United States: Balancing The Interests Of Antitrust And Labor Laws

Last Updated: July 29 2019
Article by Daniel G. Swanson

National attention has increasingly focused on the proper role of antitrust law in regulating labor markets. Much has been written about the possibility of stricter merger enforcement by the Federal Trade Commission and An-titrust Division of the Department of Justice based on claims of increasing concentration in labor markets and the associated possibility of greater employer buyer power. Agreements and understandings among employ-ers relating to worker recruitment (e.g., alleged non-solicitation and "no poaching" arrangements) have been the target of recent scrutiny by the DOJ and state attorneys general and in class action litigation as alleged per se (automatic) antitrust violations. A recent Seattle ordinance that sought to authorize collective bargaining for independent-contractor drivers who partnered with transportation network companies (such as Lyft or Uber) ran into heavy sledding in the courts when challenged as a cartel scheme. And in recent weeks a powerful union — the Writers Guild of America — was hit by multiple antitrust suits for alleged efforts to boycott talent agencies that engaged in content "packaging" deals.There is no question that agree-ments among employers pertaining to employee hiring and compensation can violate the antitrust laws. The Su-preme Court has stated that "antitrust law forbids all agreements among competitors (such as competing em-ployers) that unreasonably lessen competition among or between them." Brown v. Pro Football, Inc., 518 U.S. 231, 241 (1996). Agreements among employees can also constitute anti-trust offenses. Indeed, shortly after the Sherman Act became law in 1890, it was wielded as a weapon against labor organizing and union activity.In reaction, as part of the Clayton Act in 1914, Congress declared that the "labor of a human being is not a commodity or article of commerce" and that labor organizations are not "il-legal combinations or conspiracies in restraint of trade." This, together with prohibitions on injunctive relief in la-bor disputes, was the fountainhead of the "statutory" labor exemption from the antitrust laws, which affords sub-stantial immunity under the federal antitrust laws for union activity such as organizing, boycotting and picketing. This exemption is broad but not un-limited. A bona ¬de labor organization must pursue its "self-interest," limit its activities to labor market objectives and may not combine with a non-labor group. In Allen Bradley Co. v. Local Union No. 3, International Brother-hood of Electrical Workers, 325 U.S. 797 (1945), for example, the Supreme Court denied immunity to an electrical workers' union that combined with non-labor groups (electrical manufac-turers and contractors) to foreclose the market to outside electrical ¬rms.The Supreme Court has also fash-ioned a so-called "nonstatutory" ex-emption protecting conduct such as bilateral bargaining activity based on federal labor policy grounded in the National Labor Relations Act. The court has observed in this regard that "a proper accommodation between the congressional policy favoring col-lective bargaining under the NLRA and the congressional policy favoring free competition in business markets requires that some union-employer agreements be accorded a limited nonstatutory exemption from anti-trust sanctions." Connell Const. Co., Inc. v. Plumbers and Steam¬tters Local Union No. 100, 421 U.S. 616, 622 (1975). Thus, when a union or employers seeks to attain goals not speci¬cally permitted by any statute but sanctioned by the policy in favor of collective bargaining under the NLRA, the courts have exempted the conduct from antitrust liability. The Supreme Court, however, has never conclusively delineated a precise test for this exemption, and courts have observed that de¬ning its boundaries has not proved an easy task.

For its part, the 9th U.S. Circuit Court of Appeals has applied a test which holds that "the parties to an agreement restraining trade are ex-empt from antitrust liability only if (1) the restraint primarily affects the par-ties to the agreement and no one else, (2)the agreement concerns wages,hours, or conditions of employmentthat are mandatory subjects of collec-tive bargaining, and (3) the agreementis produced from bona ¬de, arm'slength collective bargaining." PhoenixElec. Co. v. National Elec. Contrac-tors Ass'n, 81 F.3d 858, 861 (9th Cir.1996).The 9th Circuit rejected an unusual plea for application of the exemption in a decision arising out of a 2003-04 strike by grocery workers in Southern California (a looming prospect once again given that grocery workers vot-ed for strike authority just last month). See California v. Safeway, Inc., 651 F.3d 1118 (9th Cir. 2011) (en banc).In anticipation of the potential use of"whipsaw" tactics, where unions pres-sure one employer within a multi-em-ployer bargaining unit (e.g., throughselective strikes), the grocers hadagreed that if one party was struck, the others would lock out all their unionemployees. Furthermore, the grocers agreed to a temporary revenue-sharing arrangement in the event of a strike to maintain historical market shares (by reallocating revenue to those suffering most from the labor action). The state of California sued the grocers, alleg-ing that the revenue-sharing agree-ment was per se unlawful cartel-type conduct. The grocers claimed that the nonstatutory labor exemption applied. The 9th Circuit disagreed, noting that the employers' agreement was not ap-proved or regulated by labor law, but went on to hold that the agreement was not a per se antitrust violation. Although then-Attorney General Ka-mala Harris did not prevail on the ultimate merits in the appeal, her ex-perience in litigating over labor-anti-trust issues with grocers was later on display when she again invoked the antitrust laws to assert claims against high-tech companies over alleged "no poach" agreements. In announcing settlements in 2014, Harris asserted that: "No-poach agreements unfairly punish talented workers and stunt our state's economic growth."The future seems quite likely to hold more occasions for the courts to balance the various interests in play as antitrust law and labor issues move to the forefront of the national debate.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions