NAACP v. Donovan

• Decision Date: 03 September 1982
• Docket Number: Civ. A. No. 82-2315.
• Citation: 558 F. Supp. 218
• Parties: NAACP, Jefferson County Branch, Fred Moody, and Lucius Donaldson, on Behalf of Themselves and All Others Similarly Situated, Plaintiffs, v. The Honorable Raymond J. DONOVAN, Secretary, United States Department of Labor, in His Official Capacity, and the United States Department of Labor, Defendants.
• Court: U.S. District Court — District of Columbia

558 F. Supp. 218

NAACP, Jefferson County Branch, Fred Moody, and Lucius Donaldson, on Behalf of Themselves and All Others Similarly Situated, Plaintiffs, v. The Honorable Raymond J. DONOVAN, Secretary, United States Department of Labor, in His Official Capacity, and the United States Department of Labor, Defendants.

Civ. A. No. 82-2315.

United States District Court, District of Columbia.

September 3, 1982.

Philip A. Lacovara, Gerald Goldman and Thomas D. Goldberg of Hughes, Hubbard & Reed, Washington, D.C., for plaintiffs.

Stanley S. Harris, U.S. Atty., Royce C. Lamberth and Richard A. Stanley, Asst. U.S. Attys., William H. Duross, III, Associate Sol. for Employment and Training, U.S. Dept. of Labor, and Bruce W. Alter, U.S. Dept. of Labor, Washington, D.C., for defendants.

MEMORANDUM OPINION

CHARLES R. RICHEY, District Judge.

I INTRODUCTION

This matter is before the Court on cross motions for summary judgment for declaratory and injunctive relief. By agreement of the parties this decision shall be the equivalent of a decision on the merits. The parties have agreed to a joint statement of material facts that are not in dispute and the only question now before the Court is one of law.

The basic question presented is whether the Department of Labor ("DOL") has properly enforced its regulations conditioning "certification" upon agreement by employers to pay workers at an established wage rate. Specifically, plaintiffs allege that DOL has improperly allowed employers to escalate the rate of productivity they demand of workers, rather than requiring employers to increase the piece rate¹ paid to workers, whenever the adverse effect rate ("AER")² is increased. The Court finds that the DOL has not properly enforced its regulations, and, therefore, grants plaintiff's motion for summary judgment for the reasons set forth herein.

II BACKGROUND AND FACTS

This is a class action filed by the NAACP on behalf of itself, several named plaintiffs and "all farmworkers who were employed by Ewer Orchards, Mount Level Orchards, and Tri-County Growers ... at any time during the 1980 and 1981 harvest seasons; and all United States farmworkers who intend to seek or are seeking employment in West Virginia for the 1982 harvest season and whose wages or working conditions may be adversely affected by the acts complained of" as per this Court's Order of August 24, 1982 granting certification of the class.

Defendant, the DOL, is the government agency responsible for regulation of the wages and working conditions of plaintiff class members. Part of the DOL's responsibility entails advising the Attorney General regarding the admission of temporary foreign workers into this country. See Immigration and Nationality Act ("INA"), 8 C.F.R. § 214.2(h)(3)(i). The DOL is required to carry out the policy of the INA that alien workers may not be imported unless it is determined that their employment will not adversely affect similarly employed United States workers. See id. Pursuant to this mandate, the DOL has promulgated the regulations at issue here: 20 C.F.R. §§ 655.0 to 655.00, 655.200 to 655.212. Under these regulations, employers may import foreign workers only after they have obtained "temporary labor certification" from the DOL. The DOL may only grant certification upon a determination that admission of foreign workers will not adversely affect the wages or working conditions of American workers, and, that there are no sufficient American workers to meet the employer's needs. To aid in making these determinations, the DOL promulgated regulations pursuant to which it annually calculates the AER.³ 20 C.F.R. § 655.207(d). Growers seeking certification must submit applications to the DOL stating the wages (which must be at least equal to the AER), terms, benefits and conditions that they will pay alien workers. After appropriate attempts to recruit sufficient American workers have failed, the DOL will grant certification.

