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March 1, 1991

ELIZABETH DOLE, SECRETARY OF LABOR, et al., Defendants, and CEDRICK TURNER, et al., Defendants-Intervenors

The opinion of the court was delivered by: RICHEY

 The Court was under the impression that its comprehensive January 17, 1989 Opinion had finally laid the above-captioned case to rest by granting summary judgment for the Department of Labor ("DOL") and granting the defendant-intervenor Farmworkers' summary judgment motion as to the plaintiff Growers' back-wage liability for 1983 and 1985. See Frederick County Fruit Growers Ass'n. v. McLaughlin, 703 F. Supp. 1021 (D.D.C. 1989) [hereinafter FCFGA ]. However, since then the Growers filed a motion for reconsideration in light of the Supreme Court's intervening decision in Martin v. Wilks, 490 U.S. 755, 104 L. Ed. 2d 835, 109 S. Ct. 2180 (1989), and (after a remand by the Court of Appeals) the parties requested the Court's assistance in resolving certain issues affecting the calculation of the Growers' back-wage liability. In this omnibus Opinion, the Court will deny the Growers' motion for reconsideration, will resolve the issues involving the back wages that the Growers owe the Farmworkers for 1983 and 1985, and will decide some miscellaneous outstanding motions.

 I. Impact of Martin v. Wilks

 The Growers' motion for reconsideration must fail because this case differs from the Supreme Court's Martin decision in several significant ways. Although Martin involved a collateral attack on an earlier court order and the Growers brought this lawsuit to collaterally attack this Court's earlier rulings in a separate lawsuit by the Farmworkers challenging DOL's interpretation of 20 C.F.R. § 655.207(c), see NAACP, Jefferson County Branch v. Donovan, 558 F. Supp. 218 (D.D.C. 1982) (NAACP I); NAACP, Jefferson County Branch v. Donovan, 566 F. Supp. 1202 (D.D.C. 1983) (NAACP II), the similarities end there. First, Martin involved a collateral attack on a consent decree whereas here the Growers are trying to overturn a final court order granting declaratory and injunctive relief despite DOL's vigorous litigation efforts. Second, the Martin litigation, which addressed charges of Title VII employment discrimination made first by black firefighters and then by white firefighters against their employer, involved "private rights." By contrast, the litigation at issue here implicates "public rights" because it focuses upon whether a federal agency properly interpreted and applied its regulations affecting numerous individuals and entities throughout the country and whether that agency violated the Administrative Procedure Act ("APA") when complying with this Court's NAACP rulings. *fn1" Third, while the defendants in Martin justified their admittedly race conscious employment decisions as compelled by the earlier consent decree, see Martin, 490 U.S. at 759-60, here DOL does not use the Court's NAACP rulings to justify otherwise illegal action, arguing instead that an agency's compliance with a federal court order simply cannot be an APA violation. *fn2"

 In any event, even if Martin were sufficiently on point to permit the Growers to collaterally attack the injunctive relief achieved by the Farmworkers against DOL in the NAACP litigation, Martin has nothing to do with the Court's back-wage rulings, which were based upon equitable restitution and contract law principles and are the rulings now contested by the Farmworkers. *fn3" As the Court made clear in its January 17, 1989 Opinion, it granted summary judgment for DOL because the Growers were collaterally estopped from attacking the results of NAACP I and NAACP II, see FCFGA, 703 F. Supp. at 1028, but held that this conclusion "does not dispose of the Growers' actual wage obligations," id. The Court went on to hold that the Growers were liable for back wages for 1983 under an equitable restitution theory, see id. at 1028-29 (Growers paid average worker piece rate in reliance on new DOL regulation of "dubious validity," which was later found to be invalid, and in direct violation of this Court's order), and for 1985 under contract law, see id. at 1030-31 (by amending their job clearance orders to include promise to pay proportional increase rate, Growers received DOL certification and entered into contracts with Farmworkers to pay higher wages). The Court made these two rulings independently of the collateral estoppel effect of the previous NAACP litigation, and the Martin decision simply does not undermine, or even implicate, these back-wage rulings. *fn4" Therefore, the Court will deny the Growers' motion for reconsideration or for certification of an interlocutory appeal based upon Martin.5

