However, it was decided that a more complete record was necessary before any further action could be taken.

In connection with that, it should be said that for the first time the bill now appears before the Commerce Committee of the Senate. Heretofore it was before another committee.

After having introduced the bill, Chairman Magnuson requested that I hold hearings on the west coast as soon as possible after adjournment of Congress.

Following this meeting today here in Seattle, we are going to have a like hearing in Ketchikan tomorrow, the following day at Petersburg, on Thursday at Anchorage, and the next day at Dillingham. It is planned, if at all possible, to hold a further and perhaps concluding hearing in San Pedro, Calif., later in the

year.

It is hoped that this series of hearings, the testimony to be offered, will bring together in a comprehensive record the facts pertinent to the problem.

I should like to place in the record at this point, in addition to the public law heretofore referred to, the text of S. 3093 together with a historical record of the legislation which I presented during the hearings held last year which I have already mentioned.

It might be useful to include in that statement a paper written by Mr. Roger L. Randall, reprinted from the Industrial and Labor Relations Review, volume 3, No. 4, July 1950, entitled, "Labor Agreements in the West Coast Fishing Industry. Restraint of Trade or Basis of Industrial Stability."

Those two matters will also be included in the record. (The material referred to follows:)

Text of Public Law 464, 73d Congress (48 Stat. 1213; 15 U.S.C. sec. 521), authorizing associations of producers of aquatic products, showing amendment thereto proposed by the Magnuson-Bartlett bill, S. 3093, 87th Congress. [Proposed new language is italicized.]

[PUBLIC-No. 464-73D CONGRESS]

[H.R. 9233]

AN ACT Authorizing associations of producers of aquatic products Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That persons engaged in the fishery industry, as fishermen, catching, collecting, or cultivating aquatic products, or as planters of aquatic products on public or private beds, may act together in associations, corporate or otherwise, with or without capital stock, in collectively catching, producing, preparing for market, processing, handling, and marketing in interstate and foreign commerce, such products of said persons so engaged.

The term "aquatic products" includes all commercial products of aquatic life in both fresh and salt water, as carried on in the several States, the District of Columbia, the several Territories of the United States, the insular possessions, or other places under the jurisdiction of the United States.

Such associations may have marketing agencies in common, and such associations and their members may make the necessary contracts and agreements to effect such purposes: Provided, however, That such associations are operated for the mutual benefit of the members thereof, and conform to one or both of the following requirements:

First. That no member of the association is allowed more than one vote because of the amount of stock or membership capital he may own therein;

or

Second. That the association does not pay dividends on stock or membership capital in excess of 8 per centum per annum.

and in any case to the following:

Third. That the association shall not deal in the products of nonmembers to an amount greater in value than such as are handled by it for members.

The

SEC. 2. That if the Secretary of Commerce shall have reason to believe that any such association monopolizes or restrains trade in interstate or foreign commerce to such an extent that the price of any aquatic product is unduly enhanced by reason thereof, he shall serve upon such association a complaint stating his charge in that respect, to which complaint shall be attached, or contained therein, a notice of hearing, specifying a day and place not less than thirty days after the service thereof, requiring the association to show cause why an order should not be made directing it to cease and desist from monopolization or restraint of trade. An association so complained of may at the time and place so fixed show cause why such order should not be entered. evidence given on such a hearing shall be taken under such rules and regulations as the Secretary of Commerce may prescribe, reduced to writing, and made a part of the record therein. If upon such hearing the Secretary of Commerce shall be of the opinion that such association monopolizes or restrains trade in interstate or foreign commerce to such an extent that the price of any aquatic product is unduly enhanced thereby, he shall issue and cause to be served upon the association an order reciting the facts found by him, directing such association to cease and desist from monopolization or restraint of trade. On the request of such association or if such association fails or neglects for thirty days to obey such order, the Secretary of Commerce shall file in the district court in the judicial district in which such association has its principal place of business a certified copy of the order and of all the records in the proceedings together with a petition asking that the order be enforced and shall give notice to the Attorney General and to said association of such filing. Such district court shall thereupon have jurisdiction to enter a decree affirming, modifying, or setting aside said order, or enter such other decree as the court may deem equitable, and may make rules as to pleadings and proceedings to be had in considering such order. The place of trial may, for cause or by consent of parties, be changed as in other causes.

