be tied to the AER at a standard rate of productivity. The Court anticipated that, in order to comply with this ruling, DOL would communicate this directive to its Regional Administrators in charge of temporary labor certification. DOL, however, chose to inform the Administrators only that the Court's ruling should be applied in the states specifically covered by the Orders in NAACP I and Bragg. The Court finds that this action was not sufficient to comply with its Order.
In NAACP I, the Court determined that DOL had been applying its regulations improperly and issued a declaratory judgment interpreting these regulations. This declaration was in no way limited to the facts of the case or to the states directly concerned in that action. Moreover, the Court can conceive of no argument, and defendants offer none, that would justify DOL's continued application of an incorrect interpretation of its regulations to states other than Vermont, Maine, West Virginia and Florida.
Once the Court declared the proper interpretation of these regulations, DOL was bound to accept and comply with the Court's Order. To the extent that this was not clear from NAACP I, this opinion should remove all doubt as to the Court's intentions.
There is one other point in the Court's prior opinion that needs further clarification. The Court held that piece rates should be tied to the AER at a standard rate of productivity. However, the Court did not determine what this rate of productivity should be (except for the three growers specifically named in NAACP I). The Court here determines that the most appropriate rate is that which was in effect in 1977 -- the year the AER regulations, 20 C.F.R. § 655.207, went into effect.
The productivity rate is the number of bushels a worker must pick so that, if he were being paid solely by the piece, his salary would be equivalent to the AER.
If a worker produces more than the productivity rate, he will earn an amount greater than the AER as determined by the number of additional bushels he picks. The productivity rate is not set by DOL. Rather, the productivity rate is implicitly established by the piece rate that growers propose to pay.
However, before temporary labor certification will be granted to a grower, DOL must approve the grower's proposed piece rate.
In NAACP I the Court found that, in violation of its own regulations, DOL had been allowing growers to increase productivity rates, rather than increasing piece rates, when the AER was increased. This practice had been allowed since the regulations were established in 1977, thus permitting growers to hold down the income of farmworkers even while the AER increased.
Because the Court found that such increases were improper from the very beginning, the Court will require DOL to apply the productivity rates in effect in 1977,
before the growers were permitted to escalate them.
Presumably, the 1977 rates will best reflect the most accurate rates of productivity because these were the rates established before DOL misapplied its own regulations. By applying the productivity rates established by the growers and approved by DOL in 1977 before the tainted interpretation was applied, the Court may defer to the agency's own expertise.
An order in accordance with the foregoing will be issued of even date herewith.
The Court has before it plaintiffs' motion for class certification, defendants' opposition thereto, plaintiffs' reply, and the entire record herein. The Court is satisfied that the proposed class meets all of the requirements of Fed. R. Civ. P. 23(a) and 23(b)(2). Indeed, defendants do not even argue that these requirements are unsatisfied. Defendants sole objection to class certification is that it is unnecessary. The Court finds, however, that allowing this action to proceed as a class action will permit the Court to provide broad relief which would otherwise be unavailable. Accordingly, it is, by the Court, this 27th day of June, 1983, hereby
ORDERED that plaintiffs' motion for class certification is granted; and it is further
ORDERED that the plaintiff class shall consist of all persons who, whether United States nationals, citizens or aliens, are legally permitted to work permanently within the United States and who (a) were employed to pick apples in West Virginia by Ewers Orchards, Mount Levels Orchards, Tri-County Growers, Inc., or any agent or member of Tri-County Growers, Inc. at any time during the 1982 harvest, or (b) intend to seek employment as farmworkers in future harvests in states in which employers have used or intend to use workers temporarily admitted to the United States pursuant to 8 U.S.C. § 1101(a)(15)(H)(ii).
For the reasons set forth in the memorandum opinion of even date herewith, it is, by the Court, this 28 day of June, 1983 hereby
ORDERED that plaintiffs' motion for summary judgment is granted and defendants' motion for summary judgment is denied; and it is further
ORDERED that the Court grants relief on behalf of a class consisting of all persons who, whether United States nationals, citizens or aliens, are legally permitted to work permanently in the United States and who (a) were employed to pick apples in West Virginia by Ewers Orchards, Mount Levels Orchards, Tri-County Growers, Inc., or any agent or member of Tri-County Growers, Inc., (the "West Virginia Growers") at any time during the 1982 harvest, or (b) intend to seek employment as farmworkers in future harvests in any state in which employers have used or intend to use workers temporarily admitted to the United States pursuant to 8 U.S.C. § 1101(a)(15)(H)(ii) (the "affected states"); and it is further
ORDERED that defendants shall set the 1982 AER for West Virginia at the rate of $4.24 per hour, a figure 17.2% above the 1981 rate, in accordance with the figures produced by DOL's chosen methodology; and it is further
ORDERED that defendants shall take all necessary steps to ensure that the West Virginia growers pay back wages to their employees who worked during the 1982 apple harvest to bring their wages to the level they would have earned had their wages been based on an AER of $4.24 per hour and piece rates of 43 cents per bushel or 48 cents per box; and it is further
ORDERED that unless and until defendants' obligations are altered by promulgation of a valid rule, defendants shall determine on an annual basis the AER for each affected state, and for each year after 1983 such rates must be determined no later than March 31st; and it is further
ORDERED that defendants shall collect and compile information necessary to enable the Secretary of Labor or his designated subordinates to determine the AER and shall begin processing a proposed rule regarding AER methodology for the 1983 season for all affected states, and shall publish in the Federal Register the 1983 AER for all affected states no later than July 29, 1983; and it is further
ORDERED that defendants are enjoined from granting temporary labor certification for 1983 (under the provisions of 20 C.F.R. §§ 655.0 et seq.) to any employer that does not agree (a) to pay all workers their proper wages based on the 1983 AER determined by defendants upon conclusion of the rulemaking proceedings and (b) to take all appropriate action to ensure that workers in the 1983 harvest will receive all pay due them should the AER not be established until after the harvest season has commenced; and it is further
ORDERED that defendants are enjoined from granting temporary labor certification to any employer that fails to adjust its piece rate so that an employee, working at the same productivity rate required to earn the then-applicable AER in 1977 or the year in which the employer first applied for temporary labor certification, whichever year is later, may earn the current AER.