BALCA Benchbook - Chapter 18 Supplement (January 1997)

Thus, the panel concluded that the case need not be remanded, but that the denial of labor certification could be affirmed.

A panel reversed the denial of labor certification where the CO instructed that the petitioner contact at least six employers if it wished to submit its own wage survey, which the petitioner did and the CO then improperly rejected the survey because it was based on only six employers. Moreover, the panel noted that it was not clear whether the CO's survey was for the proper job category and "the record (did) not show how many . . . employees (in the CO's survey) were located in this Employer's area, or whether the jobs are comparable, or how up to date the survey was." Stuart Anderson Black Angus , 92-INA-336 (July 6, 1993).

Where Employer objected to the EDD's prevailing wage determination, but failed to meet its burden by demonstrations that its own wage was proper by submitting its own survey (ie. equaling or exceeding the prevailing wage) certification was properly denied. Crown USA, Inc ., 92-INA-198 (May 30, 1995)

Where employer seeks to challenge CO's prevailing wage determination, employer has burden or proving error and that his determination is correct. PPY, 88-INA-25 (May 31, 1989). Where employer submits only 3 tear sheets from other jobs, but does not prove that the other jobs are substantially similar to the position in question, employer has not proven error on part of CO, and employer may not refer to those tear sheets as indicative of prevailing wage in this position. General Grant Computer Resources , 94-INA-168 (June 27, 1995).

Employer failed to establish that the CO's prevailing wage determination was in error where its only argument was that it was not informed of any changes in the Occupational Title Code until it received the Notice of Findings, and that it relied on the approval of the State Office of its advertisements at a lower wage and different Occupational Title Code. Haricon Indus., Inc , 94-INA-135 (May 26, 1995).

An employer bears the burden of establishing both that the CO's determination is in error and that the employer's wage offer is at or above the correct prevailing wage. The employer's survey was insufficient because it did not identify the educational requirements for teachers in the pre-schools contained in the survey and there were some inconsistencies which raised serious questions regarding the validity of the survey itself and Employer did not even attempt to show how the CO's survey was flawed. It is the burden of the employer to show that its survey is valid and the CO's is not. Tyson's Corner Play & Learn Children's Ctr. , 94-INA-26 (July 19, 1995) (Huddleston, J. dissenting).

Where an employer challenges the CO's determination of a prevailing wage the employer bears the burden of either of establishing both that the CO's determination is in error and that the employer's wage offer is with 5% of the prevailing wage. See PPX Enter., Inc. , (May 31, 1989) (en banc). The Employer challenged the CO's prevailing wage determination for the position of housekeeper but used a different Metropolitan Statistical Area in the same survey. Certification was properly denied because, if the CO erroneously relied on the wage survey, it would also be wrong for Employer to do so. Yvonne Munoz , 94-INA-399 (Aug. 17, 1995).

Employer bears the burden of establishing that the CO's determination was in error and that its wage offer is at or above the correct prevailing wage. PBX Enter., Inc. , 88-INA-25 (May 31, 1989) (en banc). The Employer failed to meet this burden when in rebuttal it provided a listing of hourly salaries ranging from $5.85 to $10.00 for other employees in the organization (none of them in the position offered), when it stated that the Alien's wage for the position offered is fifty cents lower than the salary of "our lead person" because of lower job difficulty, and when Employer stated that it is a small company in a highly competitive field and adopting the wage structure would perturb the entire present salary structure and result in a burden for the company. The Employer supplemented its rebuttal taking issue with the CO's wage determination for the position of quality control inspector by challenging the CO's assertions that all its employees are underpaid, noting that it is not a high-priced aerospace company and the level of experience required to perform the parts inspection is not the extent demanded by the military or NASA. The Board reasoned that the Employer's submissions were not a wage survey because they did not measure the average rate of wages of employees similarly employed and it only included the Employer's own pay scale for positions different from the 1 in question. Micron Instruments , 94-INA-482 (Feb. 23, 1996).

Employer sought certification for the position of "Chef, Macrobiotic food" and offered a wage of $480 per week while the prevailing wage for a chef was $714.10 per week. The Employer required, inter alia, 2 years experience in the job offered or, in the alternative, 2 years of "any specialty cook" experience. The CO issued a NOF proposing to deny alien labor certification. In rebuttal, Employer contended that Macrobiotic restaurants were in a class of their own for prevailing wage determinations because of their limited cuisine, limited clientele, small size and adherence to concepts which rule out serving alcoholic beverages. The CO denied certification and the Board affirmed. Citing Kevin Nealis , 92-INA-429 (Sept. 30, 1993)(en banc), it reasoned that an employer challenging a prevailing wage determination bears the burden of establishing both that the CO's wage determination was in error and that the Employer's wage rate is at or above the prevailing wage rate. It noted that the purpose of the prevailing wage was to establish a minimum level of wages for workers employed in jobs requiring similar skills and knowledge levels in a particular locality. Here, Employer did not established that the skills and knowledge necessary to perform the job of "Chef-Microbiotic food" are sufficiently dissimilar from the skills required in ordinary restaurants. Indeed, Employer specified as alternative required job experience in Form ETA 750A 2 years of "any specialty cook," which suggested to the Board that icrobiotic cuisine is not sufficiently dissimilar from other kinds of cuisine. Ozu ariko Corp ., 94-INA-523 (Jan. 13, 1997)

Employer sought certification for the position of Cost/Budget Comptroller and offered the wage of $3,400 per month. The CO determined that the prevailing wage was $4,929. After the CO issued a NOF proposing to deny certification due, inter alia, to the low wage, the Employer rebutted. The Employer argued that, according to the Occupational Outlook Handbook (calculating the median annual salary for financial managers at $35,800), an unrelated BALCA case (There, certification was granted for the position of Treasurer at a monthly salary of $2,800) and the state job service (who, according to Employer, determined that $2,800 monthly was the prevailing wage), the offered salary was at or above the prevailing wage and that the wage offered was reasonable. The CO denied labor certification, arguing that the OOH could not be used because it did not cover the specific area of the intended employment and that Employer had not demonstrated that its wage was more accurate than the survey cited by the job service. Citing Science General Aerospace Corp ., 88-INA-480 (Jan. 11, 1990)(denying certification where, subsequent to an employer's being notified that its wage offer falls below the prevailing wage, it fails to either raise its wage offering or justify its offered wage), the Board affirmed the denial of certification. The Board indicated that employer had not satisfied its burden . See PPX Enter., Inc ., 88-INA-25(May 31, 1989)(en banc)(placing the burden on Employer to show that the CO erred or that the Employer's wage is, in reality, at the prevailing wage). It did, however, reason that Employer's own wage calculation was flawed because the OOH is not in the specific area of intended employment (rather, it is a nationwide survey), because "financial managers" is an overly broad category, because the wage determination in the unrelated BALCA case was dated in 1990 (not necessarily a good indicator for the present), and because the state job service determination of the prevailing wage ($2,800 per month) contained no experience requirement, and naturally contained a lower prevailing wage. Camcot, Inc., d/b/a Camcot Cooling Tower Co. , 95-INA-113 (Jan. 2, 1997)