antitrust laws, and could not be held to be in violation of those laws. The fishermen's association could thus effectively monopolize the market by forcing buyers to deal only on its terms and with its members. The independent fisherman, who did not choose to join the association, would be foreclosed from the market for his fish. It is of particular interest that within the last month the Supreme Court held in United Mine Workers of America v. Pennington 33 U.S.L. Week 4520 (U.S. June 7, 1965), that the antitrust exemption afforded unions by the Clayton Act and the Norris-La Guardia Act does not extend to agreements between unions and one set of employers to impose a certain wage scale on other bargaining units. H.R. 3955 would thus not only constitute a significant extension of the antitrust immunity afforded by the Fishermen's Cooperative Marketing Act, but it would also provide an exemption for crew members and their employers that is available to no other unions in this country. We see no basis in equity or logic for this unprecedented extension of antitrust immunity to one favored group in our economy. Indeed, the immunity granted by H.R. 3955 to contracts between fishermen's organizations and buyers is so broad, it is impossible to determine its full effect. For example, such an agreement could provide for discriminatory prices, but with the adoption of this Bill, the Federal Trade Commission or injured parties would be totally powerless to take action against the Association or the buyers for violation of the Robinson-Patman Act. How much further this immunity would be interpreted to extend, we cannot predict at this time. CONCLUSION For the reasons we have outlined above, we believe H.R. 3955 would be contrary to the interests of independent fishermen, processors, other buyers of raw fish, as well as the consuming public. The proponents of this Bill have not shown that conditions exist that would justify this extraordinary departure from traditional principles of competition in a free enterprise economy. We respectfully request that the Subcommittee not recommend the enactment of this Bill. Respectfully submitted. MILAN D. SMITH, Executive Vice President. [Telegram NEW BEDFORD, MASS., June 16, 1965. Congressman HASTINGS KEITH, Care of James Sledd, Longworth Office Building, Washington, D.C.: The New Bedford Fishermens Union wishes to record itself in favor of H.R. 3955 fishermens bargaining bill and request that you make this known to the committee. AUSTIN T. SKINNER. INTERNATIONAL LONGSHOREMEN'S & WAREHOUSEMEN'S UNION, Washington, D.C., June 16, 1965. Hon. T. ASHTON THOMPSON, Chairman, Subcommittee on Fisheries, House Committee on Merchant Marine and Fisheries, House Office Building, Washington, D.C. DEAR MR. CHAIRMAN: As the Washington Representative of the Fisheries Division of the International Longshoremen's & Warehousemen's Union, I am writing to you with reference to H.R. 3955 and similar bills dealing with the question of giving fishermen's organizations a voice in the ex-vessel sale of fish and other aquatic products on which the livelihood of their members depends. The Fisheries Division of the ILWU comprises some 5,000 fishermen and related workers engaged in the tuna, sardine, mackerel and salmon fisheries of the West Coast. The organization I represent strongly supports the passage of H.R. 3955 and ordinarily I would be most anxious to testify in support of this legislation; but, unfortunately, my health at the present time is such that it will not permit me to do so. I am therefore asking that this letter be included in the hearing record as a statement of the ILWU Fisheries Division in support of H.R. 3955. There is a long and complex history behind the need for this legislation but, for the purposes of brevity, I will only say that there is an urgent and pressing need in the fishing industry for an orderly economic relationship between organizations of fishermen and the dealers and processors who handle the fish. It is imperative that the fishermen, acting collectively thru their organizations, have an opportunity to bargain for the price of fish upon which their livelihood depends. Unless and until the fishermen are accorded that right, there is bound to be constant friction between fishermen and the dealers and processors. And from time to time, this friction leads to lengthy stoppages or strikes which cause heavy losses of fish and serious economic damage to the industry, as well as great harm to management and conservation programs. We do not see HR 3955 as a cure-all. We see it as a permissive first step in ending the legal no-man's land in which the fishermen have