Silva v. Secretary of Labor

• Citation: 518 F.2d 301
• Decision Date: 10 June 1975
• Docket Number: No. 74-1410,74-1410
• Parties: Dr. Pedro SILVA et al., Plaintiffs-Appellees, v. SECRETARY OF LABOR et al., Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 301

518 F.2d 301

Dr. Pedro SILVA et al., Plaintiffs-Appellees, v. SECRETARY OF LABOR et al., Defendants-Appellants.

No. 74-1410.

United States Court of Appeals, First Circuit.

Argued March 6, 1975.

Decided June 10, 1975.

James P. Morris, Atty., Dept. of Justice, with whom John L. Murphy, Chief, Government Regulations Section, Crim. Div., Washington, D. C., James N. Gabriel, U. S. Atty., Boston, Mass., and Paul G. Gorman, Atty., Dept. of Justice, Washington, D. C., were on brief, for defendants-appellants.

S. Joseph Ciccia, Springfield, Mass., with whom Lawrence J. Kenney, Springfield, Mass., was on brief, for plaintiffs-appellees.

Before ALDRICH, McENTEE and CAMPBELL, Circuit Judges.

LEVIN H. CAMPBELL, Circuit Judge.

This is an appeal by the Government from an order of the district court setting aside the Secretary of Labor's refusal to issue an alien labor certification in favor of Miss Laurinda Pires, a citizen of Portugal, who has agreed to work as a live-in maid at the home of Dr. Pedro Silva in Springfield, Massachusetts. The court directed the Secretary to issue the certification.

Alien labor certification is provided for in section 212(a)(14) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(14). Aliens "seeking to enter the United States for the purpose of performing skilled or unskilled labor" comprise one of a number of categories excluded from admission,

"unless the Secretary of Labor has determined and certified to the Secretary of State and to the Attorney General that (A) there are not sufficient workers in the United States who are able, willing, qualified, and available at the time of application for a visa and admission to the United States and at the place to which the alien is destined to perform such skilled or unskilled labor, and (B) the employment of such aliens will not adversely affect the wages and working conditions of the workers in the United States similarly employed."

Dr. Silva, a gynecologist and obstetrician, sought to obtain certification for Miss Pires in the fall of 1972 by filing with the Massachusetts Division of Employment Security in Springfield the completed forms and back-up papers required under the Secretary's regulations. 29 C.F.R. § 60.2. ¹ As we must decide in the course of this appeal whether or not the Secretary's denial was arbitrary or unlawful, we set forth in rather elaborate detail the information furnished therein and the proceedings generally as they appear in the record.

A form entitled "Statement of Qualification of Alien", executed by Miss Pires, was submitted. She indicated that she had had 30 years experience as a maid, cook and domestic servant, and was seeking work as a "domestic." In a companion form, "Job Offer for Alien Employment," Dr. and Mrs. Silva attested that they would hire a qualified U.S. worker if one were available; that efforts had been made to fill the job through the "Unemployment Office, bulletins at three hospitals"; that the job to be performed was "House cleaning, cooking, mending, washing, ironing and occasional child care"; that the total number of hours per week was "40 hours" (the space for overtime was left blank); that "basic" and also "overtime" pay would be $2.00 per hour; that room and board would be provided and the employee would have a private room; and "some knowledge of Portuguese language is helpful."

In a third form entitled "Supplemental Statement for Live-at-work Job Offers," Dr. Silva indicated that his household contained two adults and three children, ages six to eleven, and that the alien would be paid $80.00 weekly, with $5 to be deducted weekly for 57 weeks in order to repay anticipated advances for visa, medical fees and travel from Portugal to Springfield. Dr. Silva reported that there had been no respondents to job advertisements he had placed at the hospitals. Under the question, "if alien will be required to give special care or attention to any persons, please explain," Dr. Silva replied "None."

Submitted with the forms was a copy of the employment contract signed by the Silvas and Miss Pires. Miss Pires was described as a "live-in domestic." Her workweek was to be 40 hours. The "exact hours of daily employment" were described as from 8 a. m. to 5 p. m. with one hour off for lunch Monday through Friday. The employee was to be "free to leave the premises of the employer at all other times except that she may work overtime paid at the hourly rate of $2.00 U.S. dollars." Further it was "understood that the employee will reside on the employer's premises," and no money was to be advanced "except if the employee needs the same."

