BALCA Decision

BALCA Denies/Remands
Dunkin Donuts Cases

Matter of Chams, Inc., , 97-INA-40 and Matter of Berwyn Donuts, 97-INA-541) (BALCA, February 15, 2000)

An en banc BALCA review of three consolidated cases involving Bakers for “Dunkin Donuts” franchises resulted in a remand of two of the cases and a denial of the third appeal.   All three certifications had been denied on the basis that the jobs were more properly classified as “Doughnut Maker,” which has an SVP of 4  (requiring only 3 to 6 months of experience).  The applications had required 2 years of experience.   In denying the certifications, the CO cited an ex parte discussion with the Manager of Training at Dunkin Donuts University, who apparently indicated that it would take no longer than 1 month to train a person to make Dunkin Donuts products.

Two of the cases (Matter of Chams, Inc., 1997-INA-40 and Matter of Berwyn Donuts, 1997-INA-541) were remanded with the finding that, “while the CO may contact outside sources in order to verify the information provided by an employer”, that information was not included in the Notice of Findings and thus the employer had no opportunity to rebut.  The third case (Matter of T&T Donuts, 1997-INA-232) was denied by the en banc panel, which found that the NOF had included the information obtained from the Dunkin Donuts University manager, but that the employer’s three-page letter of rebuttal was insufficient to overcome the noted information.  Citing a series of 1997-98 BALCA decisions, the Board concluded that “bare assertions are generally insufficient documentation to carry and employer’s burden of proof.”