October 2015
DNP America, LLC , 2012-PER-00335 (Oct. 6, 2015)
Issue – Experience in ads but not on 9089: Organization of Form 9089 Section H
Decision - CO Reversed
The CO denied the application because the newspaper advertisements contained a requirement for two years’ experience that the CO determined was not included on the Form 9809. In a motion for reconsideration, the employer argued that the experience requirement was identified on section H 10 of the Form which allows the employer to describe “alternative” experience. The CO rejected the argument although the reasons are unclear.
The Board (Romero, Kennington and Rosenow) reversed. While it was not clear, it appeared that the CO’s denial was based on the fact the employer did not include the experience requirement in section H 6 (Experience in the Job Offered). The Board accepted the employer’s argument that because the required experience was not “in the job offered” but rather was referenced “similar accounting experience,” it was properly located in H(10) rather than H(6). The decision also noted earlier decisions holding that employer would not be penalized because of deficiencies in the format of the Form 9089.
G.O.T. Supply, Inc. , 2012-PER-00429 (October 6, 2015)
Issue – Employer name in the NOF
Decision – CO Affirmed
The CO denied the application because the NOF did not include the name of the employer. On reconsideration the employer admitted that the company name was not included in the NOF but it had included the name of the company president which it said was the functional equivalent. The CO rejected that argument.
The Board ( Romero, Kennington and Rosenow) affirmed noting, particularly, that without the name of the employer it would be difficult for a person reading the NOF to identify the case to the CO if he desired to provide comments.
Guilbert Tex, Inc. , 2012-PER-00292 (Oct. 14, 2015)
Issue Issue - Incorrect PWD validity period; correction of typos
Decision - CO Affirmed
The CO denied the application because the prevailing wage validity period set out on the Form 9089 was less than 90 days. On reconsideration the employer argued that the date used on the form was a mistake and constituted harmless error. It also alluded to the PWD from the SWA which apparently had the correct date. The CO refused to reconsider.
The Board (Romero, Kennington and Rosenow) affirmed noting that the regulations require that applications be complete and that no changes to the application are permitted after filing. The decision also noted that the employer’s reliance on HealthAmerica was misplaced since the cited ruling in that case was superseded by 2007 regulatory changes.
Scorpio Realty Advisors , 2012-PER-00301 (Oct. 26, 2015)
Issue – Alien qualification for the position; change to Form 9089
Decision – CO Affirmed
The CO denied the application because the Form 9089 did not demonstrate that the alien possessed all the experience required for the position. On reconsideration the employer supplied a copy of the employer’s resume which demonstrated the necessary experience and suggested that there was some error in the preparation of the Form 9089. The CO affirmed the denial on the grounds that the regulations required the application to be evaluated as submitted.
The Board (Henley, Cowell and Almanza) affirmed. While the CO did not specifically cite 20 C.F.R. § 656.11(b) as the basis for not allowing amendments to the Form 9089, the CO’s explanation for the decision was sufficiently clear that the employer was not prejudiced by the absence of the citation.