is nonbinding and "carr[ies] no more weight on judicial review than [its] inherent persuasiveness commands." Id. at 702. As indicated above, the Court is unpersuaded of the rectitude of GAL No. 46-81 in light of its apparent conflict with the plain language of § 655.207(c).
The Court is convinced that the language of §§ 655.202(b) (9) (ii) and 655.207(c) is controlling in this case, and that that language ties the piece rate to the AER, and, therefore, requires the DOL to retain a constant productivity rate. The statute is clear -- employees should not be forced to increase their productivity when the AER is increased. Yet, this is exactly the situation that occurred in this case. The growers first attempted to effectuate an increase in the productivity rate to offset increases in the AER in 1979. In that year, the increase was rejected by the DOL. In 1980, and, thereafter, the growers were able to elicit DOL's approval of their applications although the growers increased their expected productivity from 80 bushels to 80 boxes at the expense of many workers. But the Court finds here that granting that approval was contrary to the law.
Defendant argues that binding the growers to the productivity rate set forth in their 1977 applications -- 80 bushels per day -- is unfair because productivity will vary yearly with differences in the weather and crop and the piece rate should be varied accordingly to reflect such differences. The Court finds some merit in this argument. However, it is more concerned with the possibility of abuse inherent in allowing the growers to increase their expected rate of productivity to offset increases in the AER -- an abuse which the regulations were specifically aimed at containing. The Court seeks to prevent growers from penalizing the workers by paying them less because of the increased work required for piece work pay. Thus, the Court holds that the productivity rate should be held constant at 80 bushels per day. The Court believes that this rate is proper for several reasons. First, it was the rate proposed by all three growers when they applied for certification in 1977 -- a rate which presumably was based on the growers' past experience. Second, all three growers also set forth the 80 bushel rate in their 1978 applications. Third, in 1979 when the growers attempted to increase the productivity rate to 80 boxes (or 90 bushels) per day, the DOL rejected their applications. Only when they were adjusted to reflect the 80 bushels rate were the applications for certification granted. It thus appears to the Court that the 80 bushel rate is the standard rate of productivity from which the piece rate should be calculated unless and until the DOL undertakes a proper and lawful rulemaking proceeding to establish a different rate of productivity.
THE COURT CAN PROPERLY DECIDE THIS CASE WITHOUT JOINING THE GROWERS
Defendant contends that the growers are indispensible parties under Rule 19 Fed. R. Civ. Pro., and, that, therefore, this suit cannot properly proceed without joining them as co-defendants. In support of this claim they assert that the relief sought requires the grower to give money to the plaintiffs; thus, the growers are the parties most effected by the litigation. The Court disagrees.
This suit requires determination of one basic issue -- whether the DOL is complying with its own regulations. Clearly the ruling of the Court will effect all those people who are effected by the regulations at issue. But this fact does not make all of those effected individuals indispensible parties. Courts have often held that in suits to compel federal agencies to obey the law the countless people or entities who would be effected thereby do not become necessary parties. See 3A Moore's Federal Practice para. 19.07-1 n.9 at 19-131 (2d ed. 1982). See e.g., Kirkland v. New York Department of Correctional Services, 520 F.2d 420 (2d Cir. 1975); Swomley v. Watt, 526 F. Supp. 1271, 1273 (D.D.C. 1981); NAACP v. Brennan, 360 F. Supp. 1006, 1019 (D.D.C. 1973).
Defendant gives as a further reason for requiring joinder of the growers that otherwise defendant could be subjected to multiple litigation and inconsistent court orders. However, the Court is not convinced that this problem will eventuate because it believes that any other court faced with a suit by the growers would act in accordance with principles of comity. It is well established that defendant is bound to act in accordance with this Court's order unless it is modified or reversed and no court should order defendant to act otherwise. See generally, Adams v. Bell, No. 81-1715 (D.C. Cir. August 24, 1982); GTE Sylvania Inc. v. Consumers Union of the United States Inc., 445 U.S. 375, 386-87, 63 L. Ed. 2d 467, 100 S. Ct. 1194 (1980).
