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own rights any more than they will stand up and fight for their own rights in this hearing, and there is nothing new about that.

We had a situation years ago where we discovered fraud in the scales, scales which were somehow all off, but off one way, off so that the canneries were getting more pounds of fish than were weighed, and this had been going on for a long time.

We had an examination of the situation made by the weights and measurement bureau. They found these scales were-I think it is correct to say-fraudulently and mechanically set up to accomplish a given purpose. It has been going on for a long time, and there were millions of dollars of fish probably that had been taken as a result of this.

The fishermen's union wanted to file a case against the canners to recover what had been stolen, and I say "Stolen." If we recovered, then the boatowners would recover. Everybody would recover except the canners. Initially the boatowners said they would go in with us, and there was a serious legal problem as to whether we could do it on our own, as the law stood at that time, as to whether the fishermen, without the boatowners participating, could file such a lawsuit. Originally, they said they would go along, and then at the last minute they backed out, and we were never told why they backed out, but we know. They backed out because the canners told them to back out. And we are going to see the same sort of a situation here today.

I am not saying this critically of the boatowners. They are in this kind of an economic squeeze, and I suppose any one of us, if we were in the position of a boatowner, who could have his boat taken away from him, or who knew that unless he played ball he might find himself in a situation 6 months from now that his boat would be taken away from him, I suppose that many of us would react the same way.

The only point I am making is not to criticize the boatowners, but the point that they cannot effectively represent the interests of the fishermen whose wages the canners are setting in their deals with the

canners.

Now, here is a situation. Let me tell you. I want to read to you, if I may, from a 1934 House report. This is House Report 1054, and this is the testimony of R. H. Fiedler, the Chief of the Division of Fishing Industries of the U.S. Bureau of Fisheries. He said this:

The fishing industry of the country, like that of farming, is sorely depressed. It is operating in a most disorganized fashion and as a result of this there exists an unstable price level and customary marketing channels are ineffective in moving production. The fishermen are receiving no returns and consumers are paying relatively high prices for fishery products. As a corollary to this disorganized situation and because credit has dried up during the emergency, we have witnessed the industry indulging in destructive price cutting and other detrimental price practice which have reflected largely on the fishermen, resulting in lower income to the point where their very livelihood is in jeopardy. Thus, the evils which the administration is trying to correct are particularly apparent in the fishing industry, namely, the volume of the products of the industry in interstate commerce and foreign commerce has been diminished.

I make a point of this:

The capacity of production units has been decreased. The necessity for organization among trade groups is everywhere apparent, and because of destructive price cutting the purchasing power of fishermen and processors

has been reduced. Thousands of earners have been thrown out of regular employment, and one of our great natural resources is being exploited unwisely.

Finally, the report says:

Our fishermen are burdened with debts and mortgages. They engage in an industry which involves hardships and dangers which do not attach to any other industry. They are just as badly in need of help as the farmers. The fishermen are really the forgotten men in this country, and the term certainly applies to fishermen.

Now, that was in 1934. What happened following 1934? There was union organization, and as a result of the union organization this situation began to be corrected. You began to have a stabilized industry. You began to have an industry in which the fisherman wasn't being squeezed as hard or as improperly as he had been before, and it was working. The industry was prospering. It was doing well. It was growing.

Then along came the series of cases destroying the bargaining power, and you have seen from the charts what has happened to the industry since. We are now back to where we were in 1934, and unless this is stopped we are going to continue to go down the same road. Are we trying to defeat the purpose of the antitrust laws?

I want to discuss some fundamentals in connection with that. I say to you, Senator, that if there is a correct analysis made of the antitrust laws, and particularly of the Clayton Act and its purposes, that not only are we not trying to defeat the antitrust laws, but what we are trying to do is to promote the real reason behind the antitrust laws. When the Clayton Act was reported to the floor, that was in 1914, the Senate committee said this:

The only organizations which should be excluded from the operation of the antitrust laws are those where labor is the basic or one of the chief factors in the organizations, as in the case of labor organizations proper and in agricultural and horticultural organizations.

The committee rests this decision upon the broad ground that labor is not and ought not to be regarded as a commodity within the purview of the antitrust laws.

