Domingo v. New England Fish Co., 713-73 C2.

• Decision Date: 21 November 1977
• Docket Number: No. 713-73 C2.,713-73 C2.
• Citation: 445 F. Supp. 421
• Parties: Nemesio DOMINGO, Silme Domingo, Joe Ancheta, Sam Cabansag, Tom Carpenter, and all others similarly situated, Plaintiffs, and Nellie Kookesh, Audrey A. Merculief, Frank Paul, Mary Paul, Tony Evon, Sr., Samuel Strauss, and all others similarly situated, Plaintiffs-Intervenors, v. NEW ENGLAND FISH COMPANY, a corporation, Defendant.
• Court: U.S. District Court — Western District of Washington

445 F. Supp. 421

Nemesio DOMINGO, Silme Domingo, Joe Ancheta, Sam Cabansag, Tom Carpenter, and all others similarly situated, Plaintiffs, and Nellie Kookesh, Audrey A. Merculief, Frank Paul, Mary Paul, Tony Evon, Sr., Samuel Strauss, and all others similarly situated, Plaintiffs-Intervenors, v. NEW ENGLAND FISH COMPANY, a corporation, Defendant.

No. 713-73 C2.

United States District Court, W. D. Washington.

November 21, 1977.

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Abraham A. Arditi, Michael J. Fox, Antonio R. Salazar, Arditi, Salazar & Goldberg, Seattle, Wash., for plaintiffs Nemesio Domingo, et al.

Philip R. Volland, Alaska Legal Services Corp., Anchorage, Alaska, for plaintiffs-intervenors Nellie Kookesh, et al.

Don Paul Badgley, Michael W. Dundy, Bogle & Gates, Seattle, Wash., for defendant.

OPINION

SOLOMON, Senior District Judge:

This class action challenges many employment practices of New England Fish Company (Nefco) under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (1970 ed. and Supp. V), and the Civil Rights Act of 1866, 42 U.S.C. § 1981 (1970 ed.).

Plaintiffs are present and former employees of Nefco. They allege that their employer discriminates on the basis of race in jobs, housing, and messing at its Alaska salmon canneries. They seek injunctive relief, back pay for themselves and their class, and also an affirmative program to eradicate the effects of past discrimination.

I. INTRODUCTION

The charges of discrimination in this action were first asserted in a complaint filed with the Equal Employment Opportunity Commission (EEOC) on November 26, 1971.

Nemesio Domingo is a Filipino. He was employed at Nefco's Uganik cannery in Alaska during the 1969, 1970, and 1971 canning seasons. On several occasions, Domingo objected to unequal treatment of Filipinos and other minority employees. After the 1971 season, Nefco terminated Domingo.

On November 26, 1971, Domingo filed a complaint with the EEOC in which he charged that he was terminated because he was a Filipino and because he had objected to disparate treatment of minority employees. The EEOC deferred his complaint to the Washington State Human Rights Commission pursuant to 42 U.S.C. § 2000e-5(c). The state commission, because of a heavy backlog, was unable to process the complaint, and the EEOC assumed jurisdiction on December 20, 1971.

The EEOC investigated Domingo's charges and found "reasonable cause" to believe that Nefco engaged in discriminatory practices. In December 1974, the EEOC and Nefco reached a conciliation agreement.¹ Domingo was not a party to this agreement. He had already received notice of his right to sue, and he had filed this action on November 29, 1973.

II. THE COMPANY

A. Company Organization

Nefco operated five salmon canneries and a fleet of tenders in Alaska. The canneries are located at Uganik Bay, Egegik, Chatham, Pederson Point, and Waterfall.

Salmon canning is a seasonal industry. The fishing season in Alaska usually lasts about one month each year, and the fish must be processed shortly after they are caught. A cannery does not operate every year; operations depend on where the fish are running and in what quantities. In a year when a cannery does not operate, it is often staffed with a skeleton crew and used as a camp for fishermen.²

Although Nefco's canneries vary in size and in the years they operate, they have the same management structure, job departments, and labor pool. They use the same machinery and processes. All are located in remote areas. Practically all of the employees are migrant workers, and Nefco provides them with housing and eating facilities.

All canning operations are controlled by Nefco's home office in Seattle. A vice president was responsible for all of Nefco's fishing and fish processing operations in Alaska during the years covered by this litigation. A superintendent was in charge of each cannery and reported to the vice president. Because of the remote locations of the canneries, each had some independence in manufacturing, purchasing, and hiring. But, the Seattle office set hiring policies, approved operating budgets, determined some wages, and hired some employees.

