Califohnia Fish Canners Association, Inc.

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IN THE l\:fA TTER OF CALIFOHNIA FISH CANNERS ASSOCIATION, INC., ET AL. CONSENT ORDERS, ETC., IN REGARD TO THE ALLEGED VIOLATION OF THE FEDERAL TRADE C03Il\IISSION ~'\CT Docket 6623. Complaint, A:ug. 29, 1956-Decisio'll, July 24, 195" Consent order requiring a substantial part of t11e West Coast tuna industry, including an association of canners and its eight corporate members seven associations of tuna boat 0'vners, and three area unions of fishermen and cannery workers, to cease concerted fixing of prices for the pur- ,chase and sale of canned, raw, or frozen tuna fish, and suppressing competition in the industry, including practices of curtailing the volume am! raising the price of tuna imported from Japan, maintaining a patrol of a11 fishing ports coming into San Pedro harbor to unload at the canneries to ascertain that they sold a11 tuna at the established prices and paid an assessment for the maintenance of the patrol, coercing buyers to pay fixed prices and, on the part of the canners' association, collecting statistics of individual inventories, purchases, sales, etc. , for price-fixing purposes; and Order dismissing complaint as to certain respondents. Before llfr. Earrl J. Kolb hearing examiner. llfr. Fletcher G. Cohn, 11l?. Lewis F. Depro, illi'. Arthur Edge- 'Worth and 1111'. Oha1,les 1. Steele for the Commission. Covington Bu,ruling, of ",Yashington, D. , for California Fish Canners Ass, Inc.

Ekdale SlwlZenbe1' ge1' of San Pedro, Calif., for F. E. Booth Co. , Inc., Pan-Pacifie Fisheries, Ine., South Coast. Fisheries, Inc. South Pacifie Canning Co., Ine., ,Vest Shore Co. and South Pacific Canning Co.

ilh' . Herbert R. Lande of San Pedro, Calif., for California ~Iarine Curing & Packing Co.

llll'. J. Jl(wion 1V1'ight of Los Angeles, Calif., for Franeo-Italian Packing Co., Inc.

1111'. 111. L. Real of San Die,go, Calif., for High Seas Tuna Packing Co. , Ine. , Pan-Pacific Fisheries, Inc. The Quaker Oats Co. South Coast Fisherjes, Inc., South Paeifie Canning Co., Inc. , "\Vest Shore Co. and South Pacific Canning Co.

lJh~tchell~ Silbe1'be1'g Ii n'I.lpp: of Los Angeles, Calif., for The Quaker Oats Co.

lii1'. Douglas R. Ghlclings of San Diego, Calif. , for Breast-o Chieken Tuna, Ine., Van Camp Sea. Food Co., Inc., ,Yestern Canners Co. and ,Yestgate-California Tuna Packing Co. N o1'blad, 1fT yatt 111 acDonald of Astoria, Ore., for Columbia River Packers Ass, Ine.

CALIFORNIA FISH CANNERS ASSOCIATION, INC., ET AL. 121 120 Decision llfr. John Gerald Driscoll, Jr. of San Diego, Calif., for American Tunaboat Ass n and its officers, directors and members. Mitchell Hilbert of Los Angeles, Calif., for Fishermen s Association of San Pedro and its officers, directors and members and l\lason Case.

Lind Schmitz of ,;Vilmington, Calif., for California Commercial Fishermen s Ass n and Federated Fishermen s Ass, Inc. and their officers, directors and members.

1/11'. John H. Tho1nsen of San Diego, Calif., for Five Star Fish and Cold Storage and its officers, directors and members. Lycette, Dianwnd Sylvester of Seattle, Wash., for Fishermen Cooperative Ass (of Seattle) and its officers, directors and members.

Turner "tV inslow of Fort Bragg, Calif., for Salmon Trollers l\larketing Ass, Inc. and its officers, directors and members. Rose, J(lein cD 111 arias of Los Angeles, Calif., for Cannery Workers & Fishermen s Union of the Pacific and its officers, trustees and members.

1/1 aTgoUs, AI cTernan Branton of Los Angeles, Calif., for Local No. 33, Fishermen and Allied ,;V orkers Division, International Longshoremen & "'\Varehousemen s Union and its officers, trustees members of the Executive Board and members. Gilbert, Nissen cD Irvin of Los Angeles, Calif., for Seine and Line Fishermen s Union of San Pedro and its officers, trustees, members of the Executive Board and members.

DECISION OF THE COl\Il\fISSION On August 29 , 1956, the Federal Trade Commission issued its complaint in this proceeding, charging that the corporations, firms and persons therein named as respondents had engaged in unfair acts and practices and unfair methods of competition in commerce within the intent and meaning of the Federal Trade Commission Act. After service of the complaint, six agreements were entered into between counsel supporting the complaint and certain of the respondents or counsel for various of them, each of which agreements contained a eonsent order in disposition of all of the issues of this proceeding with respect to the respondents to whom such agreements relate. The term "respondents" as used hereinafter refers to the aforesaid respondents to whom the agreements relate and exeluc1es other parties respondent in this proceeding. Under procedures provided in section 3.25 (e) of the Commission s Rules of Practice, the agreements have been submitted by counsel to the Commission for its consideration.

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Decision 54 F.

