cations of fishermen are recognized: Company fishermen, for whom an unequivocal employment relationship with the dealers exist; independent fishermenboatowners, for whom both the status of entrepreneurs and the status of quasiemployees of the dealers have been claimed; and shares fishermen employed on independent boats for whom a primary employment relationship with the boatowner exists, but for whom has also been claimed a significant secondary employment relationship with the dealers. Each of these classifications will be considered in turn.

COMPANY FISHERMEN

First we consider the case of fishermen employed directly by canners or dealers to man company-owned boats. With rare exceptions, such a fishing crew is compensated by a piece rate, or fish price, for fish caught and delivered to the employing canner or dealer. Distribution among the crew members of the value of the catch, based on this fish price, proceeds on the basis of predetermined shares.

By longstanding custom in most of the industry, the terms of employment (principally here the fish prices) are normally documented in a formal agreement or contract, usually for the duration of a particular fishing season, between the fishermen and the employer owning the equipment. Although the aforesaid terms may be unilaterally established by the employer, almost universally now they are determined by collective bargaining through the fishermen's unions.

This situation represents a clear-cut case that fish-price negotiations are in fact wage negotiations of a piece-rate character. Such a wage system provides an incentive for production by offering an opportunity to employees to share in the profits of a good catch. At the same time it provides an opportunity for passing on to employees some share of the risks of a poor catch inherent in the inevitable gamble of a fishing venture. All parties appear well satisfied with such an arrangement, and in this basic type of relationship there is no question that the fishermen are in fact employees of the cannery operators or fish dealers. As such, the rights of union organization under Federal law are clear, and the propriety of collective bargaining over the fish price wage can hardly be questioned.

To the canners and dealers this case of company boats and company fishermen affords complete control over essential equipment, a maximum disciplinary and directive authority over personnel, and in general a more stable and dependable arrangement for management. However, it involves the assumption of a much greater liability for both equipment and the labor force and requires additional fixed capital investment that is productive in most cases for only a relatively short annual season.

In general, the highest incidence of company boats is to be found in the Alaska salmon industry, and in fishing areas of extreme geographic isolation, such as Bristol Bay, almost all fishing boats and gear are company equipment. This direct employer-employee relationship between canners or dealers and fishermen is found to a limited extent in the case of the large tuna clippers and sardine purse seine fleets of the California waters and the larger herring and salmon purse seine fleets of the northern waters where the boats represent a large initial capital investment. (Much more common, however, in this class of equipment is the arrangement whereby the canners and dealers lease such clippers and purse seine boats to individual fishing captains, who thereby assume full legal and financial responsibility for the operation of the vessels. This situation is considered later.) In addition, some of the large canners and dealers as a matter of policy maintained at least some of their own fishing boats manned by direct company employees.

Altogether, although no official statistics are available, it has been estimated that of the approximately 42,000 commercial fishermen engaged in the industry on the west coast, about 10 percent, but in any event not more than 5,000, would fall into this category of "company" fishermen. The long-run trend in the development of the fishing industry has been to move away from the direct-employee relationship. However, the vital and significant fact is that even under this relationship the total wage compensation for the crew has traditionally been by a fish-price or piece-rate system for the catch of each boat, with the individual earnings of each crew member determined on the basis of his share in the boat's catch.

Based on approximations and estimates submitted by the headquarters of the International Fishermen and Allied Workers of America.

FISHERMEN-BOATOWNERS OR INDEPENDENT FISHERMEN

The second main type of relationship embraces those fishermen who own or lease their own boats and normally employ additional crew members. Since under the law the fish caught by such a boat have been held to be property of the boatowner or lessee, the subsequent sale of the fish to a canner or dealer bears all the surface appearances of a transaction between independent businessmen. However, other considerations strongly suggest the possibility of a quasi-employee status underlying the apparent independent-contractor status. The ownership or possession of his own boat is the normal and commendable aspiration of the commercial fisherman, motivated in part by the necessity to possess the tools of his trade to guarantee his participation in the seasonal fishing opportunities. However, the substantial capital investment in boats and fishing gear obviously precludes the possibility of the average fisherman achieving such possession initially out of his own personal resources. Normal sources of capital loans have frequently hesitated at the high investment risk involved in fishing ventures, and consequently boat and gear purchases have been financed to a large extent by the fish cannery and fish dealer companies. Thus, the presumed ownership of the boats and gear by the fishermen in many cases constituted actually no more than a varying equity, with a very real residual control remaining in the hands of the canners and dealers. (This previously common situation has apparently been considerably lessened in very recent years when, under unusually favorable circumstances during and immediately after World War II, many fishermen succeeded in fully paying off mortgages on boats and gear. The duration of this relatively debt-free status for fishermen is questionable under more normal conditions, for it was in large part only a reflection of the typical advantage and gain of a debtor class during an inflationary period.)

