El Rio Grande, 98-INA-133 (BALCA, July 28, 2000)
Lucky Horse Fashion, Inc., 97-INA-182 (BALCA, August 22, 2000)
Ananda Church of Self Realization , 2000-INA-74 (BALCA, July 28, 2000)
Animal Crackers Café , 99-INA-257 (BALCA, August 3, 2000)
JJ Copy, Inc. , 2000-INA-136 (BALCA, August 1, 2000)
El Rio Grande, 98-INA-133 (BALCA, July 28, 2000)
In El Rio Grande, 98-INA-133, the Board granted reconsideration and affirmed its en banc decision dated February 4, 2000, in which it had upheld the slotting technique authorized by 29 CFR §4.51(c), to determine prevailing wage, but provided no information explaining how slotting was applied.
On reconsideration, the Board accepted jurisdiction to determine whether the wage was appropriate, even though the wage issue had arisen under a separate regulatory scheme that did not provide for BALCA review of SCA wage determinations.
Once the jurisdictional issue had been clarified, BALCA revisited the process of slotting and ruled that it is not inconsistent with the statutory purpose of protecting the wages and working conditions of U.S. workers similarly employed.
Specifically, the Board concluded that slotting was a comparison of similarly employed workers, admittedly on a somewhat imprecise level, but not improper, since “absolute precision is not required in making SCA wage determinations.”
The Board, however, reaffirmed its earlier finding that the CO minimally must disclose the occupations compared in the slotting process and the criteria used for the comparison.
If the certifying officer (CO) discloses this information, the burden of proof remains with the employer “to establish that the CO’s wage determination is in error, and that its wage offer is at or above the correct prevailing wage.” (Denied, Region II).
Lucky Horse Fashion, Inc., 97-INA-182 (BALCA, August 22, 2000)
In Lucky Horse Fashion, Inc., 97-INA-182, the Board issued an en banc decision after considering arguments, which included amici curiae briefs prepared bythe American Immigration Lawyers Association (AILA) and the American Immigration Law Foundation (AILF).
According to the two-pronged business necessity test in Matter of Information Industries, Inc., 1988-INA-82 (February 8, 1989)(en banc), the first prong requires that a foreign language requirement must bear a reasonable relationship to the occupation within the context of its business.
Employer had argued that its workforce of sewing machine operators did not speak English and therefore needed a Chinese-speaking sewing machine repairer, who could determine how to repair the machines after consulting with the operators in three Chinese dialects: Cantonese, Chao Chow, and Mandarin.
Noting that foreign language requirements are specifically prohibited by the regulations and therefore require a high level of scrutiny, the Board feared that if it permitted an employer to establish business necessity for a foreign language solely because all of its employees speak a foreign language, it would create a self-perpetuating foreign labor force that—as a practical matter—would exclude all but a few U.S. workers and would be contrary to the purposes of the INA.
In conclusion, the Board found that the Chinese language requirement did not have a reasonable relationship to the occupation of sewing. In a partial dissent, Judges Vittone and Burke stated that the existence of a foreign workforce including recent non-English-speaking immigrants or temporary workers, is a “reality rather than an improper creation of an enclave of foreign-born workers to the exclusion of U.S. workers,” and that absent a violation of immigration or labor laws, Employer’s need could be seen as demonstrating a reasonable relationship between the foreign language requirement and the occupation in the context of Employer’s business.
Although the majority did not see the requirement of three Chinese dialects as an issue, the dissent found that the requirement of three dialects had not been justified, and that had only one dialect been required, the business necessity test would have been satisfied. (Denied, Region II).
Ananda Church of Self Realization , 2000-INA-74 (BALCA, July 28, 2000)
In Ananda Church of Self Realization, 2000-INA-74, Employer, a church, required active membership as a special requirement to work as an elementary school teacher. When an American worker was rejected for not being a member of the monastic order, the CO denied the case.
The principal provided a letter, on rebuttal, stating that the Establishment Clause of the Constitution provided an exemption that could be extended to church activities not directly involved in religious activities, however, the Board found that the issue was not one of unlawful discrimination but whether Employer had established a business necessity for the restrictive requirement of membership in the monastic order. (Denied, Region IX).
Animal Crackers Café , 99-INA-257 (BALCA, August 3, 2000)
In Animal Crackers Café, 99-INA-257, Employer offered the position of cook, with the requirement of two years’ experience in the job offered or two years’ experience in the related occupation of Kitchen Helper.
After the CO found the alternate requirement restrictive, the Board ruled that the lesser requirement of experience as a kitchen helper was improper because it was not substantially similar to the job of cook—with respect to whether the applicant could perform in a reasonable manner the duties of the job being offered.
Accordingly, the alternative requirement of two years’ experience as a kitchen helper was in violation of the regulations not because it was restrictive, as the CO had alleged, but because experience as a kitchen helper appeared tailored to the alien.
The only way to cure the defect would have been to readvertise the position to solicit “applicants with any suitable combination of education training or experience,” and not just applicants who had worked as a cook or kitchen helper. (Remanded, Region III).
JJ Copy, Inc. , 2000-INA-136 (BALCA, August 1, 2000)
In JJ Copy, Inc., 2000-INA-136, several U.S. workers were rejected for subjective reasons, one being that the job was located in a crime ridden area of East Baltimore, and the other being that the applicant would have to commute to work 45 minutes to one hour. In both cases, Employer hypothesized that the applicants would not be qualified or available for the stated reasons.
However, the Board noted that the rejection of the workers was based on unstated requirements and represented only the opinion of Employer, as there was no objective documentary evidence that either U.S. worker could not have performed the job duties. (Denied, Region III).