The plaintiffs root their challenge of DOL's certification regulations in the applications of three West Virginia employers— Ewer Orchards, Mount Level Orchards, and Tri-County Growers, Inc.⁴ (hereinafter the "growers") who have applied for certification at least since 1977. Prior to 1978 the growers' applications expressed piece rates and expected productivity rates solely in terms of bushels harvested. Presumably based on prior experience they represented that expected productivity for an average picker was 80 bushels per day. The piece rate was then established based on expected productivity of 10 bushels per hour for an eight hour day. Thus, the piece rate was equal to one-tenth of the AER rounded off to the highest cent. During 1977 and 1978 the piece rate was consistently set at a level that allowed workers that averaged 10 bushels an hour to earn the AER. Plaintiffs do not contest the piece rate calculations for those years.⁵

In 1979, however, the growers submitted applications basing their piece rates upon an expected productivity rate of 80 boxes or 90 bushels per day. The DOL refused to accept these applications until the growers amended them to guarantee workers a piece rate that allowed workers to earn the AER, based on expected productivity of 80 bushels per day. The growers then amended their applications accordingly.

In 1980 and 1981, the growers again submitted applications proposing to pay piece rates based on the productivity rate of 80 boxes per day. In both of these years the applications were accepted and workers were paid at the proposed rates of 80 boxes per day. Thus, the workers were able to earn less than if the 80 bushel rate had been maintained.

The growers' applications for 1982 present a unique problem because the DOL has not yet established an AER for this year.⁶ The growers' applications set the proposed piece rate for 1982 at one cent below last year's piece rates both per bushel and per box. The DOL had given preliminary approval to these applications and had allowed the growers to begin recruiting American workers at the proposed rates prior to this litigation. Had that effort been unsuccessful they then would have been allowed to begin recruiting American farm workers.

With the approach of the 1982 harvest season the plaintiffs filed this suit on August 17, 1982 seeking declaratory and injunctive relief. They seek to prevent the DOL from: (1) granting certification to the growers based on the piece rates proposed in their applications; and, (2) permitting the growers to recruit at the proposed rates.

On August 20, 1982, the Court heard and granted plaintiff's motion for a Temporary Restraining Order. The Court ordered the DOL to rescind the certification that it had granted to one of the growers on August 18th. It further ordered the DOL to deny certification to the growers unless they agreed to establish an escrow fund containing wages that would be due to workers if the disposition of this case is favorable to plaintiffs. The growers will also be required to disclose the pendency of this suit and the existence of the escrow account in any of their recruiting materials. At the hearing on August 20th, the parties agreed that the hearing on the question of declaratory and injunctive relief would be combined with a hearing on the merits so as to allow the Court to expeditiously dispose of the entire matter. The parties further agreed that the matter would be determined on cross motions for summary judgment.

III PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT IS GRANTED BECAUSE DEFENDANT HAS FAILED TO COMPLY WITH ITS OWN REGULATIONS RELATING TO LABOR CERTIFICATION BY NOT REQUIRING THE GROWERS TO ADJUST PIECE RATES TO MATCH INCREASES IN THE AER

Two-sections of the regulations are important here. The first of these states: "if the workers will be paid on a piece rate basis, the piece rate will be designed to produce average hourly earnings at least equal to the AER." 20 C.F.R. § 655.202(b)(9)(ii). This section further provides that "if the piece rate does not result at the end of the pay period in average hourly earnings ... at least equal to ... the AER, the worker's pay will be supplemented at that time so that the worker's earning are at least as much as the worker would have earned ... if the worker had been paid at the AER." Id.

This section is important for several reasons. Initially, the section makes it clear that the AER is the absolute minimum that workers must be paid.⁷ Additionally, by mandating that average hourly earnings must be at least equal the AER, the regulation establishes that above average workers should earn more than the established minimum. Finally, this section clearly requires the piece rate to be tied to the AER—the AER is used to calculate the minimum piece rate that may be offered.

The second section that is of import to this case is § 655.207(c) which was intended to complement and "clarify" § 655.202(b)(9) discussed above. 43 Fed.Reg. 10306, 10310 (March 10, 1978). Section 655.207(c) provides:

In any year in which the applicable AER is increased, employers shall adjust their piece rates upward to avoid requiring a worker to increase his or her productivity over the previous year in order to earn an amount equal to what the worker would earn if the worker were paid at the AER.

The terms of this regulation clearly mandate that piece rates be tied to the AER. If the AER is increased, this section requires that the piece rate be increased accordingly so that an employee can earn the same salary without need to increase productivity. This provision clearly aims at preventing growers from raising productivity rates rather than piece rates whenever the AER increases. The legislative history indicates that the regulation was intended to eliminate this abuse. 43 Fed.Reg. at 10309-10.

Defendant does not dispute the apparent meaning of § 655.207(c). Instead, the DOL relied upon General Administration Letter ("GAL") No. 46-81, an interpretive letter...