1991), a panel found that an employer's affidavit that rebuttal
was mailed timely was credited, and case was remanded to allow
readvertisement. The decision in this case, however, appears to
have been based on a liberal interpretation of the manifest
injustice standard, and may be disapproved under Park
Woodworking, Inc., 90-INA-93 (Jan. 29, 1992) (en banc)
(seesupra Division II, G, 3, b).
An employer may rely on its own written assertion and
a signed and date-stamped certified mail receipt to establish
that the CO received a complete copy of its rebuttal. Facets
Trading Corp., 88-INA-357 (June 27, 1989).
Rebuttal is untimely if it is sent to the state job service
rather than to the CO. Torres Discount Radiator,
88-INA-324 (Feb. 7, 1990).
It has been held in one case, however, that even though the
employer sent recruitment data to the state agency, rebuttal was
timely because the employer had also sent a timely letter
outlining its recruitment efforts to the CO. Caleb Brett
U.S.A., Inc., 87-INA-596 (June 27, 1988).
Similarly, in a case where the employer mistakenly sent
rebuttal to the state job service within the rebuttal period, but
attempted to rectify the mistake promptly, and the possibility
existed that the CO would have accepted the rebuttal had the
rebuttal evidence been attached to the employer's request for
reconsideration, and the CO failed to rule on the motion for
reconsideration, the Board remanded to the case to the CO for
reconsideration on the merits. Cynthia Kincaid, 88-INA-320
(June 14, 1989).
The employer has the burden to inform the CO or the state
job service of a change of address in timely fashion. In one case
a denial of labor certification on the ground of untimely
rebuttal was affirmed where both the employer and the alien
changed addresses and had not received a copy of the NOF.
Robert Longo, 88-INA-378 (July 20, 1989).
The regulations specify that an employer's failure to file a
rebuttal in a timely manner:
converts the NOF into an FD denying
certification,
constitutes a refusal to exhaust all
administrative remedies, and
bars access to Board review.
20 C.F.R. § 656.25(c)(3)(i)-(iii).
Labor certification was properly denied where the employer
filed rebuttal after the 35-day deadline with no excuses or
justification offered. Euroden, 92-INA-246 (June 2,
1993). See alsoMetro Software, Inc., 93-INA-478
(Mar. 31, 1994).
In Madeleine S. Bloom, 88-INA-152 (Oct. 13, 1989)
(en banc), recon. den. (Dec. 20, 1989) (per
curiam), the Board held that the requirement of filing a rebuttal
within thirty-five days was neither jurisdictional nor
unwaivable, and does not preclude it from considering a request
for review in appropriate circumstances. In other words, the
Board held that it possesses the authority to review denials
based on late rebuttals despite the regulation explicitly
prohibiting such review. This holding rests on a distinction
between unwaivable statutory or jurisdictional time limits and
the procedural rules of courts and administrative agencies which
may be waived in appropriate instances.
In Madeleine S. Bloom, 88-INA-152 (Oct. 13, 1989)
(en banc), recon. den. (Dec. 20, 1989) (per
curiam), the Board held that the failure to file a timely
rebuttal may be excused where the facts require extraordinary
relief to avoid manifest injustice. In Bloom the NOF
raised a single issue -whether the alien had a driver's license
as required by the job offer. The employer promptly gave her
attorney evidence establishing that the alien had a valid
driver's license; however, because of attorney absconded,
abandoning his law practice without the employer's knowledge,
this evidence was not filed with the CO. Noting that had this
evidence been timely filed labor certification would have been
granted, the Board determined that the ends of justice would not
be served by mechanical adherence to filing requirements. Simply
put, the Board concluded that an employer should not be made to
suffer the consequences of her attorney's negligence. The Board
emphasized, however, that regulatory deadlines would only be
tolled in those rare instances in which failure to do so would
result in manifest injustice.
In each of the cases regarding untimely rebuttal decided
after the strict construction of Bloom announced in
Park Woodworking (seesupra Division II, G,
3, b), the Board has found that the facts did not present one of
the rare instances requiring extraordinary relief from the
regulatory deadline to avoid manifest injustice. In all of the
following cases it was noted that the CO had raised a substantive
violation of the regulations rather than merely requested the
provision of a particular document that would perfect the
application as in Bloom.
