Williams v. Usery, No. 75--3458

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBefore DYER and CLARK; DYER
Citation531 F.2d 305
PartiesAndrew WILLIAMS, Individually and on behalf of all others similarly situated, Plaintiffs-Appellants, v. W. J. USERY, in his capacity as Secretary of Labor, United States Departmentof Labor, et al., Defendants-Appellees.
Docket NumberNo. 75--3458
Decision Date10 May 1976

Page 305

531 F.2d 305
Andrew WILLIAMS, Individually and on behalf of all others
similarly situated, Plaintiffs-Appellants,
v.
W. J. USERY, in his capacity as Secretary of Labor, United
States Departmentof Labor, et al., Defendants-Appellees.
No. 75--3458.
United States Court of Appeals,
Fifth Circuit.
May 10, 1976.
Rehearing and Rehearing En Banc
Denied June 8, 1976.

Page 306

Bill Abbuehl, Belle Glade, Fla., Michael Masinter, Florida Rural Legal Services, Inc., Homestead, Fla., Katherine Gruenheck, Migrant Legal Action Program, Washington, D.C., for plaintiffs-appellants.

Steven M. Guttell, Atty., U.S. Dept. of Labor, Washington, D.C., with whom William J. Kilberg, Sol. of Labor, Craig A. Berrington, Associate Sol., Carl W. Gerig, Jr., Counsel for Manpower Litigation, Washington, D.C., Beverley R. Worrell, Regional Sol., U.S. Dept. of Labor, Atlanta, Ga., and Rex L. Young, U.S. Dept. of Justice, Washington, D.C., were on brief for defendants-appellees.

Charles Kelso, Atlanta, Ga., for Fla. Sugar Cane League.

Appeal from the United States District Court for the Southern District of Florida.

Before DYER and CLARK, Circuit Judges, and KRAFT *, District Judge.

DYER, Circuit Judge:

This appeal, like the companion case of Florida Sugar Cane League v. Usery, 5 Cir. 1976, 531 F.2d 299, decided today, raises a number of objections to the Secretary of Labor's basis for the determination of the 'adverse effect wage rate' for sugar cane cutters in Florida. Williams, an American unemployed sugar cane cutter, argued unsuccessfully in the district court that the Secretary had set the rate too low. He contended that the Secretary had failed to follow certain mandatory procedures in the certification of no adverse effect upon domestic workers from the use of foreign workers. Within the same contours of review of administrative rule-making enumerated this day in League, supra, we find no error in the district court's denial of injunctive relief.

Like the Florida Sugar Cane League, Williams attacks the Secretary's method of computations in arriving at the $2.84 'adverse effect wage rate'. Unlike the argument of the League that the Secretary had exceeded his authority by considering extrinsic criteria, Williams asserts the Secretary failed to exercise the authority imposed upon him to avoid adverse effects on the wages of American workers. He objects to the 'adverse effect wage rate' itself ($2.84) as too low to attract domestic workers. Although Williams raised this issue in this case below, he did not raise it on appeal in the case sub judice. Instead, Williams raised it in his Amicus Curiae brief in League supra. Since the issue fits more logically within the confines of this opinion, we decide it here. Williams seeks to require the Secretary to: 1) determine 'the prevailing wage rate' for sugar cane in Florida; 2) require growers utilizing a piece rate system to guarantee average hourly earnings 25 percent higher than the hourly rate otherwise required; and 3) establish a 30 day period of recruitment of domestic sugar cane cutters at the designated 'adverse effect wage rate,' prior to issuance of the certification for foreign labor.

In our view these arguments are based on a misunderstanding of the nature of the regulatory scheme authorized under the Immigration and Nationality Act, 8 U.S.C.A. § 1101 et seq. Even if desirable, the Secretary has no authority to set a wage rate on the basis of attractiveness to workers. His authority is limited to making an economic determination of what rate must be paid all workers to neutralize any 'adverse effect' resultant from the influx of temporary foreign workers. As we said in League, supra, 531 F.2d at 301, '(n) either the statute nor the regulations establish a formula for the Secretary's computation of this 'adverse effect wage rate'.' We there upheld the Secretary's computation arriving at the $2.84 adverse effect rate as a reasonable method of avoiding wage deflation.