 II. Calculation of Growers' Back-Wage Liability

 The parties have represented to the Court that they have gathered the necessary data and have agreed on the mechanics of calculating the Growers' back-wage liability and establishing who belongs in the defendant class in accordance with the Court's January 17, 1989 Opinion granting summary judgment for the Farmworkers for 1983 and 1985. FCFGA, 703 F. Supp. 1021. However, the parties also agree that, before they can make those calculations, the Court must resolve certain factual and legal issues which the 1989 Opinion did not address. Once the Court has decided these disputes, the parties have promised to cooperate in determining the final liability figures. The broad legal issues can be boiled down to whether the extent of the Growers' liability depends upon the notices they received from DOL and whether various kinds of bonus payments should be counted. The Court will address these disputes in turn, and will then resolve certain more narrow legal and factual disputes.

 A. Effect of DOL's Notices to Growers

 Several contested issues arise out of a basic disagreement over the legal effect of notices that DOL sent to the Growers in 1983 and 1985 to inform them of the proportional increase rates. The Growers argue that since DOL failed to provide them with timely notice of the correct proportional increase rates and since the Growers relied on those notices, they may not be held "retroactively" liable for any increases not contained in the notices they received. However, this argument has several serious flaws. First, it overlooks the reality that the formula for calculating the proportional increase rates was set by the Court in NAACP II and that therefore the Growers' liability to pay the proper rates is not "retroactive" but actually pre-dated the DOL notices. Second, because DOL was under extreme time pressure to mail out notices after this Court's rulings but before the start of the harvest season in both 1983 and 1985, it sent some notices late, neglected to mail every grower a notice, and usually set forth in its notices, as an example, the calculation of only one proportional increase rate. Third, by arguing that the DOL notices place a cap upon their liability, the Growers fail to realize that their liability, existing independent from the DOL notices, was inextricably tied to the NAACP II formula because of equitable restitution principles (for 1983) and because they had contractually bound themselves to pay rates in accordance with NAACP II (for 1985). Finally, the reliance argument must fail in any event because, to the extent that the Growers relied on the notices, their reliance was unreasonable considering the circumstances existing at the time and everything that had gone before. With the foregoing general principles in mind, the Court will briefly address individually the four contested issues (Nos. 1, 2, 3, and 6) *fn6" that center upon this notice/reliance argument.

 Contested Issue No. 1 arises because, in many instances, each grower paid different piece rates depending upon the time and effort required for different kinds of picking activity. *fn7" The Growers argue that because most of the DOL notices only calculated one proportional increase rate, each grower who received such a notice but paid more than one rate justifiably "assumed" that the proportional increase rate applied only to the grower's highest rate and that it was not required to increase all of its rates. The problem with this argument is that nothing in the NAACP litigation or in this case restricted the Court's rulings, requiring the Growers to pay the proportional increase rate, to only one rate. In 1983 when the DOL sent the Growers notices which used the term "piece rates" and sent them copies of this Court's NAACP II opinion, there was no hint that any grower could properly discharge its regulatory duty by increasing only one of its piece rates. *fn8" Similarly, in 1985 when the Growers amended their job clearance orders to state that "the employer will pay piece rates at least equal to those required by 20 CFR 655.207(c) . . . as interpreted by the Court in [ NAACP II ]," Farmworkers' Reply Mem., Exh. 1 (emphasis added), that was an unequivocal, contractually binding promise which applied to all piece rates paid by each grower. Because the Growers' regulatory and contractual obligations pre-existed any DOL notices, the Growers may not now evade those obligations by wearing blinders and ignoring everything that preceded the notices. *fn9"

 In addition, even assuming arguendo that this kind of reliance argument were theoretically available, it would not succeed here because the Growers' actions were not reasonable. The Growers concede that their reliance argument has merit only if they reasonably relied on the DOL notices. However, as the foregoing discussion demonstrates, there was simply no reasonable basis for the Growers to "assume" or "conclude" (the Growers' terms) that only one of their rates would need to be affected by the proportional increase rate calculus ordered in NAACP II. Rather than reaching the far-more reasonable conclusion that each of their rates would have to be increased or taking the reasonable step of calling the telephone number supplied in the DOL notice to inquire about how they should implement this Court's rulings, the Growers merely selected the least costly and least reasonable alternative. In short, even if the Growers' assumptions and conclusions can be termed "reliance," the Court holds that they were not reasonable and should not be rewarded. Therefore, the Court resolves Contested Issue No. 1 in the Farmworkers' favor, holding that each grower is liable for back wages for the proportional increase rate as applied to each different rate that it paid for different harvesting activities regardless of what calculation the DOL notice contained.

