Williams v. Usery

Citation531 F.2d 305
Decision Date10 May 1976
Docket NumberNo. 75--3458,75--3458
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.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

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.

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 measuring the Secretary's determination. 1 We agree with the district court that the regulations and procedures used by the Secretary, in the absence of specific statutory standards, appear reasonably suited to achieve the statutory purpose of guarding against a general wage deflation from the employment of foreign workers. Within this latitude of discretion, we can find no legal basis for imposing an obligation on the Secretary to set an 'attractive' wage.

The Secretary's regulations required that the 'prevailing rate for a crop activity in an area' be paid when it is higher than the 'adverse effect wage rate': 20 C.F.R. § 602.10b(b). Williams contends that the Secretary must necessarily determine the 'prevailing wage rate' in order to know when it is higher than the 'adverse effect wage rate'. The Secretary claims that it is impossible to determine a 'prevailing wage rate' for sugar cane in Florida. Williams' argument relies on figures showing sugar cane cutters' actual 'average earnings', rather than a 'prevailing wage rate'. The term 'prevailing wage rate' has a specific meaning, defined by the Secretary and stipulated to by Williams, namely, 'the wages paid, to domestic agricultural workers' (emphasis added). The fact is, as conceded by Williams, that '100 percent (or nearly 100 percent)' of Florida sugar cane cutters are foreign workers. Thus it would seem obvious that the Secretary was correct in contending there is no way to determine a 'prevailing wage rate' in Florida sugar cane.

Moreover, this particular 'crop activity' uses a wage rate system incapable of yielding a 'prevailing wage rate'. In sugar cane there is no standard unit of production. Sugar cane piece rates are based on the row of cane cut, but each row varies in cuttage and other factors affecting difficulty in cutting. There is simply no evidentiary basis for requiring a survey to determine that rate. Williams has merely offered figures establishing the average earnings of Florida agricultural laborers in general. Such non-crop specific data clearly cannot substitute for 'the prevailing rate for a crop activity'. The district court correctly held that Williams failed to prove any duty by the...

To continue reading

Request your trial
12 cases
  • La. Forestry Ass'n, Inc. v. Solis
    • United States
    • U.S. 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
    • United States
    • U.S. District Court — Eastern District of Pennsylvania
    • August 20, 2012
    ...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 workers." The ......
  • Mendoza v. Solis
    • United States
    • U.S. District Court — District of 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.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • September 2, 1993
    ...of their 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. w......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT