Naporano Metal & Iron Co. v. Secretary of Labor of U.S.

• Decision Date: 21 January 1976
• Docket Number: No. 75--1373,75--1373
• Citation: 529 F.2d 537
• Parties: NAPORANO METAL AND IRON COMPANY, a corporation of the State of New Jersey, Appellee, v. SECRETARY OF LABOR OF the UNITED STATES and Robert Seebol, Reviewing Officer for Manpower Administration District II, United States Department of Labor. Appeal of Jonathan L. GOLDSTEIN, United States Attorney for the District of New Jersey.
• Court: U.S. Court of Appeals — Third Circuit

Page 537

529 F.2d 537

41 A.L.R.Fed. 597

NAPORANO METAL AND IRON COMPANY, a corporation of the State of New Jersey, Appellee, v. SECRETARY OF LABOR OF the UNITED STATES and Robert Seebol Reviewing Officer for Manpower Administration District II, United States Department of Labor Appeal of Jonathan L. GOLDSTEIN, United States Attorney for the District of New Jersey.

No. 75--1373.

United States Court of Appeals Third Circuit.

Argued Nov. 13, 1975.

Decided Jan. 21, 1976.

Vincent J. Agresti, Brian S. Lafferty, Newark, N.J., for appellee.

John J. Barry, Asst. U.S. Atty., Newark, N.J., John L. Murphy, Chief, Government Regulations Section, Crim. Div., Chester J. Halicki, Dept. of Justice, Washington, D.C., for appellants.

OPINION OF THE COURT

Before ALDISERT, HUNTER and GARTH, Circuit Judges.

GARTH, Circuit Judge.

This case presents for our consideration the Secretary of Labor's (Secretary) denial of labor certification to an alien. We hold that the wage established under a negotiated collective bargaining agreement and paid to alien and non-alien workers alike cannot be deemed to 'adversely affect the wages and working conditions' of Americans similarly employed within the meaning of 8 U.S.C. § 1182(a)(14). We thus conclude that the Secretary ¹ acted contrary to law in denying certification and affirm the district court's issuance of a writ of mandamus.

I.

Plaintiff-appellee Naporano Metal and Iron Co. (Naporano), a corporation located in Newark, New Jersey, applied for labor certification pursuant to 8 U.S.C. § 1182(a)(14) ² on behalf of Elisio Carvalhal da Silva (Silva), an alien lawfully within the United States. Naporano employed Silva as a welder and cutter of scrap metal at a wage established by the collective bargaining agreement negotiated between Naporano and Local 374 of the Laborers' International Union of North America.

On February 28, 1974 a Certifying Officer for Region II of the Department of Labor ³ denied Naporano's application because Silva's wage of $3.87 per hour, the union negotiated rate, was below the prevailing wage rate of $4.63 per hour for welders in the Newark, New Jersey area. Naporano appealed from this decision to the Assistant Regional Director for Manpower for Region II of the Department of Labor. ⁴ On July 9, 1974, the Assistant Regional Director's designated representative ⁵ affirmed the denial of labor certification because Silva's wage (then $4.12 per hour as a result of a $.25 per hour increase under the union contract) was below the prevailing wage rate for that occupation in the area. This constituted a final administrative determination of Naporano's application. 29 CFR § 60.4(c).

Naporano thereafter commenced this action in the United States District Court for the District of New Jersey under 28 U.S.C. § 1361, ⁶ seeking a declaration that the Secretary of Labor's action was unlawful and for relief in the form of a mandatory injunction. The district court, concluding that the Secretary of Labor acted arbitrarily and that he abused his discretion in denying labor certification to Silva, granted Naporano's motion for summary judgment and issued a writ of mandamus ordering the Secretary to certify Silva under 8 U.S.C. § 1182(a)(14). The Secretary timely appealed from the district court's order. Pursuant to agreement of the parties, the district court ordered the writ of mandamus stayed pending appeal. Our jurisdiction is predicated on 28 U.S.C. § 1291.

II.

The Administrative Procedure Act, 5 U.S.C. § 701 et seq., provides that an aggrieved person may seek judicial review ⁷ of the Secretary's denial of labor certification under 8 U.S.C. § 1182(a)(14). Yong v. Regional Manpower Administrator, 509 F.2d 243, 245 (9th Cir. 1975); Ratrayake v. Mack, 499 F.2d 1207, 1209--1210 (8th Cir. 1974); Reddy Inc. v. United States Department of Labor, 492 F.2d 538, 543--44 (5th Cir. 1974); Secretary of Labor v. Farino, 490 F.2d 885, 888 (7th Cir. 1973). Naporano is an 'aggrieved' party within the meaning of 5 U.S.C. § 702, for as a result of the Secretary's denial of certification, Naporano has but two options available: either it can increase Silva's wage in order to secure labor certification or it must forego Silva's needed services. In either case Naporano is 'adversely affected or aggrieved' by the Secretary's action and therefore has standing under the Administrative Procedure Act. ⁸ Yong v. Regional Manpower Administrator, supra at 245; Pesikoff v. Secretary of Labor, 163 U.S.App.D.C. 197, 501 F.2d 757, 760 (D.C.Cir.), cert. denied, 419 U.S. 1038, 95 S.Ct. 525, 42 L.Ed.2d 315 (1974); Secretary of Labor v. Farino, supra at 889.

