"The vegetable canner is faced with precisely the same problem as the grower of the crop that is to be canned. Like the grower, he operates in a comparatively small community with a limited labor supply on which to draw when the cannery season comes on * * *. Faced with the problem of seasonal employment, the canner has sought to lengthen the canning season and thus lessen the peakload by timing plantings so as to bring on crops at successive dates and by selection of varieties of different maturities. But weather and other factors entirely beyond the canners' and growers' control quite frequently defeat the normal results of such planning.'

In their arguments for exemptive relief from the hours standards, the canners seemed to presume that unless the application of the hours standard were to succeed in spreading employment, the objective of the fair labor standards legislation would be frustrated; the canners seemed unconcerned with considerations of equity or welfare for those required to work excessively long hours. From the basic arguments of unpredictable raw product flow and perishability, they went on to the conclusion that multiple-shift operations were impracticalthat the available work force would have to stay on the job as long as required to get the product processed-and therefore that a spreading of employment would not result. While the legislators were generally receptive to the arguments of unpredictability and perishability, they were not so easily convinced on the impracticality of multiple-shift operation. In support of the latter, the canners invoked a labor shortage argument. Given the labor market environment of 1933, the Members of Congress were inclined to be skeptical, whereupon the canners explained that the shortage was in terms of skilled male workers, which in turn was partly accounted for by the limited labor force to be obtained in the small towns and rural areas in which canneries were located. This presumably is the point underlying the rather obscure statements made in 1937 that "location of plants for processing perishable agricultural commodities, and variations in daily tonnage delivered by farmers, makes multiple-shift operation impossible."

There can be no doubt that the image of themselves which canners wished to leave in the eyes of Congress was one of vulnerability to the whims and vagaries of nature. Yet, almost simultaneously, away from Congress the canners endeavored to create a rather sharply contrasting image of themselves. In material prepared and distributed for the purpose of giving "the public a better understanding of their industry," the National Canners Association was saying: "For many of these fruits and vegetables, however, canners have helped growers to extend the harvesting season over a longer time. This has been done by the development of varieties that mature at different times of the growing season, and by spacing planting dates.

"These methods have helped to lengthen the canning period, and in turn, have resulted in longer periods of work for seasonal employees of canning plants. Diversification of packing operations; that is, the addition of many new commodities to the list of canned foods, also has resulted in materially lengthening the canning season during the past decade." "

This contrast in the self-assumed views of the cannery industry is enough by itself to suggest that something in the nature of an adversary proceeding would have been of great assistance to the Members of Congress in obtaining a valid picture of the cannery industry and its attributes that related to the questions of exemptive relief from the hours standard. But such an adversary proceeding could not have existed at the time of enactment, for there were no unions to speak on behalf of cannery employees. Consequently, the "facts" of the fresh fruit and vegetable cannery industry, to which the exemptive provisions of the act were accommodated, were unilateral and inevitably self-serving. Similarly, the equity issues bound up in the exemptions; namely, the higher labor costs for the employer as against overtime pay for the worker, were decided with representation only of one side.

Regardless of the validity of the canners' arguments, they succeeded in getting from the Congress an hours exemption that was at least as lenient as they had requested. In section 7 (c) of the act, Congress gave fresh fruit and vegetable canners a 14-week exemption (whether in the harvesting season or not) for all employees of the plant (not just those engaged in processing or packing). Subsequent to the passage of the act, the ex-parte position of the canners paid

Ibid., 460.

Mimeographed material released by the National Canners Association, Washington, D.C., December 1938.

off even more handsomely against the administration. In 1940, upon an uncontested demand that they be eligible for hours exemption as a seasonal industry under section 7(b)(3) as well as under the specific provisions of section 7(c), the Administrator allowed canners to have both exemptions, for a total of 28 weeks per year. As against the canners' modest demands made in 1937, this was a resounding accomplishment and clearly a triumph of ex-parte procedure at both levels of Government.

