Salazar-Calderon v. Presidio Valley Farmers Ass'n

• Decision Date: 25 July 1985
• Docket Number: SALAZAR-CALDERON,No. 84-1163,84-1163
• Citation: 765 F.2d 1334
• Parties: 103 Lab.Cas. P 34,713 Amado, et al., Plaintiffs-Appellants, Cross-Appellees, v. PRESIDIO VALLEY FARMERS ASSOCIATION, et al., Defendants-Appellees, Cross- Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1334

765 F.2d 1334

103 Lab.Cas. P 34,713

Amado SALAZAR-CALDERON, et al., Plaintiffs-Appellants, Cross-Appellees, v. PRESIDIO VALLEY FARMERS ASSOCIATION, et al.,

Defendants-Appellees, Cross- Appellants.

No. 84-1163.

United States Court of Appeals, Fifth Circuit.

July 25, 1985.

Edward J. Tuddenham, Tex. Rural Legal Aid, Hereford, Tex., David Hall, Weslaco, Tex., for plaintiffs-appellants, cross-appellees.

Robert A. Skitol, Washington, D.C., for amicus Farmworker Justice Fund.

Thomas Bacas, Washington, D.C., for defendants-appellees, cross-appellants.

Appeals from the United States District Court for the Western District of Texas.

Before THORNBERRY, RUBIN and HIGGINBOTHAM, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

This case presents claims by 492 Mexican nationals against the Presidio Valley Farmers Association and its grower members who employed them during the 1977 harvest season. Plaintiffs allege that defendants violated the terms and conditions of their employment agreement, terms set, for the most part, by federal law, as well as numerous provisions of the Farm Labor Contractor Registration Act.

The plaintiffs prevailed below, but appeal arguing that the district court erred in determining the terms of their employment agreement and in assessing damages. The plaintiffs also ask us to reverse the district court's refusal to certify this case as a class action, and, in the event we also refuse, ask us to reverse its decision that the claims of certain plaintiffs are barred by limitations. Defendants cross appeal, arguing that the district court erred in assessing any liability at all. We find defendants' cross-appeal to be without merit, but conclude that plaintiffs' challenges demonstrate, at least in part, reversible error. We affirm in part, reverse in part, and remand.

I

The Presidio Valley of Texas is a small but fertile agricultural region situated along the Rio Grande approximately 200 miles downstream from El Paso and directly across the border from Ojinaga, Chihuahua. Its principal crops include onions, melons, chile peppers and cotton. Illegal aliens from Ojiniga and neighboring Mexican territory have long been the primary source of labor for the Valley's farms.

The circumstances that gave rise to this controversy began in early 1977, when the Immigration and Naturalization Service informed growers in the Valley that it intended to step up its enforcement activity in the area. Aware that the effect of such enforcement would be to cut off labor needed for the 1977 harvest, the growers investigated INS's H-2 visa program. Under H-2, INS may issue visas to aliens for temporary employment in the United States upon petitions of the importing employer. See 8 U.S.C. Secs. 1101(a)(15)(H), 1184(c). ¹ We describe first the aspects of the H-2 visa program applicable to the issues before us, and then turn to defendants' use of that program during the 1977 harvest season.

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The regulations implementing INS's authority to issue H-2 visas require applications by the petitioning employer to be accompanied by a certification from the Secretary of Labor that U.S. workers are not available for the work and that employment of the alien workers will not adversely affect workers in the U.S. or a notice stating that such certification cannot be made. 8 C.F.R. 214.2(h)(3). The Department of Labor has in turn set forth minimum standards of employment and procedures that must be followed before it will issue its certifications for H-2 petitions.

In 1977, those regulations were codified at 20 C.F.R. Secs. 602.10-602.10b; essentially the same regulations are currently codified at 20 C.F.R. Sec. 655.202-207 (1984). Basically, the DOL regulations require an employer seeking certification for alien farmworkers first to attempt to recruit U.S. workers by circulating job notices known as "clearance orders" among the state and local employment bureaus. To ensure that the employment of aliens under H-2 will not adversely affect the working conditions of similarly employed U.S. workers, the regulations further require that the petitioning employer offer specific terms of work including housing, meals, free tools, a written contract, a guarantee of work or wages for three-fourths of the contract period, and a special wage known as the adverse effect wage rate. 20 C.F.R. Secs. 602.10a-602.10b (1977).

