Newspaper’s Headquarters Address Does Not Determine Area of Circulation

From: USADNEWS Volume VII, Issue 6 September 2013

In the Matter of Wal-Mart Stores Inc, the Certifying Officer (CO) denied the application for labor certification based on the choice of paper the employer used for their two Sunday advertisements. The employer advertised for a position of Computer Programmer in the Arkansas Democrat Gazette. The position is located in Bentonville, AR. The CO denied the application, claiming that the Democrat Gazette is primarily circulated in Little Rock, AR and therefore not appropriate as the newspaper of general circulation for Bentonville.

The employer requested reconsideration and provided documentation that the Democrat Gazette is the largest daily newspaper in the state as well as in the Bentonville area. They provided a letter from the newspaper confirming that the paper has a circulation of 33,573 in Benton County, which includes Bentonville, and that no other daily paper exists in Bentonville. The employer provided additional documentation from the Arkansas Democrat Gazette website stating that its Sunday circulation in Arkansas is greater than the Sunday circulation of all other Arkansas newspapers combined, charts from the Center for Public Integrity illustrating the circulations of newspapers within 100 miles of Bentonville, and printouts from the Mondo Times website describing the circulation and coverage of the Democrat Gazette.

Notwithstanding this documentation, the CO upheld the denial, basing the decision primarily on the fact that the newspaper is headquartered in Little Rock, which is over 200 miles away from the job location of Bentonville. The CO referred to the regulation at 20 C.F.R. § 656.3, which defines the area of intended employment as “the normal commuting distance of the place of intended employment.” The CO determined that a commute of more than 200 miles cannot be construed as normal and argued that newspapers such as the New York Times that circulate in multiple cities are still circulated within normal commuting distances.

The employer appealed the case to the Board of Alien Labor Certification Appeals (BALCA). BALCA found that the CO had misinterpreted the regulations by confusing the address where a newspaper is headquartered with its area of circulation. They determined that the Democrat Gazette was indeed the paper of general circulation for the area of intended employment and the paper most likely to bring responses from available workers. BALCA overturned the denial and ordered that the CO grant the certification.