B. Brief summary of evidence and conclusions

The President, in requesting legislation to establish minimum standards with respect to wage rates and working hours, recognized that some employments in the national economy could not readily be adapted to a specified workweek. He spoke of "a few exceptional trades" for which overstandard working weeks might be permitted upon the payment of time and one-half. The initial bills in the House and the Senate went beyond this and would have granted the proposed Labor Standards Board permissive authority to exempt from time and onehalf "overtime employment in periods of seasonal activity." After extensive public hearings, neither the House or Senate committees were convinced of the need to go beyond the permissive authority in the original bills.

In Senate debate, efforts were made to specify a large number of employments in agricultural processing for which exemption from the hours standard would be mandatory. Although the Senate was able to determine a considerable list of activities to be exempt "when the services *** are of a seasonal nature," it was unable to develop mandatory criteria that would determine when services were of a seasonal nature.

The House, in considering the Senate action accepted its list of agricultural processing activities which were to be given temporary exemption and attempted to specify the limits of seasonality. The first concept was 10 weeks, which was later increased to 12—a figure that was approved in the House.

In conference on the disagreement between Senate and House, the list of specifically named exemptions in agricultural processing were retained and the maximum exemption increased to 14 weeks. Moreover, the conferees came to realize that in their efforts to make certain of a complete list of specific exemptions for agricultural processing, they had failed to retain a provision (which the original bills would have had) for other seasonal activities, such as in mining and lumbering. Accordingly, the general permissive exemption of the original Black-Connery bills was restored. The statements of legislators in both Houses as they debated and accepted the conference report make it quite clear that their legislative intent was that industries unable to qualify for exemption under the specific and mandatory exemptions of section 7 (c) would be able to seek relief under the restored general exemption—7(b) (3). The industries specifically named for exemption in section 7(c) were given an unrestricted exemption for a maximum of 14 weeks; those industries which under section 7(b) (3) were found by the Administrator to be seasonal in nature could attain 14 weeks of restricted exemption. The provisions of the two subsections reflect the same concept, but in terms that are mandatory and discriminatory for the agricultural processing industries.

There is absolutely no evidence of legislative intent that canners of fresh fruits and vegetables who are specifically eligible for a 14-week unlimited exemption because they are engaged "in canning or packing perishable or seasonal fresh fruits and vegetables" would also be able to qualify for an additional 14 weeks of exemption because their industry is "seasonal in nature."

On the contrary, the statements made at all stages of the legislative process reflect the concept of an exemption, ultimately defined as 14 weeks. No one ever raised the question as to whether a canner who could receive 14 weeks of exemption because he was "canning or packing perishable or seasonal fresh fruits and vegetables" would also qualify for an additional 14 weeks of exemption because the industry in which he did this canning or packing was "seasonal in nature." There was only one concept-a 14-week exemption. By the language of section 7(c) the Congress removed administrative discretion in respect to specifically named agricultural processing industries; by the conference action of addition subsection (3) to section 7(b), the Congress restored the earlier general language of the Black-Connery bills, authorizing adminis trative discretion for other seasonal industries not eligible for exemption under 7(c).

Strangely enough, the Administrator, in the beginning, interpreted the statute as providing only one 14-week exemption. Statements made in the 1939 and 1940 annual reports and in other administrative documents quite unequivocally reflect this understanding.

Nevertheless, upon demand for a determination of eligibility under section 7(b) (3), the Administrator granted a hearing to Northwest Canners Association, et al., in July 1940. The presiding officer of the hearing found that "first processing and canning of perishable or seasonal fresh fruits and vegetables as a branch of an industry and of a seasonal nature within the meaning of section 7(b)(3) of the Fair Labor Standards Act and part 526 as amended of the regulations issued thereunder."

Apparently the fact that canners were found to meet the administrative criteria of "seasonal in nature" was accepted as conclusive. Apparently, the question of whether the canners had already received the only exemption to which they were entitled, under section 7 (c), was not raised.

In his 1941 annual report, the Administrator said (p. 84):

"The need for hours-exemption for canners and packers of perishable or seasonal fresh fruits and vegetables is partially satisfied by one provision in section 7(c) which grants to all such employers, wherever located, a complete hours exemption for 14 weeks. Evidence submitted at hearings and at another hearing held on this specific question showed that these employers also could qualify for a seasonal exemption under section 7(b) (3), and a finding of seasonality accordingly was made."