Pursuant. to such agreements, the respondents have admitted all jurisdictional allegations of the complaint and agreed that the record may be taken as if findings of jurisdictional facts have been duly made in aecordance with such allegations. The agreements further provide that the respondents waive all fui,ther procedural steps before the hearing examiner or the Commission, including the making of findings as to the facts or conclusions of law and the right to challenge or contest the validity of the order to cease and desist entered in accordance with sneh agreement. The agreements further state that they are for settlement purposes only and do not constitute an admission by the respondents that they have violated the law as alleged in the complaint. The respondents additionally have agreed that the order to cease and desist shall have the same force and effect as if entered after full hearing, and that it may be altered, modified or set aside in the manner provided by statute for other orders, and that the complaint may be used in construing the. terms of the order.

For reasons stated in its accompanying opinion, the Commission has determined that the agreements containing the consent orders to cease and desist provide for an appropriate disposition of this proceeding as to the parties designated in such agreements, and the same are accepted and ordered filed; and I-IaTing determined that this proceeding is in the public. interest the Commission hereby makes the following findings, for jurisdictional purposes, and orde.r:

PAR. 1. (a) Respondent California Fish Canners Assoeiation, Inc. is a. membership corporation, organized and existing under the la,ys of the State of California, ",ith its principal office and phce business located in the Ferry Building, Terminal Island, California. Respondent California ~Iarine Curing &. Packing Co. is a corporation organized and existing under the laws of the State of California, with its principal oflke and place of business located at 3:3:-3 Cannery Street, Terminal Island, California. Hesponclent Franco-Italian Packing Co. , Inc. , is a corporation organized and existing under the laws of the State of California ",itll its principal otrice and place of business located at 2~:) Fish lInrbor 'Vharf, Terminal Island, California. Respondent Pan-Pacific Fisheries, Inc., is a corporation organizpc1 and existing under the la,,' s of the State of California ith its principal oflice and place of business located at 350 Sardine Street, Terminal Island, California.

Hesponclent South Coast Fisheries, Inc., is a corporation organized and existing under the laws of the State of California, with (j(\ CALIFORNIA FISH CANNERS ASSOCIATIO:N , INC. , ET AL. 123 120 Decision its principal office and place of business located at 820 'Vays Street Terminal Island, California.

Respondent Star-Kist Foods, Ine., is a corporation organized and existing under the laws of the State of California, with its principal office and place of business located at 582 Tuna Street, Terminal Island, California.

Breast-o Chicken Tuna, Inc., is the company formerly named and named in the complaint as respondent Sun I-Iarbor Packing Company, and is a corporation organized under the laws of the State of California, as Southern California Fish Corporation, existing under such la,ys and acquiring the name Sun Harbor Paeking Company in October, 1954; its principal office and place of business is located at 736 South Seaside Avenue, Terminal Island, California.

Respondent Van Camp Sea Food Company, Inc., is a corporation organized and existing under the laws of the State of California with its principal office and place of business located at 772 Tuna Street., Terminal Island, California.

,Vest gate- California Corporation is a corporation organized and existing under the laws of the State of Delaware, with its principal office and place of business located at 28th and IIarbor Dri,- , San Diego, California, and is the legal successor to respondent ,Vestgate-California Tuna Packing Company, which was a corporation organized and existing under the laws of the State of California ,,'ith its principal office and place of business also located at 28th and I-Iarbor Drive, San Diego, California. (b) The respondent I-light Seas Tuna Packing Co. , Inc. , is no longer in existence; the respondents South Pacifie Canning Co. Inc., and ,Vest Shore Company, and respondents Carleton E. Byrne, Esther J. Byrne, Robert C. .Jackson, Edith Lloyd Smith, and Lloyd :Melvin Smith, formerly doing business as South Pacfiic Canning Company, are no longer in business; ,Valter 1\1. Long-moor, Jerrold E. Spangler and Thomas A. Thomas, doing business as 'Vestern Canners Company, are not commereially engaged in the business of canning tuna, nor is the Quaker Oats Company. Respondent F. E. Booth Company, Inc., has taken no active part in the acts and practices alleged in the complaint, and respondent Columbia Hives' Packers Association, Inc., took no part in the acts and practices alleged in the complaint.

PAIL 2. Hesponclent American Tuna boat Association, is a corporation existing and doing business under and by virtue of the hnys of the State of Ca)jfornia, with jts office and principal place of business located at X o. 1 Tuna Lane, in the City of San Diego State of California.

5::!S5ii- Decision 54 F.

Respondent, Fishermen s Association of San Pedro (the legal successor to Fishermen s Cooperative Association of San Pedro which \Vas named as a party respondent in the cOlllplaint, and under \Which name this said respondent is conducting business) is a corporation existing and doing business lmder and by virtue of the laws of the State of California, with its office and principal place of business 10eatec1 at Berth 73, in the City of San Pedro State of California.

Respondent, California Commercial Fishermen s Assoeiation, Inc. is a corporation existing and doing business under and by virtue of the laws of the State of California, with its office and principal place of business located at 745 South Seaside A venue, Terminal Island, State of California.

Respondent, Five Star Fish and Cold Storage, is a corporation existing and doing business under and by virtue of the laws of the State of California, with its office and principal place of business located at 2401 North I-Iarbor Drive, City of San Diego, State of California.

