A federal judge has ruled against a Washington blueberry producer’s prevailing wage challenge and ordered the company to pay its workers their escrowed wages.
Judge Salvador Mendoza determined last week that federal and state employment authorities did not act capriciously or arbitrarily last year when they raised the prevailing wage for blueberry hand harvest by 50 percent in the middle of the season, as Zirkle Fruit Co. of Yakima had alleged in a U.S. District Court lawsuit in Eastern Washington.
On July 24 last year, during harvest, officials at the U.S. Department of Labor boosted the prevailing wage for Washington blueberry pickers from 50 cents per pound to 75 cents per pound. Federal agriculture labor laws require companies to pay their H-2A contracted guest workers the highest of the prevailing wage, the Adverse Effect Wage Rate, a contracted wage or the state’s minimum wage.
Zirkle filed suit shortly after the mandate, calling the methodology of the wage surveys on which the prevailing wage was set “arbitrary and capricious.” The state Employment Security Department, contracted by the federal labor agency, did not collect a representative sample of wages, Zirkle argued, among other complaints.
Last year, Mendoza granted Zirkle a temporary injunction, allowing the company to place the contested wages in escrow until he ruled. On March 2, Mendoza concluded the process was fair, even if limited.
“Agency action is not arbitrary or capricious simply because it is imperfect,” he wrote in his ruling.
Also in his ruling, Mendoza ordered Zirkle to pay all the escrow-held wages within 30 days and update the court on their efforts to locate workers they could not find in that time.
He also pinned some of the blame on growers. Wage surveys are not mandatory and some producers choose not to participate.
“Because far fewer than all Washington’s blueberry growers responded to the survey, ESD (the state Employment Security Department) was in the unenviable position of determining what percentage of Washington’s overall grower community was represented in those responses,” he wrote. “To that difficult task the record establishes ESD applied reliable — if limited and imperfect — statistical models. Those limitations are not a sufficient basis to invalidate DOL’s (Department of Labor’s) action.”
—by Ross Courtney