Western Range Association, 95-TLC-27 (ALJ Aug. 28, 1995)
United States Department of Labor
Office of Administrative Law Judges
Washington, D.C.
Date: August 28, 1995
Case No.: 95-TLC-27
In the Matter of:
WESTERN RANGE ASSOCIATION,
Employer.
Appearances:
Jefferey Hammerling, Esquire
Steinhart & Falconer
333 Market Street
San Francisco, California 94105
Patricia Arzuaga, Esquire
U.S. Department of Labor
Office of the Solicitor
Washington, D.C. 20210
Before: John M. Vittone
Acting Chief Administrative Law Judge
DECISION AND ORDER
This case arises under the provisions of section 218 of the
Immigration and Nationality Act ("INA"), 8 U.S.C. § 1188,
and the implementing regulations set forth at 20 C.F.R.
§§ 655.90 - 655.113. The Employer has requested
administrative review pursuant to 20 C.F.R. § 655.112(a).
Statement of the case
The Western Range Association ("WRA") is a non-profit
corporation comprised of farmers who raise sheep in the Western
United States. The WRA's principal function is to assist its
members in securing an adequate supply of sheepherders. In
furtherance of this purpose the WRA acts as a joint employer with
its members and submits applications to the Department of Labor
("DOL") for authorization to temporarily import alien sheepherder
[PAGE 2]
into the United States based on a demonstrated unavailability of
qualified domestic sheepherder.
The temporary alien agricultural labor certification ("H-
2A") program arises under the INA, 8 U.S.C. § 1101 et
seq. as amended by the Immigration Reform and Control Act 8
U.S.C. §§ 1101(a)(15)(H)(ii)(a), 1184(c) and 1188 and
20 C.F.R. § 655.90-113. Authorization to temporarily import
alien sheepherder will be granted if:
(A) There are not sufficient [domestic] workers who
are able, willing and qualified, and who will be
available at the time and place needed, to perform
the temporary and seasonal agricultural labor or
services involved in the petition; and
(B) the employment of the [H-2A] workers in such labor
or services will not adversely affect the wages
and working conditions of workers in the United
States similarly employed.
8 U.S.C. § 1188, 20 C.F.R. 655.90(b).
According to the regulations, to guard against adverse
effects on the wages and working conditions of domestic
sheepherders, employers are required to pay the temporary foreign
sheepherders at least the adverse effect wage rate ("AEWR"), the
prevailing wage, or the federal or state minimum wage rate,
whichever is higher. 20 C.F.R. § 655.100(b)(9).
Additionally, the employer in this case is required to provide
free housing and meals to the sheepherder.[1]
The California State Employment Security Agency determined
the prevailing wage for the State of California for 1995-1996 to
be $700.00 per month. This figure was based on the prevailing
wage survey conducted by the Agency. On July 17, 1995, DOL set
the 1995-1996 wage rates for sheepherder and goatherders,
effective July 1, 1995 at $800. To arrive at this figure, DOL
applied the "51 percent rule"[2] outline in the DOL ETA handbook
No. 385 used to determine the AEWR. The California survey
included 34 domestic sheepherder as charted below:
RATE (amount per unit) No. of U.S. Workers
$1000 per month incl. meals and housing........3
$950 per month incl. meals.....................1
$875 per month incl. housing...................1
[PAGE 3]
$850 per month incl. meals and housing.........4
$800 per month incl. meals and housing.........7
$800 per month.................................1
$750 per month incl. meals and housing.........1
$700 per month incl. meals and housing.........11
$650 per month incl. meals and housing.........2
$600 per month incl. meals and housing.........2
$550 per month incl. meals and housing.........1
The DOL, following the "51 percent rule," started from the
lowest monthly wage in the above survey, without regard to
whether the wage rate included meals and or housing, and moving
up the wage scale, determined that the wage rate covering at
least 51 percent of the domestic workers was $800 per month. In
other words, 51 percent of 34 domestic workers is 18 (rounded up
to make full persons from 17.34). Counting from the bottom of
the array, beginning with the worker making $550 per month
including meals and housing, it is not until one reaches the
workers making $800 per month that 51 percent of the workers in
the survey (or 18) are included.
The WRA does not argue that the 51 percent rule does not
apply. Rather, WRA argues that the workers whose wage rate
included meals and housing should not have been arrayed with
workers whose wage rate did not include meals and or housing
since the two methods of payment are fundamentally different and
not comparable for purposes of determining the AEWR. The WRA's
array developed from the survey would be as follows:
RATE (amount per unit) No. of U.S. Workers
$1000 per month incl. meals and housing........3
$850 per month incl. meals and housing.........4
$800 per month incl. meals and housing.........7
$750 per month incl. meals and housing.........1
$700 per month incl. meals and housing.........11
$650 per month incl. meals and housing.........2
$600 per month incl. meals and housing.........2
$550 per month incl. meals and housing.........1
Now applying the 51 percent rule, the AEWR becomes $700 per
month including meals and housing. Applying the rule, 51 percent
of 31 domestic workers equals 16 workers (rounded up from 15.81
to make whole persons). Beginning with the one worker making
$550 per month and counting all workers up the wage scale until
reaching at least 16 workers, the last workers counted were
[PAGE 4]
making $700 per month including meals and housing. Accordingly,
using the WRA's method, $700 per month including meals and
housing would be the AEWR. This is the same method used by the
California Agency.
Beginning on July 19, 1995, WRA submitted 34 applications
for temporary alien agricultural labor certifications on behalf
of its members, for alien workers to engage in sheepherding. The
WRA offered a wage rate of $700 per month including meals and
housing. On July 28, 1995, the Certifying Officer rejected WRA's
application for failure to offer the prevailing wage of $800 per
month. The WRA disputes the prevailing wage finding and refuses
to conform its wage offer to the rate determined by DOL. On
August 4, 1995, WRA filed a request for expedited judicial review
pursuant to 20 C.F.R. § 655.112.
Collateral estoppel/issue preclusion
As a preliminary matter, WRA has argued that DOL is estopped
from litigating this case. Earlier this year, Administrative Law
Judge Paul A. Mapes rendered a decision in Western Range
Association, 95-TLC-4 and 5 (ALJ Mar. 17, 1995). In that
case, the Western Range Association and several sheep farmers
from Idaho requested an administrative review pursuant to 20
C.F.R. § 655.112(a) in a matter involving a prevailing wage
dispute almost identical to the one at issue in the case sub
judice -- the legal propriety of including the wages of
sheepherders who do not receive board as part of their
compensation in the survey of Idaho sheepherders. Judge Mapes
concluded that the Department's method of calculating the
prevailing wage was inaccurate and improper, and ordered the
granting of temporary alien labor certification. Judge Mapes,
however, observed that his decision was based on "the
circumstances presented in th[at] case." Slip op. at 4.
Issue preclusion or collateral estoppel can be applied in
administrative proceedings if (1) the prior litigation involved
the same parties and similar facts, (2) the agency came to its
decision acting in its judicial capacity, and (3) both parties
were afforded a full and fair opportunity to litigate the issue.
United States v. Utah Construction & Mining Co., 384 U.S.
394, 422 (1966). Administrative procedures such as de novo
review, opportunity to cross-examine witnesses, present
documentary evidence and fully present the parties arguments, are
the hallmark of administrative adjudication that may result in
issue preclusion. Kremer v. Chemical Construction Corp.,
456 U.S. 461, 479-85 & n. 24, reh'g denied, 458 U.S. 1113
(1982). Collateral
[PAGE 5]
estoppel is a discretionary judicially developed doctrine that is
determined on a case-by-case basis. United States v.
Mendoza, 464 U.S. 154, 158 (1984).
Sufficient factors to impose issue preclusion in this matter
based on Judge Mapes' earlier decision are not present. First,
although two parties in this matter were involved in the earlier
case, none of the sheep ranchers in this case were. Moreover,
although the facts were similar, they are not identical. For
example, a different wage survey was involved, and the instant
proceeding involves both housing and board. In the case heard by
Judge Mapes, a settlement involving a supplemental survey was
present. It is also significant that Judge Mapes stated that his
decision was based on the circumstances presented, thereby
recognizing that his decision was fact-specific. Second, Judge
Mapes' decision was rendered under the expedited review procedure
of 20 C.F.R. § 655.112(a), which does not permit full de
novo review or an opportunity to cross examine witnesses or to
present additional documentary evidence.[3] When the employer
in a temporary agricultural employment proceeding requests
expedited review under section 655.112(a), it gains the benefit
of a quick decision, but thereby deprives the agency of the
opportunity to request a full evidentiary hearing as provided for
at section 655.112(b). The potential disadvantage in litigation
before the administrative law judge for the agency in this
respect suggests strongly that to impose issue preclusion on the
agency would be unwarranted in regard to most cases decided under
655.112(a).[4]
Accordingly, I have declined to invoke the doctrine of issue
preclusion in this matter, and have fully considered the
Department's arguments and evidence in rendering my decision. It
should be noted, however, that declining to invoke issue
preclusion is not the same as declining to recognize a prior
decision as a precedent. Judge Mapes decision is entitled to
some deference as a prior administrative decision, and I have
found it to be a well-reasoned and persuasive prior authority.[5]
Analysis
The issue to be decided is whether the Certifying Officer's
method of determining the adverse effect wage rate (AEWR)
accomplishes the fundamental goal of the regulations to determine
what is the "minimum level of wages, terms, benefits, and
conditions for the particular job opportunities below which
similarly employed U.S. workers would be adversely affected."
(20 C.F.R. § 655.0(a)(2)), in cases where DOL determines the
AEWR to be applied to employers who are required by law to
provide
[PAGE 6]
meals and housing without charge to their sheepherders. In other
words, in addressing the issue of "adverse effects" under factual
conditions as presented in this case, may DOL ignore all factors
except what the regulations narrowly define as wages. I hold
that DOL must take into consideration other variables.
According to 8 U.S.C. § 1188, 20 C.F.R. 655.90(b)(B),
before alien labor may be imported into the United States, it
must be determined that (inter alia)
the employment of the alien in such labor or services
will not adversely affect the wages and working
conditions of workers in the United States similarly
employed.
To comply with this mandate the DOL requires employers to
pay the temporary foreign sheepherder at least the adverse effect
wage rate ("AEWR"), the prevailing wage, or the federal or state
minimum wage rate, whichever is higher. 20 C.F.R. §
655.100(b)(9). According to the regulations, the adverse effect
wage rate means
the wage rate which the Director has determined must be
offered and paid, as a minimum, to every H-2A worker
and every U.S. worker for a particular occupation
and/or area in which an employer employs or seeks to
employ an H-2A worker so that the wages of similarly
employed U.S. workers will not be adversely affected.
20 C.F.R. § 655.100(b).
Regardless of how "wages" are defined in these particular
regulations, the fundamental purpose of the regulations is to
determine what are the "minimum level of wages, terms, benefits,
and conditions for the particular job opportunities below which
similarly employed U.S. workers would be adversely affected." 20
C.F.R. § 655.0(a)(2). The wages, terms, benefits, and
conditions offered and afforded to the alien must be compared to
the "established minimum levels." id. (emphasis
added). "If it is concluded that adverse effect would result,
the ultimate determination of availability within the
meaning of the INA cannot be made since U.S. workers cannot be
expected to accept employment under conditions below the
established minimum levels." Florida Sugar Cane League, Inc.
v. Usery 531 F.2d 299 (5th Cir. 1976) as cited at 20 C.F.R.
655.0(a)(2).
The regulations do not grant authority to the Certifying
Officer to impose wage rates or benefit levels on employers that
[PAGE 7]
are higher than minimum necessary to avoid adverse affects on
similarly employed U.S. workers. Comparing wages paid by an
employer who is required to provide free meals and housing to his
sheepherders to wages paid by employers who are not so required
results in a wage determination of more than the DOL has
authority to require.
In the instant case, the provision of meals cannot fairly be
characterized as a de minimis fringe benefit. On the
facts of this case, the sheepherders are actually entitled under
the law to meals and housing, in the same manner that they would
be entitled to a safe place to work or a minimum wage. As it
would be inappropriate to include in a wage survey employees who
are not paid minimum wage, it is also inappropriate and
inconsistent to require by law that an employer provide meals and
housing to his employees on one hand and then on the other hand
include in a wage survey used to determine the prevailing wage,
employees of employers who are not providing such meals and
housing.
The DOL has conceded, in a previous settlement agreement
with WRA, that meals have a value of $150 per month per employee.
That translates into a cost to the employer of $150 per month per
employee. Even without the Director's stipulation in the
previous settlement agreement, the value of meals is definable as
evidenced by 20 C.F.R. § 655.102(b)(4), which sets the
amount an employer may charge an employee for meals when the
employer is not otherwise required to provide meals without cost
to the employee. According to the Federal Register (Fed. Reg.
7216 February 7, 1995)), the meal charge is currently set at
$6.97 per day. To ignore this reality and force employers, as in
this case, who are required by law to provide free meals and
housing to its employees, to pay wage rates equal to employers
who are not so required clearly violates the purpose of the
regulations and the Act. Rather than comparing the "wages,
terms, benefits, and conditions" to the established "minimum"
levels, the DOL's procedures force a comparison to wages, terms,
benefits and conditions somewhere above the minimum levels. This
the DOL does not have authority to do, and to do so amounts to an
abuse of discretion.
