The opinion of the court was delivered by: GASCH
This matter is before the Court on cross-motions for summary judgment. The dispositive issue which must be decided is whether the Secretary of Labor, acting through the Regional Manpower Administrator, abused his discretion in denying a labor certification to the plaintiff who is an alien. The Court finds that the defendants did indeed abuse their discretion.
Plaintiff, Yann Theresa Kao,
a national of the Republic of China, was born in mainland China in 1941 and after completing her undergraduate studies at Providence College in Taichung, Taiwan, entered the United States as a non-immigrant student on January 1, 1970.
Two years later, in May of 1972, Ms. Kao received her Master of Science Degree in Business Administration from Fort Hayes Kansas State College, Hayes, Kansas. During the course of her studies the plaintiff became fluent in three Chinese dialects, Cantonese, Mandarin, and Shanghai, and is proficient in the translation of these dialects from English to Chinese and Chinese to English.
On January 22, 1973, the Acupuncture Center filed a labor certification with the Department of Labor.
The job description required a person capable of interpreting from various dialects of Chinese into English and a person capable of performing all of its bookkeeping. The Certifying Officer found that the "available job market information will not warrant a certification of unavailability of workers in the United States" and further ruled that the job requirements were too restrictive.
In response to this denial, the Acupuncture Center requested reconsideration and deleted the requirement of bookkeeping skills while noting the importance of Ms. Kao's understanding of acupuncture terminology and science.
Plaintiffs' request for reconsideration was rejected by Lorenzo White, Acting Director of Employment Services of the District of Columbia Manpower Administration. Mr. White stated that the amendment of the application had removed the factors creating the adverse effect as a basis for denial, but he went on to indicate that
. . . we must conclude that sufficient resident workers remain available in the Washington Metropolitan Area to perform the job duties required. While we recognize that you may prefer workers who are familiar with acupuncture terminology and practice, this does not appear to be a necessary occupational consideration and only impedes effective recruitment of an otherwise qualified local worker.
The underlying basis for Mr. White's conclusion that "sufficient resident workers remain available" is revealed in a letter from Mr. White to Robert Pfeffer, Assistant Solicitor of Labor for Manpower, in which Mr. White notes that in processing the initial application, contact was made with Mr. Winston Tsai, legal counselor to the D.C. Chinese Cultural Association and the Formosan Club of America, Incorporated. Mr. Tsai informed defendants that to his knowledge there were in excess of 15 persons in the area who "possessed knowledge of English and various Chinese dialects."
Furthermore, Mr. Tsai indicated two applicants were available for immediate referral, one of whom spoke the three Chinese dialects described as a job requisite by the Acupuncture Center.
Mr. Tsai indicated that he would forward a letter advising of the availability of these two applicants. Plaintiff at oral argument indicated no such referral was made.
An additional contact with Mr. Fukuda of the Language Services Division of the Department of State revealed that Mr. Fukuda could refer two applicants with a fluency in Mandarin Chinese but Mr. Fukuda felt "it would be difficult to locate interpreters with fluency in three dialects."
Within this factual setting, the question is now presented to the Court whether the Secretary abused his discretion in denying a labor certification to plaintiffs.
The plaintiffs argue that under 8 U.S.C. § 1182(a)(14)
the Secretary failed to make a reasonable and complete determination that sufficient resident workers are able, willing, qualified, and available to perform the labor required by the employer. After a careful review of the administrative record before the Court, it is clear that plaintiffs' argument has much merit. Not only was it clear from the facts gathered that there were very few resident workers who had a sufficient knowledge of three Chinese dialects
but, in addition, it is evident that the contact with Mr. Winston Tsai of the Chinese Cultural Association produced only speculation as to whether there were resident workers who, in fact, were "able, willing, qualified and available."
A similar situation was presented in the case of Golabek v. Regional Manpower Administration, United States Department of Labor, 329 F. Supp. 892 (E.D.Pa.1971). In Golabek a labor certification was denied to plaintiff on the grounds, inter alia, that there were qualified resident applicants seeking employment in this same field of art education. The Court noted that
Although the Administrator's investigation revealed that qualified job applicants were available, there is nothing to indicate that anyone other than petitioner, was interested in the Archdiocesan vacancy . . . . There are no facts present on the record which indicate to us that petitioner is likely to displace any American worker. In addition, although the Administrator found that there might be qualified and available ...