Articles

Court Blasts Officials Over Inmate Wages

Hearing Focuses on Underpaid Prisoners Retaliatory Firings

Business Program

By Claude Walbert, Daily Journal Staff Writer, August 23, 2004

SAN DIEGO – A judge last week offered a scathing review of the Department of Corrections’ effort to comply with an eight-month-old injunction.

Superior Court Judge William C. Pate, who is overseeing an inquiry in to claims by six inmates that they were fired for blowing the whistle on low wages paid by a prison business, scolded corrections officials for not moving quickly enough on the provisions of the injunction.

Pate said the state prison system simply stood by rather than protect prisoners from being underpaid by the business and refused to come to their assistance when the company then fired the inmates.

‘Prevailing Rate’

Pate accused the corrections officials of “condoning what appears on the surface to be retaliation.”

“Nobody has yet told me why the six were fired,” the judge said. “[Retaliation is] the most logical conclusion from what I’ve seen on the papers.”

The six prisoners are Robert Ford, Stan Hunter, Donald Fletcher, Patrick Jones, Tommy Rogers and Thomas Mayfield, according to court documents.

The hearing revolved around the failure of Western Manufacturing to pay the inmates between $13.55 and $8.37 an hour – median “prevailing rate” wages set by the company for its press machine operators and stock clerks.

Western Manufacturing

Those are the positions held by the six inmates who lost their jobs at Western’s business at Calipatria State Prison in San Bernardino County.

Instead, according to the six inmates, Western paid them the state minimum wage of $6.75 an hour.

The hearing held Thursday was the latest of several Pate had ordered to gauge how well the prison-business program was running.

Lawyers for the Union of Needletrades, Industrial and Textile Employees told the judge that corrections officials are failing to monitor adequately the level of payment to workers in the prison business program.

The lawyers aid that sometimes Western did not pay the prisoners at all. Moreover, the lawyers said, the prevailing rates for Western’s job appear to be well below what other companies pay for similar work.

In any case, the lawyers added, the state has yet to establish set amounts for the prevailing rates as it is required to do under the injunction.

Western’s program was established under Proposition 139, a successful 1990 initiative that called for the state prison system to allow private businesses to hire inmate to work within prisons.

During the hearing Thursday, Pate said the Department of Corrections had yet to effectively establish the joint state-business program.

The judge said that, if handled properly, the program gives prisoners job skills, offsets part of the cost of incarceration, provides money for restitution and helps support prisoners’ families. The prisoners get 20 percent of the money earned.

As it is, he said, only 146 prisoners in six of the state’s 33 prisons are in the program, while the state’s inmate population is 165,000.

The legal dispute landed in Pate’s court when prisoners and unions filed a class action against the state and joint-venture operations. Prisoners claimed that they were being underpaid.

The unions sued because low-pay prison jobs competed with higher-paid union jobs. Most of the businesses settled, paying hundreds of thousands of dollars owed prisoners and the state. Ervin v. Ratelle, GIC740832 (San Diego Super. Ct., filed Dec. 23, 1999).

But because a court had never addressed the issue before, the question remained of whether a taxpayer could sue to compel the state to enforce the payment of prevailing wages.

The case then became Vasquez v. Blonien, with the textile union’s Vice President Cristina Vasquez as the plaintiff. Vasquez sued Noreen Blonien, formerly assistant director of the joint venture program for the Corrections Department. The state won dismissal of the suit.

However, Justice Judith McConnell of the 4 th District Court of Appeal reversed the judgment, ruling in January 2003 that a taxpayer could sue to compel enforcement by the state, which “cannot ignore its duty to obtain compliance.”

The appellate court sent the case back to Pate to be tried, and the trial began in January.

During the trial, Pate suggested that the best method for resolving the case would be to issue an injunction that permitted him to review efforts to make the joint-venture program work. Both parties agreed to its provisions, which require the prison employers to tell inmates that they cannot face retaliation. The injunction also requires corrections officials to ensure that the businesses are meeting the goals of Proposition 139.

Pate ordered periodic reports to ensure that corrections officials were fulfilling the terms of the injunction.

On Thursday, during the second progress report, Pate voiced displeasure at the prison system’s pace in improving the program.

“My view of the injunction is that it is to assist the state in accomplishing those goals,” Pate said. “You’re not going to accomplish those goals by making people fearful [of retaliation].”

Thomas S. Clifton of Archer Norris in Walnut Creek, an attorney for the state, said the six dismissed prisoners were too experienced for the jobs that remain at Western Manufacturing.

“That would be a problem if you were paying people on the basis of experience,” Pate said. “But it’s my understanding that they’re all being paid minimum wage.”

That being the case, the judge said, it would seem logical to retain experienced employees who could do the work more efficiently than those less experienced.

Not only that, Pate said, the state would profit if the prison system can run the program efficiently.

“The higher the wage, the more the state collects,” he said.

Robert Berke, a lawyer for Vasquez, said corrections officials’ lack of action to prevent the dismissal of the six workers is hindering the investigation into Western’s pay practices.

“If the message goes out that you’re going to be fired, that’s going to hinder the date-gathering process,” Berke said.

Berke, fro the Law Offices of Robert Berke in Santa Monica, asked Pate to protect complaining workers by establishing a legitimate grievance process.

Pate said the Corrections Department should handle the grievances.

He also bristled at an agency official’s statement that the six workers were not fired.

Clifton said the prison simply had “unassigned” the six from the business after Western Manufacturing said they no longer were needed because of reorganization.

Pate said that what happened to the six could be called “unassignment” or “termination” or just “fired,” but “whatever you want to call it, the result is the same.”

Clifton said corrections officials had told the inmates to use the prison grievance system to complain about low wages. When they did, he said, Western responded that they were at-will employees and could be terminated at any time for any reason.

Clifton said any prisoners who believed they suffered from retaliation could complain to the state Division of Labor Standards Enforcement.

Pate said he wants someone from that office to appear in his court and tell under oath what the chances are for an inmate’s complaint to be reviewed fairly.

The judge also told the state’s wage expert, Barbara Santos, to speed up her work in determining prevailing wages.

He recommended that Santos survey pay in remote areas of San Diego County, where jobs might have been lost because of the low-cost competition.

Pate said he wants quick progress.

“Right now, it’s of no value,” Pate said. “I don’t want to kill it. I want to build it.”

The judge ordered the parties back in two weeks. He said he would consider appointing a special master to oversee efforts to get the program on track.