operated for many years. We also believe it will provide a foundation for more stable economic relationships between fishermen and the buyers, and such stability is an urgent requirement if the industry is to solve the many difficult problems which have long beset it. While we strongly support HR 3955 and urge its adoption, we, at the same time, recognize that certain technical questions have been raised by various government agencies. We are frank to say that we do not feel that the objections voiced by the Department of Justice and the Federal Trade Commission have substantial merit in relation to the realities of the fishing industry. But it is our earnest hope that these objections will not stand in the way of legislation by this Congress which will enable fishermen to bargain collectively on the prices of fish. To that end, we hope that the Sub-Committee will, if it cannot see its way clear to the immediate adoption of HR 3955, agree to study this legislation further and keep the door open for a bill that can be enacted into law. In conclusion, I again want to stress that the members of the Fisheries Division of the ILWU have, for the past two years, strongly urged and worked for the passage of HR 3955 or similar bills. I trust that their hopes will be realized by this Sub-Committee. Sincerely, Hon. A. T. THOMPSON, JEFF KIBRE, Washington Representative. CANNERY WORKERS & FISHERMEN'S UNION, Chairman, Subcommittee, Merchant Marine and Fisheries, Rayburn House Office Building, Washington, D.C. DEAR SIR: The Cannery Workers & Fishermen's Union wishes to take this means to assure you and your able Committee that our absence from the hearings on HR 3955 does not in any way mean that our interest and support of this legislation is any less than it was when other hearings were held by a Senate Committee in Los Angeles, San Diego and Seattle on like or very similar legislation. We still wholeheartedly support and urge that you take favorable action on HR 3955. For us to appear at this time would just be repeating what we have said before. Furthermore, it is our understanding that Mr. J. Duane Vance, attorney, and Brother George Johansen of the Alaska Fishermen's Union will present testimony on behalf of this legislation. I am sure that they will cover very ably all of the ramifications that are involved in this type of industry that make this piece of legislation so vital to fishermen. We are sure that you and your Committee as it analyzes the testimony will agree with us that a fisherman should have the same right to negotiate for wages through a union as other industrial workers. Sincerely, LESTER BALINGER, Hon. HERBERT C. BONNER, NATIONAL FISHERIES INSTITUTE, INC., Chairman, House Committee on Merchant Marine and Fisheries, House of Representatives, Washington, D.C. DEAR MR. CHAIRMAN: This is to advise you that the National Fisheries Institute is opposed to the passage of H.R. 3955. Sincerely yours, F. P. LONGEWAY, Jr., Executive Director. NATIONAL SHRIMP CONGRESS, INC., Re H.R. 3955 Hon. HERBERT C. BONNER, Chairman, Committee on Merchant Marine and Fisheries, House of Representatives, Washington, D.C. DEAR MR. BONNER: The National Shrimp Congress, representing the majority of the domestic shrimp fishery in the United States has just gone on record in objection to H.R. 3955 and I have been directed to file this objection, which is in the form of a Resolution, with the Committee on Merchant Marine and Fisheries. The shrimp industry urges you to oppose this measure. Very truly yours, WILLIAM R. NEBLETT, Executive Director. RESOLUTION Whereas, there has been introduced in the 89th Congress a bill H.R. 3955, which would make fishermen's organizations, regardless of their legal status, have a voice in the ex-vessel sale of fish or other aquatic products, and Whereas, this bill has been referred to the Committee on Merchant Marine and Fisheries in the House of Representatives for its consideration, and Whereas, the extremely broad provisions of H.R. 3955 would permit and encourage the proliferation of pseudo organizations with no real interest in the future and preservation of the domestic shrimp fishery, to the harm and detriment of this fishery, and Whereas, the National Shrimp Congress, representing the great majority of the domestic shrimp fishery, is opposed to such a measure and wishes to go on record opposing the same, Now therefore, be it resolved, that the Board of Directors of the National Shrimp Congress, Inc., assembled in regular meeting at Miami, Florida, voices hereby its opposition to H.R. 3955 as a measure calculated to be harmful to the shrimp fisheries of the United States, and to engender