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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.

 This is another chapter in a long saga of litigation. See AFL-CIO v. Brock, 266 U.S. App. D.C. 335, 835 F.2d 912 (D.C. Cir. 1987), remanding 668 F. Supp. 31 (D.D.C.). The entire factual and procedural background of this action need not be fully recited here. However, a short review is in order.

 I. BACKGROUND

 Plaintiffs in this case challenge regulations adopted by the United States Department of Labor ("Department" or "DOL") pursuant to the Immigration Reform and Control Act of 1986 ("IRCA"). 8 U.S.C. Sec. 1186(a)(1) (1982 & Supp. IV 1986). The relevant section of IRCA requires that, before the Attorney General approves a petition for importation of alien 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. (emphasis added). *fn1"

 In an attempt to fulfill this objective, i.e. offsetting the effects of wage depression due to the presence of alien farmworkers, the Department of Labor prohibited employers from paying workers below an "adverse effect wage rate" ("AEWR"). AEWRs were designed to approximate the wage rates that would have existed had there been no increase in the labor supply from foreign workers. Prior to 1987, the Department adhered to a methodology that produced wage enhancing AEWRs approximately 20 percent above the average farm wage as determined by the United States Department of Agriculture ("USDA"). See AFL-CIO v. Brock, 668 F. Supp. at 34-35 (citing Draft H-2A Regulations, March 13, 1987). However, following the passage of IRCA, the Department adopted new AEWR regulations under which an employer was required to pay the higher of either (1) the actual hourly agricultural wage for each state as determined by the USDA, *fn2" (2) the prevailing wage, or (3) the federal or state minimum wage. 20 C.F.R. Sec. 655.107 (April 1, 1988); 52 Fed.Reg. 20521 (June 1, 1987).

 Under the new AEWRs, farm workers faced the prospect of wage cuts. See AFL-CIO v. Brock, 835 F.2d at 914, 917-19. In response, plaintiffs brought this action claiming that the new AEWR did not protect U.S. workers from the adverse effects of the presence (and past presence) of foreign workers in U.S. labor markets. Plaintiffs argued that the failure to provide such protection was contrary to law.

 I reviewed the regulations in question and found, inter alia, that the new regulations "do[] nothing to protect American workers and thus [are] not in accordance with law." Id., 668 F. Supp. at 40. Further, I found "the process by which the Department arrived at the present rules flawed by the absence of an appropriate explanation." Id.

 DOL appealed the Opinion and Order of this court. The Court of Appeals, reviewing the case, held:

 
Agencies may not substantially alter regulatory policy without a reasoned explanation. The Department of Labor's new temporary alien agricultural labor certification program reverses a two decade-old, court-approved policy of enhancing wage compensation to benefit United States farm workers. In abandoning that approach, the Department was required to justify its fundamental change of interpretation in its statutory mandate to protect American workers from the adverse effect of temporary foreign workers.

 Id., 835 F.2d at 919-20. Pursuant to that Opinion, I ordered the Department of Labor to issue a "reasoned explanation" for the actions it took in adopting its 1987 AEWR regulations. Id., Civil Action No. 87-1683 (filed Mar. 25, 1988) ("Remand Order").

 The Department now has submitted to this court an explanation of the new AEWR regulations. See Federal Defendants' Motion to Alter Remand Order and Memorandum in Support, attachment ("DOL Explanation"). Further, the Department has moved to alter the Remand Order to permit publication of the DOL Explanation in the Federal Register and to allow consideration of public comment. The plaintiffs oppose this motion and have filed a motion for summary judgment seeking a declaration that the June 1, 1987 AEWR regulation is invalid.

 I must now determine whether the Department of Labor has provided the "reasoned explanation" ordered by this ...


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