Tel: 415/744-6577
Fax: 415/744-6569
DATE: FEBRUARY 8, 1995
CASE NO: 95-TLC-3
In the Matter of
MOUNTAIN PLAINS AGRICULTURAL SERVICES/
J.P. WERNER & SONS, INC.
Employers
DECISION AND ORDER
This action arises upon the Employer's request for review
pursuant to 20 C.F.R. 655.110 of the Certifying Officer's (CO)[1]
denial of a temporary labor certification for agricultural
employment. The application was submitted pursuant to
§212(a)(14) of the Immigration and Nationality Act of 1990
(Act) 8 U.S.C. §1182(a)(5)(A) and Title 20, Part 655 of the
Code of Federal Regulations (C.F.R.). Unless otherwise noted,
all regulations cited in this decision are in Title 20.
Under §212(a)(14) of the Act, as amended, an alien
seeking to enter the United States for the purpose of performing
skilled or unskilled labor is ineligible to receive labor
certification unless the Secretary of Labor has determined and
certified to the Secretary of State and Attorney General that, at
the time of application for a visa and admission into the United
States and at the place where the alien is to perform the work:
(1) there are not sufficient workers in the United States who are
able, willing, qualified, and available; and (2) the employment
of the alien will not adversely affect the wages and working
conditions of the United States workers similarly employed.
An employer who desires to employ an alien on a temporary
basis must demonstrate that the requirements of 20 C.F.R. Part
655 have been met. These requirements include the responsibility
of the Employer to recruit U.S. workers at the prevailing wage
and under prevailing working conditions through the public
employment service and by other reasonable means in order to make
a good faith test of U.S. worker availability.
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[PAGE 2]
This decision is based on the record upon which the CO
denied certification of the Employer's request for review as
contained in the Appeal File (AF) and any written argument of the
parties. 20 C.F.R. §655.112(a)(2).
Procedural History
Employer filed its application for alien employment
certification for "one unknown worker" on November 28, 1994. The
application was for the position of livestock worker. The position
required the applicant to be on call 24 hours a day and to perform
any combination of the following tasks: Attend to livestock on a
ranch. Feed and water livestock on range or at ranch headquarters.
Herd livestock to pasture for grazing. Examine animals to detect
diseases and injuries. Assist with the vaccination of livestock by
herding into corral and/or stall or manually restraining animal on
the range. Apply medication to cuts and bruises, spray livestock
with insecticide and herd them into insecticide bath. Confine
livestock in stalls, wash and clip them for and assist in the
delivery of offsprings. In addition, the Employer required that an
applicant must provide the name, address and telephone number of
the previous employer being used as a reference. When an applicant
has not worked as livestock worker during the past twelve (12)
months, up to two (2) references will be required. A minimum of
six months experience as a livestock worker is required.
On December 2, 1994 the CO notified the Employer that its
application had been accepted and advised the Employer of the
requirements which were necessary for it to be granted.
On January 11, 1995 Employer wrote to the CO notifying him of
its efforts to recruit U.S. workers for the job. The letter and
attachments indicated that these efforts were unsuccessful. On
January 11, 1995 the CO denied the application citing 20 C.F.R.
655.106(b)(1)(i) on the ground that a sufficient number of able,
willing, and qualified U.S. workers have been identified as being
available at the time and place needed to fill all of the job
opportunities for which certification has been requested.
Timeliness of Request For Review
The CO denied the application in a letter dated January 11,
1995. Employer filed its request for administrative judicial
review on January 27, 1995. 20 C.F.R. §655.110(a) provides
that a request for review shall be made within seven calendar days
of the notice of denial.
[PAGE 3]
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Employer contends that the request for review should be deemed
timely filed for the reasons which follow: (1) While the notice is
dated January 11, 1995, it was not served on Employer until January
19, 1995; (2) The portion of the notice dealing with appeal rights
was erroneous. It did not refer to a denial of the application but
referred to "the nonacceptance of the application."; (3) Efforts to
contact the CO on January 23, 1995 to request a new determination
(based on the erroneous notice of appeal rights) were unsuccessful
because the CO was in Washington, D.C. The CO returned the
telephone call the next day and advised Counsel for the Employer
that he would look into the matter when he returned from Washington
on January 30th; (4) On January 23, 1995 Employer made a telephone
request to the Regional Administrator's Office requesting a new
determination and on January 24th submitted that request in
writing; (5) On January 25th and 26th Employer's counsel spoke with
attorneys in the Solicitor's Office about the matter and on January
26th was advised that a request for a new determination was not
applicable to this case; and (6) The request for review was filed
on January 27, 1995.
The regulations provide that where an application for
temporary alien agricultural labor certification is denied the
employer shall be notified "by means reasonably calculated to
assure next day delivery." 20 C.F.R. §655.106(d). The record
indicates that the notice of denial was sent via Federal Express on
January 18, 1995. (AF 3.) The statement of appeal rights in the
notice was erroneous and misleading. It referred to the
nonacceptance of the application rather than a denial. Employer
and its counsel reasonably relied on the erroneous statement of
appeal rights. This is evidenced by the request for a new
determination filed on January 24th. This filing was within seven
days after the notice was actually sent. The request for judicial
review was filed one day after Employer was advised that this was
the appropriate remedy. Under the particular facts of this case,
I find that the request for administrative judicial review was
timely filed. American Farm Lines v. Black Ball Freight
Service, 397 U.S. 532, 537-39 (1970); J.Michael & Patricia
Solas, 88-INA-56 (Apr. 6, 1989) (en banc). The request for
review will be considered on its merits.
Discussion
The request for review is contained in a letter by counsel for
the Employer. The letter purports to state facts which were not
before the CO. It is well-settled that assertions of an employer's
[PAGE 4]
attorney that are not supported by underlying statements by a
person with knowledge of the facts do not constitute evidence.
Moda Lines, Inc., 90-INA-424 (Dec. 11, 1991); Mr. and
Mrs. Elias Ruiz, 90-INA-446 (Dec. 9, 1991); Personnel
Services, Inc., 90-INA-43 (Dec. 12, 1990). Furthermore, the
regulations preclude the
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receipt of additional evidence on review. 20 C.F.R. 655.112(a).
Therefore, I will not consider any asserted facts which were not in
the record before the CO.
As indicated, the CO determined that an able, willing and
qualified U.S. worker was available to fill the job opportunity for
which certification was requested and that there were not legal job
related reasons for rejecting the U.S. worker. (AF 1.) The worker
was identified as Lynette Garrison. Employer challenges the
determination on the grounds that: (1) Garrison was not qualified
for the position; and (2) Garrison had accepted other employment
and was not available to fill the position.
Employer is J.P. Werner & Sons, Inc. At all times here
involved, it was represented by its agent Mountain Plains
Agricultural Services, (MPAS), whose executive director, Oralia G.
Mercado, was the person who dealt with the certification
application.
On January 11, 1995 Mercado sent a letter to the CO which
detailed the results of Employer's recruitment efforts. (AF 6.)
With regard to Garrison, the letter stated that: The applicant's
experience was questionable in that she had worked with a herd of
approximate 100 cows. The applicant stated that she might not be
able to completely perform the duties of the position because of
the number of first-time-pregnancy heifers which would be in her
full care. "First-timers" require special skills, knowledge and
care which require the worker to deliver calves with an intensity
that she is not accustomed. Because she expressed doubt, MPAS did
not refer her to the employer. (AF 7.)
