RECONSIDERATION BY CO
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TABLE OF CONTENTS
Statement of whether motion is
granted or denied
Summary denial of motion
Ambiguity concerning whether motion
Scope of CO's discretion
Newly obtained evidence
Certifying Officers have the authority to reconsider a FD prior to its becoming final. Harry Tancredi , 88-INA-441 (Dec. 1, 1988) ( en banc ); Royal Antique Rugs, Inc. , 90-INA-529 (Oct. 30, 1991).
Since a FD becomes the decision of the Secretary if a request for review is not mailed within thirty-five calendar days of the issuance of the FD, §§ 656.25(g)(2)(iv), 656.26(b)(1), the CO has the authority to reconsider the FD only within this thirty-five day time limit. Harry Tancredi , 88-INA-441 (Dec. 1, 1988) ( en banc ); Charleedane Industries , 88-INA-69 (Apr. 9, 1990).
It appears that Tancredi means that if a motion to reconsider is made during the thirty-five day period following issuance of the FD, the motion is timely and the CO has authority to rule on the motion even though the ruling is not made until after the thirty-five day period. See , e.g. , Royal Antique Rugs, Inc. , 90-INA-529 (Oct. 30, 1991) (motion made during thirty-five day period "timely").
The CO has the authority to rule on whether a request for reconsideration was timely. International Dadlani, Inc. , 90-INA-250 (Apr. 27, 1990) (order of remand). This is in contrast to a request for review: the CO does not have authority to rule on whether request for review was timely. See id .
If a timely motion for reconsideration of the CO's FD is made, the CO must decide whether that motion will be granted or denied. Failure by the CO to rule on such a motion will result in a remand by the Board. Charles Serouya & Son, Inc. , 88-INA-261 (Mar. 14, 1989) ( en banc ); Harry Tancredi , 88-INA-441 (Dec. 1, 1988) ( en banc ); Moffitt and Duffy, Inc. , 91-INA-149 (Apr. 8, 1991) (per curiam); American Telephone & Telegraph Co. , 90-INA-567 (Jan. 9, 1991) (order of remand); Saga Transport, Inc. , 89-INA-248 (Oct. 29, 1990); H.M. Carpet , 90-INA-398 (Aug. 14, 1990) (order of remand).
The Board, in Richard Clarke Associates , 90-INA-80 (May 13, 1992)(en banc), concluded that "the CO is required to stated clearly whether he has denied an employer's request for reconsideration . . . or has granted the request and, upon reconsideration, affirmed the denial of certification."
A CO is not required to reconsider a denial of certification whenever a motion to reconsider is filed. Harry Tancredi , 88-INA-441 (Dec. 1, 1988) ( en banc ). There may be occasions when the CO may summarily dispose of a request for reconsideration; however, under some circumstances he or she may be required to state the reasons for the determination. Linen Star , 90-INA-438 (Dec. 7, 1990) (en banc order of remand). For example:
- In The Weck Corp. (d/b/a Gracious Homes) , 90-INA-76 (Mar. 26, 1990), where the employer stated in its request for reconsideration that its failure to delete various job duties on rebuttal was an oversight, and where the record tended to support that contention, it was inappropriate for the CO to reject summarily the employer's reconsideration request, particularly where the employer's offer to delete appeared to cure the sole basis for the denial of certification.
When an employer makes a good faith effort to clarify its positions in its request for reconsideration, the CO must show that she thoughtfully considered the request rather than summarily dismissing it. Richard Clarke Associates , 90-INA-180 (June 6, 1991) (en banc review pending).
See also Lori Singer , 90-INA-342 (May 20, 1991) (CO abused his discretion by summarily denying the employer's motion for reconsideration where the employer attempted to comply with the CO's directive but used slightly faulty wording in describing the work hours and overtime pay).
One panel remanded a case to the CO where the CO had lost the file, including a letter from the employer to the CO which may have included a request for reconsideration, where independent evidence indicated that the employer had sought reconsideration but misnamed it "rebuttal," and where the appeal file did not include a legible NOF or second NOF. Amtrade Commodities , 88-INA-369 (June 22, 1989).
Where a motion to reconsider is grounded in allegations of oversight, omission or inadvertence by the CO which, if credible, would cast doubt upon the correctness of the FD, and the employer had no previous opportunity to argue its position, the CO should reconsider his or her decision. Harry Tancredi , 88-INA-441 (Dec. 1, 1988) ( en banc ) (where the FD is based on untimely rebuttal the employer obviously has had no prior opportunity to contend it filed a timely rebuttal).
A CO may deny a timely motion for reconsideration of a FD because it is based on new evidence that should have been presented as part of the employer's rebuttal to the NOF. Royal Antique Rugs, Inc. , 90-INA-529 (Oct. 30, 1991). The CO is not required to accept the validity of evidence submitted on reconsideration and change the outcome of the case. Harry Tancredi , 88-INA-441 (Dec. 1, 1988) ( en banc ).
If the CO summarily denies a motion to reconsider that is based on new or additional evidence, however, it may present a problem for the Board's review of the case if it does not reveal whether the CO considered evidence submitted with the motion. Lee Baron Fashions, Inc. , 89-INA-263 (Apr. 22, 1991). Although evidence obtained and submitted after issuance of the FD is generally not part of the record for review, where the CO does in fact consider evidence submitted with a motion to reconsider, such evidence may be considered by the Board on appeal. See Chapter 26, III, B, 1 (Scope of Board Authority, Jurisdiction and Review).
Where evidence submitted with a timely motion for reconsideration was not available during the rebuttal period, it may be an abuse of discretion for the CO not to reconsider. For example, in Royal Antique Rugs, Inc. , 90-INA-529 (Oct. 30, 1991), the employer did not have complete financial data to show sufficiency of funds at the time of the rebuttal because it was a new enterprise.
If the employer did not have a prior opportunity to present evidence to support its position, it is an abuse of discretion for the CO not to reconsider. For example, 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, Harry Tancredi , 88-INA-441 (Dec. 1, 1988) ( en banc ).
On several occasions, the Board has reversed the FD and granted labor certification rather than remand to the CO where the CO has been recalcitrant or unreasonable in refusing to consider evidence that could not have been obtained during the rebuttal period, where the motion is meritorious and further factfinding is not needed to grant certification:
Royal Antique Rugs, Inc.
, 90-INA-529 (Oct. 30,
1991) (Board had previously remanded for CO to rule on a
motion to reconsider; CO ruled that he did not have the
authority to reconsider and that the new evidence would not
change the FD; the panel reviewed evidence filed with motion
that was not available during the rebuttal period and found
that it cured the only deficiency cited by the CO).
- Lee Baron Fashions, Inc. , 89-INA-263 (Apr. 22, 1991) (employer had requested an applicant to send a copy of his resume, but the applicant did not send it until after the rebuttal period; CO summarily dismissed motion for reconsideration so Board could not know whether he considered the new evidence; panel reviewed the resume and found that it established that the U.S. applicant was not qualified).
When an employer offers to acquiesce to the CO's position if the clarification presented in a motion to reconsider is not accepted, the CO cannot meet the offer with silence but must state reasons for refusing it. Richard Clarke Associates , 90-INA-180 (June 6, 1991) ( en banc review pending).
See also H M Carpet , 90-INA-398 (Aug. 14, 1990) (order of remand) (employer offered in timely motion for reconsideration to amend application to pay for overtime as needed).