Of equal importance with this type of debtor status has been the arrangement, previously noted, wherein canners or dealers provided the capital investment outright and retained title to the boats, which were then leased to independent fishermen under a wide variety of terms. Some such lease agreements also provided means and terms whereby the fishermen could eventually secure ownership and title to the vessels.

In addition to the above situations, credit is frequently extended to the independent fishermen by the canners and dealers against anticipated season's earnings for repair and maintenance of boats and gear and for fuel and other supplies during the season. By virtue of these various mortgages, liens, leases, and credit arrangements, there has actually existed a very close relationship between the fishermen-boatowners and the particular creditor canner or dealer. This bond has greatly reduced the apparent area of complete independence of the fishermen and raises serious doubts as to the adequacy of the concept of free entrepreneurs fishing for an open sales market.

Furthermore, purely from the standpoint of economic theory, there is a question as to whether any genuine open market exists in the industry, for such would require a substantial balance of free competition on both the buyer and seller sides of the market. Such, however, is not the case; for in the absence of collective action among the fishermen a marked degree of buyer domination would prevail. There are relatively few canners or dealers in any particular fishing area proportionate to the number of fishing boats. Moreover, to the fishermen the catch is a highly perishable product, commonly sold under conditions of market glut because of the marked seasonal peaks of fish runs. On the other hand, the canners produce a product capable of indefinite storage, and the fish dealers with modern technology have a wide choice of various processes (deep freeze, etc.) as alternatives to distribution in the fresh-fish market, depending on anticipated market conditions. The bargaining disadvantage of the unorganized individual fisherman in this situation is apparent.

Actual fish prices, of course, are subject to a considerable degree of institutional control, including fairly successful trade union efforts to establish collective determination of such prices. This last factor is the immediate focal point of controversy in the industry, with heated conflict marking its course of development in some areas.

Along this line, it is significant to note the basic dichotomy that plagues and confuses the independent fisherman-boatowner himself. On the one hand, he sees himself as a person with a certain economic stake in society, a little above the common herd, a free agent able to determine and control his own

activity and economic function, a self-made man; and in this view he has at times resisted efforts to subject him to a greater industrial discipline or treat him as a mere hired hand. On the other hand, he sees himself as the victim of exploitation, taking all the risks and robbed of the fruits of his hazardous economic efforts, to swell the fabulous profits (as he sees them) of the big canning companies and fish dealers; and in this view he has often banded together with other fishermen in a most militant type of unionism, demanding a greater and greater sphere of collective action.

However, it is imperative to distinguish between two levels of boatownership, for much of the subsequent discussion applies more forcibly to one than to the other. The first and numerically greater group is comprised of the fishermen who own small boats (gill net boats, troller, trawl, and drag boats, and small purse seiners), whose normal range of value would extend from $1,000 to $20,000, with a probable average of around $12,000. Such boats predominate in the salmon fisheries of Oregon, Washington, and Alaska, and in the fresh-market fishers of the entire west coast. It has been estimated that the number of such independent small-boat owners operating in Pacific waters may approximate 9,500, or more than 20 percent of all fishermen; but it is recognized that this figure may fluctuate considerably from year to year, depending on the degree of fortune and success that attends each fishing season. The turnover in smallboat ownership is farily high in some periods.

The second group consists of fishermen who own or lease large tuna clippers, California sardine and mackerel purse seiners, and the larger purse seiners of the northern salmon and herring fisheries. The investment in this class of equipment may run from $80,000 up into the hundreds of thousands of dollars: and it is apparent that the economic interests and methods of business operation of such capitalist fishermen differ significantly from those of the class of smallboat fishermen identified just above. Similar estimates with much the same qualifications place the total of such large boatowners at somewhat more than 1,000 or less than 3 percent of all fishermen engaged in the Pacific industry.5

It is impractical to segregate the two groups in the following discussion, and the reader can bear this qualification in mind when they are jointly referred to as independent fishermen. When necessary they will be separately identified as small-boat owners and large-boat owners, respectively.

