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DONA ANA CTY. FARM & LIVESTOCK BUR. v. GOLDBERG

December 21, 1961

DONA ANA COUNTY FARM AND LIVESTOCK BUREAU et al., Plaintiffs,
v.
Arthur J. GOLDBERG, Secretary of Labor et al., Defendants



The opinion of the court was delivered by: WALSH

This matter comes before the Court on an original motion of the Plaintiffs for a preliminary injunction. Subsequent thereto, by a stipulation filed by the parties, it was agreed that the evidence and arguments adduced in the course of the hearing on Plaintiffs' motion be deemed to apply to the Defendants' motion to dismiss, or in the alternative for summary judgment. The Court, therefore, has before it the two motions.

Each of the parties submitted proposed findings of fact and conclusions of law at the request of the Court. While the Court has not seen fit to adopt either of these proposals, they have been helpful in stating the facts for the purposes of this memorandum.

 Plaintiffs here, the Dona Ana County Farm and Livestock Bureau and the Berino Cotton Growers Association, are (non-profit) New Mexico corporations engaged in contracting Mexican National agricultural workers on behalf of employers who are members of such associations. Other individual plaintiff-employers are also so engaged.

 The Agricultural Act of 1949 (hereinafter also referred to as the Agricultural Act), P.L. 78, 7 U.S.C.A. § 1461 et seq., as amended, was enacted to effect the admission into the United States of Mexican Nationals to assist farmers and other employers in the production of certain agricultural commodities, especially cotton, etc. The apparent purpose of the Act was to aid the farmers, and at the same time to protect the interests of American workers from the adverse effect *fn1" of an influx of foreign labor. *fn2" The United States-Mexican border states were and are, of course, those mainly affected by the Act.

 In accordance with the terms of the Act, the United States and Mexico entered into what is known as the Migrant Labor Agreement of 1951, as amended since that time, wherein the terms and conditions governing the admission and employment of Mexican National agricultural workers were set forth in some detail, as will be noted more in detail hereinafter.

 Section 501 of the Agricultural Act gives to the Secretary of Labor the authority to establish and operate reception centers, to provide transportation to and from Mexican recruitment centers, to supply temporary subsistence to workers, to assist such workers and employers in negotiating labor contracts, and to guarantee performance by American employers of the provisions of the Standard Work Contract, which binds each of the employers and relates to wages and transportation.

 The Standard Work Contract, mentioned above and also negotiated by the two countries, and the Migrant Labor Agreement were incorporated by reference, each in the other. *fn3" In addition, the Plaintiff-Associations and the individual employers were required by the Agricultural Act, 7 U.S.C.A. § 1462, to execute agreements to indemnify the United States against loss by reason of the latter's guaranty of their contracts. Also, pursuant to Section 32 of the Migrant Labor Agreement, employers agree to be finally bound by the Secretary of Labor's determination as to their indebtedness for wages and transportation, and to designate the Secretary of Labor as their agent to disburse the amounts found to be due the Mexican workers. *fn4"

 Under another provision of the Agricultural Act, 7 U.S.C.A. § 1466, the Secretary of Labor is authorized to enter cooperating agreements with each of the employment security agencies within the States where Mexican National workers are employed. In operation, these agreements normally provide that the State agencies will or may perform certain wage surveys for the Secretary of Labor, subject to reimbursement. While the usual practice was obviously to have the State agency conduct the wage survey, they allegedly did not always do so. In any case, any determination by the State agency was ordinarily considered preliminary in nature only and subject to the final determination by the Secretary of Labor.

 Under the prevailing and effective wage rate in effect on, and prior to, June 9, 1961, in the twelve counties of Chaves, Dona Ana, Eddy, Grant, Hidalgo, Lea, Lincoln, Luna, Otero, Quay, Sierra, and Socorro, in New Mexico, the wage rates for certain domestic agricultural workers was much less than that set by the Secretary of Labor to take effect after that date. n5

 This change, therefore, in the prevailing wage rate directed to be effective after June 9, 1961, by the Secretary of Labor was made on the basis of a survey conducted primarily by Federal employees, but with some assistance from the New Mexico State agency.

 It was apparently the practice prior to this disputed wage survey that under the cooperating agreement with the State of New Mexico, the State Employment Security Agency of New Mexico would make one pre-harvest wage survey in June of each year, then it would conduct subsequent surveys for vegetables from July through October, and suveys for the cotton harvest from August through December.

 The Plaintiffs claim that the wage survey conducted from March 20-April 12, 1961 deviated from the usual procedure employed by the Defendant in the following, among other, respects: (1) time at which conducted; (2) standards and criteria contained in the Employment Security Manual of the Bureau of Employment Security, U.S. Department of Labor, were not followed; (3) selection of large farms, rather than small, for survey of laborers was arbitrary; (4) use of wage data collected for year-round farm workers as setting prevailing wage rates for both year-round and seasonal workers was improper; (5) the sampling process generally was improper in selection of farms, etc.; (6) State officials were improperly excluded from viewing results or commenting on survey; (7) weighting system employed in the sampling was improperly employed; and (9) the provisions of the cooperating agreement between the Federal and State governments were not followed.

 The New Mexico State officials disagreed with the evaluation and wage determination and refused to issue the wage rates determined by the Secretary of Labor in his order of June 9, 1961. Plaintiffs claim that one major reason the State agency refused to accept the Defendant's prevailing wage rate determination was that it was adopted through the employment of improper time and methods of sampling. The Plaintiffs also allege that the formula used by the Defendant (known as the 40-51% Formula) was an arbitrary method of determining wage rates in that it provides for a 5 cents jump in wage rates, whereas less than 5 cents jumps would be more usual and more 'in line' with the prevailing wage rates.

 Plaintiffs also claim that the Mexican-National, by receiving certain additions *fn6" to his cash wage in the form of perquisites, such as free housing, transportation, insurance, etc., is receiving higher total wages ...


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