A monopoly cannot operate succesfully unless conditions are somewhat uniform. In the fishing industry, basic requirements differ from district to district, and from season to season. While one condition may be prevalent in one district, this same condition would be non-existent in another. The source of our raw products differs from year to year and from district to district. We have good years and bad years. We have conservation programs, and while these are absolutely necessary for the preservation of the resource, in many instances these same programs do not allow a fisherman to operate in an economic manner or to fully utilize his boat and gear.

The fisherman is not only restrained under the terms of the anti-trust provisions but he is similarly restrained even more to because of conservation rules and regulations which forbid him to properly utilize the tools of his trade; namely, his boat and gear. Where fishery regulations limit one's fishing time to 1 or 2 days aweek, such limitations tend to enhance costs of operation.

Taking these difference into consideration, a monopoly harmful to the public interest would be practically nonexistent in the fishing industry. We would also respectfully call to your attention that the Marketing Act would not be changed except as to allow unions to bargain. Neither a marketing association nor a union could demand exclusive privileges or force a processor to buy only from boats furnished by a union or an association.

The term as applied to a fisherman, namely, that of "independent contractor," is much abused. In our opinion, the fisherman cannot be truly classified as an independent contractor, nor do we believe it was the intention of the Congress to consider him as such. S. 978, presently before the Congress, to provide medical care for certain fishermen engaged on board a vessel in the care, preservation, or navigation of such vessel, clearly recognizes that the intent of the Congress is that the term "seaman" shall include any person employed or selfemployed on a fishing vessel. As a fact, if this bill is enacted, Congress reaffirms its position that fishermen should be considered in the same classification as seamen and should be entitled to the same benefits. S. 1135 is a compromise, as we had hoped for an amendment to the Taft-Hartley Act. In its present form, S. 1135 will not make employees out of these so-called independent fishermen, but will allow such fishermen additional instruments to be used in bargaining procedures. The word "independent" can be interpreted in many different ways. In most instances, a fisherman seeking to obtain his own boat and gear must go to a fishing company to obtain necessary financial backing. He is under contract to such company to deliver his fish to their cannery. He is under specific orders relative to how long he can keep his fish before delivery and what time to deliver. At all times, he must keep the company informed about his activities during the fishing season. The fact is that he is under the complete control of the company for which he fishes, and thus not truly an independent contractor. For example, to our knowledge, in the State of Alaska there are few, if any, purse seiners or gillnetters who are not under contract to a particular company, and these people cannot sell their fish or their services to anyone else during the season.

It would appear to us that the words "independent contractor" are a play on semantics and do not actually clarify the true status of the fishermen. We cannot help but wonder why it is that fishermen are the only major group we know of in organized labor who are in double jeopardy because of restrainers imposed upon them by Federal laws dealing with antitrust and conservation rules. The fishermen are keenly aware of their obligation toward conservation. As a matter of fact, most of the fishery unions have been instrumental in preaching the doctrine of sound conservation to their membership, and it would have been much more difficult to obtain workable conservation regulation had it not been for the efforts expanded by fishery unions. But a fisherman must make a living, the same as others, and the yoke of antitrust provisions in addition to everything else, is heavy and should be lifted from his shoulders.

The legal jungle in which we now operate is not in the best interests of the fishermen themselves or the public welfare. Because of restraints imposed on the fishing industry-which include unrealistic fishery policies, particularly pertaining to imports, as well as antitrust provisions-we have dropped from our former commanding position in the world fisheries to No. 5 in world production. Soon we can expect more foreign nations to pass us. We have lost employment; we have lost markets, and it is a good chance that we will lose our fishing industry unless remedies can be found.

It is only through fisheries unions that the workers within the fishing industry have been able to express themselves to the Congress on Federal legislation

needed for the welfare of this particular industry. Most of the marketing associations have not had the financial means whereby they could send representatives to the Nation's Capital to plead their cause. There has been a steady decrease, not only in fishermen's unions but in actual employment in the fishing industry, because of the action taken by the Federal Trade Commission and by Government policy generally.

