U.S. Department of Labor

Office of Administrative Law Judges
800 K Street, NW, Suite 400-N
Washington, DC 20001-8002
(202) 693-7300
(202) 693-7365 (FAX)

Issue Date: 16 February 2012
OALJ Case No.:

2012-TLC-00018

ETA Case No.:

C-11354-30955

In the Matter of

OVERDEVEST NURSERIES, L.P.,
Employer

Certifying Officer:

William L. Carlson
Chicago National Processing Center

Appearances:

Wendel Hall, Esquire
CJ Lake, LLC
Washington, DC
For the Employer
Gary M. Buff, Associate Solicitor
Matthew Bernt, Attorney
Vincent C. Costantino, Senior Trial Attorney
Office of the Solicitor
Division of Employment and Training Legal Services
Washington, DC
For the Certifying Officer

Before:

WILLIAM S. COLWELL
Associate Chief Administrative Law Judge

DECISION AND ORDER
AFFIRMING THE CO’S NOTICE OF DEFICIENCY
This matter arises under the temporary agricultural labor provisions of the Immigration
and Nationality Act, 8 U.S.C. §§ 1101(a)(15)(H)(ii)(a) and 1184(c)(1), and the implementing
regulations at 20 C.F.R. Part 655, Subpart B. On January 5, 2012, the Employer appealed the
Certifying Officer’s (“CO”) Notice of Deficiency and requested a de novo hearing. See 20
C.F.R. § 655.171(b).

 On January 30, 2012, I conducted a hearing in this matter.

The Employer called

Mr. Rafael Di Stasio, Mr. Ray Blew, and Mr. Edward Overdevest to testify at the hearing. The
Employer offered Employer’s Exhibits (“EX”) 1-29 into evidence and requested that the
evidentiary record be held open so that the Employer could take the deposition of Mr. James
Johnson. On February 2, 2012, the Employer submitted the deposition testimony of Mr. Johnson
as EX 30. The CO offered CO Exhibits (“CX”) 1-6 at the hearing. The parties submitted posthearing briefs on February 8, 2012.

STATEMENT OF THE CASE
Administrative File
On December 20, 2011, the United States Department of Labor’s Employment and
Training Administration (“ETA”) received an application from Overdevest Nurseries, L.P., for
55 “Order Pullers,” SOC (O*Net/OES) occupation title “nursery worker,” and occupation code
42-2092.01.1 AF 147-155.2 On the application and in the job order placed with the New Jersey
State Workforce Agency (“SWA”), the Employer listed the job duties for the position as:
Familiar with a range of proper plant names and sufficiently familiar with plant
identifications so as to accurately and timely pull and load orders on delivery
trucks. Generate occasional written reports. Nine months recent nursery
experience is required. Under supervision of production manager carries out all
assigned tasks involving planting, cultivating, harvesting and shipping
horticultural products. Capable of repositioning necessary stock to shipping area
and properly loading delivery trucks. Upon arrival, employee will need to
demonstrate their familiarity with names of basic plants. Capable of frequent
heavy lifting of plants weighing up to 50 lbs (heavier with assistance). Plants,
cultivates and harvests bare root, balled and burlapped trees and shrubs,
containerized trees, shrubs and perennials and annuals and performs related duties
in environmentally controlled structures. Sticks cutting and plant liners. Prunes,
transplants, spaces, stakes, irrigates, and culls plants to ensure development of
marketable products. Harvests, packs, labels, loads, and stores trees, shrubs and
perennials using techniques appropriate for individual varieties. Uncover and/or
recover poly-covered winter storage houses and pull lath strips to prepare storage
houses for new poly covers. Install and remove poly blankets used for winter
protection.
When assigned by production manager, serves as member of order pulling and
shipping group, coordinating the accurate pulling of orders and loading properly
1

This appears to be a typographical error, as the occupation code that corresponds to the occupation title of “nursery
worker” is “45-2092.01.”
2

Citations to the administrative file will be abbreviated “AF” followed by the page number.

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 on delivery trucks and also re-positioning of necessary stock from fields to
shipping area. May grade trees, shrubs, and perennials. May drive and operate
tractors. Performs other general nursery tasks as necessary.
AF 149, 157, 163.
On December 27, 2011, the CO issued a Notice of Deficiency (“NOD”) to the Employer,
finding that the Employer’s nine-month experience requirement was not consistent with the
normal and accepted qualifications required by non-H-2A employers in the same or comparable
occupation or crop, as required by 20 C.F.R. § 655.122(b). AF 125-129. The CO explained that
a survey conducted by the New Jersey SWA on April 11, 2011 to April 29, 2011 found that 70%
of 36 non-H-2A nursery greenhouse employers required one week or less of experience, and
87% of 24 non-H-2A nursery dig and ball non-H-2A employers required one week or less of
experience. AF 127. Accordingly, the CO required the Employer to either remove the ninemonth experience requirement, or submit documentation to establish that the requirement is
normal and accepted among non-H-2A employers in the same or comparable occupation or
crop.3 Instead, the Employer opted for a de novo hearing of the NOD. AF 1-124.

Testimonial Evidence
A de novo hearing was held on January 30, 2012.4 In addition to the testimonial evidence
at the hearing, the Employer submitted the deposition testimony of John Rotterman (EX 1) and
James Johnson (EX 30). The testimonial evidence is summarized below.

Mr. John Rotterman
Mr. John Rotterman’s deposition testimony was taken on January 19 and 20, 2012. EX
1. Mr. Rotterman is a Certifying Officer within the Department of Labor, and his primary
responsibility is the H-2A program. EX 1 at 5. Mr. Rotterman stated that ETA Handbook 398
discusses the standard of “normal and accepted” as “less than prevailing, not unusual or rare,”
but noted that it also states that “it should be closer to prevailing than not.” EX 1 at 9. Mr.
Rotterman stated that it is the CO’s position that when a survey shows that 33% or more

3

The CO also found several other deficiencies, which are not at issue on appeal.

4

Citations to the hearing transcript will be abbreviated “Tr.” followed by the page number.

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 employers surveyed engage in a particular practice, it is considered “normal and accepted” under
the regulations. EX 1 at 9-10.
Mr. Rotterman stated that the CO views SWA surveys as creating a rebuttable
presumption that a certain practice or qualification is, or is not, normal and accepted. EX 1 at 10.
Mr. Rotterman noted that if the SWA is not capable of conducting a survey, the CO will consider
the Standard Occupational Classification (“SOC”) code to determine the normal requirements.
EX 1 at 12.
Mr. Rotterman stated that based the New Jersey SWA survey results, the CO determined
that the Employer’s nine-month experience requirement was not normal and accepted among
non-H-2A employers. EX 1 at 51.

