531 F.2d 305 (5th Cir. 1976), 75--3458, Williams v. Usery

Docket Nº:75--3458.
Citation:531 F.2d 305
Party Name:Andrew WILLIAMS, Individually and on behalf of all others similarly situated, Plaintiffs-Appellants, v. W. J. USERY, in his capacity as Secretary of Labor, United States Departmentof Labor, et al., Defendants-Appellees.
Case Date:May 10, 1976
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 305

531 F.2d 305 (5th Cir. 1976)

Andrew WILLIAMS, Individually and on behalf of all others

similarly situated, Plaintiffs-Appellants,

v.

W. J. USERY, in his capacity as Secretary of Labor, United

States Departmentof Labor, et al., Defendants-Appellees.

No. 75--3458.

United States Court of Appeals, Fifth Circuit

May 10, 1976

Rehearing and Rehearing En Banc

Denied June 8, 1976.

Page 306

Bill Abbuehl, Belle Glade, Fla., Michael Masinter, Florida Rural Legal Services, Inc., Homestead, Fla., Katherine Gruenheck, Migrant Legal Action Program, Washington, D.C., for plaintiffs-appellants.

Steven M. Guttell, Atty., U.S. Dept. of Labor, Washington, D.C., with whom William J. Kilberg, Sol. of Labor, Craig A. Berrington, Associate Sol., Carl W. Gerig, Jr., Counsel for Manpower Litigation, Washington, D.C., Beverley R. Worrell, Regional Sol., U.S. Dept. of Labor, Atlanta, Ga., and Rex L. Young, U.S. Dept. of Justice, Washington, D.C., were on brief for defendants-appellees.

Charles Kelso, Atlanta, Ga., for Fla. Sugar Cane League.

Appeal from the United States District Court for the Southern District of Florida.

Before DYER and CLARK, Circuit Judges, and KRAFT [*], District Judge.

DYER, Circuit Judge:

This appeal, like the companion case of Florida Sugar Cane League v. Usery, 5 Cir. 1976, 531 F.2d 299, decided today, raises a number of objections to the Secretary of Labor's basis for the determination of the 'adverse effect wage rate' for sugar cane cutters in Florida. Williams, an American unemployed sugar cane cutter, argued unsuccessfully in the district court that the Secretary had set the rate too low. He contended that the Secretary had failed to follow certain mandatory procedures in the certification of no adverse effect upon domestic workers from the use of foreign workers. Within the same contours of review of administrative rule-making enumerated this day in League, supra, we find no error in the district court's denial of injunctive relief.

Like the Florida Sugar Cane League, Williams attacks the Secretary's method of computations in arriving at the $2.84 'adverse effect wage rate'. Unlike the argument of the League that the Secretary had exceeded his authority by considering extrinsic criteria, Williams asserts the Secretary failed to exercise the authority imposed upon him to avoid adverse effects on the wages of American workers. He objects to the 'adverse effect wage rate' itself ($2.84) as too low to attract domestic workers. Although Williams raised this issue in this case below, he did not raise it on appeal in the case sub judice. Instead, Williams raised it in his Amicus Curiae brief in League supra. Since the issue fits more logically within the confines of this opinion, we decide it here. Williams seeks to require the Secretary to: 1) determine 'the prevailing wage rate' for sugar cane in Florida; 2) require growers utilizing a piece rate system to guarantee average hourly earnings 25 percent higher than the hourly rate otherwise required; and 3) establish...

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