REMEDY: THE COURT WILL ISSUE A DECLARATORY JUDGMENT THAT THE PIECE RATE SHALL BE TIED TO THE AER AT THE STANDARD RATE OF PRODUCTIVITY AND ORDER AN INCREASE IN THE PIECE RATES TO THE LEVEL OF THE 1981 AER BUT THE COURT DECLINES TO GRANT BACK PAY OR TO ASSUME A 7% INCREASE IN THE AER FOR THIS YEAR
The plaintiffs request three items of relief. First, they seek a declaration that defendant has failed to properly enforce its regulations, particularly § 655.207(c), by failing to require employers to adjust piece rates to match increases in the AER. The Court grants this relief and such a declaration is set forth in the Order of even date which accompanies this opinion.
Second plaintiffs ask the Court to require defendant to condition certification for 1983, and thereafter, upon an agreement by the growers to make whole the workers in the 1980 and 1981 seasons who, pursuant to the terms of this decision, were underpaid. The Court believes that it cannot grant this remedy in equity and good conscience. The burden of such an Order would fall heavily upon the growers effected by this case, inflicting upon them a loss that they may be forever unable to recoup.
Presumably, the price of apples in 1980 and 1981 reflected the cost of labor to these growers and was set at an appropriate level to allow them to make a reasonable profit. Retrospectively increasing that cost would put the growers in a difficult position because they are, of course, unable to increase the cost of the 1980 and 1981 applies to reflect the true cost of labor. Thus, the only alternative available to the growers would be either to greatly increase the price of 1982 apples, possibly pricing themselves out of the market, or to attempt to absorb significant losses. The Court does not feel that the facts of this case justify this result. Although the growers have exhibited far less than generosity toward their workers and have attempted to stretch the law to its limits, it was the action of defendant DOL in mis interpreting the bounds of the law that caused the problem here. The growers should not be forced to bear the cost. Moreover, the Court notes that plaintiffs could and should have brought this action in 1980 and 1981 to obtain the remedy sought.
Finally, plaintiffs appeal to the Court's inherent equitable power to require that piece rates for 1982 be based on an AER presumed to be 7% higher than the 1981 AER. They propose this 7% figure based on economic data including the consumer price index.
The Court recognizes that it has the power to grant broad relief even though it may entail approximation or uncertainty. See e.g., International Brotherhood of Teamsters v. United States, 431 U.S. 324, 372, 52 L. Ed. 2d 396, 97 S. Ct. 1843 (1977). However, the Court is unwilling to stretch its equitable powers to this extent in this case. The AER is formulated through a process of complex calculations performed by the DOL based on a variety of data. The Court is ill equipped to even approximate such calculations.
Moreover, were the Court to make an erroneous calculation of the AER for 1982 this would result in irreparable harm to the growers. If the Court were to assume a 7% increase and order the growers to pay at that rate, and the AER was later determined to be lower, the growers would be unable to recover the overpayments. They would thus suffer an unrecoverable loss.
Nevertheless, the Court is convinced that the AER for 1982 could not be lower than the 1981 rate, and, it, therefore, orders that the piece rates for 1982 be determined according to the 1981 AER until the 1982 rate is formulated.
Plaintiffs contend that declaring an increase in the AER is the only way to guarantee them adequate relief. They explain that the AER sets the floor for wages, with most employers of only American workers paying a few cents more than the AER. Thus they contend that although retrospective relief could be granted to the plaintiffs who are employees of the named growers, such relief could never compensate for the adverse effect that the existence of the current lower rate will have on the bulk of the class -- similarly situated American workers. The Court recognizes the problem that plaintiffs detail. However, for the reasons stated above, it must refuse the remedy sought. Additionally, the Court notes that this Opinion and Order should mitigate some of the harm that plaintiffs allege. First, this Opinion will raise the piece rate to a level equivalent to last year's AER on the basis of 80 bushels rather than boxes thus eliminating part of the alleged adverse effect. Second, the existence of this Courts' Order requiring payment of increased wages, if the AER is determined to be higher, may be sufficient to increase the wage rates in the area, and, thus decrease any depressive effect that use of the 1981 AER might have.