Respondent Salmon Trollers l\farketing Assoeiation, Ine., is a corporation existing and doing business under and by virtue of the laws of the State of California, with its office and principal place of business located at Ft. Bragg, State of California. Respondent, Federated Fishermen s Association, Inc., is a corporation existing and doing business under and by virtue of the laws of the State of California, with its office and principal place of business located at 745 South Seaside Terminal Island, State of California.

PAR. 3. (a) Respondent Cannery Workers & Fishermen s Union of San Diego is an unincorporated association, with its office and principal place of business located at 640 State Street, San Diego, California; the individual respondents named herein as officers and trustees hold their designated positions in said Union, and have their offices and principal places of business at the same location as the respondent Union.

(b) The respondents Gus Adams, Lester Balinger, Frank Currier A. Landowsky, George Ledesma, Frank Silva and Jack Tarantino are representative of the entire membership of the aforesaid respondent Union.

PAR. 4. (a) R,respondent Local No. , Fishermen and Allied ,Yorkers Division, International Longshoremen and Warehousemen s lJnion, is an unincorporated association, with its office and principal place of business located at 339 7th Street San Pedro Californirt; the individual respondents named herein as trustees officers, directors or members of the Executive Board of said Union CALIFORNIA FISH CANNERS ASSOCIATION, INC., ET AL. 125 120 Order hold their designated positions in said Union, and have their offices and principal places of business at the same location as the respondent Union.

(b) The respondents Paul I-ligashi, ~1ilenko D. H::olumbic, Nick Lovrich and Steve Setlw" are representative of the entire membership of the aforesaid respondent Union.

PAR. 5. (a) Respondent Seine and Line Fishermen s Union of San Pedro, is an llnineorporated association, with its office and principal place of business being located at 261 7th Street, San Pedro California; the individual respondents named herein as officers trustees and members of the Executive Board hold their designated positions in the respondent Union, and have their offices and principal places of business at the same locations as the respondent (b) The respondents John Calise, Pat Di:Massa, Nick PecoraroUnion.and Kiyohi Shigekawa, are representative of the entire membership of the aforesaid respondent Union.

miller I. It is orde7' That the respondents California :Marine Curing &, Pael\:ing Co.; Franeo-Italian Packing Co., Inc. ; Pan-Pacific Fisheries, Inc. ; South Coast Fisheries, Inc.; Star-Kist Foods, Ine. Breast-o Chicken Tuna, Inc. (named in the complaint as respondent Sun I-Iarbor Packing Company); Van Camp Sea Food Company, Ine.; and ,Yestgate-California Corporation (the legal successor to the respondent named in the complaint as ,Yestgate- California Tuna Par-king Company), their respective successors and assigns, agents, representatives, employees, directly or through any corporate or other device, in connedion with the purchase or sale or offering to purchase or to sell in commerce, as "commerce" is defined in the Federal Trade Commission Act, of canned tuna fish ra,y tuna fish, or frozen tuna fish, in any form for canning, do forthwith cease and desist from entering into, continuing, cooperating in or carrying out any planned common and concerted course of action, understanding or agreement between any two or more of said respondents, or between any one or more of said respondents and others not parties hereto, to do or perform any of the following acts or things:

1. To establish~ fix, or maintain prices, terms or conditions of sale for the purchase or sale of raw or frozen tuna; 2. To refuse to sell canned tuna fish on a eonsignment basis, or to compel or to coerce any processor or canner not to sell canned tuna tish on fl consignment basis;

,, Order 54 F.

3. To negotiate jointly or collectively, by ' any means or method in the purchase or sale of raw, canned or frozen tuna,. in any form for canning;

P1' vided That nothing in this order shall be interpreted to prevent any of said respondent Canners from individually negotiating and agreeing, in the purchase of raw 01' frozen tuna fish for canning. by said Canner, as to the price, terms or conditions of sale with any fishing vessel or other individual seller of such fish or with any' Cooperative Assoeiation of fishermen acting pursuant to the Fishermen s Cooperative l\farketing Aet (15 U. C. Pars. 521-52:2) ; Provided: furthe1': hO'LVe'Ve1' That if any respondent Canner enters into any eontraet or agreement with any Cooperative Association of Fisherme.n acting pursuant to the said Fishermen s Cooperative :Marketing Act, for the purchase of raw or frozen tuna caught by any cooperative member vessel in which said Canner has an :interest, said Canner shall not, during the term of said contract or agreement, exerc.ise any control inconsistent with said contract or agreement, over the marketing, sale, delivery or disposition of such ra w or frozen tuna fish.

Provided !1.l1'thel\ That nothing in this order shall be interpreted to prevent bona fide collective bargaining behyeen any such respondent in its capacity as the owner or operator of any fishing vessel and any employee or employees thereon, or the Union to hieh they belong, with respect to their ,,-ages, hours or working con di ti ons.