The DOL argues that 20 C.F.R. § 655.93(b) requires it
to use a "methodology to establish such adverse wage rates which
is consistent with the methodology in § 655.107(a)."
According to DOL, since § 655.107(a) states that the AEWRs
"shall 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
[PAGE 8]
quarterly wage survey," and since the USDA survey states in a
footnote that "benefits such as housing and meals are provided
some workers but the values are not included in the wage rates,"
then meals and housing should not be considered in determining
the sheepherder AEWR, only monthly cash wages should be
considered.
This analysis does not withstand scrutiny. Section 655.107
states that the annual weighted average hourly wage rate for
field and livestock workers (combined) for the region as
published annually by the USDA is used for all agricultural
employment "except for those occupations deemed inappropriate
under the special circumstances provisions of § 655.93."
Range production of sheep is specifically mentioned as an
occupation deemed inappropriate under § 655.93. Under
these circumstances, the regulations authorize the Director to
establish monthly AEWRs but do not describe how; only that the
methodology be consistent with the methodology in §
655.107(a). Since the fundamental purpose of the regulations is
to determine what the "minimum level of wages, terms, benefits,
and conditions for the particular job opportunities below which
similarly employed U.S. workers would be adversely affected," (20
C.F.R. § 655.0(a)(2)), it would be inconsistent and
arbitrary to simply replace the hourly rate used in the USDA
process with a monthly wage and otherwise interpret § 655.92
to mean that the entire methodology used by USDA must be employed
to meet the requirement that the methodology be "consistent."
Such interpretation which results only in wages being compared,
fails to meet the requirement that the terms, benefits, and
conditions offered and afforded to the alien must also be
compared to the establishedminimum levels offered to U.S.
workers. 20 C.F.R. § 655.0(a)(2).
There are other problems with the DOL's interpretation of
§ 655.92. For example, in the U.S.D.A. survey, in a
footnote,[6] it is stated that benefits such as housing and
meals are provided some workers but the values are not included
in the wage rates. What is not stated is of more significance
than what is stated. First, housing and meals are characterized
by the U.S.D.A. as a benefit. No where is it indicated whether
the provision of housing and meals is mandatory as it is for the
employer in this case. Second, according to the USDA survey,
during October 7-13, 1994, only eight percent of the workers were
receiving free meals and only 17 percent were receiving housing.
In the prevailing wage report for the instant case, 94 percent of
the workers were receiving free housing and 94 percent of the
workers were receiving free meals as part of their compensation.
These are not insignificant factors and are presumably the
reasons why
[PAGE 9]
the regulations state that use of the USDA survey figure is
"inappropriate" for the sheepherder occupation. Clearly the
regulations are attempting to avoid the proverbial comparison of
apples and oranges.
A more logical reading of the § 655.92 consistency
requirement as applied to sheepherders is that establishing the
AEWR must be accomplished by use of the weighted average. This
has been accomplished as outlined in the Field Memorandum where
in it directs that in most instances, the results of the
prevailing wage determination for domestic workers will be
used to establish special AEWRs for sheepherders. The only
exception to this rule will be cases where there is an
inadequate sample size. Field Memorandum 74-89, at page 6.
In order to provide for a limited degree of flexibility in
carrying out the Secretary's responsibilities under the INA,
"while not deviating from the statutory requirements to determine
U.S. worker availability and make a determination as to adverse
effect, the Director has the authority to establish special
procedures for processing H-2A applications . . . ." 20 C.F.R.
655.93(b). According to Field Memorandum No. 74-89, dated May
31, 1989, at page 4, the special procedures set forth in the
Field Memorandum updates the sheepherder certification guidelines
presented in Field Memorandum No. 108-82 and "except as otherwise
provided for in these special procedures, the basic H-2A
regulations at 20 C.F.R. Part 655, Subpart B, and the operating
guidelines in ETA Handbook No. 398 apply to sheepherder and
goatherder applications." Field Memorandum 74-89, p. 4. With
regard to wages, the Field Memorandum states that employers
requesting H-2A certification for sheepherders must offer U.S.
and alien workers, as a minimum, the prevailing wage rate for the
occupation in the State determined by the state employment
security agency prevailing wage survey, verified by the National
Office, or a special monthly Adverse Effect Wage Rate (AEWR)
established by the National Office, whichever is higher.
Prevailing wage surveys "should be performed in accordance with
the procedures set forth in the Forms Preparation Handbook, ETA
No. 385, pages I-11 through I-143." According to the Field
Memorandum at page 6:
[i]n most instances, the results of the prevailing wage
determination for legal domestic workers will
be used to establish special AEWRs for sheepherders and
for other occupations in the range production of live
stock. The only exception to this rule will be
cases where modification to ETA Handbook No. 385
procedures are necessary to compensate for inadequate
sample
[PAGE 10]
sizes.
(Underline in original, bold emphasis added).
In this case the state agency found a prevailing wage of
$700. The DOL made no mention of an inadequate sample size.
From DOL's own memorandum, it follows that DOL should have used
the $700 prevailing wage determination to establish the special
AEWR. However, DOL did not do this and provided no reason to WRA
as to why DOL had determined the AEWR to be $800.
Using subtotaling and line spacing, the state agency grouped
separately rates that included housing and meals from rates that
only included meals, only included housing, or rates that did not
include housing or meals. The state agency stated in the wage
report that it utilized the 51 percent rule. It is clear from
the way the state agency split up the array that the state agency
followed the handbook and considered "housing and meals-no
charge" to represent a different "unit of payment" than "meals-no
charge," which in turn was different than "housing-no charge" or
"no housing or meals." In so doing only the 31 sheepherders who
were paid a wage which included meals and housing were combined.
In accordance with Handbook No. 385, page I-117, at 3c, the "unit
of payment which [was] applicable to the largest number of
workers" was determined. Using this unit of payment the
prevailing rate was determined in accordance with the 51 percent
rule.
This process properly accomplished the goals of the statute
and the regulations which require that a determination be made as
to what are the "minimum level of wages, terms, benefits, and
conditions for the particular job opportunities below which
similarly employed U.S. workers would be adversely affected." 20
C.F.R. § 655.0(a)(2). Using this system, the wages, terms,
benefits, and conditions offered and afforded to the alien can be
properly compared to the "established minimum levels" as
required by the statute and regulations. id. (emphasis
added).
The courts have also recognized that wages alone cannot be
the only factor considered when determining whether
the employment of the alien in such labor or services
will [] adversely affect the wages and working
conditions of workers in the United States similarly
employed.
8 U.S.C. § 1188, 20 C.F.R. 655.90(b)(B).
[PAGE 11]
In Ozbirman v. Regional Manpower Adm'r, 335 F.Supp
467 (S.D. N.Y. 1971), the exact same language was analyzed by the
court as it was used in the permanent alien labor certification
program (Section 212(a)(14), 8 U.S.C. § 1182(a)(14)). In
Ozbirman, as in this case, the Secretary equated a wage
below the prevailing rate with an adverse effect on wages and
proceeded to deny labor certification solely because the salary
offer did not meet the prevailing wage. In doing so, according
to the court, "the Secretary effectively failed to recognize or
consider that all forms of compensation do not take the form of
money." Id. at 472. The court went on to state that
the interrelationship between one's pay rate and other
fringe benefits indicates that such an adverse effect
would not necessarily occur. The term "adverse effect"
is necessarily a box of variables. Shorter hours,
unique vacation periods or working conditions,
proximity to home and family, and exceptional fringe
benefits are all factors which influence the labor
market and have an effect on wages in this country.
The above list doubtless could be expanded, but the
point should be clear that an employee can receive
exceptional benefits which are not in the form of money
and which prevent any adverse effect not withstanding a
deficiency in wages. Any determination of an adverse
effect on wages should be scrutinized and balanced in
light of the variables which enter into a job offer.
In this way, the purpose of Congress in protecting the
American labor market could be implemented in light of
realistic employment factors.
Id. (footnote omitted).
In Industrial Holographics, Inc. v. Donovan, 722 F.2d
1362 (7th Cir. 1983), the court agreed with the Ozbirman
court that "a truly thorough analysis of adverse effects involves
factors other than wages." However, the Donovan court
stated that the Secretary may issue regulations "simplifying the
inquiry so that decisions will be less arbitrary and more
consistent."
While the courts in the above cases were dealing with the
permanent alien labor certification program, the operative
language of that statute is identical to the language at issue in
the statute in the case at bar. The purpose of the language is
the same and there is no logical reason why the analysis would
change when applied to the temporary labor certification program.
[PAGE 12]
Accordingly, it appears clear that DOL may simplify the process
by limiting the types of benefit variables considered for
purposes of prevailing wage evaluations. But, it is also equally
clear that DOL may not impose a per se rule which limits
to solely wages its inquiry for purposes of determining AEWR.