We are asking the Congress to consider all arguments, whether such are for or against S. 1135, but it is our opinion that, properly considered, many different bargaining procedures which now must be used (many of them extremely cumbersome), the need of establishing a clear-cut policy with respect to bargaining procedure in the fishing industry, the fact that fishermen are being discriminated against compared to other sections of organized labor, the deterioration of the fishing industry as a food and economic factor due to undue restrictions, all should convince the Congress that corrective legislation is needed and must be enacted if this particular industry is going to exist and perform a useful function within the economy of these United States.

Senator BARTLETT. Just one or two questions because you made a very clear record in the statement which you submitted which has been placed in the record and in your verbal testimony. I want to say that since you started to testify a report has arrived from the Assistant Secretary of the Interior, Mr. Briggs. It is a long report and runs to four pages. It is very explanatory of the entire situation. Understandably, it does not seek to make any recommendation for or against. That would not be the function in this particular instance, I would think, of the Department of Interior. In fact, the report says:

The question is of primary concern to the Department of Justice and the Federal Trade Commission. Accordingly, we defer at this time to the views of those agencies on S. 1135.

I have looked it over hurriedly. I think that it could be said that it makes a rather strong case for the need of legislation on this subject. However, Mr. Briggs informs the committee that S. 1135 and I quote:

In pemitting employee and employer fishermen to organize for the purposes of fixing the ex-vessel price of fish and other aquatic products would result in an enlargement of the immunization from the antitrust laws under the Fishery Cooperative Marketing Act of 1934. Such an immunization from the antitrust laws may establish an undesirable precedent in relationship to other industries. Thus, while this bill relates only to a situation in the commercial fishing industry, we believe that other segments of the Nation's industries may be affected by such a precedent.

Of course, we will at a subsequent date learn the views of the Federal Trade Commission and the Department of Justice as to that. Would you say, Mr. Johansen, that the marketing associations have been able to do as good a job from the standpoint of the fishermen as the unions were able to do prior to 1954?

Mr. JOHANSEN. Well, of course, when you ask me, you have to realize I am biased on this and very much so. Senator BARTLETT. You carry with you a certain amount of prejudice?

Mr. JOHANSEN. I certainly do. As far as I am concerned, I always. have said, and I guess I always will, that a union, in my opinion, is the best medium to protect the fishermen's interest. I say that for several reasons. A union is not only dealing with a fisherman's prices as such, but any union engaged in a field of fisheries has to be responsible for many things pertaining to the fishing industry. A lot of people work in this industry in an allied capacity, which also has

something to do with the fisheries like processors, culinary workers, tendermen, et cetera, and I think the union has to take an overall look at the picture as it exists and is better able to gage the economic condition of the industry in which they are engaged and better able to safeguard the interests of all the people in that industry.

Senator BARTLETT. Would the marketing associations have the power, if that is the right word and I'm not at all sure it is, that a union would possess?

Mr. JOHANSEN. Unfortunately, it would not, or, if you are talking about this particular bill

Senator BARTLETT. In this particular frame of reference; yes.

Mr. JOHANSEN. It would not because this is not an amendment to the Taft-Hartley Act. This is an amendment to the Marketing Act and, as such, I presume that a union would be within the confines of that act and the union could only act as it would legally be entitled to under the act.

Senator BARTLETT. Mr. Johansen, I read, at the outset of the hearing, a letter written to Chairman Magnuson by Mr. Morrison of Seattle stating that the Association of Pacific Fisheries would have no objection to the bill if it contains language which permits fish purchasers to jointly negotiate and, provided, it is clear that unions in negotiating fish prices with buyers must act like associations and not like labor unions. Mr. Morrison went on to say that these conditions appear to be acceptable to the chief proponents of the bill including you; is that correct?