 For essentially the same reasons, the Court also resolves Contested Issue No. 2 in the Farmworkers' favor. The Growers argue that the three growers who received DOL notices with incorrectly calculated proportional increase rates and paid those rates should not now be held liable for the correct (higher) rate. Again, this argument reflects a fundamental misunderstanding of what triggered the Growers' proportional increase liability. They had entered into binding contracts (by amending their job clearance orders in 1985) to pay certain proportional increase rates as soon as the Court's NAACP II ruling became a final judgment. Entry of the final judgment triggered the Growers' obligation to increase all of their piece rates. Thus, § 655.207(c) together with the Court's interpretation of that regulation in the NAACP litigation -- and not a DOL notice -- set the legal parameters of the amount to be paid by each grower. Moreover, the plain regulatory language placed the burden on the Growers to increase their piece rates each time the applicable adverse effect wage rate ("AEWR") was increased. See 20 C.F.R. § 655.207(c) (1980). *fn10" The foregoing demonstrates that those growers whose DOL notices set forth an incorrectly calculated proportional increase rate benefitted from a windfall and paid lower piece rates than they had promised the Farmworkers in their job clearance order amendments. Because there is no reason why the Farmworkers should bear the brunt of DOL's errors and because these three growers have no legal entitlement to the "bargain-level" labor they fortuitously received, the Court holds that these growers are liable for back wages despite their compliance with incorrectly calculated DOL notices.

 The Court reaches a similar result with respect to Contested Issue No. 3, which revolves around when the Growers' back-wage liability began. The Growers argue that their obligation to pay the proportional increase rates began once they received DOL notices and that therefore their liability does not extend throughout the entire 1983 and 1985 seasons. However, the Growers' 1983 job clearance orders required them to pay piece rates set in accordance with the "applicable" DOL regulations, which for that entire season, except September 2-7, 1983, *fn11" was the proportional increase rate. Along similar lines and as previously noted, the Growers' contractual obligation in 1985 to pay the proportional increase rate began, in accordance with the terms of their job clearance amendments, as soon as the NAACP II judgment became final on August 15, 1985. Therefore, the Growers are liable for paying back wages at the proportional increase rates for all of the 1983 season, except for September 2-7, and for all of the 1985 season beginning on August 15.

 The same logic leads to a comparable result on Contested Issue No. 6, which is the result of DOL's admitted error in approving job clearance order amendments filed by members of the Frederick County Fruit Growers Association ("FCFGA") in 1983. Although the parties do not dispute that the proportional increase rate in 1983 for most, if not all, FCFGA members was 50.1 cents, DOL erroneously approved the FCFGA members' amended job clearance orders that contained a lower rate of 44 cents. Therefore, these growers argue that, if they are held liable for any back wages, it should only be at the 44 cent rate. As an initial matter, their reliance argument is not particularly strong because many, if not all, of the FCFGA members continued to pay a lower rate and even failed to raise their wages to the incorrect 44 cent rate. In any event, the outcome of this issue depends, once again, upon an examination of this Court's NAACP II ruling. The last ordered paragraph of NAACP II enjoined DOL from granting temporary labor certification to any grower who failed to adjust its wages to pay at least the proportional increase rate. See NAACP II, 566 F. Supp. at 1210. Thus, by granting certification to FCFGA members at the 44 cent rate, DOL violated this Court's injunction -- albeit inadvertently in a good faith effort at compliance. Based upon the entire record before the Court of the Growers' actions, the Court sees no reason why the FCFGA members should benefit from -- and why the Farmworkers should be harmed by -- DOL's violation of this Court's NAACP II injunction. Moreover, in their 1983 job clearance orders, the Growers promised to ...

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