and breed confusion in the broad structure of its operations, which are widespread and which are unsuitable for the application of the procedures contemplated by H.R. 3955. And be it further resolved that the Executive Director is directed to provide copies of this Resolution to the Chairman and the Chief Clerk of the Committee on Merchant Marine and Fisheries and to the members thereof, and to take such appropriate further action as may appear desirable or necessary to oppose this measure. Done and ordered at Miami, Florida, this 20th day of June, 1965. Chairman. WILLIAM R. NEBLETT, Executive Director. Mr. DINGELL. The Chair notes a representative from the Department of the Interior is present. In view of the hour, I think it would be impossible for the committee to hear you. We will adjourn until tomorrow morning at 10 o'clock. (The following letters were received for inclusion in the record:) JULY 19, 1965. Hon. JOHN D. DINGELL, Member, Committee on Merchant, Marine and Fisheries, House of Representatives, Washington, D.C. DEAR CONGRESSMAN DINGELL: This is in response to your letter of June 25, 1965 in which you request the views of the Department of Justice on the (1) antitrust implications of (a) bill (H.R. 3955), to amend the Fishery Cooperative Marketing Act (Public Law 464, 73rd Cong., 15 U.S.C., Secs. 521-522) and (b) the substitute draft which you enclosed and (2) the legal arguments which indicate the antitrust problems raised by both the Bill and the substitute draft. This Act now authorizes fishermen when catching, collecting or cultivating aquatic products to act together in associations in collectively marketing such products and to have marketing agencies in common. Such marketing agencies may bargain with and sell the catch to any one of the companies that operate plants or canneries which prepare fish or other aquatic products for market. While such an association can act as a marketer, it can not enter into agreements with groups of packers to set prices throughout an industry. See Columbia River Packers' Ass'n. v. Hinton, 131 F. 2d 88. cf. United States v. Borden Co., 308 U.S. 188, 203-206. The practice in at least some segments of the fishing industry apparently is for fishermen, whether masters or crewmen, to be paid on the basis of the total price paid upon the ex-vessel sale of the catch. These fishermen may use either company owned or independently owned boats. In the past certain organizations have attempted to act as bargaining agents of the fishermen in negotiating the price to be received for the fish, on the theory that the money received by a fisherman for his share of the catch constituted wages. Unions are now prevented from doing so by virtue of court decisions. See Columbia River Packers Association v. Hinton, 315 U.S. 143 (1942), and see, in particular, id, at 131 F. 2d 88; Local 36 of International Fishermen, etc. v. United States, 177 F. 2d 320 (C.A. 9, 1949); Hawaiian Tuna Packers Limited v. International Longshoremen's Warehousemen's Union, 72 F. Supp. 522, 566 (D.C. Hawaii, 1947); Parker, Are Fishermen Employees?, 1 Labor Law Journal 1001 (1950). The proposed amendment would authorize the inclusion of a labor union as an association and, as an association, the union would be able to act as a bargaining agent or as a selling agent in setting the price of the ex-vessel sale of fish or other aquatic products caught by members of the organization. By authorizing a union to represent fishermen and bargain with two or more packers as to price, the amendment would undermine the decisions mentioned above in two ways. First, it would allow collective bargaining concerning the price at which a commodity is to be sold. This conflicts with the cases mentioned, for they state or imply that disputes over price are not labor disputes and that price is not a proper subject of collective bargaining even where fishermen are involved. Second, statements are made in these cases that fishermen are not employees, but, rather, are independent contractors or entrepreneurs. The bill would allow labor union representation of such fishermen. The major problem with the bill is that it allows collective bargaining between fishermen's unions and packers over price. While section 6 of the Clayton Act provides that the labor of a human being is not a commodity or article of commerce," and exempts from the antitrust laws the legitimate activities of labor unions, which otherwise would be in restraint of trade, the setting by a union of a commodity's selling price is not exempt from the antitrust laws. Permitting a union directly to fix the sale price of a commodity may constitute a