Matter of UMC Logistics – Business Necessity for Language Requirement

BALCA Affirms Denial Finding Business Necessity for Language Requirement Not Established. BALCA affirmed the CO’s denial, finding that the business necessity for a foreign language requirement was not established for the position of a truck driver delivering to Mexico.

Issue Date: 17 December 2009
BALCA No.: 2009-PER-00188
ETA No.: C-07152-42262

In the Matter of: UMC LOGISTICS, INC.,
Employer, on behalf of CORNELIO PENNER HARMS, Alien.

Certifying Officer: Dominic Pavese
Chicago National Processing Center

Appearances: Ann K. Peters, Agent
Seminole, Texas
For the Employer and Alien

Gary M. Buff, Associate Solicitor
Jonathan R. Hammer, Attorney
Office of the Solicitor
Division of Employment and Training Legal Services
Washington, DC
For the Certifying Officer

Before: Colwell, Johnson and Wood
Administrative Law Judges

DECISION AND ORDER AFFIRMING DENIAL OF CERTIFICATION

PER CURIAM. This matter arises under Section 212 (a)(5)(A) of the Immigration and Nationality Act, 8 U.S.C. §1182(a)(5)(A), and the “PERM” regulations found at Title 20, Part 656 of the Code of Federal Regulations (“C.F.R.”).

BACKGROUND

On June 1, 2007, the Certifying Officer (“CO”) accepted for filing the Employer’s Application for Permanent Employment Certification for the position of “Truck Driver.” (AF 40-49).1 On ETA Form 9089, in response to the question asking whether knowledge of a foreign language was required to perform the job duties, the Employer answered “yes.” (AF 42, ETA Form 9089, Section H13).

On August 30, 2007, the CO issued an Audit Notification, requesting additional documentation. (AF 37-39). The CO stated, “The application indicates the job opportunity requires the capability to speak a foreign language. Please provide documentation justifying the business necessity for this job requirement.” (AF 39). On September 10, 2007, the Employer replied to the audit, asserting that the “job opportunity requires the capability to speak a foreign language because the products that the company hauls are shipped to Cuauhtemoc, Chihuahua Mexico.” (AF 10). The Employer stated that this community speaks either Spanish or German, and that a truck driver who did not speak either of these languages would be at a disadvantage. The Employer further asserted that the truck drivers it currently employs are fluent in English, Spanish and German. Id.

On October 4, 2007, the CO issued a denial letter. (AF 7-9). The CO stated that the Employer had not justified the foreign language requirement by demonstrating a business necessity based on the nature of the occupation or the need to communicate with a large majority of the employer’s customers, contractors, and employees who cannot communicate effectively in English, citing 20 C.F.R. § 656.17(h)(2).

The Employer filed for reconsideration on October 22, 2007. (AF 6). The Employer stated that it “exports farm equipment and raw material for trailer manufacturing companies in Cuauhtemoc, Mexico,” which is a German and Spanish speaking community. Id. It asserted that its “truck drivers spend as much time in Mexico as they do in the United States.” The Employer then asked, “What would be considered sufficient evidence that would prove that UMC’s truck drivers really do need to be able to speak a foreign language[?]” Id. It stated that it would be willing to provide any and all supporting documentation needed, but that it was not sure what would be acceptable evidence. The Employer asked, “Would it be acceptable if we created our own spreadsheets showing the numbers or do we need to provide documents from different authorities?” Id. The Employer did not enclose any documentation.

On February 3, 2009, the CO denied reconsideration, finding the Employer had not justified its foreign language requirement by demonstrating business necessity. (AF 1-2). The CO stated that the Employer failed to provide any documentation justifying a foreign language requirement in its response to the Audit Notification and in its request for review. (AF 1).

BALCA issued a Notice of Docketing on March 2, 2009. The Employer filed a Statement of Intent to Proceed on March 6, 2009, but did not file an appellate brief.