Under the Administrative Procedure Act, a federal court may

(2) hold unlawful and set aside agency action, findings, and conclusions found to be--

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law . . ..

Tested by this standard the district court concluded that the Secretary's denial of certification constituted an abuse of discretion.

III.

The certification of aliens for employment in the United States is governed by the Immigration and Nationality Act, 8 U.S.C. § 1101 et seq. Under 8 U.S.C. § 1182(a)(14), an alien may not perform skilled or unskilled labor,

unless the Secretary of Labor has determined and certified . . . that . . . (B) the employment of such aliens will not adversely affect the wages and working conditions of the workers in the United States similarly employed. (Emphasis added.)

However, this statute provides no definition or guide for ascertaining whether the wages paid to an alien will 'adversely affect' the wages and working conditions of American workers similarly employed. The Secretary must therefore exercise discretion in interpreting and implementing the statutory mandate.

In exercising this discretion the Secretary has promulgated regulations which define when a wage will 'adversely affect' American workers. These regulations provide that the employment of aliens 'will be deemed to adversely affect 'wages' or 'working conditions" unless it appears '(t)hat such employment will be for wage rates no less than those prevailing for U.S. workers similarly employed in the area of employment.' 28 CFR § 60.6(a) (1975). In turn the 'prevailing wage' rate is defined as

(1) The rate of wages paid in the area in which the work is to be performed, to the majority of those employed in that classification in construction in the area similar to the proposed undertaking;

(2) In the event that there is not a majority paid at the same rate, then the rate paid to the greater number: PROVIDED, Such greater number constitutes 30 percent of those employed; or

(3) In the event that less than 30 percent of those so employed receive the same rate, then the average rate.

29 CFR § 1.2 (1975). ⁹ Thus, under the Secretary's interpretation, an alien must receive at least the 'prevailing wage' rate in order to be certified under 8 U.S.C. § 1182(a)(14).

Here, the Secretary, citing data which indicated that the wages paid to welders in the Northern New Jersey and Metropolitan New York area ranged from $3.75 to $5.39 per hour, determined that the prevailing wage for Silva's position was $4.56 per hour. ¹⁰ Since Naporano, under its collective bargaining agreement, paid Silva $3.87 per hour (subsequently increased to $4.12 per hour), which was less than the 'prevailing wage', the Secretary's regulations required a finding that employment of Silva would 'adversely affect the wages and working conditions of the workers in the United States similarly employed.' 8 U.S.C. § 1182(a)(14). The Secretary's regulations compelled this result despite the fact that Naporano was paying Silva the precise wage paid to its non-alien employees under the union negotiated collective bargaining agreement. Although Naporano urged this argument in seeking certification for Silva, the Secretary rejected it outright, stating:

. . . wage rates referred to in a collective bargaining agreement are minimum rates, and while a negotiated wage with a union may coincide with the prevailing rate for an occupation such wage rate does not automatically establish the prevailing rate for purposes of alien employment. ¹¹

App. 12. Consequently, Silva was denied labor certification.

We find the denial of labor certification here, based as it was on the regulations promulgated by the Secretary, not in accordance with law. The controlling statute, 8 U.S.C. § 1182(a)(14), requires that an alien seeking to perform labor secure certification that his employment 'will not adversely affect the wages and working conditions of the workers in the United States similarly employed.' (Emphasis added.) Naporano has paid Silva the exact same wage which it pays to its American workers under the union contract. No one contends that the contract which resulted from the collective bargaining process failed to represent the union's best efforts. Nor is it suggested that the wage rate established by that contract for Naporano's employees was not the highest obtainable. Where an alien, such as Silva, is paid the negotiated union wage, he receives everything that organized labor has been able to achieve through collective bargaining. Regardless of any artificially constructed prevailing wage formula, a wage paid to an alien pursuant to a negotiated collective bargaining agreement cannot, in the absence of evidence impugning the agreement, be said to 'adversely affect' the wages and working conditions of American laborers in the area. See Ozbirman v. Regional Manpower Admin., U.S. Dept. of Labor, 335 F.Supp. 467, 471--72 (S.D.N.Y.1971).

The district court's opinion supporting the January 3, 1975 order of mandamus, held that the Secretary had 'abused his discretion.' Our analysis on the other hand leads us to conclude that when dealing with wages established by a negotiated collective bargaining agreement, the Secretary has no discretion to exercise. Rather, once...