Mr. Ray Blew
Mr. Ray Blew is the owner and chairman of the board of Centerton Nursery. Tr. at 39.
Centerton Nursery is a “container” operation, meaning that it grows its plants in containers. Id.
Mr. Blew stated that his business is very similar to Overdevest Nurseries’ operations. Id. Mr.
Blew stated that he does not participate in the H-2A program, and that if he was seeking new
employees to fill a “key production, not managerial position,” he would seek employees with 12
months of experience. Tr. at 40. Mr. Blew stated that each year, he hires about three or four
new people without experience and trains them. Tr. at 40, 48.
Mr. Blew noted that he believes that it is normal and accepted among both H-2A and
non-H-2A container production nurseries to seek experienced new hires for “key positions.” Tr.
at 41-42; EX 3. Mr. Blew stated that he based this belief on 40 years in the nursery business and
conversations with other employers. Tr. 42, 46-47. Mr. Blew noted that he was surveyed as part
of the New Jersey SWA survey, and that on the survey, he indicated that he was a greenhouse
nursery, and added a handwritten note stating that he was a container nursery. Tr. at 42. Mr.
Blew stated that a container nursery is different than a greenhouse operation, but that a
“greenhouse comes the closest” to matching a container nursery. Tr. at 43. Mr. Blew stated that
greenhouse operations are heated and grow poinsettias and geraniums, while container nurseries
grow woody shrubs and perennials. Tr. 48-49. Mr. Blew stated that the reason that he circled
“no” on the survey under the heading “Experience Normally Required” is that he believed that
question only applied to H-2A employers. Id. Mr. Blew stated that if he understood that the

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 question to be whether or not he required experience, he would have indicated that 12 months of
experience were required. Tr. 43-44.
Mr. Blew stated that the letter that was submitted by him, EX 3, was a form letter that
was sent to him by Mr. Overdevest. Tr. 44-45. Mr. Blew stated that he had “no idea” who wrote
the statements in the letter, but indicated that he filled out the portions that had been left blank in
the letter. Tr. 45. Mr. Blew stated that he knows there are 300 greenhouses or nurseries in his
county in New Jersey, and that he was familiar with the employment practices of 30 or 40 of
those employers. Tr. 45-46. Mr. Blew stated that he had “no idea” which nurseries in southern
New Jersey do and do not use the H-2A program. Id.

Mr. Rafael Di Stasio
Mr. Rafael Di Stasio is a farm labor coordinator for the New Jersey Department of Labor,
which is the SWA for New Jersey. Tr. at 52-53, 79. Mr. Di Stasio has been in that position for
about 10 years. Tr. at 79. Mr. Di Stasio testified that the New Jersey SWA conducted surveys of
the normal and common practices of greenhouse and dig and ball nurseries, but that it does not
conduct surveys of container nurseries. Tr. at 55-56. Mr. Di Stasio testified that the SWA
maintains a list of non-H-2A growers and employers, and that it maintains its list from a local
farm bureau list of agricultural employers. Tr. at 59, 81. Mr. Di Stasio stated that he estimated
that there were 65 dig and ball employers in southern New Jersey, and 75 greenhouses in
southern New Jersey. Tr. at 104. Mr. Di Stasio stated that the New Jersey SWA tries to survey
small, medium, and large employers. Tr. at 115. Mr. Di Stasio noted that southern New Jersey
includes the counties of Cumberland, Gloucester, Salem, Cape May, Camden, Burlington,
Ocean, and Monmouth. Tr. at 105.
Mr. Di Stasio testified that Mr. Custodio conducted all of the surveys in person, and that
he had conducted the survey interviews in at least two previous seasons as well. Tr. at 59, 64.
Mr. Di Stasio testified that the survey results correspond to the occupation of nursery worker,
SOC code 45-2092.01 Tr. at 65, 87.
Mr. Di Stasio stated that he looked at the Employer’s specific job duties when classifying
it on the job order as a nursery worker. Tr. at 106-107. Mr. Di Stasio stated that he considered a
container nursery comparable to greenhouse and dig and ball nurseries because workers at all
three types of nurseries fit within the “nursery worker” SOC code. Tr. at 115-116. Mr. Di Stasio

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 stated that the nursery worker SOC code encompasses a broad variety of jobs and tasks. Tr. at
117.

Mr. Edward Overdevest
Mr. Overdevest is a part owner of Overdevest Nurseries, L.P.

Tr. at 123.

Mr.

Overdevest stated that Overdevest Nurseries has evolved from a dig-and-ball nursery to a highly
diversified container operation with approximately 2,000 varieties of plants. Tr. at 124-125. Mr.
Overdevest testified that Overdevest Nurseries does have a greenhouse that it uses during seed
propagation, but that most of its production is outside. Tr. at 127. Mr. Overdevest explained that
after a root system has developed into a small plant, or a “liner,” the liner is potted into a larger
container, which is moved into the outdoor production area. Tr. at 127-128. Mr. Overdevest
noted that the liner can take anywhere from three months to six years before it becomes a
marketable plant. Tr. at 128. Once a plant is outside in the production area, it will be trimmed,
pruned, fertilized, and re-spaced as it grows. Tr. at 128-129.
Mr. Overdevest noted that container-grown plants are more vulnerable to disease and
insect issues than plants that are grown in the ground. Tr. at 129. Mr. Overdevest stated that
while plants grown in a field setting are irrigated once a month, it is necessary to irrigate
container-grown plants as often as once a day. Tr. at 129. Additionally, container-grown plants
require more pruning than dig-and-ball-grown plants. Tr. at 129. Mr. Overdevest added that
container-grown plants are often moved between three and five times to ensure adequate spacing.
Tr. at 129-130. Mr. Overdevest explained that order pullers grade plants in terms of size and
quality during the production cycle. Tr. at 132. The grading process determines the Employer’s
inventory numbers. Id. After the inventory process of tagging the plants is completed in the fall,
the Employer covers the production area with a thin lay of plastic in order to protect the plants
during the winter. Tr. at 132-133.
Mr. Overdevest explained that a “picking ticket,” which is a botanical classification of
plants, is generated per order received, and the order pullers assemble all of the plants on each
picking ticket. Tr. at 134. Mr. Overdevest noted that order pullers are expected to have a
working knowledge of the plants’ botanical names, rather than just the plants’ common names,
and be familiar with the plants in terms of how they look and the appropriate quality of plant to
be shipped. Tr. at 135-137. After an order puller selects all of the plants on the picking ticket,
the order puller loads the delivery truck and checks the plants to ensure that the soil is moist
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 enough. Tr. at 138. Mr. Overdevest noted that it is important for order pullers to have some
familiarity with the grades and botanical names of various plants when they begin working,
because otherwise they will have to spend all of their time trying to locate the plants. Tr. at 139.
Mr. Overdevest considered duties listed under the O*Net “nursery workers” occupational
title, and indicated that the tasks listed in O*Net touch on a number of duties that order pullers
perform. Tr. at 140. However, Mr. Overdevest added that the O*Net job description omits
important duties such as ensuring the proper spacing of plants, as well as plant knowledge and
judgment capability. Tr. at 141.
Order pullers provide early warnings of diseases in early spring and will not pull any
plants if there is an indication of disease or insects. Tr. at 147. If the order pullers see any issue
with the plants, they will either pass that information to a supervisor or write it in their written
report. Id. Mr. Overdevest reiterated that his order pullers are empowered to make many
decisions with respect to spacing plants, moving plants, deciding which plants get shipped, and
which plants might be developing a disease. Tr. 148. Mr. Overdevest stated that there is not
very much oversight of the order pullers, and that the Employer does not have anyone at the
loading dock doing quality control. Id.
Mr. Overdevest stated that he wrote the SOC code for nursery worker in the application
because it was the only classification that was reasonably close to the order puller position. Tr.
at 158-159. Mr. Overdevest stated that when he completed the SWA survey, he indicated that he
was a greenhouse nursery because it was the closest response to a container nursery. Tr. at 163164. Mr. Overdevest explained that greenhouse nurseries typically involve heated structures,
and usually produce different types of plants than container nurseries.