California Fish II. It 'is further onlered That the respondent Canners Association, Inc.. , its officers and directors, and respondents California :Marine Curing &. Packing Co. ; Franco-Italian Packing , Inc.. ; South Coast Fisheries, Ine.Co. Inc. ; Pan-Pacifie Fisheries Star-Kist Foods, Inc. ; Breast-o Chicken Tuna, Inc. Van Camp California CorporationSea. Food Company, Inc. ; and "\Yestgatetheir respective successors and assigns, agents, representatives and , inemployees, directly or through any corporate or other device connection with the purchase or sale or ofiering to purchase 01' to sell in commerce, as "commerce is def-ined in the Feclerfll Trade Commission Act, of canned tuna, fish, or frozen tuna fish. in any form, for canning, do forthwith cease and desist from entering into or continuing:, cooperating in or carrying out. any planned common and concerted course of adion, understanding or agreement beh\een any hyo 01' more. of said respondents, or between any one or more 01' performof said respondents and others not parties hereto, to do an" of the followin~ acts, or thin~s:

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CALIFORNIA FISH CANNERS ASSOCIATION, INC., ET AL. 127 120 Order 1. To establish, fix or maintain prices, terms or conditions of sale for the purchase or sale of canned tuna or of imported tuna fish, in any form, for canning;

2. To collect or to compile, for the purpose or with the effect of fixing or maintaining prices, terms or conditions of sale of canned tuna fish, statistical compilations or reports, in any form, showing, for the pl'oeessors or canners furnishing same, for any period time, the number of cases of canned tuna packed, or the number sold, or the number purchased from others, or the number of cases on hand at the end of any particular period, or showing any other similar information;

3. To restrain or to suppress competition, by any means or method from canned tuna fish, or frozen tuna fish, in any form, for canning, imported into the United States from any other country, which has for its purpose or effect the curtailing of the volume of 'Such imports or the raising of the prices of such imports of canned tuna fish or frozen tuna fish, in any form, for canning; Pro.vi.cled That nothing in this order shall be interpreted: (a) To prohibit the joint collection of factual information in any exporting country for the purpose of its presentation to any agency of the United States, or of any State or to Congress; (b) To prohibit one or more of the aforesaid respondents from entering into or continuing a bona fide partnership, joint operation or venture for the purchase in, or from, any exporting country of canned tuna fish, or frozen tuna fish, in any form, for canning; but this proviso shall not be construed as an approval or disapproval of the legality of any specific partnership, joint operation or venture or as permitting the formation or eontinuation of such a partnership, joint operation or venture, where the purpose or the efiect of same is to render ineffectual or unenforeeable any of the inhibitions of this order;

(e) To prevent any respondent canner from directing the operations of any corporation which it utilizes in marketing its canned tuna fish and which is wholly or substantially owned by the same interests, where slleh marketing operations do not result in any restraint of trade.

1 t .is further onlered That the complaint be dismissed as to the respondents F. E. Booth Company, Inc. ; High Seas Tuna Packing Co., Inc. ; Quaker Oats Company; South Pacific Canning Co. Inc. ,Yest Shore Company, Carleton E.' Byrne, Esther ,-T. Byrne, Robert C. .T ackson, Edith Lloyd Smith and Lloyd Melvin Smith, doing business as South Pacific Canning Company; and Walter M. Longmoor Jerrold E. Spangler and Thomas A. Thomas, doing business Order 54 F.

as 'Vestern Canners Company; and Columbia River Packers Association, Inc.

III. It if) further orde'Jo That respondents' American Tunaboat Association, a corporation organized and existing under the laws of the State of California; Fishermen s Assoeiation of San Pedro (the legal successor to Fishermen s Cooperative Association of San Pedro which was named as party respondent in the complaint, and under which name this said respondent is conduding business), a corporation organized and existing under the laws of the State of California; California Commercial Fishermen s Assoeiation, Ine., a corporation organized and existing under the laws of the State of California; Five Star Fish and Cold Storage, a corporation organized and existing under the laws of the State of California; Salmon Trollers l\larketing Association, Ine., a corporation organized and existing under the laws of the State of California; and Federated Fishermen s Association, Inc. , a corporation organized and existing under the laws of the State of California; and each of said respondents, and their respective successors and assigns, and each and all of them, acting by or through any of their respective officers, directors, agents, employees or members, directly or through any corporate or other device, in eonneetion with the sale or purchase or offering to sell or purchase in commerce, as "commerce" is defined in the Federal Trade Commission Act, of raw tuna fish in any form for eanning, do forthwith cease and desist from entering into, continuing, cooperating in or carrying out any planned common and eoneerted course of action, understanding or agreement between any two or more of said respondents, or between any one or more of said respondents and any other respondent or respondents in the instant ease, or between any one ,or more of said respondents and others not parties hereto, to do or perform any of the following acts or things:

1. To negotiate jointly or collectively, by any means or method in the sale or purchase of raw tuna fish, or to establish, fix or maintain prices, terms or conditions of sale for the sale or purchase of said raw tuna fish, except in the manner and to the extent authorized by law, as hereinafter set forth in the first proviso hereto; 2. To threaten, coerce or compel, by any means or method, as a condition or requirement for the purchase or prospective purc.hase of said raw tuna fish, the, prior simultaneous or subse.quent purchase of any other type or species of raw fish; 3. To threaten, coeree or compel, by any means or method, as a condition or requirement for the purchase or prospective purchas~ of any other type or species of raw fish, the prior, simultaneous or subsequent purc.hase of raw tuna fish;

CALIFORNIA FISH CANNERS ASSOCIATION, INC., ET AL. 129 120 Order 4. To participate in, oversee, or contribute to any assessment or levy, by whatever name called or by whatever means computed, for the purpose or with the effect of attempting to establish, fix or maintain, or establishing, fixing or maintaining prices for the purchase or sale of raw tuna fish, by the patrolling of waters or harbors leading into or forming part of any port or ports; 5. To curtail or attempt to curtail the importation of raw or frozen tuna from any foreign country into the United States by any means or method not permitted by law. 6. To create, form, maintain or operate or to attempt to create form, n1maintain or operate any corporation, association, group or organization of those who own, control or operate fiishing boats which are engaged wholly or partially in the eatehing of raw tuna, by whatever name ealled, without its having control over the marketing, sale, delivery and disposition of raw tuna fish caught by all of its members.

Provided, however That nothing herein shall prevent any association of bona fide tuna fishermen acting pursuant to and in aecorda-nee with the provisions of the Fishermen s Cooperative l\larketing Aet (15 U. A. Pars. 521-522) from performing any of the ads and practices permitted by said Ad. PTovided further The fact that any of the aforesaid corporations may have negotiations with any prospective purchaser for the purchase and sale of future eatches of tuna by any of its members, for the purpose or with the effect of entering into, or which actually results in, or does not result in, a contract or agreement for the purchase and sale of any type or species of fish other than raw tuna in addition to the purchase and sale of said raw tuna, shall not, in itself, be interpreted or construed as violation of the aforesaid subsections 2 or Provided further That nothing herein contained shall prevent 3.the proper enforcement by any of the aforesaid corporations of any existing contract or eontraets which it has, or may have, with its own members or any purchasers of raw tuna fish caught by its members.

It is further ordered That the charges of the complaint be, and they hereby are, dismissed as to the respondent individuals joined as parties hereto in Paragraphs 3 , 5 , 6, 8 and 9 of the complaint in their individual capacities and in their capacities as officers, directors and representatives of all the members of respondents American Tunaboat Association, Fishermen s Association of San Pedro California Commercial Fishermen s Association, Inc., Five Star Fish and Cold Storage, Salmon Trollers l\:farketing Assoeiation, Inc., and Federated Fishermen s Association, Inc.

130 FEDERAL TRADE COML\IISSION DECISIONS Order 54 F.

IV. It is f1l'J'tht3T ordered That respondents Cannery 'Yorkers Fishermen ~s Union of San Diego (incorrectly referred to in the ~complaint as Cannery 'Yorkers & Fishermen s Union of the Pacific) ; its officers, trustees and members; Gus Adams, Lester Balinger Frank Currier, A. Landowsky, George Ledesma, Frank Silva and J ack Tarantino, individually, as officers, trustees and as representative of the entire membership of Cannery ,Yorkers & Fishermen Union of San Diego; and each of said respondents, together with :all of the members of the respondent Union, and the suecessors assigns, agents, representatives and employees of said respondent Union, directly or through any corporate or other device, in connecis de-tion 'with the purchase or sale in commerce, as "commerce" fish dofined in the Federal Trade Conimission Act, of raw tuna forthwith cease and desist from entering into, continuing, eooperating in or carrying out any planned common and concerted course of action, understanding or agreement between any two or more of said respondents, or between any one or more of said respondents or be-and any other respondent or respondents in the instant case, tween ally one or more of said respondents and others not parties hereto, to do or perform any of the following acts or things: 1. To establish, fix or maintain prices, for the sale or purchase of said ra"- tuna fish;

2. To threaten, eoerce or compel, by any means or method, as a condition or requirement for the purchase or prospective purchase of said nn, tuna fish, the prior, simultaneous or subsequent purchase of any other type or species of raw fish; 3. To threaten, coerce or compel, by any means or method, as a condition or requirement for the purchase or prospective purchase of ~ the prior, simultaneous or sub-any other type or species of law fish sequent purchase of raw tuna fish;

4. To negotiate jointly or collectively, by any means or method for the sale or purchase of said raw tuna fish; 5. Participating in, overseeing, or contributing to any assessment or levy, by ,,-whatever name called or by whatever means computed for the. pmpose or ,,-ith the efiect of attempting to establish, fix or maintain, or establishing, fixing or maintaining prices for the purchase or sale of ra"- tuna fish, by the patrollirig of waters or harbors leading into or forming part of any port or ports; G. To threaten, coerce or compel, by any means or method, pur- , to pay, chasers or prospective purchasers of any raw tuna fish adhere or comply with, any particular or specific prices for the purchase or sale of same;

CALIFORNIA FISH CANNERS ASSOCIATION, INC. , ET AL. 131 120 Order Provided, however Nothing herein contained shah be construed or interpreted as preventing or prohibiting any respondent, individually, from purchasing or seIJing or bargaining for the purchase or sale of any such raw tuna fish with any single buyer or seller; Provided furthe1' That nothing herein contained shall prevent. genuine eollective bargaining between respondent Union and any employer or employers with respect to rates of payor wages, hours and working conditions of any employee members of said Union, or activities in relation thereto, or shall prevent or prohibit said Union from performing any of the acts or practices permitted by the provisions of the Labor-~1management Relations Act, 1947 (Act of June 23 1947, Public Law 101, 80th Congress) or any other lawfully authorized Union activities;

Provided further The fact that. the respondent Union, acting on behalf of its members, may have negotiations with any employer or employers of said members for compensation relating to future catches of tuna by any of said members, for the purpose or with the efj'ect of entering into, or which actually results in, or does not result in a working agreement relating to the compensation for the catching of any type or species of fish other than raw tuna, in addition to the compensation for eatching said raw tuna, shall not, in itself, be interpreted or construed as a violation of the aforesaid subseetions 2 or 3;

