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DE LA FUENTE v. STOKELY-VAN CAMP

March 27, 1981

PEDRO DE LA FUENTE ET AL., PLAINTIFFS,
v.
STOKELY-VAN CAMP, INC., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Baker, District Judge.

MEMORANDUM OPINION

Jurisdiction is vested in the court under 28 U.S.C. § 1331, 1337, and 1361.*fn2

FINDINGS OF FACT

PLAINTIFFS

The plaintiffs, Pedro De La Fuente, Oscar De La Fuente, Emilio De Leon, Manuel Garza and Anselmo Solis are residents of the State of Texas. Spanish is the plaintiffs' primary language.

On June 12, 1979, pursuant to Fed.R.Civ.P. 23(b)(2) the plaintiffs were permitted to maintain their action against the private defendants for injunctive relief as a class on behalf of:

  Class I: All persons who have been recruited
  since January 1, 1977 or will have been recruited
  through the Interstate Recruitment System by
  defendants, Stokely-Van Camp Inc., Albert Solis
  and Marcelino Vasquez for work in Illinois.
  Class II: All migrant workers who have been
  employed since January 1, 1977 or will have been
  employed by defendant, Stokely, in Illinois and
  who allegedly have been transported or will have
  been transported by defendants, Stokely-Van Camp,
  Inc. or Marcelino Vasquez, within the meaning of
  the I.C.A., 49 U.S.C. § 10101 et seq. or the DOT
  Act, 49 U.S.C. § 1651 et seq.

The plaintiffs were also allowed to proceed as a sub-class and seek monetary damages against the private defendants as:

  All persons who were recruited in Texas in 1977,
  1978 and 1979 through the Interstate Recruitment
  System for work at Stokely-Van Camp, Inc.'s
  Illinois operations.

DEFENDANTS

The defendant Stokely-Van Camp, Inc. is an Indiana corporation licensed to do business in the State of Illinois. Its business activities in Illinois include the harvesting, processing, and packaging of agricultural products. The defendant Albert Solis is a resident of Mercedes, Texas. During 1977 and 1978 he was a year round employee of Stokely and in 1979 and 1980 was employed by Stokely on a seasonal basis. Solis' job was to recruit workers in Texas for Stokely's operations in Illinois. The defendant Marcelino Vasquez is a resident of Pharr, Texas and is a registered farm labor contractor. Vasquez has been employed by Stokely as a crew leader on a seasonal basis from 1977 to the present.

The defendant Stokely in its Illinois operations engages in the harvesting, processing, and packaging of sweet corn, lima beans, asparagus, and pumpkin. Stokely maintains canning facilities at Rochelle, Gibson City and Hoopeston, Illinois and in conjunction with those facilities operates migrant labor camps. The harvesting and canning season for Stokely's products begins, depending on the weather, in late April and extends through late September.

STOKELY'S RELATIONSHIP WITH CREW LEADERS

Stokely uses Vasquez, his equipment and employees, to transport migrant workers who perform services for Stokely. During the harvest and packing season the transported workers are Stokely employees and so are the crew leaders and their employees. Stokely advances funds to crew leaders to transport workers from Texas to Illinois. Stokely advances funds to crew leaders for vehicle insurance and inspection costs and pays crew leaders a per diem rate for the use of their vehicles during harvest and packing season.

MIGRANT WORKER RECRUITMENT PROCEDURES

In 1977, 1978, 1979 and 1980 Stokely recruited the plaintiffs and the members of their class in Texas to work in Stokely's agricultural business operations in Illinois. The defendant Stokely carried out its recruitment operations through its employee, the defendant Solis, and through its crew leaders.

To recruit workers for its operation Stokely uses the Interstate Recruitment System established under the Wagner-Peyser Act, 29 U.S.C. § 49 et seq. In each of the years, 1977, 1978, 1979 and 1980, which are the times in question in this case, Stokely prepared and submitted clearance orders to the Illinois State Employment Service [ISES] describing the type of work, the remuneration, the working conditions, and the number of employees required. The proposed clearance orders after they had passed inspection at the ISES were forwarded to the appropriate federal officials in the Department of Labor and upon approval they were returned to ISES which forwarded the completed clearance order to the Texas Employment Commission [TEC].

Stokely's recruiters, the defendants, Albert Solis, Marcelino Vasquez, and other crew leaders employed by Stokely, Ricardo Banda, Juan Robles, Candelario Palomo, and Fidencio Salinas would begin to contact migrant workers interested in coming to Illinois to work for Stokely. [Stokely also employed as crew leaders Eugenio Mendoza in 1978 and Guadalupe Santillana in 1978 and 1979.]