Tr. at 200.

Mr.

Overdevest stated that greenhouses usually grow bedding plants, petunias, impatiens, and
poinsettias. Id. In Mr. Overdevest’s opinion, it is normally accepted for non-H-2A container
production nurseries like Overdevest to require at least nine months of experience for a new hire.
Tr. at 196.
Mr. Overdevest testified that he drafted form letters and sent them to approximately 25
non-H-2A container nursery operations. Tr. at 198-199. Mr. Overdevest stated that a production
position is a position essential to production that involves the more sophisticated aspects of
production, thus requiring a greater degree of knowledge, experience, and expertise. Tr. at 211.
Mr. Overdevest testified that he considers order pullers and managers to be key production
positions at Overdevest. Id.
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 Mr. Overdevest testified that container nurseries are different from dig-and-ball nurseries
in terms of the scope of plants grown, the types and variety of plants grown, the way they are
grown, and the degree of intensity. Tr. at 201. Mr. Overdevest added that the degree of
mechanization varies between greenhouses, container nurseries, and dig-and-ball nurseries. Id.
Mr. Overdevest explained that there are two segments to a “nursery,” one is a container nursery,
and the other is dig-and-ball. Tr. at 202. Mr. Overdevest agreed that greenhouses, container
nurseries, and dig-and-ball nurseries all involve growing plants, moving plants, fertilizing plants,
and selling plants. Id. Mr. Overdevest stated nursery workers at his container nursery harvest
and transplant, or “pot” and “up-pot” plants, and label plants. Tr. at 203-204. Mr. Overdevest
noted that nursery workers also label plants and inspect them to assess quality. Tr. at 204.

Mr. James Johnson
Mr. James Johnson’s deposition testimony was taken on February 1, 2012. EX 30. Mr.
Johnson works with the Rutgers Cooperative Extension, which is part of the New Jersey
Agricultural Experiment Station. EX 30 at 6-7. Mr. Johnson has worked as a cooperative
extension agent for nearly 35 years, 30 of which have been working with nurserymen in
Cumberland County, New Jersey. EX 30 at 7-8. In that capacity, Mr. Johnson conducts research
on nutrient management, water quality, and pest control, and conveys that information to
growers.

EX 30 at 8-9.

Mr. Johnson testified that he does not generally do any work

surrounding nursery employers’ employment practices, but that he has picked up knowledge
over the years by discussing employers’ expectations of their employees. EX 30 at 52.
Mr. Johnson testified that three to nine months of experience is normal and accepted
minimum requirements for both H-2A and non-H-2A nursery workers, depending on the size of
the nursery, the position, and the wage expectations. EX 30 at 19-20. Mr. Johnson explained
that he does not differentiate between H-2A and non-H-2A employers because each would
require the same amount of experience. EX 30 at 68. Mr. Johnson testified that he was
generally familiar with the order puller positions at Overdevest Nurseries, and that nine months
of experience is the minimum amount of experience he believes is appropriate for the position.
EX 30 at 21.
Mr. Johnson testified that he knows that Overdevest Nurseries participates in the H-2A
program, but does not know if there are others. EX 30 at 27. Mr. Johnson also testified that
based on his experience with the nursery industry, that it is not abnormal or rare for a non-H-2A
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 container nursery similar to Overdevest Nurseries to require a minimum of nine months of
experience for an order puller position. EX 30 at 47-48.

Documentary Evidence
EX 2-8 and 11-24 are letters written by nurseries in New Jersey to Dr. Carlson regarding
the amount of experience each nursery would require for key production positions.
EX 2 is a letter from Mark Fedechko, President of Marjac Nursery. Mr. Fedechko stated
that his nursery is representative of wholesale, container, and B&B production nurseries in New
Jersey, and that he does not participate in the H-2A program. Mr. Fedechko stated that he has
varying job responsibilities within his production department, and that the key production jobs
require increasing judgment and skill as the positions move toward management level. Mr.
Fedechko stated that if he had to hire new employees to fill key production positions that were
not managerial, he would seek up to eight months of experience. Mr. Fedechko stated that he
believed that Overdevest Nurseries’ nine-month experience requirement was not rare or unusal
for either an H-2A or non-H-2A nursery.
EX 3 is a letter from Raymond Blew, who is the Chairman of the Board of Centerton
Nursery. Mr. Blew stated that Centerton Nursery does not participate in the H-2A program, and
that if he had to hire new employees to fill “key production (not managerial) positions,” he
would seek up to 12 months of experience. Mr. Blew also stated that he believes that Overdevest
Nurseries’ nine-month experience requirement is not rare or unusual for an H-2A or non-H-2A
of Overdevest’s size and diversity.
EX 4 is a letter from Richard Hesselein, President of Pleasant Run Nursery.

Mr.

Hesselein stated that his nursery is representative of wholesale, container production nurseries in
New Jersey, and that he does not participate in the H-2A program. Mr. Hesselein stated that if
he had to hire new employees to fill key production positions that were not managerial, he would
seek up to 12 months of experience. Mr. Hesselein also stated that he believes that Overdevest
Nurseries’ nine-month experience requirement is not rare or unusual for an H-2A or non-H-2A
of Overdevest’s size and diversity.
EX 5 is a letter from Mr. Porter, owner of Breezy Acres Farm. Mr. Porter stated that his
nursery is representative of wholesale, container production nurseries in New Jersey, and that he
does not participate in the H-2A program. Mr. Porter stated that if he had to hire new employees
to fill key production positions that were not managerial, he would seek up to 12 months of
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 experience. Mr. Porter stated that he believes that Overdevest Nurseries’ nine-month experience
requirement is not rare or unusual for an H-2A or non-H-2A of Overdevest’s size and diversity.
EX 6 is a letter from Scott Daum, partner and owner of Four Seasons Nursery and
Landscape Company. Mr. Daum stated that his nursery is representative of wholesale, container
production nurseries in New Jersey, and that he does not participate in the H-2A program. Mr.
Daum stated that if he had to hire new employees to fill key production positions that were not
managerial, he would seek up to 12 months of experience. Mr. Daum stated that he believes that
Overdevest Nurseries’ nine-month experience requirement is not rare or unusual for an H-2A or
non-H-2A of Overdevest’s size and diversity.
EX 7 is a letter from Frank Loew, owner of Loew’s Nursery. Mr. Loew stated that
Loew’s Nursery is a wholesale container nursery in Cumberland County, New Jersey, and that he
does not participate in the H-2A program. Mr. Loew stated that to find the right workers to fill
the nursery positions requires many weeks or months of experience.
EX 8 is a letter from Steven Wagner, General Manager of Brock Farm Nurseries. Mr.
Wagner stated that his nursery is representative of wholesale, container production nurseries in
New Jersey, and that he does not participate in the H-2A program. Mr. Wagner stated that if he
had to hire new employees to fill key production positions that were not managerial, he would
seek up to 12 months of experience. Mr. Wagner stated that he believes that Overdevest
Nurseries’ nine-month experience requirement is not rare or unusual for an H-2A or non-H-2A
of Overdevest’s size and diversity.
EX 9 is a letter from Peter J. Furey, Executive Director of the New Jersey Farm Bureau.
Mr. Furey stated that among nursery growers, he has found it to be normal and common practice
to need workers who have prior experience to adequately perform key production tasks. Mr.
Furey stated that for larger and/or more diversified operations such as Overdevest Nurseries, an
experience requirement of up to one year is not rare or unusual for both H-2A and non-H-2A
employers.
EX 10 is a letter from James Johnson, Agricultural Agent of the Rutgers Cooperative
Extension of Cumberland County. Mr. Johnson stated that based on the requirements of a
nursery position, between three and nine months of technical experience is the normal accepted
minimum requirement needed to satisfy the needs of both H-2A and non-H-2A employers. Mr.
Johnson stated that experience through a full crop cycle (one year) is the optimal amount of time

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 to allow a worker to acquire an understanding of plant materials and systems to effectively
produce and ship plants.
EX 11 is a letter from Dominick Mondi, Executive Director of the New Jersey Nursery
and Landscape Association. Mr. Mondi stated that given the diverse skills required in the
nursery industry, he believes that it is normal and accepted to require at least a full season of
experience for positions like the order puller. Mr. Mondi stated that this requirement was not
rare or unusual for both H-2A and non-H-2A employers.
EX 12 is a letter from Noble McNaughton, owner of Indian Mills Nursery.