An Order in accordance with foregoing shall be issued of even date herewith.
For the reasons set forth in the Memorandum Opinion in the above-captioned action, issued of even date herewith it is, by the Court, this 3rd day of September, 1982,
ORDERED, ADJUDGED and DECREED that plaintiffs' motion for summary judgment is granted in major part, plaintiffs' motion for a preliminary injunction is denied as moot, and defendant's motion for summary judgment is denied; and it is further
ORDERED, ADJUDGED, and DECREED that the relief granted is awarded to a plaintiff class consisting of plaintiffs and all others similarly situated, namely, all farmworkers who were employed by Ewers Orchards, Mount Level Orchards, Tri-County Growers, Inc., or any agent, predecessor, or member of Tri-County Growers, Inc. (referred to collectively as "the grower"), at any time during the 1980 and 1981 harvesting seasons; and all United States farmworkers who intend to seek or are seeking employment in West Virginia for the 1982 harvesting season and whose wages or working conditions may be adversely effected by the acts complained of; and it is further
ORDERED, ADJUDGED and DECREED that defendants, their agents, officers, employees, and successors, and all person in active concert or participation with them, be and hereby are enjoined from granting the 1982 applications for temporary labor certification submitted by any of the growers unless and until the growers agree to increase the piece rates offered to workers to at least 37 cents per bushel and 41 cents per box which is the correct rate based upon the 1981 AER and a productivity rate of 80 bushels per day; and it is further
ORDERED, ADJUDGED and DECREED that defendants, their agents, officers, employees, and successors, and all persons in active concert or participation with them, be and hereby are enjoined from granting the 1982 applications for temporary labor certification submitted by any of the growers unless and until the grower agrees to pay all workers at the 1982 the adverse effect rate established by the Department of Labor upon conclusion of its rulemaking proceeding and the grower takes all appropriate action to ensure that workers in the 1982 harvest season will receive all pay due to them should the adverse effect rate not be established until after the 1982 harvest season is over; and it is further,
ORDERED, ADJUDGED and DECREED that certification for the 1983 season shall be conditioned upon each grower's agreement to fulfill their obligations under this Order and it is further,
ORDERED, ADJUDGED and DECREED that defendants, their agents, officers, employees, and successors, and all persons in active concert or participation with them are hereby enjoined from granting temporary labor certification to growers unless the grower agrees to state in any recruiting material distributed to persons seeking employment for the 1982 harvest season that the stated adverse effect rate and piece rates may be increased and if so, the workers will be entitled to receive the full amount of that increase for all work done during the season at the conclusion of this season; and it is further,
ORDERED, ADJUDGED and DECREED that the Order extending the temporary restraining order granted on August 27, 1982 is hereby dissolved and the moneys deposited in escrow pursuant to the Temporary Restraining Order granted August 20, 1982 shall be returned, to the plaintiffs in the amount deposited; and it is further
ORDERED, ADJUDGED and DECREED that henceforth the Department of Labor, their agents, officers, employees, and successors, and all persons in active concert or participation with them shall refuse certification to growers who do not offer a piece rate proportional to the adverse effect rate as determined by the standard productivity rate of 80 bushels per day; and it is further,
ORDERED, ADJUDGED and DECREED that the standard productivity rate of 80 bushels per day shall remain in effect unless and until the Department of Labor shall undertake a proper and lawful rulemaking procedure changing such basis of piece work method of payment to the workers, if such is justified on the basis thereof.