P1'ovided further That nothing herein contained shall be eonsirued as preventing the enforcement, against the other parties thereto, by patrol or other means, by the respondent Union of any contract or contracts which it now has, or may have, at the time of the aforesaid enforcement, with its 0"11 members, pertaining to their relationship as n1members of said Union, or "hh any employer or employers of said members pertaining to rates of payor ,,-ages, hours or working eo11ditions of sneh members as employees; ro.vided fudhe?' That nothing herein contained shall prevent bona fide fishermen members of respondent Union, or the Union itself while acting on behalf of its members, where the specific raw tuna fish has already been caught by said members and cannot. otherwise be sold or disposed of in accordance with the existing contract between the employer of said members and the purchaser or purchasers named in said contract, from negotiating in good faith for the sale or to sed such specific fish, for the benefit of the members who caught same;

Pro'uided furthe?' That. nothing herejn contained shall be construed as preventing the respondent Union from taking proper ac- 132 FEDERAL TRADE. CQM1\HSSION DECISIONS Order. 54 F.

tion on behalf of its members who participated in a particular catch of raw tuna fish, or. the members themselves, to protect the interest" of such members against a. purchaser of said fish who refuses .01' fails to comply with, or abide by, the terms conditions or .provisions of. an existing contract covering said. catch, to enforce said cantraet. if; f1l.rthe1' o1'de1' That respondents Loea1 No. , Fisher-. . V. It men and Allied ,Yorkers Division, International Longshoremen & Warehousemen s Union, its office.ers, trustees, members of the Executive Board and members; Paul Higashi, ~lilenko D. Kolumbic, Nick Lovrieh and Steve Setka, individually, as trustees, oflieers, directors or members of the Executive Board, and as representative of the entire membership of Local No. 33, Fishermen and Allied ,Yorkers Division, International Longshoremen &; ,Varehousemen s Union; and. eac.h of sa.id respondents together with all of the members of the respondent Union, and the successors, assigns, agents, representatives and employees of said respondent Union, directly or through any corporate or other device, in connection with the purchase or sale in commerce, as "commerce" is defined in the Federal Trade Commission Act, of raw tuna fish do fort.Invith cease and desist from entering into, continuing, cooperating in or c.arrying out any -planned common and eonc.erted course of action, understanding or agreement between any two or more of said respondents, or between any one or more of said respondents and any other respondent or respondents in the instant case, or between anyone or more of said respondents to do or perform any of t.he followingactsand othersornot partiesthings:hereto, 1. To establish, fix, or maintain prices, for the sale or purchase of said raw tuna fish;

2. To threaten, c.oerce or compel, by any means or method, as a condition or requirement for the purchase or prospe,ctive purchase of said raw tuna fish, the prior, simultaneous or subsequent purchase of any other type or species of raw fish; 3. To threaten;, coerc.e or c.compel, by any means 01' method, as a eondit.ion or requirement. for the. purchase or prospective purchase of any other t.ype or species of raw fish, the prior, simultaneous or snbsefluent purchase of ra.w tuna fish;

4. To negotiate jointly or collectively, by any means or method for i he sale or purchase of said Taw tuna fish; 5. Participating in, overseeing, or contributing to any assessment or le.v~' , by ,,'hateTer name called or by whatever means computed for the purpose or "ith the efleet of attempting to establish, fix or maintain ~ or estn blishing, fixing or maintaining prices for the pllr- ,.

CALIFORNIA FISH CANNERS' ASSOCIATION; INC., ET AL. 133 120 Order chase or sale of raw tuna fish, by the patrolling of waters or harbors leading into or forming part of. any port or ports; 6. To threaten, coerce or compel, by any means or method, purchasers or prospective purchasers of any raw tuna fish, to' pay, adhere to, or comply with, any particular or specific prices for the purchase or sale of same.

P'J' ovided, ho'we'Vep Nothing herein contained shall be construed or interpreted as. preventing or prohibiting any respondent, individually, from purchasing or selling or bargaining for the purchase or sale of any such raw tuna fish "ith any single buyer or seller; P'J' om:ded f'U'J,thel' That nothing herein contained shall 'prevent genuine coJIeetive bargaining between respondent Union and any employer or employers with respect to rates of payor "'ages, hours and ,,'working conditions of any employee members of said ITnion, or activities in relation thereto, or shall prevent or prohibit said Union from performing any of the acts or practices permitted by the provisions of the Labor-:Management Relations Aet, 1947 (Act of June 23 , 1947," Public Law 101 , 80th Congress) or any other lawfully authorized Union activities;

ovided further The fact that the respondent Union, acting on behalf of its members, may have negotiations with any employer or employers of said members for compensation relating to future catehes of tuna by any of said members, for the purpose or with the effect of entering into, or which actually results in, or does not result in a, working agreement relating to the compensation for the catching of any type or species of fish other than raw tuna, in addition to the compensation for catching said raw tuna, shall not in iteslf, be interpreted or construed as a violation of the aforesaid subsections 2 or 3;

Prol.,'ided fu/J'the'J' That nothing herein contained shall be construed as preventing the enforcement., against the other parties thereto, by patrol or other means, by the respondent union of any eontrnct or contracts which it now has, or may have, at the time of the aforesaid enforcement with its mvn members, pertaining to their relati011ship as members of said Union, or with any employer or employers of said members pertaining to rates of payor wages, hours or working conditions of such members as employees; rovided t'UrtheT That nothing herein contained shall prevent bona fide fishermen members of respondent Union, or the Union itself while acting on behalf of its members, where the specific raw tuna fish has already been eaught by said members and cannot otherwise be sold or disposed of in aeeordance ,,'ith the existing contract be. Order 54 F. T.

tween the employer of said members and the purchaser or purehasers named in said contract, from negotiating in good faith for the sale or to sell such specific fish for the benefit of the members who eaught same;

Provided further That nothing herein contained shall be construed as preventing the respondent Union from taking proper action on behalf of its members who participated in a particular catch of raw tuna fish, or the members themselves, to pro feet the interest of such members against a purchaser of said fish who refuses: or fails to comply with, or abide by, the terms, conditions or provisions of an existing contract covering said catch, to ellforee said con tract..

VI. It is further ordel' That respondents, Seine and Line Fishermen s Union of San Pedro, its officers, trustees members of the Executive Board and members; and ,John Calise, Pat Di~1assa, Nick Pecoraro and Kiyohi Shigekawa, individually, as officers, trustees or members of the Executive Board, and as representative of the entire membership of Seine and Line Fishermen s Union; and each of said respondents together with all of the members of the respondent Union, and the suceessors, assigns, agents, representatives and employees of said respondent Union, directly or through any corporate or other device, in connection with the purchase or sale in commerce, as "eommeree" is defined in the Federal Trade Commission Act, of ra,\" tuna fish do forthwith cease and desist from entering into, continuing, cooperating in or carrying out any planned common and concerted course of action, understanding or agreement between any two or more of said respondents, or between any one or more of said respondents and any other respondent or respondents in the instant ease, or beh\"ee.n anyone. or more of said respondents and others not parties hereto, to do or perform any of the follo\\-ing acts or things:

1. To establish, fix or maintain prices, for the sale or purchase of said raw tuna fish;

2. To threaten, coerce or compel, by any means or method, as a condition or requirement for the purchase or prospective purchase of said raw tuna fish, the prior, simultaneous or subsequent. purchase of any other type or species of raw fish; 3. To threaten, coerce or compel, by any means or method, as a condition or requirement for the purchase or prospective purchase of any other type or species of raw fish, the prior, simultaneous or subsequent. purchase of raw tuna fish;

4. To negotiate jointly or collectively, by any means or method for the sale or purchase of said raw tuna fish; ) ) CALIFORNIA FISH CANNERS ASSDCIATION INC. ET AL. 135 120 Order 5. Participating in, overseeing, or contributing to any assessment ()r levy, by whatever name ealled or by whatever means computed, for the purpose or with the effect of attempting to establish, fix or l11maintain, or establishing, fixing or maintaining prices for the pur- .chase or sale of raw tuna fish, by the patrolling of waters l1arbors leading into or forming part of any port or ports; 6. To threaten, coerce or compel, by any means or method, pur- .chasers or prospective purchasers of any raw tuna fish, to pay, adhere or comply with, any partic.ular or specific prices for the purchase. or sale of same.

P'i'ov-ided ~ howe' vet Nothing herein contained shall be construed or interpreted as preventing or prohibiting any respondent, inc1ividuaUy, from purchasing or seHing or bargaining for the purchase or sale .of any sllch raw tuna fish with any single buyer or seder; Provided fw,thel' That nothing herein conta.ined shall prevent. genuine coJJective bargaining between respondent Union and any employer or employers \with respect to rates of payor wages, hours :and \working conditions of any employee members of said Union or activities in relation thereto, or shan prevent or prohibit said linion from performing any of the acts or practices permitted by the provisions of the Labor-~lal1agement Helations Act, 19.:17 (A.ct of Tune :2:3, 1947, Public. L~nv 101, 80th Congress) or nny other la wful1y authorized Union activities;

Prm'iderl furthe7' The fact that the respondent Union, acting behnH of its members, may hate negotiations \with any employer 01' employers of said members for compensation relating to future c.atches of tuna by any of said memuers, for the purpose or \with the effect of entering into, or which actually results in, or does not result in a working agreement relating to the compensation for the catching of any type or species of fish other than raw tuna, in addition to the compensation for eatching said raw tuna, shah not, in itself be interpreted or construed as a violation of the aforesaid subsections Pi' ouided f1.lather. That nothing herein contained shah be construed ns prpventing the enforcement, against the other parties t hereto, by patrol or other means, by the respondent lJnion of any contract. or contracts which it now has, or may have., at the time of the aforesaid ent'orcement, with its o,vn members, pertaining to their relationship as members of said Union, or ,,-ith any employer or employers of saiel members pertaining to rates of payor wages, hours or \working conditions of such members as employees; Pi' ovi.(led further That nothing herein contained shall prevent bona fide fishermen members of respondent Union, or the Union itself while acting on behalf of its members, \"here the specific raw Opinion 54 F.

tuna fish has already been caught by said members and cannot otherwise be sold or disposed of in accordance with the existing contract between the employer of said members and the purchaser or purchasers named in 'said contract, from negotiating in good faith for the sale or to sell such specific fish for the benefit of the members who caught same;

Provided fu1'ther That nothing herein contained shall be construed as preventing the respondent Union from taking proper action on behalf of its members who participated in a particular catch of raw tuna fish, or the members themselves, to protect the interest of such members against a purchaser of said fish who refuses or fails to comply with, or abide by, the terms, conditions or provisions of an existing eontraet covering said catch, to enforce said contract. this order 1 t is fupthe1' O1'dei' Thn t. the respondents named in except those as to whom the complaint has been hereby dismissed shall, within sixty (60) days after service upon them of this order file with the Commission a report in writing setting forth in detail the manner and form in which they have complied ,with the order to eense and desist.