Harry and Kim Kaczor, 90-INA-288 (Mar. 31,
1992) (oversight by the employer's counsel in calendaring
the rebuttal deadline and the failure of the employer or
employer's counsel to request a further extension (one
having already been granted) because of an alleged delay in
obtaining tear sheets to document readvertisement).
Modern Wheels, 90-INA-390 (Mar. 31, 1992)
(filing of a request for an extension to readvertise with a
higher prevailing wage followed by a failure to take further
action).
Rayonier C & C Ltd., 90-INA-339 (Mar. 20,
1992) (rebuttal documentation submitted one day late,
counsel admitted error but asked that his client not be
penalized).
Empire Pump & Motor Corp., 90-INA-588 (Mar.
20, 1992) (employer assertedly made inadequate attempts to
file a timely rebuttal; fact that it did so without
assistance of counsel was of no consequence since the
employer is responsible for submitting a timely rebuttal
with or without assistance of counsel; employer did not
provide certified mail receipts to establish timely
filing).
Equitable Insurance Co., 91-INA-32 (Mar. 20,
1992) (mailing of rebuttal to the state agency rather than
the CO; NOF clearly stated that the rebuttal was to be
submitted to the CO and not the state agency). To the same
effect: Gibson, Dunn & Crutcher, 91-INA-279 (Mar.
20, 1992).
SeealsoPark Woodworking, Inc., 90-INA-93
(Jan. 29, 1992) (en banc), discussed in detail at Division
II, G, 3, b of this Chapter.
One panel distinguished Madeleine S. Bloom,
88-INA-152 (Oct. 13, 1989) (en banc), recon.
den. (Dec. 20, 1989) (per curiam), in dismissing a request
for review where the employer was granted four extensions of
time, but still filed a late rebuttal. The panel held that the
unfamiliarity of employer's attorney's secretary with the firm's
postage meter or mailing procedures was not a "rare instance
in which failing to toll the regulatory deadline would result in
manifest injustice." Thomas Beard, 89-INA-191 (Mar.
28, 1990); compareEngineering Measurement Co.,
90-INA-171 (Mar. 29, 1991) (manifest injustice held to apply
where the rebuttal submission was returned due to insufficient
postage; query whether this holding is disapproved under Park
Woodworking).
In Spie Tool Co., 89-INA-50 (May 20, 1990), a panel
held that Bloom could be distinguished where the employer
requested and received two extensions of time in which to file
its rebuttal, and employer failed to file its rebuttal until two
months after the final extension date. The panel found that
failure to toll the regulatory deadline would not result in
manifest injustice. The panel found no merit in excuses offered
by employer's counsel, holding that termination of employer's
previous counsel's law practice did not excuse the late filed
rebuttal as employer's vice president was presumably informed by
the CO of both extensions of time.
In Neptune Research & Development, Inc.,
89-INA-75 (Feb. 1, 1990), waiver of the rebuttal deadline was not
appropriate under the manifest injustice test based where an
extension of time to file a rebuttal was not requested because
counsel was newly retained.
In the following cases an untimely rebuttal was excused
based, at least in part, on an inadequate notice to the employer
of the deficiency. It is unclear whether these cases would be
disapproved under Park Woodworking, Inc., 90-INA-93 (Jan.
29, 1992) (en banc); however, they arguably have vitality
because of the inadequate notice factor.
In Buena Vista Landscape, 90-INA-392 (July 9, 1991)
(en banc) (per curiam), the Board excused the employer's
failure to rebut a supplementary NOF. The Board did not accept
the Solicitor's argument that the Madeleine S. Bloom,
88-INA-152 (Oct. 13, 1989) (en banc), recon.
den. (Dec. 20, 1989) (per curiam), standard should not
apply because the employer failed to submit any rebuttal (in
Bloom rebuttal was submitted, albeit untimely). Factors
considered included the employer's timely rebuttal to the first
NOF, the obscurity of the supplemental NOF, the de minimis
nature of the alleged violation, the high probability that
certification would have been granted had the overtime rate been
properly calculated, the employer's good faith efforts in
recruitment by offering a wage above the prevailing wage, and the
fact that there were no U.S. applicants for the job despite the
wage offer made above the prevailing wage.