Now, all we are asking here is that the labor of the working fisherman not be regarded as a commodity and that, therefore, when he bargains directly with those who are setting his wages, whether it is called price or whether it is given the name "X" or new name is given to it, when he bargains directly with those who are setting prices, he is bargaining for the sale of his labor, not for the sale of a commodity, and we are not trying to destroy the antitrust laws. We are trying to make them meaningful and to have them limited to their true purpose and their true scope.

Now, it might be argued, "All right, separate wages from prices. Set wages independently of prices." As I said before, we would welcome it. We don't think it is feasible in the industry. We don't think that the boatowners will stand up-let them come forward, let the canners come forward-and say, "We are going to give a guaranteed living wage to all fishermen. We will pay them for their overtime, give them pensions, the way other people have. We will treat them the way other workers are treated, with guaranteed wages."

This does not depend upon whether they happen to go out and get a catch, and you will find a pretty good response, but that isn't going to happen, in my opinion, and it isn't going to happen because of the kind of industry this is and because the other practices that have been going on, the other method of paying fishermen is the only one that appears to be economically feasible for the boatowners, unless the canners themselves undertook this

Senator BARTLETT. What is the practice in other fishing nations? Mr. MARGOLIS. Well, I think that the share basis is virtually-I know of no fishermen that work on anything other than a share basis where there are employees.

Do you know of any, John?

Mr. ROYAL. In some foreign operations they get a guarantee.

Mr. MARGOLIS. Outside of some foreign operations where some men will get a guarantee, where they are sent abroad

Senator BARTLETT. Is Canada the same way, Great Britain, Norway?

Mr. MARGOLIS. I have read some decisions which indicate that it is the same way, but whether it is a hundred percent the same way or not I don't know. I believe it is the general, universal practice, but it is the universal practice in the United States. I think it is elsewhere, but I am not sure.

Senator BARTLETT. There is, however, some room for doubt, is there not, as to whether this is the practice in Russia?

Mr. MARGOLIS. Well, I wasn't including Russia, and I don't really know how they pay their fishermen. I don't know whether they fish on a share basis.

Senator BARTLETT. I bet they don't get a share.

Mr. MARGOLIS. Well, I would doubt it. But maybe they are ahead of us on that. They might even be ahead on some things. Maybe it would be better if the fisherman could be paid a guaranteed wage. Personally, I would love to see it. Let them be truly employees, getting wages, and they will make more money in the long run. They will do better.

Mr. LEVIN. That would get down to the question: Are the people in these other countries employees of a cannery or of a governmental organization? If they are employees, as in Russia, of a governmental organization and they are being paid a wage; or if in England or Norway they are part of a cooperative enterprise which would include the catching and the processing, then again they might be paid a wage. Here our fisherman is more of an independent.

Mr. MARGOLIS. No, I am sorry.

Mr. LEVIN. I am not using it in a way that would preclude the idea of this bill; I am just saying that he is not employed.

Mr. MARGOLIS. Oh, yes, he is.

Mr. LEVIN. Directly by the cannery?

Mr. MARGOLIS. No. But he is employed by the boatowners. He is an employee. He can be hired, he can be fired. He has no interest in the vessel. He has no say in whether the vessel goes out or doesn't go out. He has no say in where it goes fishing. He takes orders. He is an employee. But we have the unique situation where somebody other than the one who is technically the employer sets his wages. That is what happens in this thing. They say, "Because he is not

technically your employer, you can't bargain with him concerning your wages, even though he establishes your wages."

Senator BARTLETT. Aside from the manner in which the British fisherman is paid, whether it is a wage or whether it is a share earning, I think the Commerce Committee was told not long ago that additionally the British Government gives to every fisherman, by way of a bonus, so many pounds or so many shillings each day he was fishing. Mr. MARGOLIS. I am not familiar with that. I know this, that the fishing industries generally in other countries are subsidized much more heavily and given much more consideration by their governments than the fishing industry of the United States. This I know. I don't know the details of that, but I think that the fishing industry in the United States is an orphan.

I have taken longer than I wanted to, but let me try to go rather quickly through the other points I wanted to make.

