Columbia River Packers Ass'n v. Hinton

• Decision Date: 09 August 1939
• Citation: 34 F. Supp. 970
• Parties: COLUMBIA RIVER PACKERS ASS'N, Inc., v. HINTON et al.
• Court: U.S. District Court — District of Oregon

34 F. Supp. 970

COLUMBIA RIVER PACKERS ASS'N, Inc., v. HINTON et al.

District Court, D. Oregon.

May 26, 1939.^*

Supplemental Opinion August 9, 1939.

COPYRIGHT MATERIAL OMITTED

Jay Bowerman and C. W. Pecore, both of Portland, Or., for plaintiff.

Ben Anderson, of Portland, Or., for defendants.

McCOLLOCH, District Judge.

This is an injunction action. Treble damages are also claimed.

Plaintiff has (or has had recently) receiving, packing, canning and processing plants and equipment, including floating equipment, in Oregon, Washington, California and Alaska. Plaintiff does no fishing itself. It cans and processes sixty per cent. of the pack of salmon and other marine products put up in Oregon. Since the appearance of albacore tuna off the Oregon coast in recent years, plaintiff has prepared to pack that fish in commercial quantities. To that end, it has expended a large sum for additional plant and equipment at Astoria, Oregon.

The defendant union is an affiliate of the Congress of Industrial Organizations. Its membership includes 90% of the commercial troll fishermen, fishing off shore in Oregon and Washington. The union has a large additional membership among fishermen who fish in the rivers and bays of Oregon and Washington, not including the Columbia River. Union counsel stated at the argument that the defendant did not now claim jurisdiction over California and Alaska waters, but the evidence showed that quite recently defendant had asserted jurisdiction over fishermen in California and Alaska.

This controversy is over the requirement which defendant union imposes on all packers and canners contracting with it, that those contracting will not buy fish from any one not a member of the union. The union's constitution and by-laws obligate union members not to sell fish to packers or canners not under contract with the union. The record, I think, shows that all the packers and canners in Oregon, other than plaintiff, are under contract with defendant at the present time.

Towards the end of last year's fishing season (1938), certain fishermen, residents of the State of Washington, not members of the defendant union, offered their fish for sale to plaintiff. Plaintiff's officials informed the Washington fishermen that plaintiff could not buy from them because of the said "exclusive clause" in the contract which plaintiff then had with the union, whereupon the Washington fishermen threatened plaintiff with criminal prosecution and civil suits under the Federal Anti-Trust Laws. Caught between two fires — the demand of the union that it renew the exclusive buying clause of the union contract, and the threat of the independent fishermen to claim damages from plaintiff if it does renew the exclusive buying clause — plaintiff has now begun this proceeding at the opening of the 1939 fishing season for the adjudication of the legality of the exclusive buying clause in defendant's contracts.¹

Plaintiff asks for an injunction restraining defendant from interfering with purchases of fish by plaintiff from any source, for a judgment invalidating such portion of the contracts between defendant and other packers and canners of fish, whereby the packers and canners agree not to buy fish from others than defendant's members, and whereby the defendant agrees for its members that they will not sell fish to any packers and canners not having exclusive contracts with it. Plaintiff also asks for damages caused by defendants' interference with pending contracts for the 1939 season, and that these damages be trebled, as provided in the Anti-Trust Laws. 15 U. S.C.A. § 1 et seq.

Before beginning the suit, plaintiff offered to negotiate with defendant, in accordance with past practice, for a price to be paid on the season's catch, but refused to sign a contract containing the exclusive buying clause. Thereupon, defendant's members were notified by the union's officers not to sell fish to plaintiff. This suit was then filed.

Plaintiff asserts that it cannot obtain the fish it needs to supply its customers throughout the United States and in other countries, if it is limited to the catch of fishermen not members of the union.² Defendant charges that plaintiff's motive in bringing this suit is to destroy the union, particularly that plaintiff is seeking to obtain this season's and later catches of the recently discovered run of albacore tuna off the Oregon coast at a lower price than it would have to pay if under exclusive contract with defendant.

The Norris-La Guardia Act.

