Stowell in The Frederick, 5 C. Rob. Adm. 8. Indeed, I consider it too well settled now to admit of any reasonable doubt. *****

Thus the bargaining for the sale of the fish, while undeniably by dictionary definition establishes a price, it likewise constitutes agreement upon a wage. It is the policy of the United States. as expressed first in the Norris-La Guardia Act and carried forward to this day in the Taft-Hartley Act and LandrumGriffin Act, to favor collective bargaining about wages.

To the extent that the fishermen are denied the right to bargain collectively about their wages because of the peculiar circumstances under which they have been traditionally paid, they are denied legal rights guaranteed to their fellow American workmen.

Congress had to correct a similar misapplication of the antitrust laws to all American workmen, but in doing so used language which was not broad enough to encompass the fishermen.

In the famous Danbury Hatter's cases, Loewe v. Lawlor, 208 US 274, 28 S. Ct. 301, 52 L ed 488 and Lawlor v. Loewe, 235 US 522, 35 S. Ct. 170, 59 L ed 341, decided in 1908 and 1915, respectively, the Supreme Court held that union boycotts were violations of the Sherman Antitrust Act as being in restraint of trade. Congress enacted the Clayton Act in 1914. This Act provided in part: "The labor of a human being is not a commodity or article of commerce. Nothing contained in the antitrust laws shall be construed to forbid the existence and operation of labor, agricultural, or horticultural organizations, * * * or to forbid or restrain individual members of such organizations from lawfully carrying out the legitimate objects thereof; nor shall such organizations, or the members thereof, be held or construed to be illegal combinations or conspiracies in restraint of trade, under the antitrust laws." 15 USCA Section 17.

The Act went on to provide that no Federal Court injunction should issue in any case "involving or growing out of, a dispute concerning terms or conditions of employment. ***" The Act further provided that no court order should prohibit any person or persons, singly or in concert, from terminating their employment or from ceasing to work or persuading others to do so or from ceasing to patronize or employ any party to such dispute or persuading others to do so, etc., and further provided "*** nor shall any of the acts specified in this paragraph be considered or held to be violations of any law of the United States." 29 USC, Section 52.

In 1921, in American Steel Foundries v. Tri-City Central T. Council, 257 US 184, 42 S. Ct. 72, the U.S. Supreme Court, in a decision by Chief Justice Taft, quoted the Clayton Act in full and held Congress had accomplished nothing by its passage, saying:

"This introduces no new principle into the equity jurisprudence of those (Federal) Courts. It is merely declaratory of what was the best practice always. Congress thought it wise to stabilize this rule of action and render it uniform." In 1932, Congress, then enacted the Norris-La Guardia Act and made it clear it was changing the law as laid down in those decisions Congress inserted a declaration of public policy to guide the Court in the interpretation of the statute. The key words of the policy declared were:

"Whereas under prevailing economic conditions, developed with the aid of governmental authority for owners of property to organize in the corporate and other forms of ownership associations, the individual unorganized worker is commonly helpless to exercise actual liberty of contract and to protect, his freedom of labor, and thereby to obtain acceptable terms and conditions of employment, *** it is necessary that he have full freedom of association, self-organization, and designation of repersentatives of his own choosing, to negotiate the terms and conditions of his employment ***." 29 USCA, Section 102.

This declaration of policy was substantially repeated and is still contained in the Labor-Management Relations Act as first enacted in 1935 and as amended in 1947 and 1959, 29 USCA, Section 151.

Folowing these legislative changes, the United States Supreme Court in United States v. Hutcheson, 312 US 219, 61 S. Ct. 463, 85 L ed 788, Allen Bradley Co., et al v. Local Union No. 3, 325 U.S. 797, 65 S. Ct. 1533, and Hunt v. Crumboch, 325 US S21, 65 S. Ct. 1545, 89 L ed 1954, has arrived at the rule that so long as a union acts in its self-interest and does not combine with non-labor groups, its activities in support of its aims are not a violation of any of the antitrust laws of the United States.

In enforcing the antitrust law as they find it, the Federal Trade Commission and the courts deal with the industry without any regard whatsoever to the other and interrelated problems of the industry and its workers. The fishermen and the packers have common problems with regard to foreign imports and competition; they have common interests in technological advances, development and utilization of the resource, and they have common problems and interests in the conservation regulations. The Federal Trade Commission and the courts in applying the antitrust laws to this particular aspect of the industry-that is to say, applying it to the relationship between the management and its workers do so wholly without regard to these other problems and interests of the industry and its working force.