The facts found by the Secretary of Commerce and recited or set forth in said order shall be prima facie evidence of such facts, but either party may adduce additional evidence. The Department of Justice shall have charge of the enforcement of such order. After the order is so filed in such district court and while pending for review therein, the court may issue a temporary writ of injunction forbidding such association from violating such order or any part thereof. The court shall, upon conclusion of its hearing, enforce its decree by a permanent injunction or other appropriate remedy. Service of such complaint and of all notices may be made upon such association by service upon any officer, or agent thereof, engaged in carrying on its business, or on any attorney authorized to appear in such proceeding for such association and such service shall be binding upon such association, the officers and members thereof. Approved, June 25, 1934.

[S. 3093, 87th Cong., 2d sess.]

A BILL To make clear that fishermen's organizations, regardless of their technical legal status, have a voice in the ex-vessel sale of fish or other aquatic products on which the livelihood of their members depends

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That section 1 of the Public Law Numbered 464, Seventy-third Congress, entitled "An Act authorizing associations of producers of aquatic products" (48 Stat. 1213; 15 U.S.C., sec. 521) is amended by adding at the end of section 1 the following new paragraph:

"Associations authorized by this section (notwithstanding any State or local law) shall include, but not be limited to, organizations of active fishermen whose income is dependent on the ex-vessel price of fish or other aquatic products, although the membership of such an organization is composed of both fishermen who own or have an interest in fishing boats or gear and employee fishermen. Such an organization may bargain with buyers of the fish or other aquatic products produced by its members, regarding the terms and conditions of ex-vessel sales of such fish or aquatic products, or take such other action with reference to such ex-vessel sales or factors affecting such ex-vessel sales as an individual may lawfully take, whether or not such fish or other aquatic products are sold through the organization and whether the organization acts as a selling agent or only as a bargaining agent: Provided, That nothing in this Act or in any State or local law shall limit the rights of employee fishermen given by the Labor-Management Relations Act, 1947, the Clayton Act, the Norris-LaGuardia Act, and other Acts, including the rights of employee fishermen whose compensation is determined by the proceeds of the catch, to bargain collectively or take other collective action regarding the ex-vessel price per pound or per piece of fish or other aquatic products to be used as a basis for computing their compensation."

[From 1961 Alaska hearings]

NORTH PACIFIC FISHERIES PROBLEMS

I want to read a history of legislation to permit collective bargaining by fishermen. I had my office go back to 1946. We found out that between 1946 and 1950 the Congressional Record index contains no references to bills of this nature.

However, in the 82d Congress, 1st session, 1951, S. 2176 was introduced by Senator Magnuson. It would have amended the Fishermen's Cooperative Marketing Act, June 25, 1934, chapter 742, 48 Stat. 1213, 15 U.S.C. 521-522, to make clear that fishermen's organizations, regardless of their technical legal status, have a voice in the ex-vessel sale of fish or other aquatic products on which the livelihood of their members depends. Reports were requested from General Accounting Office, Interior, and Justice. GAO had no comment to make, while Interior and Justice did not report. No hearings were held and no action was taken on S. 2176.

In the same session of the same Congress, H.R. 5667 was introduced by Representative Pelly, and it was identical with S. 2176. Reports were requested from Labor, Interior, and Justice. The Department of Labor's report was generally favorable, while no reports were received from Interior and Justice. No hearings were held and no action was taken on H.R. 5667.

From 1951 to 1957 the Congressional Record index contains no references to bills concerning collective bargaining rights for fishermen.