The CO filed a Statement of Position on April 16, 2009, asserting that the Employer did not justify its foreign language requirement by demonstrating business necessity. The CO observed that there is a well-developed body of case law concerning the issue of business necessity for a foreign language requirement that was adopted in the PERM regulations, and that the instant case was similar to the Board’s decision in Los Angeles Center of Commerce, 2008-PER-00167 (Feb. 25, 2009). The CO contended, “UMC did not adequately respond to the CO’s request for documentation of the business necessity underlying the foreign language requirement, and in fact, they did not submit any documentation other than their own uncorroborated, unspecified, statement.”

DISCUSSION

The PERM regulations provide a very specific description of the type of evidence that may be used to support a business necessity showing, to wit:

(2) A foreign language requirement can not be included, unless it is justified by business necessity. Demonstrating business necessity for a foreign language requirement may be based upon the following:

(i) The nature of the occupation, e.g., translator; or

(ii) The need to communicate with a large majority of the employer’s customers, contractors, or employees who can not
communicate effectively in English, as documented by:

(A) The employer furnishing the number and proportion of its clients, contractors, or employees who can not communicate in
English, and/or a detailed plan to market products or services in a foreign country; and

(B) A detailed explanation of why the duties of the position for which certification is sought requires frequent contact and communication with customers, employees or contractors who can not communicate in English and why it is reasonable to believe the allegedly foreign-language-speaking customers, employees, and contractors can not communicate in English.

20 C.F.R. § 656.17(h).

In the instant case, there is no evidence in the record establishing that the occupation of “Truck Driver” normally requires a foreign language requirement. Thus, the nature of the position in this case does not meet the test of section 656.17(h)(2)(i), and the Employer therefore must rely on other factors to establish the business necessity for its language requirement. Under the regulation at section 656.17(h)(2)(ii), the Employer may demonstrate business necessity by establishing the need to communicate with “a large majority” of customers, contractors, or employees in the foreign language “who can not communicate effectively in English….”

The Employer stated that the “job opportunity requires the capability to speak a foreign language because the products that the company hauls are shipped to Cuauhtemoc, Chihuahua Mexico,” which is a German and Spanish speaking community. The Employer asserted that its “truck drivers spend as much time in Mexico as they do in the United States,” and that a truck driver that did not speak either of these languages would be at a disadvantage. The Employer further asserted that the truck drivers it currently employs are fluent in English, Spanish and German. While these assertions support the Employer’s position, mere assertions of a business necessity do not satisfy the business necessity requirement. See generally Carlos Uy III, 1997-INA-304 (Mar. 3, 1999) (en banc) (decided under pre-PERM regulations). The regulations suggest several types of evidence that can be submitted to show business necessity of a foreign language; but the Employer did not provide any supporting documentation other than its statement; and even that statement did not address whether any of the Employer’s customers “cannot communicate in English” as required by section 656.17(h)(2)(ii). Thus, the Employer did not meet its burden of justifying the foreign language requirement by demonstrating a business necessity.

Since the record does not support the Employer’s argument that a business necessity has been established for the foreign language requirement, we find that the CO properly denied certification.

ORDER

Based on the foregoing, it is ORDERED that the Certifying Officer’s denial of labor certification in the above-captioned matter is AFFIRMED.

Entered at the direction of the panel by:

Todd R. Smyth
Secretary to the Board of
Alien Labor Certification Appeals

NOTICE OF OPPORTUNITY TO PETITION FOR REVIEW: This Decision and Order will become the final decision of the Secretary unless within twenty days from the date of service a party petitions for review by the full Board. Such review is not favored and ordinarily will not be granted except (1) when full Board consideration is necessary to secure or maintain uniformity of its decisions, or (2) when the proceeding involves a question of exceptional importance. Petitions must be filed with:

Chief Docket Clerk
Office of Administrative Law Judges
Board of Alien Labor Certification Appeals
800 K Street, NW Suite 400
Washington, DC 20001-8002

Copies of the petition must also be served on other parties and should be accompanied by a written statement setting forth the date and manner of service. The petition shall specify the basis for requesting full Board review with supporting authority, if any, and shall not exceed five double-spaced pages. Responses, if any, shall be filed within ten days of service of the petition, and shall not exceed five double-spaced pages. Upon the granting of a petition the Board may order briefs.

1 In this decision, AF is an abbreviation for Appeal File.