The opinion of the court was delivered by: GASCH
This case was first brought to the attention of the Court on Friday, September 5th when, after consideration of the pleadings and the affidavits and representations of counsel, the Court entered a partial temporary restraining order and set the matter for hearing on preliminary injunction on Wednesday, September 10th at 10:00 A.M. Upon the agreement of all counsel, this hearing was considered a hearing on the merits looking toward the grant or denial of final injunction. The Court considered the pleadings submitted by the respective parties, as well as an additional intervenor, Shoreham Apple Producers' Cooperative, Inc., and heard testimony from two witnesses offered by the Secretary of Labor, Dr. Daniel Sturt, Director of the Rural Manpower Service of the Department of Labor, and Mr. John Tilelli, a Rural Manpower and Development Specialist for the Department of Labor, and two witnesses called by the intervenor Farm Labor Executive Committee, namely, Mr. Harold F. Edwards, Chief Liaison Official, British West Indies, respecting the situation involving Jamaican farm workers, and Mr. Marvin C. Peck, Manager of the Valley View Orchards and President of the New England Apple Growers Council, and upon consideration of the affidavits and testimony and the arguments of counsel, the Court makes the following
1. Plaintiffs are a group of Puerto Rican agricultural workers, as well as one from Clarksdale, Mississippi, presently in New York, who desire to work in the apple harvest this fall in the northeastern states. They seek to bring this action on behalf of those similarly situated.
2. Defendants are respectively the Secretary of Labor and the Commissioner of the Immigration and Naturalization Service.
3. The intervenors are the Farm Labor Executive Committee, which represents apple growers in 10 east coast states, including Maine, New Hampshire, Vermont, Massachusetts, Connecticut, Rhode Island, New York, Maryland, Virginia and West Virginia. The second intervenor is the Shoreham Apple Producers' Cooperative, Inc. of Shoreham, Vermont.
4. Plaintiffs contend that the defendant Secretary and those acting in concert with him have deprived plaintiffs and other workers similarly situated of available apple orchard jobs in the east coast states and have wrongfully certified a need for temporary foreign workers to take these jobs, and that pursuant to said certification, the defendant Commissioner of Immigration and Naturalization Service has granted, or will soon grant, visas to temporary foreign workers on the basis of the Secretary's certification.
6. Under existing law foreign farm workers may not be employed unless and until it is determined and certified by the appropriate federal officials that there is an insufficient supply of domestic workers to fill the employment need.
7. Apple growers in the past have experienced difficulties in obtaining certification of a sufficient number of foreign workers to supplement the domestic labor force.
8. The Secretary of Labor has established procedures which require an employer who wishes to import temporary farm laborers from outside the United States to prove that he has made substantial recruitment efforts on his own and filed a clearance order with the employment service. 20 C.F.R. 602.10 et seq.
9. With respect to the 1975 east coast apple harvest, the Secretary has determined that the apple growers have made substantial recruitment efforts and have been unable to recruit a sufficient number of domestic workers. Accordingly, he has authorized the apple growers to import no more than 4,839 foreign farm workers for the purpose of assisting in the harvest of apples in the states heretofore mentioned.
10. Prior to making his finding with respect to the need for foreign farm workers, the Secretary was aware that the clearance orders had been referred to Puerto Rico and to states from which, in the past, domestic farm workers had been recruited for the purpose of assisting in the harvesting of apples in the northeast area of the country.
11. The Puerto Rico Employment Service, however, was unable to refer any farm workers for this project because under the laws of Puerto Rico employers may not recruit workers for work outside of the Commonwealth unless employers have first ...