Neither do the Federal Trade Commission or the courts purport to have any expertise in the handling of affairs involving dealings between an industry and its working force, which are here involved. This is not the ordinary case of price fixing between competitors. Price fixing it was and is, because the United States Supreme Court said so in Hinton, but it also determines wages, and because it destroys unions in the field, it also destroys bargaining over other working conditions. We believe that the regulations and rules of the antitrust laws are unrealistic and injurious to the industry because they do not and cannot take into account the other problems and factors in the industry. It is significant that where the decision came before agencies of the government to be made on an overall basis, the decision was made that the relationship here involved should be governed as a labor problem rather than a price problem. We refer to the fact that the War Labor Board rather than the OPA controlled the fish price question during the War. Furthermore, it is most significant that the Department of Justice, exercising its discretion in 1946, granted immunity from criminal prosecution to the Alaska Salmon Industry, Inc., thus in a measure at least, putting its stamp of approval upon the practice which had existed from 1903 to 1942 of bargaining for fish prices as it had been conducted by the Alaska Fishermen's Union and other unions in the field.

The only impartial and objective study of this subject was done in 1950 by the University of California at Los Angeles. A paper concerning that study was published. The author arrived at the conclusion that the remedy we here propose was a proper remedy for the problem:

"However, this same Fishermen's Marketing Act, behind which the fishermen's unions have been seeking somewhat dubious refuge, may actually prove by proper amendment to be the most logical legislative vehicle for clarifying the entire situation. Such an amendment could establish clearly the legal right of all fishermen to organize into unions of their own choosing and the reciprocal right of both such unions and dealers or associations of dealers to engage in collective barguing over fish prices or other methods of compensation, as well as the whole gamut of various relationships subsumed under the heading of working conditions." 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)

Conclusion: The need for this legislation is imperative. The fishermen have so long been omitted from the benefits of Federal labor legislation that there are few organizations left to present their views and their needs to Congress.

Mr. VANCE. One of the first things that has to be understood in this matter is that the fishermen's "lay" or "share" has been a traditional thing. Going back even before the time of Christ, fishermen's wages have been determined or fixed by the method of lay or share. The old Roman law dealt with fishermen and their share basis of pay. As a matter of fact, merchant seamen worked to a degree on shares until finally this Congress stopped that by saying no seaman's salary should be dependent on the freight earned. So that the negotiation of the price at which the fishermen sold fish determined the wages that the fishermen got. This applied to all different kinds of fishing, whether a two-man boat or gill-net boat up to a five- or six-man purse seine boat, and even applied to whaling vessels and vessels of that kind.

There has always been raised the question in the maritime courts as to whether this constituted the fisherman a wage earner or whether

he was not a joint venturer. But the admiralty court said "No," that it was a wage. I cite in my statement an opinion by Justice Story, who sat on the Federal court in Massachusetts for many years and who is frequently cited by the Supreme Court as an authority. Justice Story reviewed it and said he felt it was too well settled to admit of any argument that the share basis merely fixed the wage.

The union Mr. Johansen represents has been in existence since 1902, and they negotiated the price directly with the packer or canner, as the case may be, and thus determined the wages of the fishermen until they were stopped by proceedings before the Federal Trade Commission, based on the civil suit of the Columbia River Packers Association. There were criminal prosecutions by the Justice Department in southern California, a civil suit in Hawaii, and a criminal prosecution of the Gulf Coast Shrimpers, with the effect that the Gulf Coast Shrimpers, which was an affiliate of the Seafarers Union, has completely gone out of existence. There is no organization at all down there any more to represent the shrimpers. We have tried to get individuals, but it is just defunct.

When we deal factually with this problem we have to consider that we are dealing with a series of different kinds of fishing vessels and methods and traditions and methods of operation on both the vessels' and fishermen's sides.

I point this out in my statement and to me it is very significant, that historically the legal weapon used against all labor was the Antitrust Act. A strike or a boycott was held to be in restraint of trade and the Supreme Court held it was in restraint of trade. The Congress had to pass about three laws to convince the Supreme Court that workmen earning wages were not articles of commerce.

It passed the Clayton Act in 1914 and the Court said a strike or a boycott was still in restraint of trade and could be restrained. It was not until 1932, when the Congress passed the Norris-LaGuardia Act, that it convinced the Supreme Court that workmen earning wages were not articles of commerce and that their activities in that connection were not in restraint of trade.

You will note that the Norris-LaGuardia Act used the very language incorporated in this act :

...

nor shall any of the acts specified in this paragraph be considered or held to be violations of any law of the United States.

That was put in the Norris-LaGuardia Act.

I make a comment in the statement I have filed that the fishermen got left out of the labor legislation. The reason they got left out was that the labor legislation that was passed-the Norris-LaGuardia Act, the Taft-Hartley Act, and the Landrum-Griffin Act-do not deal with workmen, as such, they deal with employees, and I do not think any reasonable lawyer would attempt to say that a fisherman on a vessel owned by the skipper and fishing for a particular cannery was an employee of that cannery. The Board has gone so far as to hold that even if the company owned the boat he is not an employee. But we would have to agree it is not tenable to say legally that a fisherman on an independent boat is an employee of the cannery.

So the labor laws have not redounded to the benefit of the fishermen and when they moved in with these prosecutions they were left without

any right to bargain as they had for many years—the Alaska Fishermen Association for 50 years.

