Rios v. Marshall

Citation530 F. Supp. 351
Decision Date23 November 1981
Docket NumberNo. 79 Civ. 5711.,79 Civ. 5711.
PartiesJuan Valderrama RIOS, et al., Plaintiffs, v. Secretary of Labor F. Ray MARSHALL, et al., Defendants.
CourtU.S. District Court — Southern District of New York




Mid-Hudson Legal Services, Inc., Farmworker Project, Howard Schell Reilly, Anthony Szczygiel, Newburgh, N.Y., for plaintiffs.

Thomas H. Belote, Sp. Asst. U.S. Atty., New York, N.Y., Charles S. Fax, Chapman, Duff & Paul, Washington, D.C., Joseph Kevin McKay, Hays, St. John, Abramson & Heilbron, New York City, Gretchen CollMarti, Puerto Rico Legal Services, Migrant Div., Rio Piedras, P.R., Kenneth Hart, Jr., State of Florida Dept. of Labor & Employment Sec., Tallahassee, Fla., Jeffrey Slonin, Asst. Atty. Gen., N.Y.S. Dept. of Law, New York City, S. Steven Karalekas, Thomas J. Bacas, Charles, Karalekas & Bacas, Washington, D.C., John Witmeyer, Charles Booth, Ford, Marrin, Esposito & Witmeyer, New York City, Daniel Sullivan, Murray, Hollander & Sullivan, New York City, Morris Kletzkin, Friedlander, Misler, Friedlander Sloan & Herz, Washington, D.C., Chales Kelso, Ann Margaret Pointer, Fisher & Phillips, Atlanta, Ga., Sanford A. Bell, Teitler & Teitler, New York City, for defendants.


GAGLIARDI, District Judge.

This action was commenced by thirty-eight migrant farmworkers, individually and on behalf of a class of all migrant farmworkers who are citizens of the United States and who from 1975 to 1979 worked or sought to work in the annual New York apple harvest. The named plaintiffs are Puerto Ricans and southern blacks. They allege that seven New York apple growers and two New York apple growers' cooperatives (the "New York apple defendants") and their agents, including two Florida sugar cane growers' associations (the "Florida sugar defendants"), conspired among themselves and with an instrumentality of the government of Jamaica to replace plaintiffs in the New York apple harvest with temporary foreign workers from Jamaica. Also named as defendants are officials of the United States Department of Labor, the United States Immigration and Naturalization Service, and the New York, Florida and Puerto Rico Departments of Labor, who plaintiffs allege failed to fulfill their statutory duties and aided the aforementioned conspiracy in violation of plaintiffs' rights under the antitrust and civil rights laws. Plaintiffs' claims arise under the Sherman Act, 15 U.S.C. §§ 1, 2, the Clayton Act, 15 U.S.C. § 15, the civil rights laws, 42 U.S.C. §§ 1981, 1983, 1985, the Immigration and Nationality Act, 8 U.S.C. § 1101 et seq., and the Wagner-Peyser National Employment System Act, 29 U.S.C. § 49 et seq. Plaintiffs seek declaratory, injunctive and monetary relief.

Pending before the court are motions by the following defendants to dismiss plaintiffs' claims: (1) the New York apple defendants;1 (2) the Florida sugar defendants;2 (3) William H. Meranda; (4) the British West Indies Central Labour Organization ("BWICLO") and Harold F. Edwards, BWICLO's Chief Liaison Officer in the United States; (5) the Government of Jamaica; (6) Wallace E. Orr, Secretary of the Florida Department of Labor and Employment Security; and (7) Carlos S. Quiros, Puerto Rico Secretary of Labor.


At issue in this action are the interstate clearance system for recruitment of agricultural workers and the temporary foreign worker certification program which were established under the authority of the Wagner-Peyser Act, 29 U.S.C. § 49 et seq. The interstate clearance system and the certification program are the principal elements of "a complex statutory structure designed to facilitate the employment of domestic workers for seasonal agricultural labor, and to permit the use of foreign nationals temporarily admitted to the United States to work for a specific employer if domestic workers are unavailable." Elton Orchards, Inc. v. Brennan, 508 F.2d 493, 495 (1st Cir. 1974). Plaintiffs' claims and the issues decisive of defendants' motions to dismiss cannot be understood without prior explanation of the statutory scheme.