OPINION OF THE CO~DIISSION By the. COl\1l\IISSlON:

The complaint in this proceeding charges, among other things, an unlawful combination, c.onspiracy and planned c.common course of action by the respondents to hinder and suppress competition in the the. "~aiel'spurchase and sale of raw tuna and tuna-like fish caught in of the Pacifie Oeenn. Joined as parties respondent ,,-ere various firms and corporations engaging as canners of fish, c.certain cooperative associations composed of boat owners, together with their officers directors and memberships, and three unions and their officers and memberships of fishermen and cannery workers. Five agreements were entered into by counsel supporting the complaint and various of the respondents or their counsel, each of ,which agreements contained a consent order in disposition of all the issues of this proceeding with respect to the respondents to whom sneh agreements reexecuted bv other co- lated. A sixth agreement identical with that respondent cooperative associati011s subsequently was entered into by another of the respondents. Pursuant to the provisions of S 3. of the Commission s R.ules of Practice, the five agreements were submitted to the hearing examiner for his consideration. The. agree~ ments "-ere rejected by the hearing examiner as inappropriate and counsel supporting the, complaint, and counsel for the respondents to which.h the agreements reJnte have filed joint appeal from that ruling as permitted under S 3.25 of the aforesaid rules. CALIFORNIA FISH CANNERS ASSOCIATION, INC., ET AL. 137 120 Decision Each of the agreements contained a consent cease and desist order prohibiting various of the signatories' use of the acts and practices charged as unlawful in the complaint. The hearing examiner conclusion that the agreements were inadequate was not based, however, on the scope of the injunctive provisions contained in the orders; it primarily was based, instead, on his eon cern with respect to various additionally included provisos or exemptions. The latter in his view, either served to detraet from the clarity of the proscriptions in instances or were deemed an unnecessary reservation of rights nowise affected by the orders.

Provisos similar to one of those included in certain of the instant orders have been ineorporated in judgments rendered by district courts, and another of such provisions has been adopted in an order previously issued by the Commission. Implicit in various of the provisos was recognition of the fact that the Fishermen s Cooperative ~larketing Aet and the Labor-:iUanagement Relations Aet, 1947 sanction joint and collective activity in certain categories. ,Ye think that the provisos served to place the orders' injunctive provisions in proper perspective and do not detract from the clarity and effeetiveness of the respective orders. The six agreements, neeordingly, are accepted and ordered filed.

Our deeision in this matter should not be eonstrued, however, as general approval and approbation for the inclusion of provisos in eonsent orders to cease and desist. The production and initial marketing of the particular marine products to which this proceeding relates normally necessitate cooperative and joint endeavors in varying degrees bet,,' een and among diflerent industry member groups having wage and other financial interests therein. As previously noted, joint activities in categories there designated arc expressly sanctioned by special statutes. flenee, the agreements' reeognition of that circumstanc.e and other relevant commercial relationships and conditions existing in the industry '"as appropriate here. INITIAL DECISION DISl\IISSIXG THE CO::\IPLAIXT AS TO CERTAIN RESPONDENTS This proceeding is before the hearing examiner upon motion of counsel supporting the complaint to dismiss the Fishermen s Cooperative Association (of Seattle), its officers, directors and members. On July 24, 1957, the Commission accepted agreements for consent order and issued its Order to Cease and Desist as to all of the 138 respondents named in the complaint except the above-named respondents.

It was represented by the attorney in support of the complaint in his motion to dismiss that the Order to Cease and Desist entered 138 FEDERAL TRADE COMMI~SION DECISIONS Decision 54 F.

by the Commission will effectively prevent the continuation or repetition of the acts and practices alleged in the complaint as being violative of Section 5 of the Federal Trade Commission Act, even though the above-named respondents are not parties to such order; and that it would not be in the public interest to expend the time and money 'which would be necessary to try the entire case for the purpose of securing an order to cease and desist against this single group of respondents. In view of the above 1 t i.'3 therefo1'e o1'dered That the complaint herein be dismissed without prejudice as to respondents Fishermen s Cooperative Association (of Seattle), its officers, directors and members; and Reidar I-Iammer, Dan Hjort, Bert G. Johnston, Adam Kanzler, Kristian , in-Kyvik, Harry tJ. l\ieCool, I-Ienry Parpart and Neil Rasmussen dividually, as officers, directors and as representative of the entire membership of Fishermen s Cooperative Assoeiation (of Seattle). DECISION OF TH E CO::\DIISSIOX Pursuant to Section 3.21 of the Commission s Rules of Practice, the initial decision of the hearing examiner as to respondents Fishermen Cooperative Association (of Seattle), its officers, directors and membel's; and Reichl' I-hmmer Dan IIjort, Bert G. Johnston, Adam Kanzler, Kristian Kyvik, I-Iarr)' tJ. :JlcCool, I-Ienry Parpart and Nell Hasmnssen, individually, as officers, directors and as representative of the entire membership of Fishermen s Cooperative Assoeiation (of Seattle) shall on February 14 , 1958, become the decision of the Commission.

SYDNEE, INC. , ET AL. 139 Decision