B. Job Departments

There are a number of job categories or departments at each cannery. Each department is responsible for a phase of the canning operations.³

The administrative department is small. It consists of the superintendent of each cannery who is responsible for the cannery operations. At two of the five canneries, there was also an assistant superintendent.

The clerical department consists of the office workers who handle the cannery's paper work. They include the office manager, storekeeper, and office workers.

The tender department consists of the crews which operate Nefco's fleet of fishing vessels. They spend much of their time at sea. They regularly dock at the cannery to unload fish. At the beginning of each season, the tenders transport supplies and some employees from Seattle to the canneries.

The beach gang unloads fish from the tenders and performs construction and maintenance work at the cannery. This crew is one of the first to arrive at the cannery each season, and it prepares the cannery for the season's work.

The machinists are responsible for operating and maintaining the machines used in the canning process. At the beginning of each season, they tear down, service, and reassemble the machines.

The cannery department consists of the workers who clean, can, cook, and store the fish.

The culinary department prepares and serves meals at the cannery messhalls. They include cooks, bakers and waiters.

The laborer department is responsible for general maintenance. Laborers often assist the beach gangs.

Carpenters perform the carpentry work at the cannery. Like the beach gang and machinists, they arrive at the cannery before the start of the season to prepare the facility for the season's work.

The quality control department consists of a small number of individuals at each cannery who are charged with the responsibility of checking on the quality of the processed fish. They are directly responsible to the home office.

The miscellaneous department is a catchall for the remaining job categories. The positions include watchmen, nurses, truck drivers, and plumbers.

Within each department there are a number of job titles. The jobs have specific responsibilities, require different skills, and offer different levels of compensation. For example, the tender department includes captains, engineers, and deckhands. Captain is a highly skilled position which requires experience in all aspects of seamanship and navigation. The median wage for the 1975 season was $9,228. The engineer must operate and maintain the tender's engines and other mechanical systems, and he must have some experience at sea. The median wage in 1975 was $6,880. The deckhand job is an entry level position. Some experience with boats and fishing is desirable, but the job requires no specific skills. The median wage for the 1975 season was $3,990.

Because of the seasonal nature of employment at Nefco, there are no formal lines of progression from one job to another within a department or from one department to another. An employee who returns to Nefco for a second season is often hired for a more skilled job with better pay. For example, a person who worked as a deckhand one season might be hired as a mate/deckhand the next season. The mate position requires experience at sea; the median wage for the 1975 season was $4,308.

C. Hiring

Employment at Nefco's Alaska canneries is seasonal. At the beginning of each season, Nefco hires workers for the canning season. Only a few employees, such as winter watchmen and administrative and clerical personnel, are employed during the off-season. Because the canneries are located in remote areas near the fish runs, the vast majority of Nefco's employees are migrant workers. They come from towns and villages in Alaska and from the lower 48 states.

Hiring responsibilities are delegated to many persons. Ultimate responsibility for staffing the canneries and setting hiring policies rests with Nefco's vice president in charge of Alaska operations. The superintendent of each cannery is responsible for procuring the workers for his operations. Generally, the superintendent hires the foreman of a crew who in turn hires the crew.

Recruitment is informal. Nefco neither advertises job openings nor posts vacancies at the canneries. Much of the recruiting is by word of mouth; relatives of employees and business associates are given preference. There were no written, objective job qualifications to guide the persons making the hiring decision. Nor did Nefco use tests to evaluate applicants. The only employment criteria were: (1) job-related experience; (2) reputation for being a good worker; and (3) compatibility. These criteria were not always adhered to.

D. Housing and Messing

Nefco provides housing and meals for its employees.

Nefco assigns employees to a particular bunkhouse upon their arrival at the cannery. Because of the remoteness of the canneries, the severity of the weather, and the short canning season, housing at all canneries is Spartan.

Each cannery has at least one messhall. Two of the canneries had a second messhall which served Oriental rather than traditional American food.

III. THE CLASS

Domingo and five other named plaintiffs⁴ brought this action on their own behalf and on behalf of other persons similarly situated. By stipulation of the parties, six Alaska Natives were permitted to intervene as named plaintiffs.

On May 31, 1976, I determined that this action would proceed as a class action, provisionally under Rule 23(b)(2), Fed.R.Civ.P.⁵

The class certified is composed of all non-whites whom Nefco employed at its Chatham, Egegik, Pederson Point, Uganik, and Waterfall canneries at any time until the date of...