I might say, an interesting thing happened during the war. During the war the National War Labor Board recognized that prices were wages and established prices in the fishing industry as part of the process of establishing wages, established the prices upon which the fisherman should be paid and recognized that they were wages. You know why they did that? Because during wartime you sometimes get more economically realistic than you are during times of peace, and the National War Labor Board was dealing with a practical problem. It was dealing with the practical problem, and therefore it wasn't concerned so much with legal technicalities.

It was concerned with economic realities, and it recognized the economic reality and proceeded, although it had no jurisdiction over prices, proceeded to set prices insofar as they determined wages.

Let me say just this one thing about that: I think that the legislation being considered here would merely apply the principles that the Supreme Court of the United States has recognized under different circumstances. The Supreme Court of the United States has recognized, in any number of cases that it isn't necessary to have technical employer-employee relationship in order to justify or to require collective bargaining. There is the case of NLRB v. Hearst, 322 U.S. 111. There the question was whether the Wagner Act applied to newsboys, who technically were independent contractors, and they said this-I am going to cut it short:

Inequality of bargaining power in controversy over wages, hours, and working conditions may as well characterize the status of one group as of the otherand they talk about-the two groups they mention are those who are technically independent contractors but actually have an economic employer-employee relationship, and those who are technically employees. It says:

The farmer

those who have a technically independent relationship like newsboyswhen acting alone may be as helpless in dealing with an employer as dependent *** on his daily wage and is unable to leave the employ and to resist arbitrary and unfair treatment as the latter. For each union * * * may be essential to give * * * opportunity to deal on equality with their employer. And for each collective bargaining may be appropriate and effective for the friendly adjustment of industrial disputes arising out of differences as to wages, hours, or other working conditions.

And there it required bargaining, even though there wasn't technically an employee-employer relationship.

Now, we say here I concede that if you look at this technically, absolutely, there is no employer-employee relationship. But where in an industry such as this, everybody knows, the canner knows that when he determines that price he is determining the wage of the fisherman. He knows that. Therefore, is it asking too much to require him to bargain the same way as anybody else who sets wages?

Suppose an employer were to say, "I am not going to set your wages. I am going to appoint Joe Blow over here to set your wages. I am not going to do it."

Wouldn't you have a right to deal with this mythical Joe Blow? Well, we have the same right to deal with the canners, we think, if you will look at this thing realistically.

Another similar case-and I won't read his excellent language in— the Milk Wagon Drivers Union v. Lake Valley Farm Products, 311 U.S. 91; that was the case in which the employers tried to get around the National Labor Relations Act by selling the trucks to the truckdrivers and technically setting them up as independent employers. Well, the court had no great trouble looking through and saying there was a right to collectively bargain because basically the relationship remained that of employer-employee. Basically, it is the canner who is determining what the fisherman is going to make, and he is determining it at the present time unilaterally, and this is the only group of workingmen in the United States, to my knowledge, who are having their wages determined unilaterally.

Now, even in the Columbia River Packers v. Hinton, the Court said, "We recognize that by the terms of the statute there may be a labor dispute where the disputants do not stand in the proximate relation of employer and employee. Therefore, what I am saying to you is that we are not even asking for the establishment of a brandnew principle, when we say, require the canners who are establishing wages for the fisherman to bargain with their organizations, the same way that anyone else who sets wages has to bargain, because it is perfectly consistent with the language of the Supreme Court and with the principles established by the Supreme Court, not only in these cases but in other cases.

One final thing on this point: The purpose of the antitrust laws is to protect consumers. Alan Brady v. Local Union No. 3, 325 U.S. 797. As we have shown you here, and as the article which was introduced by Mr. Eden, the Crutchfield article, spells out, economically, there is about as much relationship between the ultimate price that a consumer pays for the finished fish product and the price that the fisherman gets as there is between the ultimate price that is paid for a farm product and what the farmer gets, and it has been shown again and again that there is little or no relationship. I don't say none, always, but very, very slight, and so slight as to be virtually de minimis. You are not really protecting the consumer when you apply the antitrust laws in a situation such as this any more than you protect the consumer if you would apply the antitrust laws against any other labor union which is trying to establish by collective bargaining its

own wages.

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