BALCA Benchbook - Chapter 19 Supplement (January 1997)

Employer asserted that the rebuttal letter was timely filed as it was dated prior to the expiration of the rebuttal deadline. However, the certified mail receipt was not postmarked until after the deadline had passed. Condor Driving Sch. , 91-INA-64 (May 5, 1992).

Rebuttal sent to an incorrect address will not toll the deadline as the NOF clearly set forth the CO's address and "it is incumbent upon Employer to submit rebuttal documentation at the listed address." Miles Bros. & Co. , 91-INA-48 (May 1, 1992).

The employer's counsel asserted that the regulatory deadline was missed to due his "military obligations" yet he failed to document that such obligations were unexpected, of excessive duration, or that they occurred prior to issuance of the NOF such that he did not know of the rebuttal deadline. Anthony N. Lopez , 90-INA-420 (Mar. 31, 1992).

Submission of an untimely rebuttal "as a result of a delay in obtaining tear sheets as well as an oversight in calendaring the rebuttal deadline" will not support a finding that the regulatory deadline should be tolled. The panel noted that, although the delay in obtaining the tear sheets may have beyond Employer's control, it should have requested an extension of time prior to passage of the rebuttal deadline. Harry & Kim Kaczor , 90-INA-288 (Mar. 31, 1992). Seealso Modern Wheels , 90-INA-390 (Mar. 31, 1992); Raj Kapoor , 93-INA-536 (Feb. 8, 1994)(inadvertence by counsel).

The fact that Employer was not represented by counsel at the time it filed the untimely rebuttal will not result in the tolling of the deadline. Empire Pump & Motor Corp. , 90-INA-588 (Mar. 20, 1992).

The deadline is not tolled because rebuttal is filed one day late as "[t]he standard in Bloom does not address the mere fact that rebuttal documentation is filed late; rather, it addresses the circumstances surrounding the late filing which, in Bloom , resulted in a manifest injustice." Rayonier C&C Ltd. , 90-INA-339 (Mar. 20, 1992).

Failure to file a rebuttal will result in a denial of labor certification. Harbor Bay Indus. Clinic , 91-INA-170 (July 9, 1992).

The rebuttal deadline, which was extended by the CO, was not tolled where Employer asserted that it "continued working with the state agency in good faith to correct the deficiencies noted in the NOF." The panel determined that it was incumbent upon Employer to advise the CO of the status of its recruitment efforts prior to expiration of the extended . . . deadline." Global Software, Inc. , 89-INA-157 (May 27, 1992).

The rebuttal deadline was not tolled where Employer's new counsel asserted that the delay in the submission ofrebuttal documentation was due to the incompetence of the employer's "agent" who previously represented Employer in the labor certification process. Cristina cGinniss , 91-INA-191 (June 30, 1992).

The rebuttal deadline was not tolled where counsel for Employer merely asserted that he "had to search for records which were over a year old" and the employer's "record keeping system was a mess . . .." Panson Electronics , 92-INA-163 (Dec. 11, 1992).

Labor certification was properly denied where employer's counsel asserted that he submitted a timely extension request by regular mail and, therefore, should be permitted to file a rebuttal. Because the request was not filed via certified mail, Employer could not document such a timely filing and labor certification was properly denied. Gabai Constr., Inc. , 92-INA-335 (Aug. 17, 1993); See also Casa De Montessori , 92-INA-105 (Jan. 5, 1994)(no tolling where there is no independent documentation of timely rebuttal and no egregious conduct shown); Comprehensive Specialists Medical , 91-INA-370 (Jan. 14, 1994)(employer chose not to follow the certified mail procedures specified in the regulation); Rolando Tamayo , 93-INA-96 (Feb. 8, 1994).

The rebuttal deadline was not tolled where Employer failed to submit a timely extension request because it "assumed" that the CO and State job service were communicating with each other regarding the processing of the labor certification application. Ed Moger, Jr. , 92-INA-387 (Aug. 17, 1993).

Labor certification was properly denied where the employer failed to submit the posting notice with its recruitment report. The panel noted that, even though the posting notice was the only documentation lacking, "under the Board's holding in Park Woodworking , this case lacks the egregious conduct needed to toll a regulatory deadline." Michael Sussman , 93-INA-200 (Aug. 17, 1993).

Labor Certification was properly denied where the employer filed a second extension request which was denied by the CO and it merely asserted that it " would have submitted rebuttal documentation had it known the second extension request was to be denied." The panel concluded that Employer improperly relied on "the granting of a discretionary extension." Blood Center of South Eastern Wisconsin , 93-INA-29 (Aug. 17, 1993).

That employer's counsel did not receive an answer to employer's second extension request and that the employer out of town tending her sick mother when rebuttal due did not establish manifest injustice. Marie Hume , 93-INA-317 (Jul. 18, 1994).

Where attorney, without consulting employer, submitted rebuttal evidence failing to address one of the two deficiencies cited in the NOF, such actions, while arguably negligent, do not constitute the of egregious conduct required by Park Woodworking . Andin International, Inc. , 94-INA-128 (Dec. 5, 1994).

Labor certification properly denied for failure to file timely rebuttal to second NOF. In a per curiam decision the Board dismissed Employer's contention that so long as it adequately rebutted the first NOF, its failure to timely rebut the second NOF should not be counted against it. The Board found that the CO did not erroneously issue the second NOF and therefore, employer's failure to file a timely rebuttal is not excused based on manifest injustice. Tutu Park, LTD. , 93-INA-202 (Feb. 8, 1994).