In Alfred Paquette, 89-INA-350 (Feb. 8, 1991), the
panel found that the regulatory deadline for filing rebuttal
should be tolled where the employer's attorney, through no fault
of his own, did not receive the NOF until after the FD, and the
CO had acknowledged in the NOF that there was no defect in the
application or recruitment but had requested an administrative
adjustment to the wage offer (that was probably not required
under the regulations in any case). The late arrival of the NOF
was possibly caused by the postal service's repeated confusion
over the attorney's mailing address.
CompareValle Verde Retirement Homes,
89-INA-356 (Feb. 8, 1991) (despite confusion over address of new
attorney, the record did not support her claim that she did not
receive the NOF until after the expiration of the rebuttal
period).
SeealsoGary Cooper/Roy Berman
Construction, 90-INA-312 (Oct. 25, 1991) (where it appeared
that the employer did not timely receive a copy of the response
to its motion to reopen and allow the submission of additional
evidence (and where that response allowed the employer to submit
further documentation), the employer's failure to submit rebuttal
was not a basis for denial of the application).
Seealso the cross references supra
Division I, C relating to inadequate rebuttal resulting from
inadequate notice of the deficiency. Seealso II, E
of this Chapter regarding the employer's failure of informing the
CO of an address change of address.
The CO moved for reconsideration of Madeleine S.
Bloom, 88-INA-152 (Oct. 13, 1989) (en banc),
recon. den. (Dec. 20, 1989) (per curiam), asking
that the Board clarify what it perceived to be an inconsistency
between the "abuse of discretion" standard and the
"manifest injustice" standard.
Prior to Bloom, the Board had consistently used
an
"abuse of discretion" standard in reviewing a CO's
denial of labor certification based on an employer's failure to
file a timely rebuttal to the NOF. See, e.g.,
Polytex Fibers Corp., 87-INA-597 (Feb. 7, 1989) (en
banc) (CO did not abuse his discretion by failing to grant a
second extension of time to file a rebuttal to the NOF which was
received only the day before the extended rebuttal deadline);
Augusta Bakery, 88-INA-297 (Jan. 12, 1989) (en
banc), aff'dAugust Bakery v. Elizabeth Dole,
No. 89 C 686 Civil (E.D. Ill. May 7, 1990).
In an Order denying reconsideration, the Board found that
the two standards are not inconsistent, but instead are related.
It stated that a CO's refusal to waive or extend a
nonjurisdictional regulatory deadline generally will not
constitute an abuse of discretion, but that when it is apparent
that the CO's refusal to waive or extend a nonjurisdictional
regulatory deadline will result in manifest injustice, a
determination that the CO has abused his or her discretion is
appropriate. Madeleine S. Bloom, 88-INA-152 (Dec. 20,
1989) (per curiam order denying reconsideration).
In Augusta Bakery v. Elizabeth Dole, No. 89 C 686
Civil (E.D. Ill. May 7, 1990), aff'gAugusta
Bakery, 88-INA-297 (Jan. 12, 1989) (en banc), the
district court approved the Board's denial of the CO's motion for
reconsideration of Madeleine S. Bloom, 88-INA-152 (Oct.
13, 1989) (en banc). The CO had argued that Bloom
was inconsistent with Augusta Bakery. The court agreed
that the facts of Bloom and Augusta Bakery were
distinguishable, noting that the employer's excuse for not filing
rebuttal in Augusta Bakery were "meager and totally
unexplained."
Section 656.25(c)(3) provides that the employer may within
thirty-five calendar days from the date of the NOF submit
documentary evidence to cure the defects found to exist. This
regulation, however, does not make the NOF automatically final
where certification is not accomplished within the allotted time.
Technical Assistance Guide No. 656 provides that upon good cause
shown, a CO may grant an extension of time. Requests for
extensions should be submitted in writing prior to the expiration
of the thirtyfive days. Barbara Friedman, 89-INA-220 (Dec.
5, 1990).
While the grant of an extension of time for filing a
document is within the CO's discretion, it is an abuse of
discretion to deny an extension without regard to the facts and
explanations of the parties. Barbara Friedman, 89-INA-220
(Dec. 5, 1990). In Friedman, the employer's agent had
submitted a written request for an extension to file rebuttal
because a document concerning the alien's experience had been
lost. Subsequently obtained documentation (from a different
source) clearly established the alien's qualifications for the
job. The panel held that under the particular facts of that case,
it was an abuse of discretion to deny the extension without
explanation.