Page 307

Williams' notion of a wage rate, high enough to attract those domestic workers not otherwise willing to work in sugar cane, jumps well beyond the discretionary authority of the Secretary. Clearly, his authority to insure against a lowering of wages is hardly synonomous with the affirmative power to raise wages which Williams here proposes. 'Attractiveness' is the wrong test for...

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16 practice notes
  • Part II
    • United States
    • Federal Register February 12, 2010
    • February 12, 2010
    ...(4th Cir. 1993) (H- 2A employers must make certain benefits available to all temporary agricultural laborers); see also Williams v. Usery, 531 F.2d 305, (5th Cir. 1976) (the Secretary's authority is limited to making an economic determination of what rate must be paid all workers to neutral......
  • Part II
    • United States
    • Federal Register December 18, 2008
    • December 18, 2008
    ...stated in 1989 that the adverse effect wage rate ``is a `method of avoiding wage deflation.' '' 54 FR 28045, citing Williams v. Usery, 531 F.2d 305, 306 (5th Cir. 1976). Thus, Department performed a comprehensive study of the then-existing literature on agricultural wages Page 77167 to dete......
  • Part III
    • United States
    • Federal Register May 29, 2009
    • May 29, 2009
    ...employment must not result in a lowering of the wages, terms, and conditions of domestic workers similarly employed. Williams v. Usery, 531 F. 2d 305, 306 (5th Cir. 1976), cert. denied, 429 U.S. 1000, and the job benefits extended to any U.S. workers shall be at least those extended to the ......
  • La. Forestry Ass'n, Inc. v. Solis, Civil Action No. 11–7687.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • August 20, 2012
    ...established wages to attract United States workers. (Doc. 115, at 44–48.) In support, employer associations cite to Williams v. Usery, 531 F.2d 305, 306 (5th Cir.1976), in which the Fifth Circuit observed that “the Secretary has no authority to set a wage rate based on attractiveness to wor......
  • Request a trial to view additional results
12 cases
  • La. Forestry Ass'n, Inc. v. Solis, Civil Action No. 11–7687.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • August 20, 2012
    ...established wages to attract United States workers. (Doc. 115, at 44–48.) In support, employer associations cite to Williams v. Usery, 531 F.2d 305, 306 (5th Cir.1976), in which the Fifth Circuit observed that “the Secretary has no authority to set a wage rate based on attractiveness to wor......
  • Louisiana Forestry Ass'n, Inc. v. Solis, CIVIL ACTION NO. 11-7687
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • August 20, 2012
    ...38established wages to attract United States workers. (Doc. 115, at 44-48.) In support, employer associations cite to Williams v. Usery, 531 F.2d 305, 306 (5th Cir. 1976), in which the Fifth Circuit observed that "the Secretary has no authority to set a wage rate based on attractiveness to ......
  • Mendoza v. Solis, Civil Action No. 11–1790 (BAH).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • February 21, 2013
    ...to “insure against a lowering of wages” that might otherwise result from the importation of foreign labor. See, e.g., Williams v. Usery, 531 F.2d 305, 307 (5th Cir.1976); see also Rowland v. Marshall, 650 F.2d 28, 29 (4th Cir.1981) (per curiam) (“The purpose of the AEWR is to prevent the im......
  • Farmer v. Employment Sec. Com'n of N.C., No. 92-1941
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • September 2, 1993
    ...employment must not result in a lowering of the wages, terms, and conditions of domestic workers similarly employed. Williams v. Usery, 531 F.2d 305, 306 (5th Cir. [ ], cert. denied, 429 U.S. 1000, 97 S.Ct. 527, 50 L.Ed.2d 610 [ (1976) ], and the job benefits extended to any U.S. workers sh......
  • Request a trial to view additional results

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