It is to be noted that, from the individual canner's or dealer's view, the essential consideration in any particular relationship that may develop with the fishermen is home assurance of a dependable supply of fish for his own operation, with whatever control of quality, and time and method of delivery may be required. The most direct answer, of course, is the acquisition of his own fishing fleet with employment of hired crews; but this is usually not necessary.

Most of the fixed and operating capital arrangements for the independent fishermen discussed above have carried with them some formal or informal obligation to supply fish to the particular creditor, thus achieving the desired end at a greatly reduced direct liability on the part of the canner or dealer. Even where no trace of creditor-debtor relationship existed, it usually behooved the independent fisherman to cultivate and maintain a standing with a particular dealer; for otherwise, having lost his reputation as a dependable man by too frequent shopping around, the fisherman might easily have found himself with no market at all for his fish.

This subtle tie between independent fishermen and a particular canner or dealer was often probably of as much force as even the creditor-debtor tie. Supplementing and reinforcing both these ties, when deemed expedient, however, were specific exclusive fishing contracts between a particular dealer or canner and those independent fishermen whom he would sign up to fish for him that season. Such individual contracts imposed the obligation on the independent fishermen to deliver their catch at an agreed-upon price exclusively to the contracting dealer and frequently stipulated additional conditions, such as the quality of the fish to be accepted, time and method of delivery, and a limit to the amount of fish to be caught or accepted under certain situations. On the other side, the canner or dealer obligated himself to accept all of the catch (within the established limits, if any) at the agreed-upon price, and also he frequently agreed to furnish some or all gear, equipment, and supplies during the season. The possible variations in such contracts are innumerable; but the mutual obligations imposed suggest a degree of managerial direction and responsibility on the part of the canner or dealer.

4 Ibid.

5 Ibid.

The advantages to such exclusive contracts are by no means one-sided; but it is also apparent that in the absence of unionism or other collective pressure from the independent fishermen, the option between specific contract or implied obligation lay with the canner or dealer.

It is important to note that actually in many instances the pressure for specific, individual dealer-fisherman contracts came from the earlier groups of organized fishermen who secured thereby clear and distinct terms of the alleged quasi-employee relationship, reciprocal rights and obligations, and an opportunity for direct collective negotiations on the fish-price, or piece-rate wage, compensation.

With reference to the pattern of unionization that has emerged on the west coast, it must be noted that the small-boat owners have generally been included in the same unions with their own additional crew members (or shares fishermen) and the company fishermen, based on the men's own recognition of a substantial community of interest and practical identity of status as workingmen. However, the unionization of the tuna clipper and purse seine fleets is limited on the same line of reasoning to the nonowning crewmembers fishing on shares, although the boatowners in this situation are frequently organized in their own boatowners' associations.

The status of shares fishermen and their relationship with both the boatowners and the canners and dealers must next be examined.

SHARES FISHERMEN

By far the most numerous group of fishermen on the coast are those hired by the independent boatowners to fill out the boats' necessary fishing crews (varying anywhere from one boat-puller for gill netting to as many as 20 men on a tuna clipper, in addition to the usual owner-captain). Such shares fishermen are estimated to constitute probably as much as two-thirds of the total fishing force, or somewhere between 25,000 and 30,000. Furthermore, this most significant group, whose worker status is most clearly established, is also the group whose status as to collective bargaining rights is most peculiarly equivocal. As in the case of the company fishermen on canner- or dealer-operated boats, the practically universal practice is to engage such crewmembers on the basis of predetermined shares in the value of the delivered catch. (An example might be a one-third share for the fishermen boatowner as wages, a one-third share for the hired fisherman as wages, and a one-third share for the boat to offset operating costs, maintenance, and depreciation.) This determination of these shares may stem from custom or individual agreement, but more frequently now from collective bargaining between the fishermen's unions and boatowners' associations organized for this and related purposes.

Such a system of shares compensation is the only feasible arrangement in the industry, considering the substantial element of gamble in fishing ventures. For a boatowner, large or small, to saddle himself with fixed labor costs, as under a daily or monthly wage system, would be to court disaster continuously, for a single poor season or even a few poor fishing trips under such a fixed obligation would frequently force bankruptcy. Even as it is, the business mortality rate among the small-boat owners is high, and a few poor seasons in succession push many independent fishermen back into the ranks of the shares fishermen; and the converse is true with a few good years' catch. This latter represents, of course, the incentive factor to the hired fishermen under the shares system and reinforce the feeling of community of interest between the small-boat owners and the shares fishermen.

