BALCA creates confusion regarding labor certification filing deadlines in GE Energy

News Release from Jewell & Associates, PC – September 6, 2011 In General Electric Company (GE Energy) 2010-PER-763 the employer’s Application for Permanent Labor Certification was accepted for filing by the Department of Labor on October 26, 2009. The employer had posted the job order on April 27—182 days before the filing date—and removed it on May 27. The Certifying Officer (CO) denied the application because the job order was placed more than 180 days before the application was filed, and the job order “must be conducted at least 30 days, but no more than 180 days, before the filing of the application” (20 CFR § 656.17(e)(1)(i)).

The Board vacated the CO’s decision and returned the application for certification. The Board held that an employer must file its LC application “at least 30 days, but no more than 180 days, after the end date of its SWA job order, not the start date.” The LC had therefore been filed on time, since the latest date on which the LC could be filed was November 23.

The Board’s reasoning is scant. It refers to the regulations, and Ameyovi Oyassan 2007-PER-68, but neither seems to support its reasoning, and they are not discussed. In Oyassan the employer listed the job order start date as June 12 and its end date as August 12. It then filed its LC on July 19. The Board held that the job order had to have been completed at least 30 days, but no more than 180 days, before filing, and added: “[T]he employer believed that it could file the application 30 days after the SWA job order started. However, the applicable time is 30 days after the SWA job order ended.”

The GE Energy Board seems to have relied on this to support its interpretation of “conducted” in the regulation as meaning “ended” rather than “completed in its entirety.” The latter, proper interpretation was clear as recently as Blue Mountain Stone, Inc. 2010-PER-00488 where the employer filed its LC 206 days after the job order began, and 176 days after it ended. The panel of judges in Blue Mountain affirmed the CO’s denial, noting that the employer misunderstood the meaning of “conducted,” which has two interpretations depending on whether it relates to 30 or 180 days. When it relates to 30 days, it means that “the SWA job order must have ended at least 30 days prior to the filing” because it ensures that the employer has the time to receive resumes, contact applicants, and make final hiring decisions. When it relates to 180 days, it means that “the job order must begin no more than 180 days prior to the filing,” since the job order becomes stale if too much time passes between its placement and the filing of the application.

Indeed, the problem with the GE Energy approach of using the end date of the job order as a marker is shown by substituting different facts. Imagine that an employer makes the job order one of its last recruitment steps, so that it is removed 120 days after the first print advertisement is run. According to a strict interpretation of GE Energy, the LC can be filed 180 days after the job order is removed, so our employer, relying on the decision, files the LC 180 days after the job order is taken down. The LC filing date is now 300 days after the first mandatory recruitment step. This LC would be properly denied by the CO as contrary to §656.17(e)(1)(i), and no Board would overturn the decision. This absurd result, and prior BALCA decisions, indicate that GE Energy is problematic and should not be relied on in practice.

By Christopher Beckerson. © Jewell & Associates, PC 2011