precedent for a far-reaching additional exemption for union activities. The bill also authorizes the reciprocal right of the buyers (the companies that operate the canneries or prepare the catch for market) to act together in bargaining with associations of fishermen concerning the terms, conditions and prices to be paid for the catch. This reciprocal right is covered in the second proviso of the proposed amendment which reads: "And provided further, That the making of any such agreement or agreements between such an organization or organizations and one or more buyers or one or more associations of buyers concerning the terms, conditions and prices of the ex-vessel sales of such fish or other aquatic products shall not be held to be in violation of any of the antitrust or trade laws of the United States, and any such agreement or agreements shall be deemed to be lawful." Agreements between buyers as to the price to be paid for fish or other aquatic products are per se violations of the Sherman Act, and are not authorized by the present Act which permits only fishermen to act collectively. The Department of Justice objects to the enactment of this bill in that it would— (a) be discriminatory in singling out one industry where buyers or associations of buyers can enter into agreements as to the price they will pay for a commodity and be exempt from application of the antitrust laws in so doing; (b) establish the precedent that under special circumstances a union can be an association of independent entrepreneurs and act as a bargaining agent or selling agent in the sale of a commodity produced by its members. The Bureau of the Budget has advised that there is no objection to the submission of this report from the standpoint of the Administration's program. The views expressed above apply equally as well to the substitute draft which you enclosed, subject to the comments which follow. This draft deletes the element of "association of buyers" from the wording of the aforesaid second proviso of the proposed amendment. Conceivably, however, the phrase "one or more buyers" might be broad enough, in the absence of an express limitation to apply to and include associations or buyers. At any rate, as the Vance law firm points out, the proposed substitute draft permits agreements between fish sellers and fish buyers. This, as noted above, is contrary to the present statute which does not legalize collective action of two or more buyers in the matter of price. The policy declaration at the beginning of the draft seems objectionable in view of the judicial and administrative adjudications mentioned above. In the second "whereas" clause the word "fisherman" is broad enough to apply to independent contractors or entrepreneurs, who are not true employees according to judicial authorities and legal writers. We hope that the foregoing statements of the views of the Department on H.R. 3955 and the enclosed substitute draft will answer the questions you have with reference to the antitrust aspects of these proposed amendments to the Fishery Cooperative Marketing Act of 1934. Sincerely, RAMSEY CLARK, Deputy Attorney General. HOUSE OF REPRESENTATIVES, COMMITTEE ON MERCHANT MARINE AND FISHERIES, Hon. NICHOLAS DEB. KATZENBACH, Washington, D.C., August 3, 1965. The Attorney General, Department of Justice, DEAR MR. KATZENBACH: As you probably know, the Subcommittee on Fisheries and Wildlife Conservation held hearings June 17 and 18, 1965 on H.R. 3955, which would amend the Fishery Cooperative Marketing Act of 1934 to make it clear that fishermen's organizations have a voice in the ex-vessel sale of fish or other aquatic products. On June 25, 1965, I requested the views of the Department of Justice on H.R. 3955 and a substitute draft of the bill prepared by the law firm of Vance, Davies, Roberts and Bettis with respect to antitrust implications. Your letter to me of July 19 clearly sets forth the Department's objections to the bill as well as the substitute draft. In the course of the hearings, testimony was received to the effect that in Alaska, and more particularly in the Bristol Bay area, a majority of the fishermen-boat owners are small operators. Needed financing for construction, repairs or operation is generally not available to these boat owners except from processors or packers. Further, the testimony indicated that as additional protection, the packers extending such loans would require the boat owner to sell his catch under an exclusive sales contract agreement. The Committee was further informed that crew members are considered employees of the boat owners, and as such share in the proceeds of the catch, in lieu |