Amicus Curiae Brief — Brown v. Pro Football, Inc.

« Supreme Court, U.S.

Pit Db

Seth GIG:

CLERK -

No. 95-388

IN THE

Supreme Court of the United States

OCTOBER TERM, 1995

>

ANTONY BROWN, et. al.,

Petitioners,

—Y,——

PRO FOOTBALL, INC. d/b/a

WASHINGTON REDSKINS, et al.,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF OF LEAGUE OF VOLUNTARY HOSPITALS

AND HOMES OF NEW YORK, REALTY ADVISORY

BOARD ON LABOR RELATIONS, INC. AND

TANKER SERVICE COMMITTEE AS AMICI

CURIAE IN SUPPORT OF RESPONDENTS

Howard L. Ganz

Counsel of Record

Steven C. Krane

PROSKAUER ROSE GOETZ

& MENDELSOHN LLP

1585 Broadway

New York, New York 10036

(212) 969-3000

February 16, 1996

~ BEST AVAILABLE COPY |

i

TABLE OF CONTENTS

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UGE OF ARSIUMEENE 266 cc ccc eee twee’ 4

ARGUMENT

I. Multiemployer Bargaining Is a “Vital Factor” in the

Effectuation of the National Labor Policy that Pro-

motes Labor Peace Through Collective Bargaining .. 6

Il. Adoption of the Positions Advanced by Petitioners

Would Undermine Multiemployer Bargaining and

Thus Subvert Fundamental Principles of Federal

ee ies Fale Sb ek ae ee Pe ees 12

SE as ieee Oke 5 9 oa sk eae OS eR ales 21

‘i

TABLE OF AUTHORITIES

CASES Page

Amalgamated Clothing & Textile Workers Union v.

J.P. Stevens & Co., 475 F. Supp. 482

(S.D.N.Y. 1979), vacated as moot,

G5G Fast ek ee PE ee ices sees Cheeni 1]

Amalgamated Meat Cutters & Butchers Workmen v.

Wetterau Foods, Inc.,

FOr Fae Se ee Ge COTE ek ec 554s e ee 1]

American Ship Bldg. Co. v. NLRB,

See he SPE hk 6 Ga rece ecenaas 17-19

Brown v. Pro Football, Inc.,

782 F. Supp. 125 (D.D.C. 1991),

rev'd, 50 F.3d 1041 (D.C. Cir. 1995),

cert. granted, 64 U.S.L.W. 3414

(U.S. December 8, 1995) (No. 95-388) ....... 5, 10, 13

California State Council of Carpenters v.

Associated Gen. Contractors, Inc.,

em ke eer FL | | ere ere 1]

Carpenter Sprinkler Corp. v. NLRB,

GS FA a ae Ga SU hoo ne bh aes 15

Charles D. Bonanno Linen Serv. Inc. v. NLRB,

Oe UR GG | ko Rha eee ee 5-10, 15, 16

Chicago Midtown Milk Distribs., Inc. v.

Dean Foods Co., 1970 Trade Cas.

Cree S Fare ree ee PM 0 ae eb re ae 1]

Circuit-Wise, Inc..,

SOP PLA Wee CHO oo 00 does eee eee 18

————

NE Ss NE AINE ANB: A SIONS Dll a a Gat Ath Sa A Sie haat oaceas:

Oa A, wt ee te

ill

Clune v. Publishers’ Ass ”,

214 F. Supp. 520 (S.D.N.Y.),

aff'd, 314 F.2d 343 (2d Cir. SP ax ee an 10

Colorado-Ute Elec. Ass n, Inc. v. NLRB,

939 F.2d 1392 (10th Cir. 1991),

cert. denied, 504 U.S. 955 a oa a Se ene age 17

Emhart Indus., Hartford Div. y. NLRB,

907 F.24 372 (2d Cir. 1990) .......... 16

Hi-Way Billboards, Inc.,

206 N.L.R.B. 22 (1973), enforcement

denied, 500 F.2d 181 Se 9, 18

Huck Mfg. Co. v. NLRB,

693 F.2d 1176 (Sth Cir. 1982) .......0.. 14

Kennedy v. Long Island R.R. Co. ‘

319 F.2d 366 (2d Cir.),

cert. denied, 375 U.S. 830 eee ee ce ead ee

Laborers Health & Welfare Trust Fund v.

Advanced Lightweight Concrete Co. p

sc vs eertae soe, a 13-14

Litton Fin. Printing Div. v. N. 238.