However, I should put this in as an addendum.

In 1952, 82d Congress, a letter from the Department of Labor dated January 5, 1952, to Representative Edward J. Hart, chairman of the House Committee on Merchant Marine and Fisheries, concerning H.R. 5667, generally favored the bill but stated that the Department of Labor did not desire to comment specifically on the provisions of H.R. 5667.

In 1958, 85th Congress, 2d session, S. 3530 was introduced by Senators Payne and Smith of Maine. It also would have limited the Fishermen's Cooperative Marketing Act and would have exempted fishermen from the provisions of antitrust acts in order to allow fishermen to engage in collective bargaining. This bill was referred to the Senate Interstate and Foreign Commerce Committee. Reports were requested from Interior, Justice, Federal Trade Commission, and the Comptroller General. Interior did not recommend enactment. Justice and

Federal Trade Commission were opposed to the bill and the Comptroller General made no recommendation. Hearings were held on June 15 and 16, 1958, and were printed. The bill was not reported and no action was taken.

Like bills were introduced in the House. No action was taken.

H.R. 12329, introduced by Representative Coffin and referred to the House Judiciary Committee, would have amended section 6 of the Clayton Act to include within its terms organizations of persons engaged in the fishery industry. Reports were requested from Federal Trade Commission and Interior. No report was received from Interior. The Federal Trade Commission opposed H.R. 12329 in a letter to Representative Celler on August 15, 1958. No hearings were held and no action was taken on H.R. 12329.

In 1959, 86th Congress, 1st session, S. 23, introduced by Senator Smith of Maine, referred to the Committee on Interstate and Foreign Commerce, was identical to the bill she had introduced in the previous Congress. Hearings were held on April 3, 1959, and printed with the hearings on S. 502, "Salmon High Seas Conservation." No action was taken on S. 23.

H.R. 3348 was introduced by Representative Pelly and referred to the House Committee on Merchant Marine and Fisheries. It also would have amended the Fishermen's Cooperative Marketing Act to permit collective bargaining by fishermen. No action.

H.R. 2777, introduced by Representative McCormack and referred to the House Committee on Merchant Marine and Fisheries, was identical. It was considered in executive session but no action was taken.

In 1961, 87th Congress, S. 1265, was introduced by me and referred to the Committee on Labor and Public Welfare, would have extended the coverage of the National Labor Relations Act so as to include members of the crews of certain fishing vessels. Reports were requested from the National Labor Relations Board, the Bureau of the Budget, and the Labor Department. To the best of my knowledge no reports have yet been received.

The bill introduced by Representative Rivers, and the bill introduced by Representative Pelly, were, I believe, identical.

[Reprinted from the Industrial and Labor Relations Review, vol. 3, No. 4, July 1950] LABOR AGREEMENTS IN THE WEST COAST FISHING INDUSTRY: RESTRAINT OF TRADE OR BASIS OF INDUSTRIAL STABILITY?

(By Roger L. Randall 1)

In the west coast commercial fishing industry a problem of serious import has arisen, in recent years, pertaining to the legal status of fishermen and their right to bargain collectively. Although the questions that are here raised are applicable to other fishing areas as well, the problem has been intensified and more sharply defined on the west coast by the much greater development of trade unionism in the industry. The unions involved allege that approximately 90 percent of the west coast boat fishermen are covered by some form of labor agreement-price agreements or working agreements; yet a basic determination of the propriety and legality of such agreements under the particular circumstances of the industry has still to be achieved.

The central question to be settled is whether the relationship between fishermen and the cannery operators or wholesale fish dealers for whom they may be fishing is essentially that of employees to employers or that of independent vendors to buyers. In this article the problem will be treated in three interrelated phases: (1) A discussion of the available facts of the actual relationships between the parties; (2) an examination of the rather confused and largely indetermine status of these relationships in the current application of pertinent laws; and (3) a consideration from an industrial relations point of view as to how the relationships should be regarded.