After receipt of Mercado's January 11, letter, the CO
contacted the Douglas, Wyoming Job Service Center, which had
referred Garrison to MPAS. The CO was advised by Betty Wilson of
the Job Service Center that she felt Garrison was qualified for the
job. (AF 4.) The CO contacted Garrison who stated that she was
qualified for the job and could have done it but was discouraged by
Mercado who told her she probably couldn't do it and it would be
[PAGE 5]
difficult for her because she was a woman and would have to sleep
in the bunkhouse. (AF 4.) It is unlawful to reject an otherwise
qualified applicant for employment on the basis of sex. 42 U.S.C.
§2000e-2; Therapy Connection, 93-INA-129 (June 30,
1994).
Finally, Employer contends that certification should be
granted because Garrison is working elsewhere and not available to
fill the job. The record indicates that Garrison would have taken
the job if it had been offered at the time she was interviewed by
Mercado but that she is now working elsewhere. (AF 4.) The fact
that an applicant is currently unavailable does not cure a
violation of rejecting the applicant for not legal job related
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reasons. 20 C.F.R. 655.106(b)(1)(i); Bruce A. Fjeld, 88-
INA-333 (May 26, 1989) (en banc); Suniland Music Shoppes,
88-INA-93 (Mar. 20, 1989) (en banc); Flushing Auto Service
Corp., 93-INA-204 (June 5, 1994).
I find that Employer has failed to carry its burden of proof
that Garrison was not able, willing, qualified or eligible because
of lawful job related reasons. 20 C.F.R. §655.106(i).
Order
The Certifying Officer's denial of temporary labor
certification for agricultural employment is affirmed.
___________________________
DONALD B. JARVIS
Administrative Law Judge
San Francisco, CA
DBJ/bg
SERVICE SHEET
CASE NAME: In the Matter of Mountain Plains Agricultural
[PAGE 6]
Services/J.P. Werner & Sons, Inc.
CASE NO: 95-TLC-3
TITLE OF DOCUMENT: DECISION AND ORDER
I hereby certify that on ______________________, a copy of the
above-entitled document was mailed to the following parties:
___________________________
BARBARA A. GARCIA
Administrative Law Judge
Luis Sepulveda Hardy L. Anderson
Regional Administrator Certifying Officer
U.S. Dept. of Labor U.S. Dept. of Labor
Employment & Training Employment & Training
Administration Administration
1999 Broadway, Suite 1780 1999 Broadway, Suite 1780
Denver, CO 80202-5716 Denver, CO 80202-5716
Oralia Mercado J.P. Werner & Sons/
Executive Director James Werner
Mountain Plains Agricultural 1713 Walker Crk. Rd.
Services Douglas, WY 82633
811 N. Glen Rd.
Casper, WY 82604
Anne B. Filbert, Esq. Louis D. Crosetti
Filbert & Associates, P.C. Associate Commissioner of
1050 17th St., Suite 1660 Examinations
Denver, CO 80265 Immigration & Naturalization
Service
425 I St., N.W.
Rm. 7252
Washington, D.C. 20536
Associate Solicitor for Office of the Solicitor
Employment & Training U.S. Dept. of Labor Legal
U.S. Dept. of Labor Rm. N-2101
Rm. N-2101 200 Constitution Ave., N.W.
200 Constitution Ave., N.W. Washington, D.C. 20210
Washington, D.C. 20210 Attn: Gary Bernstecker, Esq.
Administrator - U.S. Employment Tedrick Housh, Esq.
Service Regional Solicitor
Employment & Training Admin. U.S. Dept. of Labor - SOL
Rm. N-4456 1210 City Center Square
600 D St., N.W. 1100 Main St.
Washington, D.C. 20213 Kansas City, MO 64105
J. P. Werner & Sons, Inc.
c/o 811 N. Glen Rd.
Casper, WY 82602
[ENDNOTES]
[1] Part 656 of 20 C.F.R. refers to a "Certifying Officer" (20
C.F.R. §656.3) whereas Part 655 uses the term "Regional
Administrator" (20 C.F.R. §§ 655.92, 655.100). The
Regional Administrator may delegate this responsibility. The
parties refer to a CO and that terminology will be used in this
decision.