The Wagner-Peyser Act authorizes the establishment of a federal employment service within the Department of Labor to function in conjunction with state employment services which receive federal funding. Under the regulations promulgated pursuant to the Wagner-Peyser Act, an employer who wishes to use state employment agencies to secure workers for temporary employment must inform the local office of the state agency of the employer's need for temporary workers and must file with that office a job offer that meets federally established minimum standards. 20 C.F.R. 604.2(c). The state agency will then seek to place local workers with the participating local agricultural employer. 20 C.F.R. § 604.2(b). When local workers are not available, the local agency uses the interstate clearance system to recruit through agencies in other states workers throughout the United States. 20 C.F.R. §§ 602.2(c) and (d). Workers recruited through the state agencies, whether intrastate or interstate, are protected by a series of regulations prescribing minimum working and living conditions, including free housing, transportation and daily subsistence from the place of recruitment to the place of employment and back, a guarantee of work during three-fourths of the days covered by the work contract, workmen's compensation insurance, and three meals per day. 20 C.F.R. §§ 655.202(b)(1), (2), (4), (5), (6).

When an employer is unable to secure domestic workers through the interstate clearance system, that employer may petition the Immigration and Naturalization Service (the "INS") for admission of aliens to serve as temporary agricultural laborers. 20 C.F.R. § 655.201(a)(1). Aliens are permitted to enter the country to work as "nonimmigrants" only "if unemployed persons capable of performing such service or labor cannot be found in this country." 8 U.S.C. § 1101(a)(15)(H)(ii).3 Specifically, INS regulations require that an employer's petition for the admission of aliens to perform temporary work be accompanied by "a certification from the Secretary of Labor ... stating that qualified persons in the United States are not available and that the employment of the beneficiary will not adversely affect the wages and working conditions of workers in the United States similarly employed...." 8 C.F.R. § 214.2(h)(3). Prospective employers of temporary foreign workers may not offer the foreign workers terms of employment more favorable than those offered domestic workers. 20 C.F.R. § 655.202(a). To further insure that domestic agricultural workers will not be disadvantaged by the admission of temporary foreign workers, the Department of Labor sets an annually revised "adverse effect wage rate" for specific states. 20 C.F.R. § 655.200(b). The adverse effect rate is defined as the prevailing wage rate of similarly employed domestic workers unless the use (or nonuse) of aliens has depressed the rate. 20 C.F.R. §§ 655.200(b), 655.207(a). An agricultural employer seeking to import foreign workers must first file with the state employment service an offer of employment to domestic workers at a wage rate not lower than the adverse effect wage rate. 20 C.F.R. § 655.202(b)(9). It is also specifically provided that if the workers are paid on a piece rate basis, the average hourly earnings must at least equal the adverse effect rate. 20 C.F.R. § 655.202(b)(9)(ii).

I. New York Apple Defendants

Plaintiffs allege that the New York apple defendants and their agents conspired to discourage plaintiffs from competing for or accepting jobs in the annual harvest by offering domestic workers low wages and discriminatory working conditions with the purpose of replacing domestic workers with foreign workers willing to work long hours at low wages. This allegedly conspiratorial pattern of conduct serves as the basis of plaintiffs' three antitrust claims and one civil rights claim against the New York apple defendants. These defendants now move to dismiss plaintiffs' claims for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6), Fed.R. Civ.P., or in the alternative for a more definite statement pursuant to Rule 12(e). Defendants further move to dismiss a certain portion of plaintiffs' claims under the statute of limitations and to dismiss the claims of several plaintiffs under the doctrine of res judicata. Finally, one of the defendant apple growers, the Farm Labor Executive Committee, moves to dismiss pursuant to Rule 12(b)(2) for lack of in personam jurisdiction.

A. Antitrust Claims

The principal thrust of plaintiffs' claims4 under the antitrust laws is that the defendant apple growers and their agents conspired to restrain the domestic job market for the annual New York apple harvest during the years 1975 to 1979 by offering wage rates that were below competitive rates in the relevant market. Specifically, plaintiffs assert that the piece rates offered uniformly by the apple growers, while comporting with the adverse effect rates, were artificially depressed by the New York apple defendants. In addition, plaintiffs allege that the New York apple defendants conspired against them by refusing to arrange for travel advances or subsistence money for plaintiffs while making preferential arrangements for foreign workers, by failing to vary the uniform piece rate for hardship apple-picking conditions, by discriminating against plaintiffs with regard to work assignments, living conditions and food, and by group boycotts and refusals to deal. The New York apple defendants contend that their participation in the temporary foreign labor certification program and the terms offered to domestic workers — in particular the wage rates, which plaintiffs do not contend were below the adverse effect rates set by the Department of Labor — are mandated by statute and...

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