Mr. JOHANSEN. I notice that he used my name in vain in there. As far as I am concerned, I am fully aware that this is an amendment to the Marketing Act, and, therefore, it seems to me that the union, if it is extended the privilege of bargaining, will have to bargain under the Marketing Act instead of any other act. It couldn't bargain under the Taft-Hartley Act because that bill, S. 1265, was not entertained.

Senator BARTLETT. Let me ask you this question: Would that proposal, made by Mr. Morrison, be acceptable to you even if not altogether agreeable to you?

Mr. JOHANSEN. Well, I think that anything that the act here calls for will be acceptable to me, not particularly Mr. Morrison's statements, but what the act embodies here will be acceptable to me. We are not getting what we want here but we are getting something that I think is a step in the right direction. A union has been granted a right to bargain under the Marketing Act and this provides another instrument for the fisherman to use. He doesn't have to use it if he doesn't want to but he will have an additional instrument to use if he wants to. I am not a lawyer. I haven't read the 1934 Marketing Act in its entirety or, perhaps, I am not able to interpret it as a lawyer would. I am only saying that, under the amendment to the Marketing Act, the union wil be entitled to obtain as much as he can legally under this bill.

Senator BARTLETT. It is your opinion, Mr. Johansen, that the proposals of Mr. Morrison are incorporated in the bill before us; or would amendatory language have to be offered?

Mr. JOHANSEN. Counsel for the Seafarers is here and this would be a question to ask him.

Senator BARTLETT. This is a legal question which you want me to direct to him?

Mr. JOHANSEN. Yes.

Senator BARTLETT. Thank you very much.

The next witness is Mr. Duane Vance.

STATEMENT OF J. DUANE VANCE, OF VANCE, DAVIES, ROBERTS & BETTIS, ATTORNEYS, SEATTLE, WASH.; ON BEHALF OF THE SEAFARERS INTERNATIONAL UNION

Mr. VANCE. Senator Bartlett, my name is J. Duane Vance and I am an attorney from Seattle Wash., firm of Vance, Davies, Roberts & Bettis, appearing here today in support of S. 1135.

Senator BARTLETT. This is not the first time you have appeared here before this committee?

Mr. VANCE. Not the first time before this committee.

I wanted to point out, to the committee, the fact that I did appear in Seattle, in October, before this committee and submitted, at that time, a rather lengthy brief also on the legal point, and which the Senator was good enough to include in the record of those hearings, and I will try not to repeat myself or get into that lengthy discussion again at this point.

I would like to direct my remarks, this monring, in the form of a general argument in support of this bill.

Senator BARTLETT. Do you want your statement placed in the record, Mr. Vance?

Mr. VANCE. Yes; I would like to have the statement placed in the record.

Senator BARTLETT. That will be done.

(The full statements follows:)

STATEMENT OF DUANE VANCE, ATTORNEY AT LAW, SEATTLE, WASH.

STATEMENT IN SUPPORT OF S. 1135

This statement in support of S. 1135 is being filed by the undersigned, J. Duane Vance, of Vance, Davies, Roberts & Bettis, attorneys, 1411 Fourth Avenue Building, Seattle, Wash., on behalf of the Seafarers International Union.

A. Summary of previous submittal to committee

On October 15, 1962, hearings were held on S. 3093 in Seattle, Wash. S. 3093 was a similar act, and the amendments which have been incorporated in S. 1135 are, in part, the result of the hearings held on S. 3093.

At the hearings in Seattle on October 15, 1962, the writer appeared and testified in person, at some length, and submitted a written legal memorandum which, by direction of Senator Bartlett, was included in the printed record of that hearing. We will attempt not to repeat what was said there, or what was in the brief which was incorporated in the record of the hearings, except to point out the conclusions which we sought to establish and which we think were established by the various legal decisions which we cited and discussed.

