day, the worker may be terminated.") See Plaintiffs' Motion at 30-31.
As the only objective measure of productivity stated in the Clearance Order, there is substantial merit to the Plaintiffs' claim that the 8 ton requirement was both a material term and condition of work and the productivity standard then in effect. Indeed, as the Plaintiffs have pointed out, this was also the conclusion reached by Judge Lucy Brown in Florida in a lawsuit directly challenging the payment practices and contractual obligations of the Florida sugar cane growers. See Bygrave, et al. v. Sugar Cane Growers Cooperative, et al., No. CL-89-8690-AI (15th Cir. Ct., Palm Beach Co., Fla.)
The Court can thus not accept the Department's rejection of this proposition as it fails to adequately address the agency's reasons for disregarding what the Court deems an entirely reasonable interpretation of this section of the Clearance Order.
B. The Court is also reluctant to defer to the agency's recent conclusion that the 8 ton language did not constitute a productivity standard in view of the Department's own prior determination to the contrary in another matter.
The record further reveals that a few years ago USSC attempted to delete the 8-ton language from its Clearance Order, and the Department of Labor rejected this change. Upon appeal by USSC, an ALJ conducted a three-day trial which culminated in a determination "that the 8-ton per day language is a productivity standard and thus, is a material term and condition of employment which must be included in the job offer." See In the Matter of United States Sugar Corp. v. United States Dept. of Labor, 91-TLC-0007-008 (ALJ Sept. 8, 1991) ("USSC I"), appeal dism'd as moot sub nom. USSC v. Reich, C.A. 92-213-CIV-DAVIS (S.D. Fla. September 29, 1993) ("USSC II"), appeal pending, No. 93-5181 (11th Cir.).
The Plaintiffs therefore contend that the Department should be precluded from re-litigating this issue in view of its own prior determination of this matter through the ALJ.
In seeking to rebut this argument, the Defendants attempt, inter alia, to mischaracterize the Plaintiffs' position by urging the Court to recognize that the Department is not "forever committed to living with" the ALJ's decision. See Defendants' Opposition at 24, n. 16. The Plaintiffs, however, have not argued that the Department may not prospectively change its views on this or any other issue; rather, the Plaintiffs have challenged the Department's present attempt to "retroactively alter a past adjudication." See Plaintiffs' Motion at 33.
Upon consideration of this issue, the Court finds, at the very least, that the Final Report's conclusion as to this matter is entitled to far less deference than would otherwise be accorded to the agency's determination on an issue of this sort. Indeed, even the Defendants concede that "the differences in the two interpretations might impact on the degree of deference the agency decision is afforded . . . ." See Defendants' Opposition at 24. Under these circumstances, the ALJ's decision in USSC I certainly raises many questions about the Final Report's deviation from the Secretary's prior determination with regard to this issue.
Moreover, the Court remains unpersuaded by the Department's attempts to explain the reason for rejecting the proposition of an 8 ton productivity requirement in issuing the Final Report. The Secretary's previous position was reached after a three day evidentiary trial before an ALJ who had ample opportunity to evaluate the credibility and demeanor of all witnesses who testified as to this issue. In addition, even the Draft Report issued by the Department in 1987 concluded that the 8 ton language constituted a productivity standard. DOL's recent change of heart on this issue has not been adequately explained, and the Court can thus not accept the Final Report's conclusion with respect to this matter.
C. The Court further finds that the Department's rejection of the 8 ton productivity standard is also inconsistent with DOL's prior representations to this Court.
Perhaps even more importantly, the Court is greatly troubled by the Department's instant conclusion to the extent that it contravenes DOL's prior representations to this very Court. As the Plaintiffs point out, in 1984 the Department submitted a sworn affidavit to the Court signed by United States Employment Service Director Richard Gilliland, which specifically stated that the productivity standard in the sugar cane industry was 8-tons per day. In an attempt to emphasize the Department's alleged commitment to protecting the workers in this industry, the Department tendered a sworn representation that:
The contention that the minimum productivity standard for workers engaged in the sugar cane harvest rises when the AEWR increases is not substantiated by the record. For many years, the standard productivity requirement has been one ton of cane per hour or eight tons of cane per eight hour day.
Under these circumstances, the Court can hardly be expected to defer to the Department's recent conclusion that 8 tons per day was not the minimum productivity standard in the sugar cane industry. In 1984 the Department assured the Court that this was the productivity standard and that it was not being improperly increased. Now, almost a decade later, the Department has urged the Court to accept its finding that 8 tons per day was not a minimum productivity requirement. Absent a better explanation for this inconsistency, the Court cannot, and will not, uphold the agency's findings on this issue as set forth in the Final Report.
D. The Court must reject the Final Report's determination that there was no 8-ton/day productivity standard in the sugar cane industry because DOL has failed to provide a reasoned explanation for disregarding its prior inconsistent statements and because the agency's stated reasons for rejecting this proposition cannot withstand judicial review under the circumstances presented by this case.
Lastly, the Court finds that the Department has utterly failed to provide any reasoned explanation for this change in policy. Thus, even if the Court were willing to ignore all of the Department's prior pronouncements on this issue, the Final Report's conclusion that 8 tons per day was not a minimum productivity standard would still have to be rejected under the arbitrary and capricious standard of review.
As the Plaintiffs point out, DOL's attempt to explain away all of their prior statements on this issue are far from persuasive. At best, they demonstrate that the Department has been careless in its use of the term "productivity standard" -- and the Court is of the firm belief that the workers should not be forced to suffer for the Department's carelessness in this regard.
In addressing this issue, the Department acknowledges the existence of these prior representations but remains seemingly unconcerned about the effect of these contradictory assertions on the growers and workers for whose benefit DOL is entrusted with these regulatory responsibilities. In the Final Report, the Department appears to dismiss this problem with what the Plaintiffs have aptly termed the "cavalier" assertion that:
we fully recognize that, in a number of contexts, the 8-ton language has been characterized as a "productivity standard." We are confident, however, that, at least as to DOL, this was never meant to imply that the Department viewed the provision as creating a minimum standard for job retention.