Up to the present the facts have probably been inadequately investigated to serve as a guide. Moreover, there is no sound basis for believing that the mere accumulation of facts would provide the answer as to whether fishermen should be regarded as industrial workers engaged on the basis of a particular piecerate or incentive system of wage compensation, or as a self-employed class, and

1 Research assistant, Institute of Industrial Relations, University of California, Berkeley.

thus denied the various protections inaugurated in recent years by a Government generally responsive to the needs of industrial workers.

The working force of the great Pacific fishing industry has remained, and bids fair to continue to remain, in an anomalous status; and the resulting obscurity has hampered the achievement of stable industrial relations between fishermen and dealers. If such achievement be regarded as an appropriate goal of Government endeavor, then further consideration must be given to the status of fishermen in relation to certain laws and to the appropriate legislative course to attain such goal.

Admittedly such a course will not be easily determined, for the fishermen represent a peculiar, although not unique, fringe group in terms of economic status. Generalization about the problem holds some dangers even on the west coast because of the substantially divergent practices and relationships between fishermen and dealers in such major fishing areas in Alaska, Puget Sound, the Columbia River, the San Francisco area, Monterey, and the southern ports around San Pedro and San Diego. In connection with these varied relationships it is true that judicial precedents may offer guides to a determination of the question in specific cases; however, a status which must have constant resort to legal opinion and even to litigation for such clarity as it may come to possess is scarcely the one to provide an environment well suited to the development of a stable and cooperative relationship in the interests of industrial peace and continued development of a basic food resource.

In the absence of any general clarification, management in the industry has found itself on the horns of a dilemma; failure to deal with fishermen as employees (such as in the matter of collective bargaining for fish prices) may easily lead to strikes and substantial losses, whereas failure to adhere strictly to a buyer-independent vendor basis may expose the canner or dealer to indictment under the Sherman antitrust law. These situations are not hypothetical; both have happened in recent years.

A similar dilemma has confronted the unions of fishermen: to fail aggressively to push forward the area of effective union contract coverage may very well tend to undermine the gains secured for those fishermen concerning whose status as employees no question can exist; whereas a zealous endeavor to achieve an inclusive coverage of fishermen may lead to indictment for "criminal conspiracy in restraint of trade." Again, both have happened.

INDEPENDENT BUSINESSMEN ?

It has been held in a crucial U.S. Supreme Court decision affecting small-boat owners that such fishermen are essentially independent businessmen and have manifested a persistent intent to preserve their status as such. The fishermen's unions have argued that this conclusion is mistakenly derived not only from the fact of boatownership (or leasing) by the fishermen, but even more from a misinterpretation of the fisherman's longstanding insistence on the fish-price method of compensation. This method of payment is as old as the industry on the west coast and is as characteristic of the company-owned fishboats with directly employed crews as it is of the fishermen-owned boats. It has been asserted that to question the underlying employer-employee relationship on this basis alone would appear to question the status of employees in any industry working under incentive or profit-sharing wage systems.

Further, the situation of a substantial investment on the part of workers in tools of the trade is not peculiarly confined to the fishing industry. In the Northwest logging industry, for instance, many log truck owner-operators haul on a contract (piece-rate) basis for the logging companies, without their truck ownership being held to invalidate their basic status of employees insofar as collective-bargaining rights are concerned. The same principle underlies contract provisions in the Seattle Teamsters' Union (Local 353) agreement covering grocery store delivery drivers; in 1948 the agreement provided a wage scale of $56.50 per week for regular drivers and a wage scale of $60 per week plus $25 per week operating expenses to owner-drivers providing their own delivery trucks.

Before the problem can be further explored, however, it is ssential to undertake a review of the various main types of relationship that may exist between fishermen and the cannery operators or fish dealers. In this, three main classifi

2 Columbia R. Packers Assn. v. Hinton, 315 U.S. 143 (1942).