It is our feeling that the antitrust laws here are a round peg in a square hole and were not designed to fit the particular situation, not designed to prohibit workmen whose wages in fact were right there from negotiating for those wages.

I stated in my statement that the only impartial and objective study of this subject that I knew of was done by the University of California at Los Angeles by Roger L. Randall, and I quoted from that study. The author is an economist, and he came up with the precise remedy we are suggesting here. He said this was a mess and had more of the aspects of labor relations, industrial relations, and wages to it than the price arrangement, that one was a heavier factor than another, and that modification of the Fishermen's Marketing Act was, in his opinion, the answer.

I find, doing my homework last night, that this is not the only objective study that has been made of this subject. There was one done in 1955 under the same auspices by a professor at the University of Washington. I thought I had the statement with me, but I would have to refer back to get it. Anyway, in 1955 this professor at the University of Washington came to the same conclusion reached by the University of California.

Now I would like to refer, if I might, a moment to the report of the Federal Trade Commission which was filed yesterday. The Commission says:

It has consistently been the Commission's view that exemptions from the antitrust law designed for a particular industry or group of persons should be viewed most critically and only adopted after a very convincing show of necessity.

I repeat:

.. after a very convincing show of necessity.

I would like to point out to the committee the showing of necessity that was available to the Commission and is available to this committee.

I would like first to point to the report by Mr. MacIntyre of the Federal Trade Commission in reference to the 1954 Federal Trade Commission proceedings in Seattle. He said this:

In the negotiations which resulted in the entry of the consent order to cease and desist in that proceeding, representatives of the fishermen and representatives of industry members contended that their acts and practices which had been challenged in the proceeding were necessary in order to achieve orderly marketing of raw fish and fair prices for the fishermen. Those arguments were impressive but under existing law the Commission's proceeding was justified and the consent for the order to cease and desist was insisted upon to avoid litigation in that instance.

As any attorney would know, the fact we thought it was necessary and could make a showing of necessity would not be a defense in any antitrust proceeding.

Mr. MacIntyre continued to say:

The question under consideration by the Congress is quite different from that presented to the Commission in its docket No. 6141, Alaska Salmon Industry, Inc., et al. The Congress is called upon to consider the need for changes in existing legislation. I would take that need into account in considering proposals for changes in existing legislation.

As to necessity, I would point to a decision of the National Labor Relations Board in this matter. The Board has this to say:

The Petitioner (referring to the Union) has directed our attention to the need which these fishermen have for collective bargaining through their own representatives. We are aware, moreover, of the fact that all of the parties involved here in desire that the Board take jurisdiction in this case.

And then said they could not because of existing law.

As to need, I would further like to call attention to the statement of Mr. Moynihan, Assistant Secretary of the Department of Labor. He said the following about need:

While we realize that many economic problems face the fishing industry, we do believe that a sufficiently real collective bargaining problem does exist in the industry-stemming from the method by which the wages of fishermen are setto justify a serious effort to find a solution.

And he said further on down:

In addition, because of the varied antitrust and labor law problems which have surrounded the bargaining situation in the industry, there is understandable reluctance and restraint by all parties concerned on the issue of collective bargaining. Whatever equities may prevail, in the final analysis, this is not a healthy situation consistent with sound labor-management relations.

He went on to say:

In recent years labor organizations representing fishermen have generally been limited to negotiating terms and conditions of employment with the skippers or boatowners based on the fish-price agreed to by the boatowner and the canner or processor. This limitation really denies the fisherman the right to improve his earning capacity, in contrast to other workers, who may bargain for better wages. It seems unfair therefore to constrict the fisherman's bargaining power merely because of the interrelationship between the fish-price paid for the catch and the "share" or "wage" of the fisherman. The fact remains that fishermen, to the same extent as other workers, have a vital interest in advancing their economic status.

I would stress the importance of treating collective bargaining in the fishing industry from an over-all economic standpoint, balancing the interests at stake for all concerned, including not only members of the industry but also the ultimate consumer and the public interest. In this context, a meaningful right to bargain collectively for better wages should extend to fishermen just as it does to workers in other industries.

Then, with much omission of material, he said:

Some means for providing an opportunity for fishermen to bargain collectively for fish prices which are, in essence, their wages should be encouraged, particularly if your committee finds that the economic circumstances of the industry warrant attention. A meaningful and effective right to bargain would, in all probability, tend to stabilize and encourage more favorable industrial relations in the fishing industry. The fisherman, through his representative, ought to be able to bargain more effectively than he now can.

In conclusion, I would emphasize that we are indeed sympathetic with the situation in which the fishermen have been placed, particularly as they have lost effective bargaining power to urge more favorable economic gains.

This, in my opinion, members of the committee, sufficiently establishes the need that the Federal Trade Commission somehow seems unable to find or see, because I think the Federal Trade Commission deals with a specialized statute, a specialized sort of circumstances, and does not, as indicated, concern itself with the need of fishermen for collective bargaining.

The same thing was done, I might add, in one of the criminal cases that went to trial in California. In the local 36 case the union put on