Based on the primary employment relationship between boatowners and fishermen, there is no question of the legitimacy of collective bargaining by the fishermen's unions as to the crewmembers' shares of the value of the catch. However, such bargaining over shares is practically meaningless until converted into a real wage or earnings value by the fish price to be received for the catch. At best, the individual fisherman's compensation is subject to extreme uncertainty because of the total absence of any basis for prediction or any means to control the size of the catch; for experience and skill are seriously modified and limited by "fishermen's luck." If to this unavoidable uncertainty there is added the complete absence of preknowledge or preagreement as to the unit value of the catch, the fish price, then, indeed, are the shares fishermen entirely at the mercy of chance.

• Ibid.

If, as economists assume, the promise of economic reward is the necessary inducement to economic effort, then some reasonable degree of assurance as to such reward would appear essential to attract and retain within the fishing industry a labor force of normal competence and stability. The necessity for such assurance, as well as the force of abstract concepts of equity, have driven the shares fishermen, through their unions, to a continuing insistence on some form of collective bargaining as to fish prices directly with the canners and dealers.

To the extent that this position has been consciously rationalized, it has taken the form of a contention that a secondary employment relationship exists between the shares fishermen and the canners or dealers that in terms of breadand-butter significance to the men far outweighs the primary employment relationship with the independent boatowners. This contention, of course, persists whether the shares fishermen are working with small-boat owners (for whom a quasi-employment relationship with the dealers is also claimed) or as crewmembers of large-boat owners (who are recognized as businessmen, but whose independence from the dealers has been questioned).

It is certain that, whatever may be the technical designation of the fishermandealer relationship under particular laws, the small-boat owner fishermen, jointly with the shares fishermen, constitute the labor force of the industry, and their basic economic contribution to the production of the industry is that of arduous manual labor involving a high degree of skill or experience and considerable hazard. The fish-price compensation by the dealer is the particular form in which this labor contribution has been historically rewarded.

Consequently, once the division of the value of the catch among the participating crewmembers according to the preagreed shares has been made, and the deduction of operating costs, maintenance, and depreciation from the boat's share has been made, the residual net return on investment, if any, that would accrue to the small fisherman-boatowner would represent, with rare exceptions, a negligible proportion of his total earnings compared with his share as a return for his labor as a crewmember. Thus the small fisherman-boatowner's major economic interest is in his wage of labor rather than profit on investment and his participation with the shares fishermen in collective fish-price negotiations though their common union may be reasonably construed as a legitimate effort to secure a fair or acceptable wage rather than a conspiracy to secure monopoly profits by a combination to raise prices in restraint of trade. This contention, of course, takes issue on an economic, not a legal, basis with the earlier mentioned Supreme Court decision affecting small-boat owners.

With respect to the above, it is also obviously not intended to apply to the large-boat owners (the clippers and purse seine fleets of the tuna, sardine, herring and, to a lesser extent, salmon fisheries), even though such owners work on their own boats, usually as the skippers. Independent or not, the large-boat owners are certainly businessmen with a very substantial investment upon which they expect to earn a return far in excess of any imputed wages of labor.

However, this capitalist status of these boatowners in no way alters the fact that the shares fishermen have as great a wages interest in the fish price as have the owners a profit interest. Accordingly the unions have demanded, and where strong enough have secured, the canners' and dealers' acquiescence in direct collective negotiations (with or without joint participation by the independent boatowners) as to the fish price as a piece-rate wage bargain. If the large-boat owners were incidentally benefited by the union's bargaining strength or skill, that was a matter of relative indifference to the common fisherman.

HISTORY OF INDUSTRIAL RELATIONS

At least such reasoning has underlain the long course of development of industrial relations in the industry on the Pacific coast, which has achieved a relatively high degree of stability in most of the major fishing areas. Unionization and collective bargaining over fish-price-wages date back to 1886 in the Columbia River salmon industry, with the organization at that time of the Columbia River Fishermen's Union, which today enjoys a highly stable relationship, covering both company boats and independent boats, with the members firms of the Columbia River Salmon & Tuna Packers Association in that area. Collective bargaining over fish-price-wages in the Alaskan industry date back to 1902, when a strike in the Bristol Bay launched the Fishermen's Protective Union of the Pacific Coast and Alaska. This union, now known as the Alaska Fishermen's Union, covers both company and independent boats in its agreements with