Working 16 Hours a Day for No Pay

By John Merriam

Life for Wayne and Gabby started about the time the Viet Nam War ended. Hoang "Wayne" Do was born in Viet Nam in 1974. Bora Gabrielle "Gabby" Do was born in Cambodia in 1976. Both came to the United States, separately, at a tender age and speak American English with no accent. In March 1999 they got married in Norfolk, Virginia. Later, after becoming their lawyer, I asked if they incurred the wrath of their families by crossing ethnic lines. Wayne told me it was acceptable for a Vietnamese man to marry a Cambodian woman, especially in America.

Wayne and Gabby met in Fresno, California where both went to high school. He graduated in 1992; she dropped out and got a job to help support her family. Along with some college, Wayne worked a variety of low-paying jobs in the Fresno area for a few years until his parents moved to Norfolk to open a restaurant. Wayne followed his parents; Gabby followed Wayne. In Norfolk, both worked long hours for minimum wages, mostly at restaurant jobs. Wayne worked at his parents' restaurant until they sold it.

During a stint attending college while still in Fresno, Wayne had noticed get-rich-quick ads posted on campus by recruiters for the Alaska fishing industry. College students were promised big bucks for processing fish at sea. Shortly after they got married, Wayne and Gabby concluded that, working for the minimum wage---even with time-and-a-half for overtime, they were just running in place. They talked about going to Alaska to make their fortune and Wayne started calling fishing companies headquartered in Seattle. He learned that many companies operating catcher/processor ships, also called factory/trawlers---those vessels that catch their own fish, then cut up and package them in factory areas on board---were hiring processors, no experience necessary. Together with a friend who had recently immigrated from Viet Nam, Tinh Pham, Wayne and Gabby decided to throw their hats in the ring for the Alaska fishery. By that time, Gabby was working for a nail salon. Wayne and Tinh Pham worked at two different Norfolk restaurants. In June 1999, all three quit their jobs and bought plane tickets to Seattle.

Wayne, Gabby and Tinh Pham ended up in the office of a fishing company called Ocean Peace, Inc., in the White Center district of Seattle. A representative of Ocean Peace explained that the company operated two factory trawlers, the F/T Ocean Peace and the F/T Seafreeze Alaska. The three applicants were told that the job was demanding and the hours long, in difficult conditions at sea in Alaskan waters, but that they could make a

lot of money if they worked hard. When asked how much money they would make, the representative said it depended upon how hard they worked and how much fish was caught, then handed them employment contracts to sign. Wayne, Gabby and Tinh Pham were used to long hours and hard work, born of parents from a culture where that was a way of life. After Wayne and Gabby were assured that females got separate quarters aboard the boats, all three signed the contracts---to be processors for Ocean Peace.

The contracts described their compensation as a share of the fish sold, rather than an hourly wage. 29% of the catch, after vessel expenses, would be divided amongst the crew in proportion to the number of crewshares each crewmember was assigned---the total number of crewshares was not stated. According to their contracts, each of the three processors would receive one share if he or she worked at least 40 days. If the crewmember worked less than 40 days compensation was reduced to 0.6 share. Also included was a paragraph stating that the crewmember would be charged $50/day for room and board if refusing to work while the vessel was at sea.

In late June Ocean Peace flew the job seekers to Dutch Harbor, Alaska, halfway along the Aleutian Island chain toward Russia. The price of the plane tickets would be deducted from their earnings. Gabby and Tinh Pham were assigned to the F/T Ocean Peace; Wayne to the F/T Seafreeze Alaska.

The ships put in to Dutch Harbor to unload their catch of fish and replace crewmembers, a lot of whom were getting off for unspecified reasons. The F/T Ocean Peace arrived first. A diesel ship built in 1984, the 200-foot Ocean Peace is the size of a small freighter. 46 were in the crew---mostly processors, along with several deckhands and a small complement of seamen and officers filling traditional billets in the deck, engine and steward departments---plus one observer from the National Marine Fisheries Service. Going aboard, Gabby realized she was sharing a very small cabin with one female, indeed, but also with two male cooks and the male observer for NMFS. Wayne complained to the Ocean Peace "Director of Human Resources", who was also in Dutch Harbor to meet the two vessels. The Director told Wayne that cabin assignments would not be changed but that he could switch ships with Tinh Pham and go on the Ocean Peace with his wife, though not in the same cabin. The Director did not offer airfare from Dutch Harbor to Seattle---to say nothing of Norfolk--- if the trade was not accepted. On June 29, 1999 Wayne and Gabby agreed reluctantly, joined the F/T Ocean Peace, and motored into the Bering Sea. Tinh Pham would soon follow them aboard the F/T Seafreeze Alaska.