Mr.

McNaughton stated that his nursery is representative of wholesale, container production
nurseries in New Jersey, and that he does not participate in the H-2A program. Mr. McNaughton
stated that if he had to hire new employees to fill key production positions that were not
managerial, he would seek up to nine months of experience. Mr. McNaughton stated that he
believes that Overdevest Nurseries’ nine-month experience requirement is not rare or unusual for
an H-2A or non-H-2A of Overdevest’s size and diversity.
EX 13 is a letter from Donald Knezick, President of Pinelands Nursery & Supply. Mr.
Knezick stated that his nursery is representative of wholesale, container production nurseries in
New Jersey, and that he does not participate in the H-2A program. Mr. Knezick stated that if he
had to hire new employees to fill key production positions that were not managerial, he would
seek a minimum of nine months of experience.

Mr. Knezick stated that he believes that

Overdevest Nurseries’ nine-month experience requirement is not rare or unusual for an H-2A or
non-H-2A of Overdevest’s size and diversity.
EX 14 is a letter from Roger Ruske, owner of Cumberland Nurseries. Mr. Ruske stated
that his nursery is representative of wholesale, container production nurseries in New Jersey, and
that he does not participate in the H-2A program. Mr. Ruske stated that if he had to hire new
employees to fill key production positions that were not managerial, he would seek up to 18
months of experience. Mr. Ruske stated that he believes that Overdevest Nurseries’ nine-month
experience requirement is not rare or unusual for an H-2A or non-H-2A of Overdevest’s size and
diversity.
EX 15 is a letter from Joseph Infante, owner of Infante Farms. Mr. Infante stated that his
nursery is representative of wholesale, container production nurseries in New Jersey, and that he
does not participate in the H-2A program. Mr. Ruske stated that if he had to hire new employees
to fill key production positions that were not managerial, he would seek up to nine months of
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 experience. Mr. Ruske stated that he believes that Overdevest Nurseries’ nine-month experience
requirement is not rare or unusual for an H-2A or non-H-2A of Overdevest’s size and diversity.
EX 16 is a letter from Suzanne Van Sciver, owner of Quinton Nursery. Ms. Van Sciver
stated that her nursery is representative of wholesale, container production nurseries in New
Jersey, and that she does not participate in the H-2A program. Ms. Van Sciver stated that if she
had to hire new employees to fill key production positions that were not managerial, she would
seek up to 12 months of experience. Ms. Van Sciver stated that she believes that Overdevest
Nurseries’ nine-month experience requirement is not rare or unusual for an H-2A or non-H-2A
of Overdevest’s size and diversity.
EX 17 is a letter from George Dean, owner of Dean’s Evergreens, Inc. Mr. Dean stated
that his nursery is representative of wholesale, container production nurseries in New Jersey, and
that he does not participate in the H-2A program. Mr. Dean stated that if he had to hire new
employees to fill key production positions that were not managerial, he would seek up to nine
months of experience. Mr. Dean stated that he believes that Overdevest Nurseries’ nine-month
experience requirement is not rare or unusual for an H-2A or non-H-2A of Overdevest’s size and
diversity.
EX 18 is a letter from Keith MacIndoe, General Manager of Johnson Farms Inc. Mr.
MacIndoe stated that his nursery is representative of wholesale, container production nurseries in
New Jersey, and that he does not participate in the H-2A program. Mr. MacIndoe stated that if
he had to hire new employees to fill key production positions that were not managerial, he would
seek up to ten months of experience. Mr. MacIndoe also stated that he believes that Overdevest
Nurseries’ nine-month experience requirement is not rare or unusual for an H-2A or non-H-2A
of Overdevest’s size and diversity.
EX 19 is a letter from David Scott, President of Scott Farm Nursery. Mr. Scott stated that
his nursery is representative of wholesale, container production nurseries in New Jersey, and that
he does not participate in the H-2A program. Mr. Scott stated that if he had to hire new
employees to fill key production positions that were not managerial, he would seek up to 12
months of experience. Mr. Scott stated that he believes that Overdevest Nurseries’ nine-month
experience requirement is not rare or unusual for an H-2A or non-H-2A of Overdevest’s size and
diversity.
EX 20 is a letter from Kevin Fenning, Field/Container Production Manager of Fernbrook
Nursery. Mr. Fenning stated that his nursery is representative of wholesale, container production
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 nurseries in New Jersey, and that he does not participate in the H-2A program. Mr. Fenning
stated that if he had to hire new employees to fill key production positions that were not
managerial, he would seek up to 24 months of experience. Mr. Fenning stated that he believes
that Overdevest Nurseries’ nine-month experience requirement is not rare or unusual for an H2A or non-H-2A of Overdevest’s size and diversity.
EX 21 is a letter from Robert Kessel Jr., partner of Kessel’s Nursery. Mr. Kessel stated
that his nursery is representative of wholesale, container production nurseries in New Jersey, and
that he does not participate in the H-2A program. Mr. Kessel stated that if he had to hire new
employees to fill key production positions that were not managerial, he would seek up to nine
months of experience. Mr. Kessel stated that he believes that Overdevest Nurseries’ nine-month
experience requirement is not rare or unusual for an H-2A or non-H-2A of Overdevest’s size and
diversity.
EX 22 is a letter from Luis Sepers, Managing Partner of Sepers Nursery. Mr. Sepers
stated that his nursery is representative of wholesale, container production nurseries in New
Jersey, and that he does not participate in the H-2A program. Mr. Sepers stated that if he had to
hire new employees to fill key production positions that were not managerial, he would seek up
to nine months of experience. Mr. Sepers stated that he believes that Overdevest Nurseries’
nine-month experience requirement is not rare or unusual for an H-2A or non-H-2A of
Overdevest’s size and diversity.
EX 23 is a letter from J. Lindsay Clarkson, President of Tuckahoe Nurseries. Mr.
Clarkson stated that his nursery is representative of wholesale, container production nurseries in
New Jersey, and that he does not participate in the H-2A program. Mr. Clarkson stated that if he
had to hire new employees to fill key production positions that were not managerial, he would
seek up to 12 months of experience. Mr. Clarkson stated that he believes that Overdevest
Nurseries’ nine-month experience requirement is not rare or unusual for an H-2A or non-H-2A
of Overdevest’s size and diversity.
EX 24 is a letter from Charles Kuperus. Mr. Kuperus is a lifelong farmer and stated that
experienced employees are essential for the nursing industry to remain competitive in the
marketplace.
EX 25 is an Overdevest Nurseries sample picking ticket used by the order pullers.
EX 26 is email correspondence between Chad Ford, an analyst at the Chicago National
Processing Center, and Rafael Di Stasio from the New Jersey SWA. On December 22, 2011,
- 13 -

