Antitrust and Organized Labor

• Author: Christopher L. Sagers
• Pages: 193-206

193

CHAPTER X

ANTITRUST AND ORGANIZED LABOR

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.”

1

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.

2

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.

3

1

. Brown v. Pro Football, Inc., 518 U. S. 231, 241 (1996) (citing Paramount

Famous Lasky Corp. v. United States, 282 U.S. 30 (1930)).

2

. 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.”).

3

. 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).