The opinion of the court was delivered by: RICHEY
UNITED STATES DISTRICT JUDGE, CHARLES R. RICHEY.
This matter is before the Court on cross motions for summary judgment for declaratory and injunctive relief. By agreement of the parties this decision shall be the equivalent of a decision on the merits. The parties have agreed to a joint statement of material facts that are not in dispute and the only question now before the Court is one of law.
This is a class action filed by the NAACP on behalf of itself, several named plaintiffs and "all farmworkers who were employed by Ewer Orchards, Mount Level Orchards, [and] Tri-County Growers . . . at any time during the 1980 and 1981 harvest seasons; and all United States farmworkers who intend to seek or are seeking employment in West Virginia for the 1982 harvest season and whose wages or working conditions may be adversely affected by the acts complained of" as per this Court's Order of August 24, 1982 granting certification of the class.
Defendant, the DOL, is the government agency responsible for regulation of the wages and working conditions of plaintiff class members. Part of the DOL's responsibility entails advising the Attorney General regarding the admission of temporary foreign workers into this country. See Immigration and Nationality Act ("INA"), 8 C.F.R. § 214.2(h) (3) (i). The DOL is required to carry out the policy of the INA that alien workers may not be imported unless it is determined that their employment will not adversely affect similarly employed United States workers. See id. Pursuant to this mandate, the DOL has promulgated the regulations at issue here: 20 C.F.R. §§ 655.0 to 655.00, 655.200 to 655.212. Under these regulations, employers may import foreign workers only after they have obtained "temporary labor certification" from the DOL. The DOL may only grant certification upon a determination that admission of foreign workers will not adversely affect the wages or working conditions of American workers, and, that there are no sufficient American workers to meet the employer's needs. To aid in making these determinations, the DOL promulgated regulations pursuant to which it annually calculates the AER.
20 C.F.R. § 655.207(d). Growers seeking certification must submit applications to the DOL stating the wages (which must be at least equal to the AER), terms, benefits and conditions that they will pay alien workers. After appropriate attempts to recruit sufficient American workers have failed, the DOL will grant certification.
The plaintiffs root their challenge of DOL's certification regulations in the applications of three West Virginia employers -- Ewer Orchards, Mount Level Orchards, and Tri-County Growers, Inc.
(hereinafter the "growers") who have applied for certification at least since 1977. Prior to 1978 the growers' applications expressed piece rates and expected productivity rates solely in terms of bushels harvested. Presumably based on prior experience they represented that expected productivity for an average picker was 80 bushels per day. The piece rate was then established based on expected productivity of 10 bushels per hour for an eight hour day. Thus, the piece rate was equal to one-tenth of the AER rounded off to the highest cent. During 1977 and 1978 the piece rate was consistently set at a level that allowed workers that averaged 10 bushels an hour to earn the AER. Plaintiffs do not contest the piece rate calculations for those years.
In 1979, however, the growers submitted applications basing their piece rates upon an expected productivity rate of 80 boxes or 90 bushels per day. The DOL refused to accept these applications until the growers amended them to guarantee workers a piece rate that allowed workers to earn the AER, based on expected productivity of 80 bushels per day. The growers then amended their applications accordingly.
In 1980 and 1981, the growers again submitted applications proposing to pay piece rates based on the productivity rate of 80 boxes per day. In both of these years the applications were accepted and workers were paid at the proposed rates of 80 boxes per day. Thus, the workers were able to earn less than if the 80 bushel rate had been maintained.
The growers' applications for 1982 present a unique problem because the DOL has not yet established an AER for this year.
The growers' applications set the proposed piece rate for 1982 at one cent below last year's piece rates both per bushel and per box. The DOL had given preliminary approval to these applications and had allowed the growers to begin recruiting American workers at the proposed rates prior to this litigation. Had that effort been unsuccessful they then would have been allowed to begin recruiting American farm workers.
With the approach of the 1982 harvest season the plaintiffs filed this suit on August 17, 1982 seeking declaratory and injunctive relief. They seek to prevent the DOL from: (1) granting certification to the growers based on the piece rates proposed in their ...