Gabby immediately switched from processor to housekeeper. The prior housekeeper left the ship in Dutch Harbor as she and Wayne came aboard, and Gabby was offered the position. She was told by other processors to jump at the opportunity. Her new job, less physically demanding than processor, was to clean the heads, do laundry and assist in the galley---16 hours per day, seven days per week, a work week of 112 hours. In the galley, particularly, she received much unwanted attention from the almost all-male crew. Gabby was no stranger to sexual harassment. From her prior restaurant experiences, she assumed it came with the job. Mainly though, it was what happened to her husband that caused her to quit the ship.

Wayne worked in the factory processing “product”, cod and other bottomfish, as fast as he could---12 hours on, six hours off, non-stop---an average of 16 hours per day, seven days per week, like Gabby. He headed and gutted fish, put them in pans to be flash-frozen, took frozen fish from the freezer pans and put them into bags, threw the bags onto a conveyor belt to the freezer holds a deck below, and stacked the frozen bags onto pallets. He only did one of these jobs at a time, of course, but it didn't matter what he was doing---it all became a blur. During those rare occasions when there was no fish to process Wayne was given busy work to fill his shift, like cleaning the factory areas. "Every day is Monday down here," one of the processors said. Fish heads and guts floated around his feet. The stench of dead fish and the rolling of the boat caused many of the greenhorns---including Wayne---to vomit. But he kept working.

The Ocean Peace filled its holds with almost a half-million dollars worth of fish by the middle of July 1999 and motored back to Dutch Harbor to offload. Processors and deckhands guided pallets from the freezer holds onto a Japanese tramp freighter.

Shortly after the Ocean Peace returned to the fishing grounds, Wayne twisted his ankle. He slipped on the icy deck where he worked in the freezer. The captain gave him painkillers. He got 12 hours off then was told to go back to work. Wayne's ankle still hurt but he kept working.

Toward the end of July the Ocean Peace again filled its holds with another half-million dollars worth of fish and returned to Dutch Harbor. During this second offload, Wayne was stabbed in the hand by a fish spine sticking out of one of the bags he handled. At first he tried to keep working, even as his hand bled and swelled up. He couldn't do it and went up to the wheelhouse. The captain said there was no need to fill out an accident report---even though the employment contract stated that injuries had to be reported in writing---and that he should soak his hand in bleach. Wayne went to the galley to get a container of bleach from Gabby.

The last straw was when Wayne's factory supervisor came into the galley, while he was soaking his hand, and told him to go back to work. At that point Wayne and Gabby both quit. They took a skiff into town. A company car dropped them off at the airstrip in Dutch Harbor with no plane tickets and no money.

Wayne called his mother in Norfolk. Lucky for him and Gabby, Wayne's mother had a friend with enough room on his credit card to charge the $1500-plus required to fly both to Virginia from Alaska.

Tinh Pham suffered a similar fate when the F/T Seafreeze Alaska put in to Dutch Harbor a few days later. He was sick, quit, got no wages, and paid his own way home.

Several weeks later, settlement statements came in the mail showing earnings from working 16-hour days for a month. Instead of a paycheck, they each received a bill from Ocean Peace, Inc. for the amount that deductions exceeded earnings. Wayne was informed he owed Ocean Peace $716.39, Gabby owed $378.63, and Tinh Pham $959.34. In Wayne's settlement, for example, gross wages were slightly more than $900. Deducted from gross wages were taxes, Social Security, Medicare, and minor amounts for purchases of soda and sundries from the ship's store. Also deducted was almost $1200 for plane tickets. The final slap in the face, and one reason I took this case, came from an examination of the amounts deducted for airfare. The settlement statements for Wayne, Gabby and Tinh Pham each showed a $582 deduction from wages for plane tickets from Dutch Harbor back to Seattle, plane tickets the three had paid themselves. Ocean Peace gone farther than just violating an Alaska state statute that required employers who bring workers into the state to provide them with a means of getting out. A.S. 23.10.380. It also made an unlawful deduction from wages under the federal maritime law, to say nothing of state laws in both Alaska and Washington. See generally, e.g., R.C.W. Title 49.