The State's breakdown of the array in this case makes it
evident that consideration of housing and meals as variables is
not difficult in cases involving sheepherders, and that
simplification of the inquiry is not needed. The facts of this
case perfectly illustrate why oversimplification of a wage
analysis is inappropriate.[7] Administrative convenience does
not justify a procedure that produces wage rate requirements that
are out of line with economic reality.
Order
The Regional Administrator's Order denying certification is
REVERSED. The wage rate to be applied for the instant
applications shall be the $700.00 per month determined by the
California State Employment Security Agency.
_________________________
JOHN M. VITTONE
Acting Chief Judge
Washington, D.C.
JMV/rpf
[ENDNOTES]
[1] Pursuant to 20 C.F.R. § 655.93, applications for
temporary alien sheepherder are governed by special procedures
because the expressly acknowledged unique characteristics of
sheepherding requires:
. . . spending extended periods of time grazing herds
of sheep in isolated mountainous terrain; being on call
to protect flocks from predators 24 hours a day, 7 days
a week . . .
DOL field Memorandum No. 74-89 Part I.B.1. Sheepherders spend
extended periods of time without access to permanent housing or
food facilities. Accordingly, the employer is also
required to provide housing (20 C.F.R. § 655.102(b)(1)) and
meals (DOL Field Memorandum No.74-89 at Part I.B.7).
[2] According to the 51 percent rule, if no single wage rate
accounts for 40 percent or more of the workers, and the rates are
all in the same unit of payment (eg. per hour, per lb.), the wage
rates are to be arrayed in descending order. Then beginning with
the lowest wage rate at the bottom of the array, the number of
domestic workers are to be counted and cumulated until the number
counted reaches 51% of the total domestic workers in the survey.
The wage rate for last worker(s) to be counted after reaching 51
percent (or slightly higher to amount to a full person) becomes
the prevailing rate.
[3] Given the extended briefing schedule in the case before
Judge Mapes, I have not considered the expedited regulatory
hearing procedure as an important factor in determining whether
to impose issue preclusion in this case. It is observed,
however, that extremely expedited administrative proceedings
imply that the administrative law judge would not be able to give
difficult issues such as those presented in this matter the due
consideration that could be given in a case that evolved at a
less frenzied pace.
[4] Judge Mapes' decision was also a single judge decision
rather than a decision by a three-member panel of judges assigned
to the Board of Alien Labor Certifications Appeals decision as
permitted under the regulation. Although a single judge decision
may be quite persuasive, the existence of an opportunity for a
BALCA three-judge panel review suggests that a panel decision
might be more likely to result in issue preclusion. The record
does not reveal whether the employers in the earlier proceeding
asked for BALCA panel review.
[5] Prior to the establishment of the Board of Alien Labor
Certification Appeals in 1987, appeals from denials of permanent
alien labor certifications were decided by individual Department
administrative law judges. The central purpose for establishing
BALCA was to provide "uniformity and consistency of decision"
that was lacking when individual judges decided the cases. 52
Fed. Reg. 12217 (1987). Thus, as a historical matter, individual
ALJ decisions in alien labor certification matters were not
considered binding in subsequent cases and the Department had to
create a Board of judges specializing in labor certification
issues to remedy the problem. Regardless of whether individual
ALJ decisions constitute binding precedent for subsequent
temporary alien labor certification cases, however, it is
generally true that ALJs may be influenced by well-reasoned
decisions of other Department ALJs.
[6] In the USDA survey, the footnote is associated with a
category entitled "all hired workers." The regulations require
that, when appropriate, the AEWR be equal to the annual weighted
average hourly wage rate for "field and livestock workers." The
category of field and livestock workers does not have an
equivalent footnote associated with it. While it may be that the
footnote is intended to apply to field and livestock workers, it
not entirely clear.
[7] The 12.5% difference produced by the calculation methods at
issue is a substantial economic burden for the employers in this
case. Precision in making prevailing wage calculations may not
be a realistic administrative burden for Certifying Officers
handling large case loads. The calculation method proposed by
the Department in this case, however, is not a realistic
reflection of wages paid to sheepherders in the position of alien
sheepherders. The Department's explanations for why it believes
it must use the array not taking into consideration easily
determined differences in remuneration do not illuminate why
simplification of the inquiry in this case makes decisions "less
arbitrary and more consistent." Industrial Holographics,
supra.
