[Secretary's Order 33-72] DEPUTY ASSISTANT SECRETARY/WAGE-HOUR ADMINISTRATOR Redelegation of Authority and Assignment of Responsibility 1. Purpose. This order redelegates authority and reassigns responsibility for the performance of functions assigned to the Assistant Secretary for Employment Standards by Secretary's Order No. 32-72 to the Deputy Assistant Secretary/ Wage-Hour Administrator. 2. Background. Secretary's Order No. 32-72 delegated authority and enforcement functions pursuant to the Farm Labor Contractor Registration Act to the Assistant Secretary for Employment Standards. The order further provided that such authority and responsibility may be redelegated. 3. Redelegation of authority and reassignment of responsibility. The Deputy Assistant Secretary/Wage-Hour Administrator is hereby redelegated authority and reassigned responsibility for the functions delegated to the Assistant Secretary for Employment Standards in Secretary's Order No. 32-72. 4. Redelegation. The Deputy Assistant Secretary/Wage-Hour Administrator may redelegate authority vested in him by this order. 5. Effective date. This order is effective October 1, 1972. Signed at Washington, D.C., this 16th day of October 1972. R. J. GRUNEWALD, Assistant Secretary for Employment Standards. [FR Doc. 72-17926 Filed 10-19-72; 8:47 am] UNITED STATES DISTRICT COURT, SOUTHERN DISTRICT OF FLORIDA (No. 72-1439-Civ-PF) UNITED FARM WORKERS UNION, AFL-CIO, ETC., ET AL., PLAINTIFFS, V. RICHARD G. KLEINDIENST, ETC., ET AL., DEFENDANTS Presented for judicial disposition, at the instant stage of this class action for a declaratory judgment and for judicial review of administrative action, is plaintiffs' prayer for a preliminary injunction. Granting the relief sought would prevent the imminent entry into the United States of non-immigrant Jamaican individuals for the purpose of harvesting the 1972 Florida sugar cane crop. Engaged in, or activities related to, the planting, growing and harvesting of sugar cane in Florida, the following have been permitted to intervene as additional parties-defendant in this litigation: (1) J. E. Frierson, (2) David G. Click, (3) Ray Chamberlain, (4) R. M. Weeks, (5) United States Sugar Corporation, and (6) Florida Fruit and Vegetable Association. The entry of non-immigrant laborers is statutorily permitted to ensue only from administrative compliance with the procedure of the relevant provisions of the Immigration and Nationality Act of 1952, Title 8, U.S.C.A., Section 1101, et seq. Thus, joined as defendants in the instant litigation, are the following individuals, statutorily charged with the administration, execution, and/or enforcement of provisions of the Act pertinent to the inquiry at bar: (1) Richard G. Kleindienst, Attorney General of the United States who is charged with enforcing the Immigration and Nationality Act of 1952; (2) Raymond F. Farrell who as Commissioner of Immigration and Naturalization, carries out the powers of the Attorney General relating to the admission of nonimmigrant aliens to the United States; (3) James D. Hodgson, Secretary of Labor, who issues the certification necessary to allow nonimmigrant aliens to enter the United States to perform temporary labor; (4) William U. Norwood, Jr., Regional Manpower Administration, U.S. Department of Labor, for Region IV, the designated representative of the Secretary of Labor responsible for issuing the certification in question. In particular, acts and/or omissions of the foregoing defendants as to the administration of their duties under Title 8, U.S.C.A., Section 1182(a)(14), are called into question. That statute provides for the exclusion of aliens seeking to enter the United States to perform skilled or unskilled labor, unless the Secretary of Labor has determined and certified to the Secretary of State and to the Attorney General that: (A) there are not sufficient workers in the United States who are able, willing, qualified, and available at the time of application for a visa and ad mission to the United States and at the place to which the alien is destined to perform such skilled or unskilled labor, and (B) the employment of such aliens will not adversely affect the wages and working conditions of the workers in the United States similarly employed. Further, 20 C.F.R. 602.10 et seq, sets forth the procedures under which United States workers must be recruited for agricultural employment before a determination of their nonavailability can be made. In addition, the terms of employment are set forth for both United States and foreign workers which will not adversely affect the wages and working conditions of American workers similarly situated. Without observance of the foregoing statutory and regulatory strictures, designed to dictate and circumscribe the administrative duties and power of the defendants, plaintiffs allege the requisite certification was issued August 9, 1972, that qualified laborers in the United States are not available and that the employment of the Jamaican workers would not adversely affect the working conditions of United States laborers. Plaintiffs, United Farm Workers Union, AFLCIO, a labor organization, allegedly representing agricultural workers, and Mike Villareal and Robert Reyes, agricultural workers, characterize such certification as: A. Arbitrary, capricious and an abuse of defendants discretion in administering the Immigration and Nationality Act. *** B. In excess of the statutory authority of *** the Immigration and Nationality Act *** which allows nonimmigrant visas to be issued to temporary laborers only if unemployed persons capable of performing such service or labor cannot be found in the United States. C. Without observance of the criteria and procedures required by 20 C.F.R. 602.10 et seq, the regulations governing the certification and use of temporary foreign labor for agricultural employment, which permit the Regional Manpower Administrator to issue certification for foreign workers only if he finds: (1) That the employment of such workers will not adversely affect the wages and working conditions of domestic workers similarly employed; and (2) That reasonable efforts have been and will be made by the Employment Service and the employers to obtain domestic workers at wage rates and conditions of employment no less favorable than those set forth in the regulations * * * to perform the work for which the services of temporary foreign workers are requested, and for which domestic workers are not available. *** Accordingly, the certification in question, which lowers the immigration barriers to Jamaican workers, precipitated plaintiffs' motion for a preliminary injunction. That motion seeks to prevent the entry of the foreign laborers into the United States, pending a final adjudication of the merits of plaintiffs' cause, as to an abuse of defendants' administrative discretion. Initially, it is to be observed that the ultra vires acts of federal officers are not shielded from such injunctive processes although The general rule is that the judicial power will not interpose by injunction to limit or direct the action of departmental officers of the federal government in respect of matters pending within their jurisdiction and control. 43 C.J.S. Injunctions § 109(a). Further, "lest the proper freedom of action of a defendant be circumscribed when no wrong has been committed", (Societe Comptoir de l'Industire Contonniere Establissments Boussac v. Alexander's Dept. Stores, Inc. (2 Cir. 1962) 299 F. 2d 33, at 35) the extraordinary remedy of a temporary injunction will not be granted except upon a clear showing both 1) That plaintiffs will incur irreparable injury before a final determination on the merits of the litigation, Ohio Oil Co. v. Conway, 279 U.S. 813, 49 S. Ct. 256, 73 L. Ed. 972 (1929); Calagaz v. DeFries (5th Cir. 1962) 303 F. 2d 588; National Lawyers Guild v. Brownell (C.A.D.C. 1955) 225 F. 2d 552, cert. den. 351 U.S. 927, 72 S.Ct. 778, 100 L.Ed. 1457, rehearing denied 351 U.S. 900, 76 S.Ct. 1045, 100 L. Ed. 1502; Capital City Gas Co. v. Phillips Petroleum Co. (2 Cir. 1967) 373 F. 2d 128; Sierra Club v. Hickel (9 Cir. 1970) 433 F. 2d 24, affirmed April 19, 1972, U.S. 31 L. Ed. 2636, 92 S.Ct. 1361; (2) That there is a likelihood of plaintiffs prevailing at a trial on the merits. Sierra Club v. Hickel, supra; Garlock, Inc. v. United Seal, Inc. (6 Cir. 1968) 404 F. 2d 256; Ikirt v. Lee National Corporation (3 Cir. 1966) 358 F. 2d 726; Continental Oil Co. v. Frontier Refining Co. (10 Cir. 1964) 338 F. 2d 780; International Container Transport Corp. v. New York Shipping Assoc. (2 Cir. 1970) 426 F. 2d 884. The duty of the Court to search plaintiff's proofs for demonstration of the foregoing requirements for the issuance of a preliminary injunction is clear. And while the Court is certainly sensitive to, and sympathetic with, the social and economic plight of the migrant farm workers as advanced in the extensive hearings and plaintiffs' brief on the motion in question, it is patently obvious that plaintiffs' evidence is inadequate to satisfy either of the two cited, applicable legal standards controlling upon this Court. Initially, a showing that plaintiffs will suffer irreparable injury during the pendency of the instant litigation is conspiciously absent from plaintiffs' proofs. While plaintiffs' complaint labels their action as one which "seeks to protect employment opportunities in Florida for domestic farm laborers", there is no indication that any such farm laborer, sincere in procuring and maintaining such employment, will be deprived of such opportunity by virtue of the admission into the United States of Jamaican individuals to perform similar services. Rather than being displaced by such foreign laborers, elicited testimony establishes that in addition to the offers of employment made by defendant intervenors during hearings on plaintiffs' motion, there must remain outstanding, during the harvesting season, job offers to qualified resident workers. Further, preference in the awarding of available employment opportunities must be accorded such resident laborers. Plaintiff's emphasis on past irregularities in administrative recruitment procedure is simply misplaced with regard to the Motion for Temporary Injunction. The purpose of a preliminary injunction is to maintain the status quo of a controversy, pending a final determination of the merits, thus preventing the infliction of future, additional irreparable injury. Sellers v. Regents of Univ. of California (9 Cir. 1970) 452 F. 2d 493; Wooton v. Ohler (5th Cir. 1962) 303 F. 2d 759; Continental Oil Co v. Frontier Refining Co., supra; Unicon Management Corp. v. Koppers Co. (2 Cir. 1966) 366 F. 2d 199. Nearly all lawsuits involve one party's seeking redress for injuries previously inflicted by an adversary. Such prior injury, however, does not constitute a basis for the issuance of a preliminary injunction, the function of which is to ward off a further perpetration of irreparable wrong. Hence, in view of the current and continuing availability of employment opportunities to domestic laborers, the contention in plaintiff's brief that "Farm workers were injured because they weren't recruited ***." is irrelevant to establishing the necessary showing of impending irreparable injury to be incurred in the absence of the issuance of a preliminary injunction. Similarly unavailing to the establishment of irreparable injury is plaintiff's analysis of, and emphasis upon, the history, policies, and purposes of the Immigration and Nationality Act of 1952. It is plaintiff's position that, despite the availability of employment opportunities to any interested domestic worker, that an *** injury resulting from the importation of foreign workers to compete with American workers is found in the policies supporting the Immigration and Nationality Act. It is undeniable that the policy supporting, and the laudable purpose of, the certification procedures in question is the "protection of the American labor market". Cobb v. Murrell (5 Cir. 1967) 386 F. 2d 947, at 952. It is simply a nonsequitur, however, from this legislative purpose, that plaintiffs in particular, or the American labor market in general, will suffer irreparable harm if the Jamaican workers affected by the instant litigation are now denied admission to the United States to perform labor similar to that provided by domestic laborers. Otherwise, express statutory provisions would not have been made for the certification and entry of foreign workers when: A. There are not sufficient workers in the United States who are able, willing, qualified and available at the time of application for a visa and admission *** and at the place to which the alien is destined to perform such*** labor; and B. The employment of such aliens will not adversely affect the wages and working conditions of the workers in the United States similarly employed, 8 U.S.C. § 1182(a)(14). Finally, it is plaintiffs' position that irreparable harm should be presumed in the instant litigation from the alleged abuse of administrative discretion, which abuse plaintiffs assert "the evidence has shown." Assuming this theory to be a tenable one, however, it is dependent upon whether, in fact, "the evidence has shown" the alleged abuse of discretion in the administration of the statutes and regulations in question. Hence, the argument must be considered in relation to the second previously cited prerequisite for the issuance of a preliminary injunction: plaintiffs' showing of a likelihood of eventual success on the merits. As recently declared in Sierra Club v. Hickel (9 Cir. 1970) 433 F. 2d 24; affirmed April 19, 1972, 31 L. Ed. 2d 636, 92 S. Ct. 1361: In order to obtain injunctive relief, particularly against discretionary action of an official of cabinet rank, the plaintiff must establish a strong likelihood or a reasonable certainty that he will prevail on the merits at a final hearing. 433 F. 2d 24 at 33. Evidence elicited at the hearings does indicate some irregularities in the administrative procedures in question. Yet plaintiffs' proofs fall short of establishing the requisite likelihood of prevailing on the merits, as those proofs completely ignore the established history of defendant-intervenor growers' inability to recruit and retain sufficient domestic laborers throughout the harvesting season. Such recruitment and retention difficulties were confirmed by the forthright testimony of plaintiffs' own witnesses. Rather than "trying to lift themselves up from the tenacious cycle of poverty" through procuring and conscientiously performing employment in the harvesting fields, such testimony indicates that the interests of the witnesses in question in employment opportunities do not extend beyond that period of time necessary to organize the farm workers and establish the United Farm Workers as the exclusive bargaining agent for those workers. While organizing the farm workers may be a legal and perhaps laudable goal, the limited desire of the majority of plaintiffs' witnesses to perform sustained, productive employment, tends to verify an inability of the growers to obtain and retain sufficient domestic workers, thus justifying defendants' certification of the Jamaican workers. As to the pattern of employer difficulty in obtaining sufficient domestic labor to harvest the sugar cane, the Court remains singularly impressed with the recommendations of plaintiffs' witness, Dr. Marshall Barry, as to more effective recruitment procedures. The Court is further impressed with the receptive attitude of defendant William Norwood, Regional Manpower Administrator, toward those recommendations, as effectuation of those recommendations would eliminate any question of irregularities in administrative procedure, and hopefully result in employment of more domestic laborers. As such an elimination of administrative irregularities is the statutory charge of the named defendants, the employment of the maximum number of domestic workers in optimal working conditions is the represented care of plaintiffs, and the efficient harvesting of the sugar cane is the corporate concern of the intervening growers, it is obvious that the interests of the parties to this litigation are not entirely adverse. Thus, the Court would encourage the litigants to continue to engage in productive communication during the pendency of this action to affect a practical, equitable accommodation of all represented interests. Such an accommodation could not help but ameliorate the present, regrettable social and economic plight of the domestic migrant laborers. In view of the existing pattern of difficulties in recruiting domestic laborers, however, and the requisite continuing availability, and preference in awarding of, employment opportunities to those qualified domestic workers sincere in procuring and performing sustained employment during the harvesting season, it can only be concluded that plaintiffs establish neither a showing or irreparable harm nor a likelihood of prevailing on the merits of this litigation. Accordingly, plaintiffs' prayer for a preliminary injunction is hereby denied. Done and ordered at Miami. Florida this 12th day of October, 1972. PETER FAY, U.S. District Judge. Field Memorandum No. 440-72. U.S. DEPARTMENT OF LABOR, To: All Regional Manpower Administrators. 1. Purpose. To assure a more uniform interpretation of and compliance with the policies and procedures of the ES Manual in the operation of day-haul activities. 2. Background.-As a result of recent court actions and complaints, the Secretary has stated that "The Manpower Administration shall require the State Employment Service agencies to bring their rural day-haul operations into conformity with employment service standards and policies." 3. Actions Required.—The Regional Office in conjunction with the State agency should evaluate State day-haul operations to determine whether they are in conformity with established procedures. When a sustained need for day-haul operations cannot be established, such operations should no longer be staffed by ES personnel. When standards are not being met and there is need for continuation of ES participation, steps shall be taken to bring them up to standard. If this cannot be accomplished ES staff shall be withdrawn and alternate methods of providing service to applicants and employers considered. All applicants who report to State ES operated day-haul points shall be afforded the opportunity to register and receive all ES services including consideration for all job openings, both farm and non-farm. The results of the review and evaluation of day-haul operations and future plans should be reflected in the FY '74 State Plan of Service. 4. Inquiries. For additional information, call Daniel Sturt, (Area Code 202) 961-3681. 5. Expiration Date.-Continuing. HAROLD O. BUZZELL, Deputy Manpower Administrator. о |