 Mr. Di Stasio confirmed with the CNPC that based on the New Jersey SWA’s survey results,
70% of non-H-2A nursery greenhouse employers required one week or less of experience, and
87% of non-H-2A dig and ball nursery employers require one week or less of experience.
EX 27 is Centerton Nursery’s prevailing practices survey interview record. The survey
indicates that no experience is normally required.
EX 28 is a summary of the 20 aforementioned letters written by nursery employers. The
summary states that on average, the 19 employers who responded to the survey would seek up to
12 months of experience for a key production position.
EX 29 is Overdevest Nurseries’ 2012 Product Guide. The Product Guide indicates that
the Employer has one production manager and four assistant production managers. EX 29 at
162.
EX 30 is James Johnson’s deposition testimony, summarized in the testimonial evidence
section above.
CX 1 is the appeal file, which will be referred to as “AF.”
CX 2 is the New Jersey SWA’s survey results for Nursery-Greenhouse in southern New
Jersey.

The survey states that 36 employers were surveyed, and of these, 18 require no

experience, one required one day or less of experience, six required one week or less, eight
required one month or less, two required three months or less, and one required more than six
months of experience. CX 2 at 2.
CX 3 is the New Jersey SWA’s survey results for Nursery-Dig & Ball in southern New
Jersey.

The survey states that 23 employers were surveyed, and of these, 12 require no

experience, eight required one week or less, and three required one month or less of experience.
CX 3 at 2.
CX 4 is a compilation of the responses to the two New Jersey SWA surveys. A summary
of the employers and their survey responses is provided below.

Name of Nursery

Type of
Nursery

H-2A
Employer?

1 (CX 4 at 1)

Overdevest Nursery

Greenhouse

Yes

2 (CX 4 at 2)

Blue Sterling Nursery

Greenhouse

Refused to
respond
No

3 (CX 4 at 3, 4) B & M Nursery

Dig & Ball;
Greenhouse
- 14 -

Amount of
Experience
normally required
More than 6
months
Refused to
respond
None

 4 (CX 4 at 5)

Aldine Nursery

5 (CX 4 at 6, 7) Garrison Nursery

Greenhouse

No

None

Dig & Ball;
Greenhouse
Greenhouse

No

1 month or less

No

None

Greenhouse

No

1 week or less

7 (CX 4 at 9)

Church’s Seashore
Nursery
A. Ferrucci & Sons

8 (CX 4 at 10,

Ales Nursery

Dig & Ball;
Greenhouse

No

None

9 (CX 4 at 12)

Beals Nursery

Dig & Ball

No

None

10 (CX 4 at 13,

Brock Farm Nursery

Dig & Ball;
Greenhouse

No

1 month or less

No

None

No

None

13 (CX 4 at 17) Lehner Farms Nursery

Dig & Ball;
Greenhouse
Greenhouse;
Container
(written by
hand)
Dig & Ball

No

None

14 (CX 4 at 18) Carl Mehaffey’s Nursery

Dig & Ball

No

1 month or less

15 (CX 4 at 19) Sepers Countryside
Nursery
16 (CX 4 at 20) Monayham Nursery

Dig & Ball

No

None

Dig & Ball

No

1 week or less

17 (CX 4 at 21) Cumberland Nurseries

Greenhouse

18 (CX 4 at 22) Ivy Acres of New Jersey

Greenhouse

Refused to
respond
No

Refused to
respond
1 month or less

19 (CX 4 at 23) Hayhew Farms
Greenhouses & Nursery
20 (CX 4 at 24) Carl’s Nursery

Greenhouse

No

1 month or less

Greenhouse

No

1 month or less

21 (CX 4 at 25) Aldrick’s Nursery

Greenhouse

No

None

22 (CX 4 at 26) Cohansey Nurseries

Greenhouse

No

None

Dig & Ball;
Greenhouse

No

1 week or less

Greenhouse

No

None

Edgar Joyce Nursery

Dig & Ball;
Greenhouse

No

None

Ferrucci Nursery

Dig & Ball;
Greenhouse

No

None

6 (CX 4 at 8)

11)

14)
11 (CX 4 at 15) Caspers Nursery
12 (CX 4 at 16) Centerton Nursery

23 (CX 4 at 27,

Dean’s Evergreens

28)
24 (CX 4 at 29) R.F. DeMarco
25 (CX 4 at 30,
31)
26 (CX 4 at 32,
33)

- 15 -

 Bellone’s Nursery

Dig & Ball;
Greenhouse

No

None

28 (CX 4 at 36) Galloway Nursery

Greenhouse

No

None

29 (CX 4 at 37) Gorrell Brothers

Dig & Ball

No

1 week or less

30 (CX 4 at 38) SMP Farm

Greenhouse

No

31 (CX 4 at 39) Great Northern Plant

Greenhouse

No

More than 6
months
None

32 (CX 4 at 40) Halka Nurseries

Dig & Ball

No

1 month or less

Harmony Valley

Dig & Ball;
Greenhouse

No

None

34 (CX 4 at 43) Prickett Nursery

No

1 week or less

35 (CX 4 at 44) Lucas Greenhouses

Dig & Ball;
Greenhouse
Greenhouse

No

None

36 (CX 4 at 45) Manetas Farm

Greenhouse

No

3 months or less

37 (CX 4 at 46) Marjac Nursery

Dig & Ball

No

1 week or less

38 (CX 4 at 47) Newfield Nursery

No

1 day or less

39 (CX 4 at 48) Pinelands Nursery

Greenhouse;
Container
(written by
hand)
Greenhouse

No

1 month or less

40 (CX 4 at 49) Piney Hollows Nursery

Greenhouse

No

None

41 (CX 4 at 50) Scott’s Nursery

Dig & Ball;
Greenhouse
Greenhouse

No

1 month or less

No

1 month or less

Dig & Ball;
Greenhouse
Dig & Ball;
Greenhouse
Dig & Ball;
Greenhouse
Greenhouse

No

1 week or less

No

None

No

1 week or less

No

3 months or less

27 (CX 4 at 34,
35)

33 (CX 4 at 41,
42)

42 (CX 4 at 51) Sepers Nursery
43 (CX 4 at 52) Stites Nursery
44 (CX 4 at 53) Burks Fresh Meadow
45 (CX 4 at 54) Loew’s Nursery
46 (CX 4 at 55) J.G. Ackerboom

Of the 38 employers that indicated that they were greenhouse nurseries, two refused to
respond and one was an H-2A employer. Of the remaining 35 greenhouses, 18, or 51%, stated
that no experience was required. One greenhouse nursery employer stated that one day or less
was required, and five greenhouse employers, or 14%, stated that one week or less was required.
Eight greenhouse employers, or 23%, stated that one month or less was required, and two
- 16 -

 greenhouse employers stated that three months or less was required.

