CONTENTS Page Barnes, Stanley N. Unions and the antitrust law. Labor law journal, volume 7, March 1956: 133-136, 175–178_ Brown, Douglass V. Labor and the antitrust laws. 1 American Bar Asso 11 17 ciation, Section on Labor Relations Law, 1955, Proceedings: 23-29... Levitan, Sar A. An appraisal of the antitrust approach. Annals of the American Enterprise Association, inc. Alternatives within antitrust legislation. Washington, 1959. (In: Bill analysis: antitrust laws and labor unions, a special analysis, 86th Cong., 1st sess. AEA report No. 12, April 21, 1959: 29-38.)- National Association of Manufacturers of the United States of America: Causes of union monopoly power. [New York, 1957?] (In: Monopoly power as exercised by labor unions: 9-19.) _ Illustrations of exercise of union monopoly power. (In: Monopoly American Federation of Labor and Congress of Industrial Organizations. Heslet, Mary. Selected bibliography-- APPLICABILITY OF ANTITRUST LEGISLATION TO LABOR UNIONS: SELECTED EXCERPTS AND BIBLIOGRAPHY UNIONS AND THE ANTITRUST LAWS Stanley N. Barnes, Assistant Attorney General in Charge of the Antitrust Division of the Department of Justice* This discussion will pertain to present antitrust coverage of certain labor union activities. First, I shall sketch the present statutory pattern. Then I shall outline, on the basis of court construction of these statutes, what union activities antitrust presently reaches. Required here, of course, is some distinction between areas on the one hand, those areas where application of antitrust is comparatively well settled and, on the other, those areas which recent cases seek to probe. Finally, building on this discussion of existing coverage, I shall raise several broad problems posed by any extension of antitrust in this area. Statutory pattern At the outset, Sherman Act Section 1 proscribes every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations** *1 2 Some 20 years after the Sherman Act's passage, the Supreme Court, in Danbury Hatters, first considered its application to union activities. There the union endorsed a nationwide consumer boycott of plaintiff's nonunion-made hats. As a result, shipments of plaintiff's hats to out-of-state customers dropped substantially. This union activity, the Supreme Court said, transgressed the Sherman Act because the union sought to and did restrict interstate commerce in plaintiff's hats. In apparent response, Sections 6 and 20 of the Clayton Act sought to exclude certain activities in the course of a "labor dispute" from the antitrust laws. Section 6 declares that "the labor of a human being is not a commodity or article of commerce." It further provides that nothing contained in the antitrust laws shall be construed to forbid the existence and operation of labor * ** organizations, instituted for the purposes of mutual help, and not having capital stock or conducted for profits, or to forbid or restrain individual members of such organizations from lawfully carrying out the legitimate objects thereof; nor shall such organizations, or the members thereof, be held or construed to be illegal combinations or conspiracies in restraint of trade under the antitrust laws. Supplementing that provision, Section 20 barred issuance of federal injunctions prohibiting activities such as strikes, boycotts or picketing *Presented before Section on Antitrust Law of the New York State Bar Association on January 26, 1956. Reprinted in the Labor Law Journal, vol. 7, March 1956: 133–178. 115 USC Sec. 1. Loewe v. Lawlor, 208 U.S. 274 (1908). in any case between an employer and employees, or between employers and employees, or between employees, or between persons employed and persons seeking employment, involving or growing out of, a dispute concerning terms or conditions of employment. Section 20 concludes with the broad language: nor shall any of the acts specified in this paragraph be considered or held to be violations of any law of the United States. 3 The Supreme Court narrowed this exemption in the Duplex and Bedford Cut Stone cases. There the scope of Section 20 was limited to disputes between an employer and his own employees. Both these cases involved economic pressures created by concerted refusals to work on rather than to consume, as in Danbury Hatters, the plaintiff's product. A partial reaction to the Duplex and Bedford Cut Stone restrictions of Clayton Act Section 20, was the Norris-LaGuardia Act of 1932. This aimed to restore the broad purpose which Congress thought it had formulated in the Clayton Act but which was frustrated, so Congress believed, by unduly restrictive judicial construction.5 Accomplishing this end, "labor dispute" was there defined to include regardless any controversy concerning terms or conditions of employment of whether or not the disputants stand in the proximate relation of employer and employee." In addition, Section 20 barred federal injunction of enumerated union organizational and economic pressure activities." Emphasizing the impetus of antitrust's growth in inspiring NorrisLaGuardia's passage, the Supreme Court, in Driver's Union v. Lake Valley Company, reasoned: The committee reports on the Norris-LaGuardia Act reveal that many of the injunctions which were considered most objectionable by the Congress were based upon complaints charging conspiracies to violate the Sherman Anti-Trust Act. To end the granting of injunctions of this type, section 5 of the Norris-La Guardia Act deprived federal courts of jurisdiction to issue restraining orders or injunctions "upon the ground that any of the persons participating or interested in a labor dispute constitute or are engaged in an unlawful combination or conspiracy because of the doing in concert of the acts enumerated ***." In reporting the bill, the House Judiciary Committee said, "This section is included principally because many of the objectionable injunctions have been issued under the provisions of the anti-trust laws, a necessary prerequisite for invoking the jurisdiction of which is a finding of the existence of a conspiracy or combination and without which no injunction could have been issued." 8 So much for the present statutory pattern. Activities covered Viewing this statutory pattern, the Supreme Court, in Allen-Bradley Company v. Local No. 3,9 has recognized "its responsibility to try to reconcile" two "declared Congressional policies." The one seeks to preserve a competitive business economy; the other to preserve the rights of labor to organize to better its conditions through an agency of collective bargaining. Duplex Printing Press Company v. Deering, 254 U.S. 443 (1921). Bedford Cut Stone Company v. Journeymen Stone Cutters' Association, 274 U.S. 37 (1927). U.S. v. Hutcheson, 3 LAHOR CASES § 51.110, 312 U.S. 219, 236 (1941). 29 USC Sec. 113(c) (1952). 129 USC Sec. 104 (1952). 3 LABOR CASES 151,104, 311 U.S. 91, 101. 9 LABOR CASES $51,213, 325 U.S. 797, 798 (1945). |