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In the Matter of
WESTERN RANGE ASSOCIATION,
CENARRUSA FARMING & LIVESTOCK, INC.,
and SOULEN LIVESTOCK COMPANY, Case Nos. 95-TLC-4
95-TLC-5
Employers
________________________________________
Appearances
Jeffrey Hammerling, Esquire
Steinhart & Falconer
333 Market Street
San Francisco, California 94105
For the Employers
Gary Bernstecker, Esquire
Office of the Solicitor
United States Department of Labor
Washington, D.C. 20210
For the Department of Labor
Before: Paul A. Mapes
Administrative Law Judge
DECISION AND ORDER
This case arises under the provisions of section 218 of the
Immigration and Nationality Act, 8 U.S.C. §1188, and
implementing regulations set forth at 20 C.F.R. §655.90-
§655.113. Both parties have waived their right to an oral
evidentiary hearing under the provisions of 20 C.F.R.
§655.112(b) and requested instead that the matter be decided
solely on the basis of written submissions.
BACKGROUND
Cenarrusa Farming & Livestock Company ("Cenarrusa") and
Soulen Livestock Company ("Soulen") are sheep farmers and members
of the Western Range Association ("WRA"). The WRA is a non-profit
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corporation comprised of farmers who raise sheep in the Western
United States. Its principal function is to assist its members in
securing an adequate supply of sheepherders. In furtherance of
this purpose the WRA acts as joint employer with its members and
submits applications to the Department of Labor ("DOL") for
authorization to temporarily import alien sheepherders into the
United States. Under the provisions of 8 U.S.C. §1188 and 20
C.F.R. §655.0, such applications may be granted if there are
not enough sheepherders in the United States to meet the demand for
such workers and the if the importation of the alien sheepherders
will not "adversely affect" the wages or working conditions of
similarly employed, lawful residents of the United States. In
order to ensure compliance with this second requirement, no
authorization to import an alien sheepherder may be granted unless
it is determined by the DOL that the alien sheepherder will be paid
wages that equal or exceed an Adverse Effect Wage Rate ("AEWR").
20 C.F.R. §655.100(b). Under the provisions of 20 C.F.R.
§655.93(b), the "methodology" for establishing AEWRs for
sheepherders must be "consistent" with the methodology set forth at
20 C.F.R. §655.107(a) for establishing AEWRs for other types
of agricultural workers.[1] The methodology actually used by the
DOL to establish AEWRs for sheepherders is set forth in a DOL
document entitled ETA Handbook No. 385 ("Handbook 385").
In 1994 Cenarrusa, Soulen, and the WRA ("the employers")
resolved a dispute with the DOL concerning the 1994-95 special AEWR
for Idaho sheepherders by entering into a settlement agreement
under which the DOL agreed to withdraw the AEWR and issue a new
AEWR based on the results of a supplemental prevailing wage survey.
The agreement also provided that the employers could appeal the new
AEWR if it were determined that the amount of the new AEWR had been
increased as a result of including in the supplemental survey the
wages of sheepherders who do not receive board as part of their
regular compensation. In this regard, the parties further agreed
that for purposes of any such appeal, board provided to
sheepherders would be regarded as having a value of at least $150
per month.
In the middle of January of 1995, the DOL advised the
employers that the supplemental survey showed that the prevailing
wage for sheepherders in the state of Idaho was $700 per month and
that this figure would have been only $650 per month if
sheepherders who do not receive board as part of their compensation
had been excluded from the survey.[2] Shortly thereafter, the
employers filed applications for temporary alien agricultural labor
certifications that proposed to pay alien sheepherders $650 per
month plus room and board. The applications were promptly denied
[PAGE 3]
and therefore on February 7, 1995, the employers initiated this
proceeding pursuant to the provisions of 20 C.F.R.
§655.104(c)(3).
ANALYSIS
The only issue raised by the parties in this proceeding is the
legal propriety of including the wages of sheepherders who do not
receive board as part of their compensation in the supplemental
survey of Idaho sheepherders.
On one hand, the employers contend that it was improper to
include such wages in the survey because: (1) it is arbitrary and
capricious to combine fundamentally different "units" or "methods"
of payment in a single wage survey, (2) the workers in the survey
whose compensation did not include board were probably not in fact
open-range sheepherders, (3) the prevailing method of compensating
sheepherders is through cash wages plus room and board and
therefore other methods of compensation should not have been
included in the DOL calculation of the new AEWR, (4) the failure to
exclude sheepherders who were not provided with board from the
supplemental survey in effect generated a AEWR that would
inequitably require the employers to pay alien sheepherders more in
practical terms than competing sheep farmers pay domestic
sheepherders.
The DOL, on the other hand, argues that: (1) in not
distinguishing sheepherders who receive only wages from those who
receive wages and board, the methodology of the supplemental survey
is consistent with the methodology set forth in 20 C.F.R.
§655.107(a), (2) the methodology of the supplemental survey is
consistent with the definition of "wages" set forth at 20 C.F.R.
§655.100(b), (3) the supplemental survey did not impermissibly
mix data concerning different "units" of payment because board is
not a unit of payment, (4) it would be administratively difficult
to attempt to adjust different wages to account for different types
of fringe benefits, (5) the provisions of the settlement agreement
governing this proceeding preclude the employers from raising the
question of whether or not workers who are not provided with board
are in fact open-range sheepherders.
There are no statutory provisions or regulations that
explicitly allow or disallow the consideration of fringe benefits
when determining which workers are to be included in AEWR surveys.
Although the provisions of 20 C.F.R. §655.93(b) require that
the methodology used to formulate AEWRs for sheepherders be
consistent with the methodology set forth in 20 C.F.R.
§655.107(a), that provision is not apposite here because it
provides no guidance,
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either explicit or implicit, for collecting wage data when such
data is not available from the Department of Agriculture. Rather,
the provisions of that regulation contain only a methodology for
establishing an AEWR once the relevant data is obtained, not a
methodology for collecting the data. Similarly, the definition of
"wages" set forth at 20 C.F.R. §655.100(b) is inapposite
because that definition in no way prescribes a methodology for
conducting AEWR surveys. Further, although the provisions of
Handbook 385 appear to prohibit the use of different "units" of
payment in conducting AEWR surveys, the term "units" is not defined
and nothing in the handbook expressly allows or disallows the
consideration of fringe benefits when conducting AEWR surveys. In
view of this absence of any explicit legislative or administrative
guidance, it is thus necessary to resolve the dispute in this case
by considering the general statutory goals underlying the relevant
provisions of the Immigration and Nationality Act ("the Act").
After doing so, I have concluded that at least in the circumstances
presented in this case, it would be inconsistent with the purposes
to the Act to calculate an AEWR for sheepherders on the basis of a
wage survey that did not distinguish between sheepherders who are
paid only in cash and those who are paid both board and cash.
There are three reasons for this conclusion.
First, both the Board of Alien Labor Certification Appeals
("BALCA" or "the Board") and at least one court have held that in
order to achieve the Act's statutory purposes it is necessary in
certain cases to consider fringe benefit compensation when
determining whether to grant a proposed labor certification. Most
significantly, in a 1991 enbanc decision BALCA ruled
that although the provisions of 20 C.F.R. §656.40(a)(2)(i)
could be read to mean that only cash wages and not fringe benefits
need be considered in setting a prevailing wage for labor
certification purposes, such a reading would be inconsistent with
the purpose of the Act's "adversely affect" provisions. Kids
"R" Us, 89-INA-311, 312, 344 (Jan. 28, 1991). Accordingly, the
Board found that the relevant provisions of the Act and the
implementing regulations required consideration of fringe benefit
compensation when determining prevailing wages under the provisions
of 20 C.F.R. §656.20(c)(2) and §656.40. Likewise, at
least one court has held that a refusal to consider fringe benefits
in determining whether to grant a labor certification was
inconsistent with the purposes of the Act. Ozbirman v. Regional
Manpower Administration, 335 F. Supp. 467, 471-72 (S.D. N.Y.
1971). Indeed, in the same decision the court held that it was an
abuse of discretion for the Secretary of Labor to deny a labor
certification solely because a proposed cash wage was below a pre-
determined prevailing wage without first considering the value of
fringe benefits that would have also been
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provided to the alien worker under the provisions of a union
contract. Id. at 472-73.
Second, it is clear that in this case there are no
administrative difficulties that would make it impractical to
consider fringe benefits when determining which workers should be
included in the supplemental wage survey. Only one fringe benefit
(board) is in issue and that benefit is of essentially equal value
to all workers. Moreover, since only a small minority of the
surveyed sheepherders do not receive board as part of their
compensation, it is unlikely that the exclusion of such
sheepherders from the survey would endanger its statistical
validity. Indeed, such an exclusion would appear to enhance the
survey's accuracy by insuring that all of the workers surveyed are
being paid under the same compensation system rather than different
systems.
Third, I conclude that the inclusion in an AEWR survey of
sheepherders who do not receive board as part of their compensation
would produce results that are directly contrary to the purposes of
the Act. This would occur because the inclusion of such
sheepherders in an AEWR survey would in effect require Idaho sheep
farmers to provide alien sheepherders with compensation of a
substantially greater total real economic value than the
compensation ordinarily provided to Idaho's domestic sheepherders
and would thereby potentially make it prohibitively expensive to
hire alien sheepherders. Such a result would clearly be
inconsistent with the Act's purpose of facilitating, rather than
discouraging, the importation of foreign workers to fill jobs that
cannot be filled by domestic workers.
ORDER
The above-described applications for certification pursuant
to the provisions of section 218 of the Immigration and Nationality
Act are hereby granted.
_____________________________
Paul A. Mapes
Administrative Law Judge
Date: March 17, 1995
San Francisco, California
[ENDNOTES]
[1] The provisions of 20 C.F.R. §655.107(a) direct that
AEWRs for such other types of workers be "equal to the annual
weighted average hourly wage rate for field and livestock workers
(combined) for the region as published annually by the U.S.
Department of Agriculture (USDA) based on the USDA quarterly wage
survey." This regulation also specifies, however, that in no
case can an AEWR for such other types of workers be lower than
the federal minimum wage or such other amounts as may be
determined through prevailing wage surveys for particular areas
or types of agricultural activity.
[2] According to various documents in the record, the
supplemental survey covered four sheepherders who were paid cash
wages but were not provided with board and 29 sheepherders whose
compensation included both board and cash wages.