Had the three processors received minimum and overtime wages they would have grossed close to $3000/month from working 16 hours/day, seven days/week. Exempted from the minimum wage laws are fishermen and those engaged in the "first processing" of fish. 29 U.S.C. sec. 213(5). The Fair Labor Standards Act (FLSA) was enacted during the Depression in 1938. It was last amended for the 'fishing' exemption from minimum wages---along with federal regulations that explain the exemption---before factory/trawlers flying the U.S. flag started showing up about 25 years ago, after Senator Magnuson got the so-called Exclusive Economic Zone extended to 200 miles offshore. 16 U.S.C. sec. 1801 (1976).

The entitlement to minimum and overtime wages was not an issue during the bonanza days of fishing in Alaska. Those days are coming to an end. Now there are more boats and less fish. Some fishing companies are trying to protect profit margins on the backs of their employees.

Several years ago in these pages, I argued that processors on factory trawlers are entitled to minimum and overtime wages because they are factory workers, not true fishermen. Trial News (July/August 1994). In a nutshell, the argument is that the "first processing" exemption of the FLSA is ambiguous. When that law was passed U.S. fishing boats only caught fish, then delivered the catch to canneries on land. Any "first processing" done on catcher boats was purely preliminary to the 'secondary' or final processing done by shoreside processors who do get minimum wages. Fishing companies, on the other hand, take the position that "first processing" means the 'first time' fish are processed. In cases of ambiguity, workers are entitled to FLSA wages. 29 C.F.R. sec. 784.21.

Since that article was published I have experienced nothing but defeat in test cases, brought in both state and federal trial courts in Seattle. The Ninth Circuit affirmed one of those defeats. Because the opinion was unpublished, however, it may not be cited as precedent. Ninth Circuit Rule 36-3.

Along came the three processors from Norfolk, referred by a maritime lawyer who told Wayne there was no money in his case. I decided to try again.

When I explained the invasion of privacy involved, Gabby did not want to pursue a sexual harassment claim.

I filed Wayne's case in state court; Gabby and Tinh Pham's in federal court---admittedly forum shopping---to see which court system will be more sympathetic. See, Lundborg v. Keystone Shipping Co., 138 Wn.2d 658, 1999 AMC 2635 (1999) (State Supreme Court refuses to follow Ninth Circuit precedent on issue of maritime law.). Trial judges in both court systems have denied partial summary judgment motions brought by the processors on FLSA entitlement. We now await final judgments, after the three cases slowly wend their way through the trial court level, before seeking relief from appellate courts.

Federal Judges Lasnik and Zilly both wrote well-reasoned opinions, not published, denying motions on this issue that I filed for Gabby and for a different processor in a previous test case. Although the decisions reached what I thought was the wrong result, they are persuasive and just might be followed by appellate courts. If that happens, the "first processing" exemption of the Fair Labor Standards Act must be clarified by an act of Congress. Otherwise, processors will continue to be victimized by some fishing companies.

Meanwhile, back in Norfolk, the erstwhile processors have had their fill of fishing in Alaska. Tinh Pham works in another restaurant. Wayne and Gabby are working in the same nail salon. Gabby had a baby, Daphne, born in the spring of 2000.

The cases are: Hoang Do v. Ocean Peace, No. 00-2-08417-0KNT (King Co. Sup. Ct.); Bora Do v. Ocean Peace, No. C00-0315Z, and Tinh Pham v. Ocean Peace, No. C00-0321Z (W.D. Wash.). John Merriam represents the plaintiffs. Dennis Moran of LeGros, Buchanan & Paul represents defendants in all three cases.

John Merriam is a sole practitioner representing seamen on wage and injury claims.

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