Only one non-H-2A

greenhouse employer stated that more than six months of experience was required. In other
words, only 9% of non-H-2A greenhouse nursery employers in southern New Jersey require
more than one month of experience.
Of the 23 employers that indicated that they were dig-and-ball nurseries, 11 stated that no
experience was required, and seven stated that one week of experience or less was required. Five
dig-and-ball nurseries stated that one month of experience or less was required. The SWA
survey found that 0% of the non-H-2A dig-and-ball nursery employers in southern New Jersey
require more than one month of experience.
CX 5 is the O*Net summary report for “Nursery Workers,” occupation code 45-2092.01.
O*Net lists the typical tasks associated with this occupation as:
Plant, spray, weed, fertilize, and water plants, shrubs, and trees, using
hand tools and gardening tools
Harvest plants, and transplant or pot and label them
Feel plants’ leaves and note their coloring to detect the presence of insects
or disease
Operate tractors and other machinery and equipment to fertilize, cultivate,
harvest, and spray fields and plants
Inspect plants and bud ties to assess quality
Dig, cut, and transplant seedlings, cuttings, trees, and shrubs
Move containerized shrubs, plants, and trees, using wheelbarrows or
tractors
Clean work areas, and maintain grounds and landscaping
Haul and spread topsoil, fertilizer, peat moss, and other materials to
condition soil, using wheelbarrows or carts and shovels
Maintain and repair irrigation and climate control systems.
The “nursery workers” occupation falls into Job Zone One, with a Specific Vocational
Preparation (“SVP”) range of “below 4.0.”
CX 6 is the O*Net SVP guide. SVP, as defined by the Dictionary of Occupational Titles,
“is the amount of lapsed time required by a typical worker to learn the techniques, acquire the
information, and develop the facility needed for average performance in a specific job-worker
situation.” An SVP of 4 corresponds to “over 3 months up to and including 6 months.”
Accordingly, as the nursery worker occupation has an SVP range of “below 4.0,” according to
O*Net, the typical nursery worker will need anywhere been a short demonstration (Level 1) to
up to three months (Level 3) to develop the necessary skills for the position.

- 17 -

 DISCUSSION
Evidentiary Rulings
During the hearing, the Employer objected to the admissibility of the New Jersey SWA
survey reports, CX 2 and 3, and the underlying surveys, CX 4, on the grounds that they are not
reliable, as required by the Administrative Procedure Act (“APA”), inasmuch as they do not
comply with “generally accepted survey principles” as stated under the Paperwork Reduction
Act, and because they are hearsay under 29 C.F.R. § 18.802.
The APA provides that an agency must provide a hearing presided over by an ALJ “when
required by statute to be determined on the record after opportunity for an agency hearing.” 5
U.S.C. § 554(a). Although the Immigration and Nationality Act (“INA”) provides for a hearing
for certain H-2A determinations, the statute does not mandate a “hearing on the record” within
the meaning of the APA.5 8 U.S.C. § 1188(e)(1). Nevertheless, even if the APA did apply, CX
2-4 would not be inadmissible. Under the APA, “[a]ny oral or documentary evidence may be
received, but the agency as a matter of policy shall provide for the exclusion of irrelevant,
immaterial, or unduly repetitious evidence.” 5 U.S.C. § 556(d). The CO’s exhibits do not fall
into any of those three categories. In addition, CX 2-4 are not inadmissible simply because they
are hearsay.6 In administrative proceedings, hearsay evidence is not per se inadmissible; rather,
“the only limit to the admissibility of hearsay evidence is that it bear satisfactory indicia of
reliability.” Calhoun v. Bailar, 626 F.2d 145, 148 (9th Cir. 1980).
Finally, contrary to the Employer’s assertion that this evidence should be excluded under
Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharms., 509 U.S. 579, 590 (1993),
the Federal Rules of Evidence do not apply in this proceeding. Furthermore, Rule 702 governs
expert testimony. No expert testimony was proffered in this matter. The SWA survey need not
be “the product of some formal statistical rigor,” as the Employer argues, to be admissible. See
Westward Orchards, 2011-TLC-411, slip op. at 23-24 (July 8, 2011).

5

Under 8 U.S.C. § 1188(e)(1), the Department of Labor’s implementing H-2A regulations “shall provide for an
expedited procedure for the review of a denial of certification under subsection (a)(1) of this section [conditions for
approval of H-2A petitions] or a revocation of such a certification or, at the applicant’s request, for a de novo
administrative hearing respecting the denial or revocation.” Not only does the INA not require a hearing on the
record for review of a denial of certification, it also does not require a hearing for review of a Notice of Deficiency.
6

Furthermore, this evidence almost certainly falls into the hearsay exception for business records, 29 C.F.R. §
18.803(a)(6); Tr. at 91-92.

- 18 -

 When an employer requests a de novo hearing before an Administrative Law Judge to
review the CO’s determination of an H-2A application for temporary labor certification, the
applicable regulation at Section 655.171(b)(1) provides that:
[T]he procedures in 29 CFR part 18 apply to such hearings, except that:
(i) The appeal will not be considered to be a complaint to which an answer is
required;
(ii) The ALJ will ensure that the hearing is scheduled to take place within 5
business days after the ALJ’s receipt of the OFLC administrative file, if the
employer so requests, and will allow for the introduction of new evidence; and
(iii) The ALJ’s decision must be rendered within 10 calendar days after the
hearing.
Twenty-nine C.F.R. Part 18 is divided into two parts – Subpart A, which governs the
general procedural rules, and Subpart B, which governs evidentiary rules.
While the Employer argues that CX 4 should be excluded as hearsay evidence under 29
C.F.R. § 18.802,7 I find that these evidentiary rules do not apply to H-2A hearings. When the H2A hearing procedure was established in 1987, 29 C.F.R. Part 18 did not include Subpart B. 20
C.F.R. § 655.112(b)(1988); 52 Fed. Reg. 20507 (June 1, 1987). OALJ’s Rules of Practice and
Procedure did not include any evidentiary rules until 1990. 55 Fed. Reg. 13219 (Apr. 9, 1990).
Furthermore, such stringent evidentiary rules are ill-suited to the expedited review process
provided for under the H-2A regulations. Accordingly, as I indicated to the parties during the
hearing, administrative adjudication favors admission of all relevant evidence for consideration,
and I will accord more or less weight to the proffered evidence based on its probative value,
reliability, and the fairness of its use. See generally, Calhoun, 626 F.2d at 148.
Based on the foregoing, all of the proffered evidence has been admitted into evidence.

Nine-Month Experience Requirement
The sole issue in this case is whether the Employer’s nine-month experience requirement
is consistent with the normal and accepted qualifications required by non-H-2A employers in the
same or comparable occupations and crops. The H-2A regulations provide, in relevant part, that
in order to bring nonimmigrant workers to the U.S. to perform agricultural work, an employer
7

Under 29 C.F.R.§ 18.802, “hearsay is not admissible except as provided by these rules, or by rules or regulations
of the administrative agency prescribed pursuant to statutory authority, or pursuant to executive order, or by Act of
Congress.” Hearsay is defined under the OALJ Rules of Practice and Procedure as “a statement, other than one
made by the declarant while testifying at the hearing, offered in evidence to prove the truth of the matter asserted.”
29 C.F.R. § 18.801(c). A statement is defined as “(1) an oral or written assertion, or (2) nonverbal conduct of a
person, if it is intended by the person as an assertion.” 29 C.F.R. § 18.801(a)(1)-(2).

- 19 -

 must demonstrate that there are not sufficient U.S. workers able, willing, and qualified to
perform the work in the area of intended employment at the time needed and that the
employment of foreign workers will not adversely affect the wages and working conditions of
U.S. workers similarly employed.

