Antitrust and Organized Labor

AuthorChristopher L. Sagers
Antitrust and labor law inherently conflict. Labor law promotes
collaboration among workers and employers by authorizing collective
bargaining over wages, terms, and conditions of employment. Antitrust
promotes competition by prohibiting anticompetitive collaboration.
“[U]nlike labor law, which sometimes welcomes anticompetitive
agreements conducive to industrial harmony, antitrust law forbids all
agreements among competitors (such as competing employers) that
unreasonably lessen competition among or between them in virtually any
respect whatsoever.”
To address this tension, Congress and the courts have created two
exemptions from antitrust scrutiny, which have come to be known as the
“statutory” and “nonstatutory” labor exemptions.
The statutory
exemption applies to conduct by workers themselves, because those
statutes in which Congress has explicitly exempted labor organizing only
authorize workers themselves to collaborate and engage in other union
activity. The statutory exemption therefore allows them to organize in
order to eliminate competition over wages and terms of employment. It
applies so long as the organized workers act unilaterally in support of
their own interests and do not combine with nonlabor groups to restrain
competition in a nonlabor market.
. Brown v. Pro Football, Inc., 518 U. S. 231, 241 (1996) (citing Paramount
Famous Lasky Corp. v. United States, 282 U.S. 30 (1930)).
. See Clarett v. NFL, 369 F.3d 124, 130 (2d Cir. 2004) (“[I]t has long been
recognized that in order to accommodate the collec tive bargaining
process, certain concerted activity among and between labor and
employers must be held to be beyond the reach of the antitrust laws.”).
. Note that in order to enjoy this exemption, the workers must actually be
employees, and not merely independent contractors. Where independent
contractors or ganize for higher p ay or other terms, the courts have held
them simply to be cartels. See, e.g., Columbia River P ackers Ass’n v.
Hinton, 315 U.S. 143, 145 (1942) (actions of a “union” of fishermen and
their employees not protected by Norris -LaGuardia Act because the
fishermen were independent businessmen).

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