Defendant claims that this is a "labor dispute", and that the Norris-La Guardia Act, 29 U.S.C.A. § 101 et seq., which prohibits injunctions in labor disputes (except in cases involving fraud or violence), should apply. No fraud or violence is charged by plaintiff.

Plaintiff contends that the relation of employer-employee does not obtain between it and defendant's members, and for that reason disputes the application of the Norris-La Guardia Act. Plaintiff claims that defendant's members are free to fish as and when they please, and that it has no control over defendant's members or their operations in any of the respects which usually characterize the relation of employer and employee. Plaintiff's complaint characterizes the fishermen as "independent contractors". At the trial, plaintiff suggested that it was more apt to describe the fishermen as "merchants", a characterization used by Judge H. K. Zimmerman of the Oregon State Circuit Court in a case between the same parties and involving the same questions, heard by him several years ago.

The union's brief refers to the union as a "trade association", and defendant union relies for further justification of its challenged practices on the provisions of the Act of Congress of June 25, 1934, 15 U.S.C.A. § 521, authorizing fishermen to market collectively. This Act contains a provision that the Secretary of Agriculture may order organizations of fishermen which market collectively, to cease and desist any operations which the Secretary has reason to believe restrain trade to the extent of unduly enhancing prices. The Act provides for injunctive proceedings by the Department of Justice, in the event that such orders by the Secretary are not observed. Defendant urged at the trial that this procedure is exclusive in any case where a monopolistic practice has sprung up, but the Supreme Court has lately rejected a similar contention in interpreting the Capper-Volstead Act, 7 U.S.C.A. § 291, after which the Fishermen's Collective Marketing Act was copied. United States v. Borden Company et al., 1939, 308 U.S. 188, 60 S.Ct. 182, 84 L.Ed. 181.

Defendant also denies that the case involves interstate commerce.

Labor Dispute Not Involved.

Passing without comment the inconsistency in defendants' position that the case presents on the one hand a labor dispute involving the relation of employer and employee, within the meaning of the Norris-La Guardia Act, and on the other hand that it presents a question of cooperative marketing by independent producers within the meaning of the Fishermen's Collective Marketing Act, I deal first with the contention that a labor dispute is involved. Defendant calls attention to (a) of Section 13 of the Norris-La Guardia Act, 29 U.S.C.A. § 113(a), reading as follows: "(a) A case shall be held to involve or to grow out of a labor dispute when the case involves persons who are engaged in the same industry, trade, craft, or occupation; or have direct or indirect interests therein, * * *." But (c) of the same Section must also be considered. It reads: "(c) The term `labor dispute' includes any controversy concerning terms or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment, regardless of whether or not the disputants stand in the proximate relation of employer and employee." (Italicizing added.)

"Terms or conditions of employment" within the meaning of the Act are not, in my opinion, involved in this controversy. Plaintiff refers to defendants as "independent contractors", but defendant union has more aptly described itself in claiming the benefits of the Fishermen's Collective Marketing Act. It is truly a cooperative marketing association, and we look to the law of cooperative marketing rather than to labor law in the determination of the legality of defendants' acts.

Defendant's members are producers, just as cattlemen, grain growers, poultry raisers and orchardists, are producers. Could it be maintained that a cooperative association of any of the types of producers named, having substantial control of production in their given field, could require of all buyers that they agree not to buy from any other producers, and could forbid and prevent their members by fines and other disciplinary measures from selling to buyers who did not thus agree to buy only from members of the cooperative? Research by counsel during the week's trial and my own research has not disclosed so extreme a claim by any cooperative marketing association in the long history of cooperatives.³

While the point was not pressed at the argument, I ask this question in behalf of the consuming public, whose interests are paramount in determining any controversy arising under the Anti-Trust Laws (Paramount Famous Lasky Corporation et al. v. United States, 1930, 282 U.S. 30, 51 S.Ct. 42, 75 L.Ed. 145): In any year when defendant's members did not "choose to fish", how would the consuming public get its needs of salmon, tuna and other marine products from North Pacific waters? Since the union's contract does not guarantee a supply of fish, where would the canneries get fish, having agreed to look to the union for their sole supply? Surely reasonable men will agree that the public's interest in an important item of food supply should not be put in such jeopardy. If an exclusive and...