20 C.F.R. § 655.103(a).

The INA provides that “[i]n

considering whether a specific qualification is appropriate in a job offer, the Secretary shall
apply the normal and accepted qualifications required by non-H-2A-employers in the same or
comparable occupations and crops.” 8 U.S.C. § 1188(c)(3)(A). The implementing regulation at
20 C.F.R. § 655.122(b) provides:
Each job qualification and requirement listed in the job offer must be bona fide
and consistent with the normal and accepted qualifications required by employers
that do not use H-2A workers in the same or comparable occupations and crops.
Either the CO or the SWA may require the employer to submit documentation to
substantiate the appropriateness of any job qualification specified in the job offer.
While the regulations do not define “normal and accepted,” this standard has been interpreted as
a standard where the requirement “may be less than prevailing but which clearly are not unusual
or rare.” Westward Orchards, slip op. at 22 (citing Snake River Farmers’ Ass’n, Inc. v. U.S.
Dept. of Labor, 1991 WL 539566, *9 (D. Idaho, Oct. 1, 1991)); see also John Gosney, 2012TLC-9, slip op. at 8 (Dec. 30, 2011).

New Jersey SWA Surveys
The New Jersey SWA surveys at CX 4 show that 51% of greenhouse nurseries in
southern New Jersey do not require any experience, and that 91% of all greenhouse nurseries
require one month of experience or less. Additionally, the surveys indicate that 100% of digand-ball nurseries in southern New Jersey require one month of experience or less. Although the
CO argues that CX 4 demonstrates that a nine-month experience requirement is not normal and
accepted for the occupation of “nursery workers,” SOC code 45-2092.01, neither the
occupational title nor the corresponding SOC code appear anywhere on the individual SWA
surveys, CX 4, or the SWA survey results, CX 2-3.
In Jay R. Debadts & Sons Fruit Farm, 2008-TLC-38, slip op. at 4-5 (July 3, 2008), an
ALJ found that a SWA survey that did not indicate the titles or job descriptions provided some
evidence of the normal practices in that state, but that it was too vague to be considered a legally
sufficient basis for denial. Likewise, in Westward Orchards, slip op. at 24, I found that a SWA
survey was entitled to no weight because the SWA survey did not identify whether the results
- 20 -

 applied to agricultural equipment operators or farm workers, which were the two occupations
that the SWA surveyed.
Mr. Di Stasio testified that the SWA survey results only correspond to the occupation of
nursery worker, SOC code 45-2092.01. Tr. at 65, 87. As no other occupations have been
identified as work that is performed at nurseries, it is likely that the employers completing the
surveys understood that the survey only sought information regarding the employers’ nursery
workers. Nevertheless, because that information is not contained in the survey, there is simply
no way to confirm that the employers’ responses correspond only to the nursery worker
occupation. Accordingly, I find that the survey results are of limited probative value. See Jay R.
Debadts & Sons Fruit Farm, slip op. at 4-5; Tougas Farm, 1998-TLC-10, USDOL/OALJ
Reporter at 6-7 (May 8, 1998).

Employer’s Evidence of “Normal and Accepted” Qualifications
The Employer has offered letters from 20 non-H-2A nursery employers in southern New
Jersey in support of its argument that nine months of experience is normal and accepted among
similarly situated non-H-2A nursery employers. Of these 19, eight of these employers responded
to the SWA survey and stated an experience requirement that is significantly less than the
experience stated in their letters. While Marjac Nursery’s letter states that if it had to hire new
employees to fill its “key production (not managerial) positions,” it would seek up to eight
months of experience, Marjac’s SWA survey states that it normally requires one week of
experience or less. EX 2, CX 4 at 46. Likewise, while Loew’s Nursery’s letter states that
“finding the right people to fill those jobs requires many weeks or even months of experience,”
Loew’s SWA survey states that it normally requires one week of experience or less. EX 7; CX 4
at 54. Similarly, although Brock Nursery’s letter states that it “would seek up to 8 months of
experience” to fill a “key production (not managerial) position,” in the SWA survey, Brock
Nursery stated that it requires one month of experience or less. EX 8; CX 4 at 13-14.
Similarly, the letters from Pinelands Nursery, Dean’s Evergreen, Scott Farm, and Sepers
Nursery all conflict with the employers’ responses to the SWA survey.

While Pineland

Nursery’s SWA survey stated that it required one month of experience or less, its letter states
that it would seek a minimum of 12 months of experience for a “key production (not managerial)
position.” EX 13; CX 4 at 48. While Dean’s Evergreen’s SWA survey response stated that it
- 21 -

 required one week of experience or less, Dean’s Evergreen’s letter states that it “would seek up
to 9 months of experience” to fill a “key production (not managerial) position.” EX 17; CX 4 at
27-28. Although David Scott of Scott Farm Nursery indicated on the SWA survey that he
required one month or less of experience, his letter states that he “would seek up to 12 months of
experience” to fill a “key production (not managerial) position.” EX 19; CX 4 at 50. Finally,
while Louis Sepers of Sepers Nursery, LLC, stated in his SWA survey that he required one
month of experience or less, his letter also states that he “would seek up to 12 months of
experience” to fill a “key production (not managerial) position.” EX 22; CX 4 at 51.
None of these seven employers that provided conflicting responses testified at the
hearing, and therefore, there is no explanation for their conflicting responses. As such, I find that
their letters are not credible and entitled to no weight.
Mr. Blew of Centerton Nursery is the only employer who testified at the hearing who
provided a letter that conflicted with his SWA survey response. Mr. Blew explained that he did
not include an experience requirement on his SWA survey because he believed that question
only applied to H-2A employers.

Tr. at 48-49.

Although this explanation resolves the

conflicting responses, I still find that Mr. Blew’s testimony is entitled to less weight. While Mr.
Blew is of the opinion that it is not unusual or rare for both H-2A and non-H-2A nursery
employers to require nine months of experience, Mr. Blew admitted that he has no idea which
nurseries are and are not H-2A employers. Tr. at 45-46. Therefore, it is impossible to confirm
that Mr. Blew is basing his opinion solely on the employment practices of non-H-2A employers.
Additionally, while Mr. Blew stated that he seeks workers with 12 months of experience, he
noted that he hires three or four nursery workers with no experience each year. Therefore, his 12
month experience requirement is not an absolute minimum requirement.
I find that the remaining 12 letters from employers are entitled to de minimus weight as
well. All of these letters were drafted by the Mr. Overdevest, and it is unclear what type of job
the employers are referring to in the letters. Tr. at 198-199. All of the letters refer to “key
production (not managerial) positions.” Notably, this is Mr. Overdevest’s characterization of the
order puller position, but there is no way of knowing if the individual employers who signed the
letters considered a “key production (not managerial)” position to be the equivalent of a nursery
worker. None of these employers testified, and so there was no opportunity to cross-examine
them on their understanding of the duties of such a position. Additionally, all of these letters

