The opinion of the court was delivered by: RICHEY
The history of this long-lived case began in 1982 when plaintiffs, a nationwide class of United States migrant farm workers, filed suit against the Department of Labor ("DOL") pursuant to the Immigration and Nationality Act, 8 U.S.C. § 1101 et seq. (1982) and its implementing regulations challenging the procedures the DOL used to certify that the employment of temporary aliens in the United States would not "adversely effect" the wages and working conditions of similarly situated United States workers.
This Court, in a series of decisions,
concluded that the DOL was violating the implementing regulations of the Immigration and Nationality Act by granting temporary labor certification to employers who failed to increase their piece rates so as to provide United States migrant farm workers with wages consistent with the adverse effect rate, the minimum wage that an employer must pay United States workers before it can be certified to employ temporary foreign workers.
As such, this Court enjoined the DOL from granting temporary labor certification to any employer failing to pay United States workers wages that were in accordance with the rate, as calculated pursuant to NAACP I.3 See NAACP, Jefferson County Branch v. Donovan ("NAACP II"), 566 F. Supp. 1202, 1210 (D.D.C. 1983).
Also before the Court is a request in plaintiffs' reply memorandum that the Court enter a remedial order should it find that contempt is an inappropriate sanction at this juncture. Specifically, plaintiffs seek an order directing the DOL to deny labor certification to the Virginia growers, who paid wages below the proper adverse effect rate for 1986, until they provide restitution. Although plaintiffs did not file a formal motion seeking such a remedial order, the Court will treat plaintiffs' request as a motion since both parties fully briefed this question. The Court will, however, deny plaintiffs' request for a remedial order because the issuance of such an order would encroach upon the DOL's discretion to enforce its regulations.
During the 1986 harvest, the DOL received numerous proposals from growers to convert from piece rates to hourly rates or hourly rates plus production bonus compensation schemes. Although the DOL had no objection to the adoption of new payment schemes by growers, the DOL did maintain a policy of only endorsing those payment schemes that produced wages that were commensurate with those required under NAACP I and NAACP II.
In June, 1986, twenty-four apple growers in Virginia and West Virginia filed clearance orders with the DOL offering to pay their temporary "H-2" workers at an hourly rate plus a discretionary, unspecified bonus. The DOL denied these clearance orders because it was uncertain whether this proposed payment scheme would comply with DOL regulations as interpreted by this Court in NAACP I and NAACP II.
In response to DOL's denial of their clearance orders, the Virginia growers filed suit in the United States District Court for the Western District of Virginia seeking to enjoin the DOL from rejecting their applications on the basis of the language permitting discretionary bonuses. The United States District Court for the Western District of Virginia issued two orders granting the growers' request for injunctive relief. See C.L. Robinson v. U.S. Dep't of Labor, No. 86-0417-R (W.D. Va. Aug. 7, 1986); Sensey South Corp. v. U.S. Dep't of Labor, No. 86-458 (W.D. Va. Aug. 27, 1986). Pursuant to these orders, the DOL granted these twenty-four growers in Virginia labor certification for the 1986 harvest.
From information they gathered after the 1986 harvest was over, counsel for plaintiffs concluded that the discretionary bonuses offered by east coast growers in 1986 were nothing more than disguised piece rates that were well below the rate required under NAACP I and NAACP II. Plaintiffs' counsel wrote counsel for the DOL letters that outlined plaintiffs' allegations of unlawful wage payments and requested that the DOL take specific remedial action against the growers, including sanctions under 20 C.F.R. § 655.210(a) (1987).
The letters from plaintiffs' counsel prompted the DOL's Regional Administrators in Virginia, West Virginia, Maryland, New York, and New England to examine 1986 job orders and, in some instances, payroll records for east coast growers to determine whether these growers complied with the DOL's piece rate adjustment regulations. The Regional Administrators concluded that, with the exception of growers in Virginia and West Virginia, the majority of growers on the east coast paid wages at levels that were in compliance with this Court's Order.
Although the DOL concluded that the wages paid by Virginia and West Virginia growers were in clear violation of the terms of their temporary labor certification, the DOL decided not to exercise its discretion to sanction these growers because of "extenuating circumstances surrounding the 1986 season." These circumstances included the DOL's approval of one grower's hourly rate plus production bonus payment scheme in 1985 and the absence of a clearly defined DOL policy on hourly rate plus production bonus payment schemes.
THE COURT WILL DENY PLAINTIFFS' MOTION FOR AN ORDER TO SHOW CAUSE WHY DOL SHOULD NOT BE ADJUDGED IN CONTEMPT BECAUSE THE COURT FINDS THAT THE DOL MADE A GOOD FAITH ...