Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

AFL-CIO v. DOLE

August 30, 1990

AFL-CIO, et al., Plaintiffs,
v.
ELIZABETH DOLE, 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 matter is before the Court on plaintiffs' motion for summary judgment, defendants' motion to dismiss, and the opposition to these motions. Plaintiffs challenge the United States Department of Labor's ("DOL") Adverse Effect Wage Rate ("AEWR") regulation, 20 C.F.R. § 655.107(a)(1989).

 I. BACKGROUND

 Plaintiffs in this action challenge the DOL's AEWR regulation. The DOL promulgated this regulation pursuant to statutory mandate of the Immigration Reform and Control Act of 1986 ("IRCA"). 8 U.S.C. § 1188(a)(1) (1988). *fn1" Section 1188(a)(1) of IRCA requires that, before the Attorney General can approve a petition for the importation of alien workers, the employer seeking the approval must first obtain from the Secretary of Labor certification 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).

 In an effort to comply with this statutory mandate, the DOL promulgated the AEWR regulation. The regulation's objective is to limit the negative impact upon wage rates that results from the increase in the labor supply that accompanies the presence of alien farmworkers. Accordingly, the regulation establishes a floor wage for agricultural workers, the "adverse effect wage rate." AEWRs were designed to approximate the wage rates that the market conditions would warrant in the absence of an increased foreign labor supply. Prior to 1987, the DOL utilized 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. 31, 34-35 (D.D.C.), remanded, 266 U.S. App. D.C. 335, 835 F.2d 912 (D.C. Cir. 1987).

 This is the third time that this Court has reviewed the validity of the DOL's AEWR regulation. Initially, this Court enjoined the implementation of the AEWR regulation, 20 C.F.R. § 655.107, 52 Fed.Reg. 20521 (June 1, 1987). *fn2" AFL-CIO v. Brock, supra. This Court reviewed the regulation and found, inter alia, that the "DOL has failed to demonstrate that the regulations it promulgated do anything to protect the wages and working conditions of workers in the United States and thus these regulations are contrary to law." Id. at 37. Furthermore, this Court concluded that "the process by which the Department arrived at the present rules [was] flawed by the absence of an appropriate explanation." Id. at 40.

 The DOL appealed the decision of this Court. The Court of Appeals, in reviewing the case, declared:

 
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.

 AFL-CIO v. Brock, 266 U.S. App. D.C. 335, 835 F.2d 912, 919-20 (D.C. Cir. 1987), remanding 668 F. Supp. 31 (D.D.C.). This Court then directed the DOL to issue a "reasoned explanation" for the actions it took in adopting the 1987 AEWR regulation. Upon reviewing the explanation proffered by the DOL, this Court found it not to provide a reasoned justification for the adoption of the new AEWR regulation. "Despite DOL's conclusions, the majority of the studies cited in the DOL explanation indicate that instances of wage depression do exist." AFL-CIO v. McLaughlin, 702 F. Supp. 307, 311 (D.D.C. 1988). The DOL appealed this decision as well. However, since the DOL had published a final AEWR regulation by the time the appeal was to be heard, the Court of Appeals dismissed the case as moot. AFL-CIO v. Dole, No. 89-5011 (D.C. Cir. Aug. 9, 1989) (order dismissing case as moot).

 In the instant action, plaintiffs challenge the final AEWR regulation that the DOL published on July 5, 1989. See 54 Fed.Reg. 28,037 (July 5, 1989). The language of the final regulation is identical to that which was ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.