- 22 -

 state that the employers “would seek up to [x] months of experience” for its “key positions.” 8
However, the maximum amount of experience that these employers would accept, or their
preference with respect to experience, is irrelevant. Rather, it is necessary to gauge the minimum
amount of experience that is required by these non-H-2A employers in order to determine how
much experience is normal and accepted.
Moreover, these letters all state that nine months of experience is normal and accepted for
both H-2A and non-H-2A employers of Overdevest Nurseries’ size and diversity. This statement
is problematic because it conflates the experience requirements of H-2A and non-H-2A
employers, while the employment practices of H-2A employers are irrelevant for the purposes of
Section 655.122(b). Additionally, the size and diversity of Overdevest Nurseries is not legally
relevant under Section 655.122(b). As the employers’ conclusions are premised on legally
irrelevant facts, I find that these letters are entitled to minimal weight.
The letter from Mr. Furey of the New Jersey Farm Bureau is flawed for the same reason.
Mr. Furey states that “[f]or larger and/or more diversified operations such as Overdevest
Nurseries in Cumberland County, an experience requirement of up to one year is not unusual for
both H2A and non-H2A program users/growers.” EX 9. However, as explained above, size and
diversity is not legally relevant, nor are H-2A employers’ practices. As such, it is of limited
probative value.
Additionally, the letter from Mr. Mondi of the New Jersey Nursery and Landscape
Association provides little rationale for his conclusion that it is not rare or unusual for both H-2A
and non-H-2A employers to require a full season of experience for certain positions like the
order puller job description. EX 11. While Mr. Mondi states that he has exposure to over 100
nursery operations in New Jersey, he does not state how many of these operations do not use the
H-2A program, nor does he specify how much experience the non-H-2A employers typically
require. Additionally, Mr. Mondi’s letter is vague regarding how much experience is usually
required, stating both that “some level of experience” is necessary, and that a “full season” is
necessary. However, Mr. Mondi did not quantify the amount of experience that is normally
required, and does not differentiate between H-2A and non-H-2A employers.
Mr. Johnson’s testimony is also of limited value. Mr. Johnson’s area of expertise is
nutrient management, water quality, and pest control, and he conceded that he does not know
8

The only letter that phrases its experience requirement as the minimum amount of experience required, rather than
the maximum experience required, is Pinelands Nursery, EX 13. However, as I found above, because the
experience requirement conflicts with the employer’s response to the SWA survey, it is entitled to no weight.

- 23 -

 very much about nurseries’ employment practices. Tr. at 8-9, 52. Additionally, Mr. Johnson’s
letter states that anywhere from three to nine months of experience is normal and accepted
among both H-2A and non-H-2A employers. EX 10. According to Mr. Johnson, the number of
months usually required varies depending on the size of the nursery, the actual position, and the
workers’ wage expectations. Tr. at 19-20. However, neither the size of the nursery nor the
workers’ wage expectations are relevant considerations for the purposes of Section 655.122(b).
Moreover, Mr. Johnson conflated the employment practices of both H-2A and non-H-2A
employers.
As I find that the Employer’s letters are of limited probative value and insufficient to
meet the Employer’s burden, I will also consider the OES/O*Net Code to determine whether the
Employer’s nine-month experience requirement is consistent with the typical amount of
experience required for this position.

OES/O*Net Code
When an ALJ has found a SWA survey to be of limited probative value on the issue of
normal and accepted practices, the ALJ has considered alternative evidence from the Dictionary
of Occupational Titles (“DOT”) in order to determine whether the job requirement at issue is
normal and accepted among non-H-2A employers the same or comparable occupations and
crops. See Jay R. Debadts & Sons Fruit Farm, 2008-TLC-38 (July 3, 2008); Strathmeyer
Forests, Inc., 1999-TLC-6 (Aug. 30, 1999); Tougas Farm, 1998-TLC-10, USDOL/OALJ
Reporter (May 8, 1998); Hoyt Adair, 1996-TLC-1, USDOL/OALJ Reporter (April 19, 1996).
Caselaw establishes that the DOT listing for an occupation is probative evidence regarding
whether an occupational requirement is a normal and accepted qualification. See Strathmeyer
Forests, Inc., slip op., at 4; Tougas Farm, USDOL/OALJ Reporter at 6. While reliance solely on
the DOT listing or OES/O*Net job classification9 is disfavored because it does not account for
variation by state or by crop, given that neither the New Jersey SWA survey nor the Employer’s
letters provide sufficiently reliable or probative evidence, I will consider the OES/O*Net code

9

DOT codes have been replaced by the OES codes and O*Net descriptions. O*Net is a database containing
information on hundreds of standardized and occupation-specific descriptors. O*Net job descriptions contain
several standard elements, one of which is a “Job Zone.” An O*Net Job Zone “is a group of occupations that are
similar in: how much education people need to do the work, how much related experience people need to do the
work, and how much on-the-job training people need to do the work.” See
http://www.onetonline.org/help/online/zones

- 24 -

 and description and all conflicting or corroborating evidence in order to determine whether the
experience requirement is normal and accepted.
The Employer has titled the jobs that are the subject of this application as “order pullers.”
The OES code that the Employer listed on its application is 45-2092.01, “nursery workers.”10 As
the Employer’s job order includes, and Mr. Overdevest agreed that the “order pullers” perform,
the majority of the job duties that are listed for the “nursery workers” occupation title, I find that
this is the most appropriate occupational classification for the position of “order pullers.” See
AF 167; Tr. 200-204; CX 5.
The occupation summary found on the O*Net website identifies the occupation as a Job
Zone 1, meaning that little or no previous work-related skill, knowledge, or experience is needed
for occupations falling in this zone, and provides a specific vocational preparation (“SVP”) of
“Below 4.0.”11 An SVP of below Level 4 corresponds to an amount of lapsed time ranging from
Level 1, which is “short demonstration only,” Level 2, which is “anything beyond short
demonstration up to and including 1 month,” to Level 3, which is “over 1 month up to and
including 3 months.”12
The OES/O*Net listing for nursery workers shows that anywhere from a short
demonstration up to and including three months of experience is needed for a typical worker to
learn the techniques, acquire the information, and develop the facility necessary for average
performance as a nursery worker. The Employer’s nine-month experience requirement far
exceeds the amount of experience that is considered normal for this type of work. Accordingly, I
find that the Employer has failed to meet its burden to establish that the nine-month experience
requirement is normal and accepted. 20 C.F.R. §§ 655.103(a); 655.122(b).

10

Although the Employer’s cover letter states that “[w]e do not necessarily agree that the code that we used in ETA
Form 9142 is the best code or that it is the same as the positions that other employers might describe with the same
code or that survey responses relating to this code have any relevance to this particular job,” AF 181, the Employer
has not suggested any other O*Net Code that more accurately fits the position. The ETA Form 9141 Instructions
specifically require the Employer to enter the SOC/O*Net code for the occupation that most clearly describes the
work to be performed. See
http://www.foreignlaborcert.doleta.gov/pdf/ETA_Form_9142_General_Instructions_FINAL.pdf.
11

http://www.onetonline.org/link/details/45-2092.02#JobZone.

12

SVP, as defined in Appendix C of the Dictionary of Occupational Titles, is the amount of lapsed time required by
a typical worker to learn the techniques, acquire the information, and develop the facility needed for average
performance in a specific job-worker situation. http://www.onetonline.org/help/online/svp (citing U.S. Department
of Labor. (1991). Dictionary of Occupational Titles (Rev. 4th ed.). Washington, DC: U.S. Government Printing
Office).

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 ORDER
In light of the foregoing, it is hereby ORDERED that the Certifying Officer’s
determination is AFFIRMED.

A
WILLIAM S. COLWELL
Associate Chief Administrative Law Judge

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