assured that every worker was paid a wage that would enable "the average worker" to equal or exceed the equivalent of the hourly AEWR. In fulfilling the "designed to yield" requirement, all workers' wages were enhanced.
Second, in the wake of NAACP I, II and III, AEWRs and piece rates were required to increase in lock-step. That meant that every time a percentage increase was added to the average hourly wage, thereby establishing the AEWR, the same percentage increase was applied to the piece rate.
Both of these policies were effective and proved successful in carrying out congressional intent. DOL's new piece-rate regulation discards both these long standing policies. See NAACP III, 765 F.2d at 1183; 52 Fed.Reg. 11462 In their place, DOL has simply guaranteed that every worker shall receive, at minimum, the equivalent of the AEWR as applied to hourly workers. See 20 C.F.R. 655.102(b)(9)(B) (April 1, 1988). Thus, if a worker falls short of the equivalent of the hourly AEWR, he or she will receive make-up pay.
In the past, piece rate workers have been protected by an enhanced wage produced by both the "designed to yield" provision and proportional increases. In abandoning its former policy, in which all piece rate workers received this enhanced wage, DOL has seemingly abandoned those farmworkers who are paid through the piece rate and who exceed the AEWR floor. While DOL correctly asserts that IRCA does not mandate the piece rates that have existed in the past, it is clear that if DOL desires to adopt a new policy, it cannot simply abandon piece-rate workers. What is required is that before the DOL abandon its present policy and adopt a single tier method of protecting U.S. workers, it must explain its new policy and demonstrate that it will fulfill congressional objectives. This DOL has clearly failed to do.
Again, I must state that DOL may well be able to provide a reasoned explanation for why its new regulation is justified under the relevant provisions of IRCA.
It may well be that a single AEWR covering both hourly wage and piece rate workers could fulfill the protective measures set forth in IRCA. Of course, such an extreme departure from the present system must be properly defined and explained and must ensure, in accordance with IRCA, that alien workers brought into the U.S. not "adversely affect the wages and working conditions of workers in the United States . . . ." 8 U.S.C. Sec. 1186(a)(1)(B).
Nonetheless, the past policy of DOL has been to provide for both an AEWR and a piece rate that enhances the wages of all piece rate workers. See NAACP III, 765 F.2d at 1183. Thus far, the Department has not provided any explanation for why it now has chosen to abandon that comprehensive policy and adopt its new system. Nor has DOL explained how its new system will protect U.S. piece rate workers from the adverse effects of the importation of alien workers. See Western Union International, Inc. v. FCC, 256 U.S. App. D.C. 251, 804 F.2d 1280, 1291 (D.C. Cir. 1986) ("the key is whether the agency changed its policy only after reasoned consideration of relevant factors"); see also Brae Corp., 740 F.2d at 1038. Therefore, I am constrained to find that the Department has not provided the necessary reasoned explanation to support the new piece rate it adopted in 1987.
For the foregoing reasons, I find that DOL has failed to provide a reasoned explanation for its actions in adopting its 1987 piece-rate regulations and, therefore, DOL's piece rate is contrary to law. 20 C.F.R. Sec. 655.102(b)(9)(ii) (April 1, 1988); 52 Fed.Reg. 20515 (June 1, 1987).
An appropriate order accompanies this opinion.
Date: December 19, 1988
ORDER - December 20, 1988, Filed
On this date, the Court issued its opinion in the above titled action. In accordance with the reasons set forth therein, it is
ORDERED that Plaintiffs' Motion to Remand the Piece Rate Regulation shall be and hereby is granted; and it is
FURTHER ORDERED that a hearing be held to determine the scope and nature of relief to be granted. The hearing on this matter shall be held on January 3, 1989 at 2:00 PM, in the U.S. Courthouse in a courtroom to be designated on that date.
Date: December 19, 1988