In addition to the clearance orders Stokely prepared an ISES form 560-C as required by Illinois law [Ill. Rev. Stat. ch. 48, § 184.1] describing the terms and conditions of employment. The form 560-C was both in Spanish and in English. The clearance order was in English only. Eighty percent of the migrant workers recruited by Stokely do not speak or read English.

Each year prior to recruitment, Stokely sent employee representatives to Texas to meet with the defendant, Solis, and the crew leaders to exchange information as to the number of workers needed and the working conditions for the coming year. In 1977 Maurice Schellhardt, district manager of Stokely, and Robert Shelton, personnel manager at Stokely's Gibson City plant, went to Texas to assist Solis in recruitment. In 1978 Maurice Schellhardt, Robert Shelton and Dennis David, Stokely's personnel manager at Hoopeston, went to Texas to assist in the recruitment. In 1979 Robert Shelton, Dennis David and Benjamin Scott went to Texas as Stokely representatives to assist in the recruitment. In 1980 Maurice Schellhardt and Dennis David were the Stokely representatives in Texas.

Between 1977 and 1980 according to Solis' testimony, which I credit, Stokely recruited, on the average, 380 migrant farmworkers per year to come from Texas to Illinois to work in Stokely's Illinois operations. The number recruited ranged from 450 in 1977 to 315 in 1980.

INTERIM EMPLOYMENT ARRANGEMENTS

In the years 1977, 1978 and 1979 the clearance orders promulgated by Stokely stated that Stokely would make efforts to develop jobs for its migrant workers with local employers in the idle periods between field work and cannery work.

In 1977, 1978, 1979 and 1980 Stokely did request Illinois seed corn companies to provide certain minimum terms of employment for interim employment offered by those companies to plaintiffs and members of their class residing in Stokely's housing. [See plaintiff's exhibit 59.] In each of those years Stokely received payments from employers who used the services of the migrant workers during their idle periods. Stokely used the payments to defray, in part, its expenses in providing housing to the workers during the period they were not engaged in harvesting and canning Stokely products. In 1977 Stokely received $2,439.15 in payments from local employers. In 1978 Stokely received $2,776.53. In 1979 Stokely received $1,221.25. The payments did not cover Stokely's expenses for maintaining the housing in the idle periods. Housing expenses were between $3.50 and $4.00 per man per day. Stokely realized about 80¢ per man per day on the payments received.

The fact that Stokely received these payments was not disclosed to workers in the 1977, 1978, or 1979 clearance orders. The 1980 clearance order did disclose to workers that some local farmers made payments which were used to defray Stokely's housing expenses. Seed corn companies in the area of Stokely's Hoopeston operation paid 20¢ per hour for each hour worked by migrant workers living in Stokely's housing during the interim period between harvests in 1980. No such payments were received by Stokely from its Gibson City or Rochelle operations. The exact amount received by Stokely in 1980 is not revealed by the evidence.

ASPARAGUS DOCKAGE POLICY

In 1977, 1978, 1979 and 1980 Stokely paid its asparagus pickers at a piece work rate or a guaranteed minimum wage whichever was greater. The piece work rate varied from field to field. An asparagus picker works a row and, at the end of the row, when his basket is full of asparagus, he has the basket weighed by a Stokely employee and dumped in a common box, 48" X 44" X 48", holding the asparagus picked by the worker's crew. The weight of the asparagus snapped by each worker is recorded under the worker's name in the field.

The total produced from each field is taken to the cannery where the amount of useable asparagus is determined. The asparagus from each field is reweighed at the cannery. If a weight differential greater than 5% exists, the total weight recorded for each worker who worked in the field for that day is reduced by the difference in excess of 5%. At the cannery, Stokely also takes a sample from each field's produce and removes from that sample low-grade asparagus and any inedible materials such as stones or sticks. If the reduced weight of the sample exceeds 10% of the amount picked, then the total weight recorded for each worker is reduced by the difference in excess of the 10% for grade allowance. Each worker's piece rate earnings are then calculated based upon the total amount of useable asparagus picked by each worker remaining after the weight and grade reductions.

The reductions in weight for grade allowance and error in field weighing were not revealed to the workers in the clearance order or in the form 560-C. There is no credible evidence that shows that the crew leaders or Albert Solis explained the weighing, sorting and grading process to the workers at recruitment. There is some evidence that information concerning the dockage policy was posted in a field letter in the personnel office of Stokely and in the labor camps. I am unable to say from the evidence whether the field letter was posted or not. But it seems indisputable that the field letter was not "conspicuous" within the intent ...


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