The first conclusion which we sought to establish, and think we did establish, was that for all purposes, except collective bargaining, fishermen, even though they share in the profit of the venture, have, from time immemorial, both by judicial decision and legislation, been considered seamen and employees of the vessel, rather than partners or joint venturers. The second conclusion we sought to establish, and believe we did establish, was that fishermen's bargaining rights now are in a legal mess, which we seek to clear up by this legislation, and that this mess resulted from what might be termed a "legal accident" and was not the result of any legislation directly related to fisheries and their problems.

A third conclusion we sought to establish, and think we did establish, was that fish price bargaining is not now illegal as such, but in order to operate it in a legal manner as required under the present confusion of laws and decisions, it is so complex and so complicated it cannot be worked or understood by workingmen in the absence of very favorable circumstances which do not exist in very many places. To be more specific on this point, under present laws and regulations, it is perfectly legal for a cooperative association of boatowners and/or captains to bargain collectively with individual fish buyers and, at the same time, the association, as an employer, can be dealing with a union representing the crewmembers of the boats concerning the price on which the crew's share is to be based which, of course, as a practical matter, must be the same price the association obtains. This is perfectly legal and works, in some instances, where circumstances are very favorable. We have, for example, quite a successful operation on this pattern concerned with the beam trawlers operating off the Washington coast. By this legislation we would remove the technical requirements, basically the necessity of the tripartite arrangement and, secondly, we would broaden the permissive scope to include more than one buyer or packer. This would permit fishermen, in other areas and in other types of fisheries, to do what the fishermen are now doing in the areas where this complicated scheme is feasible.

These, as we say, are the things we think we established in our rather lengthy testimony and brief before this committee on October 15, 1962, in reference to S. 3093.

B. S. 1135 is permissive, compromise legislation

Now to the bill which is presently before this committee, S. 1135. This present draft is a compromise worked out after much discussion and consideration between various interests in the fishing industry. This bill is by no stretch of the imagination what the Seafarers International Union or its affiliates would like to see enacted. S. 1265, which was introduced and allowed to die a natural death at the last session, more nearly reflected what the Seafarers International Union and its affiliates sought and wanted in the way of legislation. That bill would have declared fishermen to be employees of the canner or packer to whom their fish were delivered for the purpose of collective bargaining only. Such legislation, however, seemed to arouse many fears, arising in large part from doubts arising from uncertainties as to what would actually occur if it passed, and mostly concerning side effects which might follow, rather than the basic objects of the bill. For example, the packers were not clear what effect, if any, such legislation would have on their tax structure. Existent independent unions and marketing associations were fearful that the bill would result in their being "swallowed up." While we felt all of these fears were groundless, the tremendous effort that would have been required in overcoming them was beyond our capabilities. We have therefore receded from that position to work with this present form of legislation because of its greater acceptability throughout all segments of the industry.

After consultation with some of the packers and careful consideration of the matter, S. 1135 contains certain amendments for the purpose of making it entirely clear that the protections extended to the packers are equal to those expended to the unions and to the marketing associations. In other words, it would not be illegal for the packers to enter into an agreement with a union or a maketing association which it was legal for the union or the association to demand or enter into.

Furthermore, S. 1135, by its nature, cannot have any adverse effect on current relationships which are operating effectively. Under S. 1135, it will still be illegal for a union to demand of a packer or the buyer that he buy no fish except from members of a particular association or a union, a demand which was declared illegal in both the Hinton and the San Pedro cases. Thus existing associations and existing unions, which have worked along sufficiently satisfactory in the past to keep their members, will still be entitled to represent those members and have a contract with the packer although other associations or unions may likewise come in and represent members they have in dealing with the same packer. Neither one excludes the other. The Seafarers Union believes that time will prove that it would be better to have only one bargaining agent selected by the majority, as that principle has been established by traditional collective bargaining. We have, however, withdrawn from urging that position and endorse this bill in its present form in deference to the wishes of