ET er rn 14

Local Union No. 47 vy. NLRB,

927 F.2d 635 (D.C. Cir. SSS eee 17

NLRB v. American Printers & Lithographers,

820 F.2d 878 (7th Cir. 1987)... 7

NLRB v. Beckham, Inc.,

564 F.2d 190 (Sth Cir. , 2 ee 7

iV

NLRB v. Brown,

a EE nk ha a KOR Po ao ew a 10

NLRB vy. Charles D. Bonanno Linen Serv. Inc.,

630 F.2d 25 (ist Cir. 1980), affd,

ee, Se I Se ok Pe aw les be Ok 7

NLRB v. Katz,

Dee es Fe ae 56 es hk ls Oe 8 14, 16, 19

NLRB v. McClatchy Newspapers, Inc.,

964 F.28 1153, 1564 GDC. Cir. 1982) ow ee 17

NLRB v. New York Typographical Union No. 6,

ee By Be oe | Ba errr eee 7

NLRB v. Plainville Ready Mix Concrete Co.,

44 F.3d 1320 (6th Cir.), cert. denied,

Soe a ee ee aah ob oe he a Ra ee 22 OR 17

NLRB v. Tex-Tan, Inc.,

ee Wa ere Ge eae Be Bin eb se ee ew as oe 19

NLRB v. Truck Drivers Local Union No. 449,

Pe Se ks Keo ake he 6-8, 10, 18-20

National Basketball Ass'n. v. Williams,

45 F.3d 684 (2d Cir. 1995),

petition for cert. filed,

64 U.S.L.W. 3070 (U.S.

Fully BG, 1995) GO. Barts Te cc ccc ete ncens 5, 6, 10

ee

Newspaper Drivers & Handlers’ Local No. 372 v.

NLRB, 404 F.2d 1159 (6th Cir. 1968),

cert. denied, 395 U.S. 923 (1969) ......

Powell v. National Football League,

930 F.2d 1293 (8th Cir. 1989),

cert. denied, 498 U.S. 1040 (1991) ......

Prepmore Apparel, Inc. v. Amalgamated

Clothing Workers, 431 F.2d 1004

(Sth Cir. 1970), cert. dismissed,

8. yt arr ae

Retail Assocs., Inc.,

rR mS ee Fy). :

Southwest Forest Indus., Inc. v. NLRB,

84] F.2d 270 (9th Cir. 1988) ..........

Storer Communications., Inc.,

ro Boom 8 8k. es

Taft Broadcasting Co.,

163 N.L.R.B. 475 (1967), enf'd

sub nom. American Fed'r of Television

& Radio Artists v. NLRB,

395 F.26 G22 (DC. Ci. 19686) .........

Tennessee Products & Chem. Corp. v. NLRB,

423 F.2d 169 (6th Cir.), cert. denied,

Se ak CEE. hs LENS,

Transport Co. of Texas,

eee eS 2 Oe oil. rr rear

United Brick & Clay Workers v. Junction

City Clay Co., 158 F.2d 552 (6th Cir. 1946)

Page

5, 10

Page

United Steelworkers v. Fort Pitt Steel Casting Div.,

635 F.2d 1071 (3d Cir. 1980), cert. denied,

Se aes OE ahs © b Grs'e 5604 04 oe ere ee

Wood v. National Basketball Ass'n,

Se ae See Ge Gs SED bc vos Ss Oe ree ewe ee obs 12

STATUTES

National Labor Relations Act,

29 U.S.C. §§ 159(1), 159(2) ......... CA yr Fre

Norris-LaGuardia Act, 29 U.S.C. § 104(b) .. aa ne

OTHER AUTHORITIES

Clarence E. Bennett, Employers’ Associations in

the United States: A Study of Typical

Cee * 5 os been ete naess ae oy

Cox, Labor and the Antitrust Laws—A Preliminary

Analysis, 104 U. Pa. L. Rev. 252 (1955) ........... 1]

No. 95-388

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1995

ANTONY BROWN, &7 AZ.,

PETITIONERS,

Vs.

PRO FOOTBALL, INC. D/B/A

WASHINGTON REDSKINS, Er Az.,

RESPONDENTS.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF OF LEAGUE OF VOLUNTARY HOSPITALS

AND HOMES OF NEW YORK, REALTY ADVISORY

BOARD ON LABOR RELATIONS, INC. aND TANKER

SERVICE COMMITTEE AS AMICI CURIAE

IN SUPPORT OF RESPONDENTS

This brief in support of respondents is submitted in

accordance with Rule 37 of the Rules of this Court. The League of

Voluntary Hospitals and Homes of New York, Realty Advisory

Board on Labor Relations, Inc. and Tanker Service Committee, as

amici curiae, have obtained and filed herewith the written consent

of petitioners and respondents to the submission of this brief.