Regardless of whether or not DOL certifies the petition of the importing employer, INS makes the final decision on the issuance of the H-2 visa petitions. Where no certification is provided by DOL, however, the petitioning employer must "present countervailing evidence [to the INS] that qualified persons in the U.S. are not available and that the employment policies of the Department of Labor have been observed." 8 C.F.R. Sec. 214.2(h)(3). As will be explained, infra, we interpret this regulation to mean that the employment conditions mandated by the DOL regulations must be offered to aliens to be employed through the H-2 program unless the INS Commissioner decides that some or all of DOL's conditions will not be required. -2-

The growers in the Valley did not petition for the H-2 visas individually, but instead formed an association, the Presidio Valley Farmers Association, for that purpose. The PVFA's thirty-three members ranged from small family farmers to large corporate agribusinesses, but all shared a common goal--the creation of a pool of legal alien labor in the Valley. The growers combined forces so that the administrative tasks necessary to obtain the visas from INS could be achieved more easily and more rapidly, and thus relieved individual growers of the recruiting and application responsibilities they otherwise would have faced.

For example, the PVFA, rather than the individual growers, determined the terms and conditions of employment which all Association members would offer. PVFA then filed the required clearance orders with the Texas Employment Commission and circulated advertisements offering the employment in both Texas and Mexico. PVFA then requested DOL to issue certification for its H-2 visa petitions.

DOL refused to certify the petitions, however, primarily on the ground that there was insufficient housing available in the Valley to accommodate migrant workers. DOL also considered the terms of employment offered by PVFA to be insufficient under its regulations. For example, DOL sought to require PVFA to pay its workers an AEWR of $2.83 per hour, but the PVFA repeatedly offered to pay only the minimum wage, $2.20 per hour; and the PVFA failed to offer its workers the required 3/4 work guarantee for the terms of their visas.

Despite DOL's refusal to certify the petitions, PVFA urged INS to grant the visas, explaining that the lack of worker housing in Presidio was not a real problem because nearly all of the workers to be employed under the visas could easily commute daily from their homes in Ojinaga. It is unclear from the record precisely what other issues were discussed with INS, but on June 9, 1977, acting INS Commissioner Mario Noto approved PVFA's petition for 809 visas for Mexican nationals to work in the Valley during the 1977 harvest season. ² The visa petitions offered, inter alia, 40-60 hours of work per week for the workers at the minimum wage and a transportation allowance for each worker of $5.00 per week.

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This case presents allegations by the alien workers employed in the Valley under the H-2 visa program that PVFA and its members violated the terms of their employment contracts with the workers, as well as numerous sections of the Farm Labor Contractor Registration Act, 7 U.S.C. Sec. 2041 et seq. (repealed 1982), during the 1977 harvest season. The suit was originally commenced as a number of separate class actions, all filed in the Western District of Texas, some of which were based in contract and others which were based on alleged violations of the FLCRA. The actions were eventually consolidated under the Salazar heading.

As noted above, the plaintiffs' claims were of basically two varieties: contract claims and claims for violations of the FLCRA. The contractual theory was, in short, as follows. The PVFA, in offering visas to the plaintiffs, offered them a contract of employment for the duration of the visas. The terms of the contract were the conditions of employment included in the visa petitions and the employment conditions required by DOL's H-2 regulations. For plaintiffs, the most important of these conditions were the 3/4 work guarantee, an AEWR of $2.83 per hour, and the $5.00 per week transportation allowance.

Plaintiffs further contended that the individual growers, as well as PVFA as an entity, were their joint employers. The employment contract with PVFA, under plaintiffs' theory, was akin to a guarantor arrangement. The PVFA promised that if plaintiffs made themselves available during the terms of the visas, grower members would provide them work, and that if the individual growers failed to honor the terms of the employment agreement, PVFA would be liable for the breach.

The plaintiffs' FLCRA claims dovetailed with, and to some extent overlapped, the contract claims. As we shall explain in more detail, infra, the FLCRA, before its repeal in 1982, regulated farm labor contractors--middlemen who recruit and hire migrant farmworkers--and required certain minimum standards for the employment of such workers. Some of these standards duplicated those required by DOL's H-2 regulations.

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The district court refused plaintiffs' request to certify the 809 H-2 workers as a class under Fed.R.Civ.P. 23(b)(3), and the case went forward with 492 named plaintiffs, all Mexican nationals who worked for PVFA members during the 1977 harvest season. Because of the large numbers of parties suing, however, counsel for both sides took a number of steps to facilitate the court's decision in the case. First, the parties agreed to submit to the court ...