Where an employer makes a timely rebuttal, but notifies the
CO that it cannot complete corrective actions required by the NOF
within the thirty-five day rebuttal period, it is an abuse of
discretion to require completion of the corrective action within
the thirty-five day period. Professionals Associated
Construction Layout & Survey Co., Inc., 90-INA-581 (Oct.
25, 1991); Alabama Reweaving Co., 88-INA-294 (June 2,
1989). For example, it is an abuse of discretion to deny an
extension of time to complete rebuttal
where additional recruitment efforts can not be completed
within the thirty-five day rebuttal period,
See Chapter 19, IV, H (Recruitment
Efforts).
where additional time is needed to complete a wage survey in
a prevailing wage dispute,
See Chapter 18, IV, E (Prevailing Wage).
where necessary documentation must be obtained from a distant
country,
William and Daneen Miller, 89-INA-30 (June 12,
1990) (where the employer filed a partial rebuttal to the
NOF, and requested an extension of time to file further
rebuttal evidence, which was being obtained from Trinidad,
the Board held that the CO's failure to grant the extension
of time was unreasonable).
and where the employer offers to conform to the NOF if the CO
is not persuaded by its rebuttal argument.
See Chapter 12, III, A (Final Determination);
Chapeter 18, IV, F.
Generally, the Board will affirm a CO's refusal to consider
an employer's untimely rebuttal to the NOF where the employer
failed to request an extension of time (or otherwise notify the
CO that complying with the NOF would take longer than thirty-five
days) or where the CO properly denied an extension request.
Augusta Bakery, 88-INA-297 (Jan. 12, 1989) (en
banc), aff'dAugusta Bakery v. Elizabeth Dole,
No. 89 C 686 Civil (E.D. Ill. May 7, 1990); Commercial
Graphics, Inc., 90-INA-114 (July 15, 1991) (no extenuating
circumstances, CO refused to grant extension); Blarney Stone
Bar & Restaurant, 90-INA-67 (Mar. 27, 1991); Pilch,
Inc., 89-INA-252, 89-INA-253 and 89-INA-254 (Mar. 27, 1991);
Sam Telegadis, 89-INA-305 (Feb. 8, 1991); Western
Waterproofing Co., Inc., 88-INA-514 (Oct. 5, 1989);
Ninfas's Inc., 88-INA-473 (July 17, 1989).
Where the employer merely makes a bold assertion in its
rebuttal letter that additional documentation would be submitted
at some future time, and such evidence does not relate to
corrective action required by the NOF that could not possibly be
completed prior to the expiration of the rebuttal period, the
assertion is not equivalent to requesting an extension of time to
file complete rebuttal. Neptune Research & Development,
Inc., 89-INA-75 (Feb. 1, 1990); seealsoCharleedane Industries, 88-INA-69 (Apr. 9, 1990).
When the due date for rebuttal comes, it is the employer's
burden to inquire as to the status of an outstanding request
extension. Mr. & Mrs. Walter Morgan, 88-INA-446 (Feb.
22, 1990). The CO, however, cannot lead the employer to believe
that he or she is amenable to leaving the case open for
completion of re-recruitment and then deny certification when the
employer inquires into the status of the case. Barrister's
Associates, Inc., 89-INA-117 (Feb. 12, 1990).
In Barrister's Associates, the employer had
made a timely rebuttal and notified the CO that completion
of readvertising would be completed several months later
because of the time involved in advertising in a monthly
publication. The panel stated that although an employer
cannot set its own timetable, where the CO did not impose a
deadline, it was an abuse of discretion to issue a FD one
week after the date on which the employer had inquired as to
the status of the case on the ground that the employer had
failed to complete its rebuttal within a reasonable amount
of time. The panel indicated that the employer was entitled
to be informed of a definite date by which its entire
rebuttal was due.
Similarly, where the CO may have informally granted an
extension of time to file a rebuttal and the employer was relying
on that informal extension in good faith, the case
may be remanded for a determination of whether such an extension
had been granted. Modgraph, Inc., 88-INA-287 (Dec. 29,
1988) (en banc).