Why the willingness of the Administrator to grant the canners 28 weeks of hours exemption when Congress had so clearly granted authority for only 14 weeks?

Perhaps the Administrator answered this question in an obscure way when in his 1941 report he also said:

"The reaction of employers and employees in the fresh fruit and vegetable industries indicates that both the new "area of production" definition and the seasonal exemption have been accepted as reasonably satisfactory, and a widespread cooperative attitude toward enforcement is evident." [Emphasis added.] The Administator faced resistance and hostility from agriculture and related processing industries. This attitude had been encountered earlier in the legislative process. Senator Black in the first Senate debate on the proposed act had said: "

"I have been interested to some extent in laws of this type for several years. I very soon discovered, from what numerous persons told me, that the canners were the most active, the most energetic, the most alert, perhaps, of any group in America when it came to trying to secure exemptions from the law ***” Canners and their influence were prominent in the legislative process and they were equally so in subsequent administration. In the absence of countervailing organizations and political pressures on behalf of cannery workers, the statute itself is heavily slanted to the interests of employers. The tortured language of section 7(c) is witness itself to the ardent efforts to make sure that no important category of agriculture and agricultural processing was left without some kind of an exemption. When a lenient statute is administered favorably to those who have already been favored, the burden upon the workers that were supposed to be protected is compounded. The Administrator stated in his annual report for 1940 that "the protection of farmers against adverse effects from the act has been a cardinal point of administrative policy." This was the year in which the Administrator did what the Congress did not intend or give him the authority to do. The actions taken corroborate and validate the quoted statement about the "cardinal point of administrative policy." One would suppose that in a constitutional republic, "administrative policy"cardinal points and all others included—would be to administer statutory authority and obligation as provided in the laws. But experience clearly demonstrates that good administration depends upon the surveillance of all parties of interest. The absence of surveillance on the part of cannery employees in the critical early years has undoubtedly cost them a great deal.

Why has the 1940 administrative action of giving employers, who already had an exemption, an additional one been allowed to stand? The answer prob

The report of the presiding officer notes: "Numerous parties appeared in support of the application. The United Cannery, Agricultural, Packing & Allied Workers of America appeared in opposition to the application."

Congressional Record, 75th Cong., 1st sess., July 27, 1937, p. 7655.

ably lies in two facts: (a) In the years immediately following the 1940 administrative action the attentions of those who might possibly have been concerned were diverted by the war emergency; (b) cannery workers did not achieve organizational effectiveness until the postwar years, and by that time the administrative practice of allowing a double exemption had achieved the sanction of time.

Although the issue at this stage may be somewhat obscure, in the beginning it was simple. The Administrator implemented section 7(b) (3) through regulations part 526. Section 526.4 reads in part: "Any industry, or employer, or employer group therein, may make written application to the Administrator for a determination that the industry is of a seasonal nature ✶ ✶ The Admin istrator could have remained within congressional intent and statutory authority by means of some such simple device as an 11-word parenthetical restriction after the 8th word of the above part; i.e., "(but not including classifications of employees subject to exemptions under sec. 7 (c))."

As a result of so simple an omission, cannery employers have for two decades received exemptive benefits far in excess of those they requested in the initial legislative stages in 1937, and approximately double those to which they were lawfully entitled.

Source: "Commercial Vegetables for Fresh Market and Processing, Usual Planting and Harvesting Dates, in Principal Producing Areas." U.S. Department of Agriculture, Statistical Reporting Service, Crop Reporting Board, Washington, D.C., Agriculture Handbook No. 251, June 1963.

ATTACHMENT 3

Average weekly hours in peak canning months, 1963, compared to all manufacturing and meatpacking industries

ATTACHMENT 4

Average weekly hours worked in canned foods (except seafoods) industries, in peak months, 1958-63

Annual average weekly hours worked in canned foods (except seafoods) industries, all manufacturing industries, and meatpacking industry, 1958-63

Production worker average weekly hours, canned foods (except seafoods), all manufacturing, and meatpacking, 1951-63