Hernandez Flecha v. Quiros, No. 77-1401

• Decision Date: 28 December 1977
• Docket Number: No. 77-1401
• Citation: 567 F.2d 1154
• Parties: Reinaldo HERNANDEZ FLECHA et al., Plaintiffs, Appellees, v. Hon. Carlos QUIROS, etc., Defendant, Appellee, F. Ray Marshall, U. S. Secretary of Labor, et al., Defendants, Appellants.
• Court: U.S. Court of Appeals — First Circuit

Page 1154

567 F.2d 1154

Reinaldo HERNANDEZ FLECHA et al., Plaintiffs, Appellees, v. Hon. Carlos QUIROS, etc., Defendant, Appellee F. Ray Marshall, U. S. Secretary of Labor, et al Defendants, Appellants.

No. 77-1401.

United States Court of Appeals First Circuit.

Argued Oct. 4, 1977.

Decided Dec. 28, 1977.

Jonathan H. Waxman, Acting Counsel for Litigation, Washington, D. C., with whom Carin Ann Clause, Sol. of Labor, Nathaniel Baccus, III, Associate Sol. for Employment and Training, Washington, D. C., Morton J. Marks, Regional Atty., Santurce, P. R., Mary Asseo, Hato Rey, Puerto Rico, and Steven M. Guttell, Attys., Washington, D. C., were on brief for defendants, appellants.

S. Steven Karalekas and Thomas J. Bacas, Washington, D. C., on brief for Farm Labor Executive Committee, amicus curiae.

Luis N. Blanco Matos, Hato Rey, P. R., with whom Salvador Tio, Rio Piedras, P. R., Howard S. Scher, Burton D. Fretz, Washington D. C., and Alan J. Rom, Boston, Mass., were on brief, for appellees.

Before COFFIN, Chief Judge, ALDRICH, Circuit Judge, and CRARY, District Judge. ^*

ALDRICH, Senior Circuit Judge.

In this action for an injunction, and a declaration of rights, there has been a considerable past history that is sought to be used by the various parties to reflect on others. We disregard it as irrelevant, and turn to the single question of substance, which, we agree with plaintiff, appellees, is not moot. This is whether Puerto Rican workers, because of their special demands, are to be excluded from the pool of "available" domestic workers when determining the number of alien workers needed for certain migrant agricultural work. The district court issued a preliminary injunction requiring defendant United States Secretary of Labor, U.S. Secretary, to declare the Puerto Rican workers available, and enjoining defendant Commissioner of the Immigration and Naturalization Service, INS, from issuing temporary work visas. We stayed the injunction, and now consider the merits. Plaintiffs are agricultural workers residing in Puerto Rico. A further named defendant is the Puerto Rico Secretary of Labor, P.R. Secretary.

The problem arises in this manner. Certain private activities in the several states, in this instance apple growing in a number of Eastern states, require many temporary workers, here apple pickers, for a short and specific interval. The demand often exceeds the local supply, and the growers look elsewhere, including abroad. We start with a given, that it has always been a Congressional policy to prefer domestic workers in all fields. However, it is also necessary to consider would-be employers, although in case of conflict, wide leeway favoring domestic workers is given the U.S. Secretary. Elton Orchards, Inc. v. Brennan, 1 Cir., 1974, 508 F.2d 493 (apple growers); cf. Silva v. Secretary of Labor, 1 Cir., 1975, 518 F.2d 301 (live-in maid). Domestic workers are preferred in the manner of hiring, so long as there are any "who are able, willing, qualified, and available." 8 U.S.C. § 1182(a) (14)(A). In order further to protect domestic workers and their working conditions, as required by subsection (14)(B), employers of both domestic and alien workers are obliged to maintain certain minimum wage and other standards determined by the U.S. Secretary, hereinafter U.S. conditions. 8 U.S.C. §§ 1101(a)(15)(H)(ii), 1184(c) (1970); 20 C.F.R. §§ 602.10-10b (1977). At the same time, under the statute, employers are protected by permitting the admission of aliens when there is no supply of domestic workers who are "able, willing, qualified, and available." The question is whether a domestic worker who demands more than the U.S. conditions falls within this statutory definition.

The present difficulty was created by the Puerto Rico legislature's enactment of Public Law 87 of 1962, as amended in 1977, forbidding the P.R. Secretary to contract with the U.S. Secretary to release Puerto Rican residents for itinerant work except upon conditions, hereinafter P.R. conditions, more onerous to the employer than those set by the U.S. Secretary. Since none could come without his permission, the P.R. Secretary's insistence upon these conditions led to a determination by the U.S. Secretary that no Puerto Rican workers were "available." The U.S. Secretary accordingly computed the quotas of apple pickers without reference to Puerto Rico. Plaintiffs responded with this suit, and obtained the preliminary injunction which we stayed.

Plaintiff, at the outset, contend that P.L. 87 and its constitutionality are not involved. In a sense, this is so. The basic fact which the U.S. Secretary faced was the simple one that no Puerto Rican worker would come unless the employer agreed to meet conditions exceeding the U.S. conditions. We may agree with plaintiffs that the reason why is purely secondary; the question is the same whether the Puerto Rican workers' insistence upon P.R. conditions was made for them by the legislature, or by the P.R. Secretary, or was due to insistence by a union to which they all belonged, or was merely the result of Puerto Rican workers not finding the U.S. conditions sufficiently attractive, and demanding more on an individual basis. Our decision covers all of these matters, and the statute only incidentally.

It is plaintiffs' position that the U.S. conditions are merely a minimum, and that they neither forbid employers offering more, nor...