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AFL-CIO v. MCLAUGHLIN

December 19, 1988

AFL-CIO, et al., Plaintiffs,
v.
ANN McLAUGHLIN, et al., Defendants, and NATIONAL COUNCIL OF AGRICULTURAL EMPLOYERS, et al., Defendants-Intervenors, and AMERICAN FARM BUREAU FEDERATION, Defendant-Intervenor



The opinion of the court was delivered by: SPORKIN

 STANLEY SPORKIN, UNITED STATES DISTRICT JUDGE.

 . . . or otherwise contrary to law," 5 U.S.C. Sec. 706(2)(A) (1982), and have moved to have the regulation remanded to the DOL for further explanation. The matter has been fully briefed and hearings were held on April 29 and October 18, 1988. I am now prepared to rule on this matter.

 I. BACKGROUND

 Congress has explicitly provided that foreign workers may be brought into the United States as temporary, non-immigrant workers to provide services for which no U.S. workers are available. However, before allowing these alien workers to enter the U.S., Congress requires that certain preconditions be met. Presently, these preconditions are set forth in the Immigration Reform and Control Act of 1986 ("IRCA"). See 8 U.S.C. Sec 1186(a)(1) (1982 & Supp. IV 1986).

 The relevant provision of IRCA provides that, before the Attorney General approves a petition for importation of temporary, non-immigrant agricultural workers, the employer desiring to import aliens seek certification from the Secretary of Labor that:

 
(A) there are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services involved in the petition, and
 
(B) the employment of the alien in such labor or services will not adversely affect the wages and working conditions of workers in the United States similarly employed.

 Id. This provision expresses a two-decade old policy of protecting U.S. workers from the effects of importing temporary foreign workers into U.S. labor markets. See 8 U.S.C. Sections 1101(a)(15)(H)(ii), 1184 (codified as amended at 8 U.S.C. 1186(a)) (1982 & Supp. III 1985).

 By custom, farm laborers are compensated by two distinct methods. Farmworkers receive either an hourly wage or are paid by the piece, i.e. based on the workers productivity. Therefore, DOL has designed two methods of protecting U.S. workers. The first method provides for the payment of Adverse Effect Wage Rates ("AEWRs") to workers paid on an hourly basis. Basically, AEWRs provide a premium that is added to the average hourly wage. This premium is intended to compensate for wage depression that is caused by the increased labor supply that results from the importation of alien workers.

 The second method of protection provides for the payment of a piece rate to workers paid by the piece. Specifically, in the past DOL adopted regulations that required employers who paid workers on a per piece basis to pay wages that were "designed to yield" the AEWR. The "designed to yield" provisions required that the piece rate be set at a level that would provide "the average worker" with a wage equivalent to, or exceeding, the hourly AEWR. See, e.g., 20 C.F.R. 655.207(c) (1983); 20 C.F.R. 602.1Ob (a)(2) (1971). These piece-rate regulations have been the source of extended litigation and are central to the case now before the court. *fn2"

 Judge Richey, in NAACP I and NAACP II, ruled that DOL'S piece-rate regulations precluded the growers' practice. *fn3" Further, Judge Richey held that the DOL piece-rate regulations, by their own terms, required that ...


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