Each summer around this time, the secretary of labor has performed what might cynically be called a minuet of malfeasance. With his hands over his eyes and a good deal of bureaucratic fancy footwork, he manages to sidestep his clear legal obligations by certifying the special hiring of tens of thousands of foreign agricultural laborers by American farmers. At any time, that practice would be condemnable, at time of exceptionally high unemployment in this country (highest in agricultural areas), as has been the case in recent years, it is a scandal.
Here is how it works. Under the immigration and naturalization laws, aliens may be admitted temporarily to work in the United States on two conditions: if domestic workers are notavailable to do the same work and if their employment does not have an adverse effect on domestic wage rates. The attorney general has the authority to determine when such employment (known as off-shore labor) is appropriate. He has delegated his power to make that determination to the secretary of labor.
Before a foreign worker can be admitted as a temporary laborer in this status, the secretary of labor has to certify that qualified American workers are not available and that the employment of offshore laborers will not adversely affect the wages and working conditions of American workers. If the secretary certifies foreign workers, the attorney general, through the commissioner of the Immigration and Naturalization Service (INS), gives the worker a temporary visa.
The labor-immigration laws and regulations were conceived purely and simply as "America first" provisions, seeking to protect the job security of domestic workers, to keep American money here and to lower our welfare costs.
In agricultural work, it has not happened that way. Last year, 15.281 foreign workers were certified to work on American farms despite extraordinarily high unemployment in this country, in 1976, 15,230 were certified; in 1975, 16,499; in 1974, 20,634; in 1973, 20,138. The figures between 1966 and 1972 were comparable, never going over 23,000 nor under 12,000.
Most of the foreign workers have been British West Indians brought to the United States to cut sugar and pick apples. Basques from Spain brought here to be sheep herders, and Canadians who pick apples and work in the wood industries. They all have been certified to work here despite what one Labor Department official described to me as "no shortage of bodies" here to handle those jobs and despite protests from farm workers group that the approved wage-rate formula is unrealistic.
Growers have learned to manipulate the system, and the secretary of labor has allowed himself to be manipulated. Many of the big employers of farm workers prefer foreign workers because they are especially good at their particular work and because they complain less, accept less money, are more stable and are easy to exploit.
To get the secretary's certification to hire offshore labor, those employers play a game with the Department of Labor. The owner of a big. East Coast apple orchard, for example, knows that he will need a certain number of workers to pick apples at a certain time of the year. He waits until the last minute and then goes to the local employment service office and asks for a flock of workers, knowing that they will not be available at that late date. The state employment service (fully funded by Labor) is required to find local workers first, then to solicit workers elsewhere in the state and finally to put the growers' order into the interstate clearance system in the hope of finding workers in other states.
When workers are not available, the regional representative of the secretary of labor may certify foreign workers. Once the charade is completed the growers are able to find a band of, say, Jamaican workers who just happen to be at the airport with their toothbrushes, ready to work.
One alternative to this annual charade would be to require that all interstate clearance orders be put in phase with the historical timing of migrant farm-worker activity. If growers were required to register their harvest plans early in the year, labor-supply states could recruit domestic workers. So could the farm workers' union.
Labor Secretary Ray Marshall, who has had a special interest in rural labor problems, tried to change the policy. But last year, when he refused to certify Mexican onion pickers to work on Texas farms, he was overruled by President Carter and Attorney General Bell, who capitulated to the pressure of protesting congressmen. Migrant legal groups have taken that case, and another one like it, also in Texas, to appellate courts. Now Marshall will have to resist both departmental undertows and strong pressures from interested politicians and powerful farm owners to avoid being manipulated into sidestepping the law he is supposed to enforce.