Shortly after the above forms had been filed, the Manpower Administration in Boston asked the Silvas and state employment security officials for further information as to what had been done to locate legal resident workers for the job, especially day workers. The following were then submitted:

1. Form executed on behalf of the local Springfield office of the Massachusetts Division of Employment Security that the prevailing wage in that area for a Maid General (Dom. Ser.) was $2.00 per hour plus room and board, and that the regular and overtime wage Dr. Silva offered equalled the prevailing wage. The form included the statements, "We have been unable to refer any qualified applicants for live in domestic employment," and that "Workers are not available in this occupation (live in domestics)." The number of "active applications on file" was "21" (presumably meaning day worker applicants).

2. Statements under oath by Reverends George Farland and Edward Kennedy of the Sacred Heart Parish that they had attempted unsuccessfully to locate someone who would work for the Silvas as a live-in maid.

3. Statement under oath of Phyllis O'Brien, director of Social Services at Mercy Hospital, of unavailing efforts for a considerable period of time to find a live-in maid for the Silvas, "as most of the people were only available for part-time work and were not able to provide the range of services the doctor needed."

4. Affidavit of Dr. and Mrs. Silva attesting to unavailing efforts through employment agencies listed in the Yellow Pages of the phone book as well as through his parish and hospital to secure a live-in maid. Dr. Silva also replied to the few newspaper ads found in local newspapers, finding more often than not that they are "for part-time situations and by people more involved in cleaning rather than cooking, etc." Dr. Silva went on to say,

"The reason why a day worker would not be suitable for this position is that as a doctor of Obstetrics and Gynecology, I am working long hours and irregular hours, and I am out of my home a great deal. My demands of my wife are great in terms of helping me in communications with patients in being in attendance at social functions, meetings, conferences and seminars out of the city and in addition to having an unusually large home which needs a lot of attention. She has also been doing some volunteer teaching. It is important that someone be physically present in our home with whom our children will be comfortable at meals and other times without their mother and father present. A person living in our home would also be more available for our irregular schedule and also for overtime in unusual time demanding situations. A special relationship through her physical presence with the children would facilitate keeping the children on a regular schedule. We have employed day workers from time to time and this has not proved successful at all in terms of availability and capability. . . ."

On December 14, 1972, the Secretary's certifying officer in Boston issued a form response to Dr. Silva, to the effect that the Secretary could not issue the certification required by section 212(a)(14) because

"Available job market information will not warrant a certification of unavailability of workers in the U.S." ²

Dr. Silva promptly sought review of the decision, in accordance with the Secretary's procedures. ³ Dr. Silva's counsel, by letter dated February 14, 1973, listed as the grounds for review that all available information, from both private and public sources, continued to demonstrate the unavailability of persons who could be hired. Further, it was urged that Dr. Silva's and his wife's need was "compelling". Accompanying was a psychiatrist's letter to the effect that she had examined Mrs. Silva on February 14, and that Mrs. Silva had described complaints dating from June, 1972, involving "intermittent spells of severe anxiety, accompanied by nightmares, insomnia and severe irritability." Reference was made to weight loss and impulses to run away. These symptoms occurred exclusively at night, when Dr. Silva was out on call. Dr. Silva had attempted to cope by installing an expensive alarm system. The psychiatrist wrote that Mrs. Silva had been "chronically depressed by her geographic separation from her extended family", and recommended,

"a live-in companion . . . to protect this woman's mental health during her husband's frequent absences. In my opinion she suffers from severe and disabling anxiety neurosis which is exacerbated by her being left alone in the house."

Together with the psychiatrist's letter was an affidavit of Dr. Silva, relating that he had made continued, unavailing efforts to secure a worker, and that the Massachusetts Division of Employment Security had not produced any prospective workers even for interview. In addition, Dr. Silva said that the hours of his work caused him to be absent from home many hours during the evening and early morning, and that notwithstanding installation of an alarm, his wife's needs persisted.

The denial for certification was thereafter reviewed by the Assistant Regional Manpower Administrator, see 29 C.F.R. § 60.4, who on March 26, 1973, notified Dr. Silva's attorney that, after review, he failed to find any grounds warranting reversal of the certifying officer's...