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NAACP v. BROCK

October 10, 1985

NAACP, JEFFERSON COUNTY BRANCH, et al., Plaintiffs,
v.
THE HONORABLE WILLIAM E. BROCK, SECRETARY, UNITED STATES DEPARTMENT OF LABOR, IN HIS OFFICIAL CAPACITY, et al., Defendants



The opinion of the court was delivered by: RICHEY

 INTRODUCTION

 The Court has before it plaintiffs' application for two show cause orders, the accompanying memoranda in support of the application, and the defendant, Department of Labor's (DOL) opposition thereto. Although the Court signed a final order in this longstanding case on August 15, 1985, recent actions by two non-party West Virginia apple growers and suits filed in the District Court for the Northern District of West Virginia have precipitated plaintiffs' applications. Tri-County Growers, Inc. v. Brock, Civ. No. 85-38-M; Homer Feller, d/b/a Mount Level Orchards and Farms, Civ. No. 85-37-M.

 BACKGROUND AND FACTS

 Plaintiffs are a nationwide class of migrant farm workers, *fn1" who initially filed suit against the Secretary of Labor and the DOL, claiming that the DOL had violated its own regulations which governed the labor certification process for the temporary employment of aliens in the United States. Plaintiffs argued that the DOL had not required certain West Virginia apple growers to increase their piece rates (amount paid per box of apples picked) to match the adverse effect rate (AER is the minimum wage that employers must pay both foreign and domestic workers). By not raising piece rates, the growers forced the farm workers to increase their productivity in order to earn the AER. Furthermore, plaintiffs asserted that the DOL had not established an AER for West Virginia in 1982.

 The DOL published its final rule amending 20 C.F.R. § 655.207(c) on September 2, 1985. However, this Court, in accordance with a mandate from the Court of Appeals, entered its final order and judgment vacating the amendments and reinstating 20 C.F.R. § 655.207(c) (1978) as published on March 10, 1978, and as interpreted by the Court in NAACP I and NAACP II, until amended or revoked by proper rulemaking procedures. NAACP, Jefferson County Branch, v. Brock, 619 F. Supp. 846, (D.D.C. 1985) (final order and judgment).

 Two weeks after the entry of the Final Order and Judgment, on the eve of the apple harvesting season, two West Virginia apple growers, Tri-County Growers, Inc., and Mount Level Orchards and Farms, filed suit in the Northern District of West Virginia seeking an order reversing the DOL's denial of labor certifications for temporary farm workers due to the growers' refusal to pay workers the fifty-two cents per box piece rate. The growers also applied for a temporary restraining order enjoining the DOL's denial of labor certification of nearly 600 temporary foreign workers. Despite the DOL's argument that if the TRO were granted, it would be faced with conflicting orders from two different district courts, the West Virginia court granted the growers' TRO on the condition that the growers either deposit the difference between the piece rate paid and the piece rate required under the DOL regulations or provide irrevocable bank letters of credit to secure the eleven cents-per-box difference between the required rate and that actually paid by the growers.

 The DOL subsequently filed a motion for stay of the district court's order with the Fourth Circuit Court of Appeals. After argument before a single judge of the Fourth Circuit, the motion was denied. The DOL did not seek further review of the orders either by a full panel of the Fourth Circuit or by application to a Supreme Court Justice. The next day, the DOL complied with the West Virginia district court's order by granting certification to the two plaintiff-growers even though their piece rates were well below the published standard. *fn2" The District Court for the Northern District of West Virginia has scheduled a hearing on the merits for early October.

 Plaintiffs are now back before this Court requesting that it issue two orders to show cause. One would order the DOL to show cause why it should not be held in civil contempt of court for its failure to follow this Court's orders. Should a finding of contempt be made, plaintiffs ask that defendants be required to pay a fine to reimburse plaintiffs for their lost wages. The other order desired by plaintiffs is directed at the West Virginia growers, Tri-County and Mount Level, to show cause why they should not be directed to raise their piece rates immediately to the fifty-two cents per box rate, and further, enjoined from prosecuting their actions in the Northern District of West Virginia.

 After consideration of the briefs submitted by counsel and oral argument before it, the Court finds that for the reasons stated herein, both Applications for Orders to Show Cause shall be denied.

 ANALYSIS

 The DOL attempted to comply in good faith with this Court's Orders in NAACP-II, and therefore, is not in contempt.

 It is an established principle of law that once a court issues an injunction, those persons who are subject to it are to obey the terms of that order as long as it remains in effect. Even proper objections to the injunctive order do not provide sufficient grounds for disobeying it. GTE Sylvania, Inc. v. Consumers Union, 445 U.S. 375, 386, 63 L. Ed. 2d 467, 100 S. Ct. 1194 (1980). Paragraph eight of this Court's Order in NAACP II enjoined the DOL from granting temporary labor certification to any employer who did not comply with the applicable piece rate standard. The purpose of this Order was to enable workers to earn the current AER without having to increase their productivity rate. NAACP II, 566 F. Supp. at 1210. The Court, after issuing ...


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