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United States Court of Appeals for the Fifth Circuit
May 10, 1976
[*306] DYER, Circuit Judge:
This appeal, like [**2] the companion case of Florida Sugar Cane League v. Usery, 5 Cir. 1976, 531 F.2d 299, decided today, raises a number of objections to the Secretary of Labor's basis for the determination of the "adverse effect wage rate" for sugar cane cutters in Florida. Williams, an American unemployed sugar cane cutter, argued unsuccessfully in the district court that the Secretary had set the rate too low. He contended that the Secretary had failed to follow certain mandatory procedures in the certification of no adverse effect upon domestic workers from the use of foreign workers. Within the same contours of review of administrative rule-making enumerated this day in League, supra, we find no error in the district court's denial of injunctive relief.
Like the Florida Sugar Cane League, Williams attacks the Secretary's method of computations in arriving at the $2.84 "adverse effect wage rate". Unlike the argument of the League that the Secretary had exceeded his authority by considering extrinsic criteria, Williams asserts the Secretary failed to exercise the authority imposed upon him to avoid adverse effects on the wages of American workers. He objects [**3] to the "adverse effect wage rate" itself ($2.84) as too low to attract domestic workers. Although Williams raised this issue in this case below, he did not raise it on appeal in the case sub judice. Instead, Williams raised it in his Amicus Curiae brief in League, supra. Since the issue fits more logically within the confines of this opinion, we decide it here. Williams seeks to require the Secretary to: 1) determine "the prevailing wage rate" for sugar cane in Florida; 2) require growers utilizing a piece rate system to guarantee average hourly earnings 25 percent higher than the hourly rate otherwise required; and 3) establish a 30 day period of recruitment of domestic sugar cane cutters at the designated "adverse effect wage rate," prior to issuance of the certification for foreign labor.
In our view these arguments are based on a misunderstanding of the nature of the regulatory scheme authorized under the Immigration and Nationality Act, 8 U.S.C.A. § 1101 et seq. ] Even if desirable, the Secretary has no authority to set a wage rate on the [**4] basis of attractiveness to workers. His authority is limited to making an economic determination of what rate must be paid all workers to neutralize any "adverse effect" resultant from the influx of temporary foreign workers. As we said in League, supra, 531 F.2d at 301, "neither the statute nor the regulations establish a formula for the Secretary's computation of the 'adverse effect wage rate'." We there upheld the Secretary's computation arriving at the $2.84 adverse effect rate as a reasonable method of avoiding wage deflation.
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531 F.2d 305 *; 1976 U.S. App. LEXIS 11427 **
Andrew WILLIAMS, Individually and on behalf of all others similarly situated, Plaintiffs-Appellants, v. W. J. USERY, in his capacity as Secretary of Labor, United States Department of Labor, et al., Defendants-Appellees
Subsequent History: [**1] As Amended; Petition for Rehearing and Rehearing En Banc Denied June 8, 1976.
Prior History: Appeal from the United States District Court for the Southern District of Florida.
adverse effect, sugar cane, rate of wages, domestic, piece rate, regulations, laborers, prevailing wage rate, cutters, hourly, district court, certification, earnings, attract
International Trade Law, Trade Agreements, Labor Provisions