2

INTEREST OF AMICI CURIAE

Although this case arises out of a labor dispute in profes-

sional football, its implications far transcend the world of profes-

sional sports.

As discussed below, adoption of the position advocated by

petitioners and their amici would render unlawful collective

bargaining conduct routinely engaged in by multiemployer associa-

tions and thus entirely undermine the process of multiemployer

bargaining, a method of labor-management negotiation that pre-

dated both the Sherman Act and the Wagner Act and has become

the preferred and routinely accepted mode of collective bargaining

in countless industries throughout the United States.

Amici curiae are associations of employers in industries

other than professional sports, who, for decades, have engaged in

multiemployer bargaining with their employees. Approximately

80,000 of amici's employees are presently covered by collective

bargaining agreements negotiated on a multiemployer basis.

The League of Voluntary Hospitals and Homes of New

York is a multiemployer association whose members operate 60

hospitals and nursing homes—of significantly disparate size—in the

New York metropolitan area.’ Since 1968, the League has engaged

in collective bargaining on a multiemployer basis with Local 1199

of the National Health and Human Services Employees Union, and

(since 1982) with Local 144 of the Hotel, Hospital, Nursing Homes

and Allied Services Union, AFL-CIO. Both Local 1199 and Local

144 represent the full gamut of hospital employees, including

clerical, service, maintenance, technical and professional workers.

Thus, the positions their members hold at League institutions cover

' The League’s members include, for example, Presbyterian

Hospital in the City of New York which has approximately 1,500

beds and almost 7,000 full-time employees, and Community

Hospital of Brooklyn, Inc., which has only about 130 beds and 420

full-time employees.

3

an extraordinarily broad range of jobs, including housekeeping

workers, nurses aides, clerks, secretaries, pharmacists, MSW social

workers, laboratory technologists, radiology technologists and

physical therapists. Taken together, these two unions represent

approximately 46,000 employees who work at the League’s member

hospitals and nursing homes.

Over the course of their almost 30-year collective bargaining

relationship, the League and Local 1199 have frequently reached an

impasse in negotiations. In fact, in the last 20 rounds of bargaining,

the parties have reached impasse on about 10 occasions (on average

just about once every other bargaining round); and virtually without

exception, the League, following impasse, has maintained in effect

the employment terms of the expired labor contract until a new

collective bargaining agreement was reached. On occasion, the

League, after impasse, has unilaterally implemented revised terms.

Indeed, in one round of bargaining, the League, following a lengthy

strike, implemented revised terms of employment and maintained

those revised terms in effect for the two years that were required for

the parties to reach a new collective agreement.

The Realty Advisory Board on Labor Relations, Inc.

(“RAB”) is an organization of employers in the building service

industry that, since at least 1979, has engaged in collective bargain-

ing on a multiemployer basis with Local 32B-32J of the Service

Employees Intemational Union, AFL-CIO. The members of the

RAB own or operate, inter alia, approximately 1,000 commercial

buildings in the New York metropolitan area in which about 30,000

building service workers represented by Local 32B-32J are em-

ployed.

The Tanker Service Committee is a multiemployer associa-

tion whose members are engaged in the operation of American-flag

deep-sea vessels. For approximately 30 years, the Committee has

engaged in collective bargaining on a multiemployer basis with

District 1 of the Marine Engineers Beneficial Association/National

Maritime Union (“MEBA”) and District 4 of the Marine Engineers

Beneficial Association/National Maritime Union (“NMU”) (or their

predecessor unions), and with the American Radio Association and

4

the Radio Officers Union. MEBA is the exclusive collective

bargaining representative for all licensed engineers employed aboard

the vessels operated by members of the Tanker Service Committee,

and the NMU is the exclusive collective bargaining representative

for all of the unlicensed personnel aboard those vessels. The

American Radio Association and the Radio Officers Union represent

radio officers. Approximately 4,000 individuals employed by the

members of the Tanker Service Committee are covered by collective

agreements negotiated on a multiemployer basis.

During the course of the multiemployer bargaining in which

it has engaged, the Committee and one or more of the unions have

reached impasse, and on most such occasions the Committee has

maintained in effect the employment terms of the expired agreement

until a new multiemployer contract was reached. In 1994, after

negotiating for several months following the expiration of the

agreement between the Committee and the NMU, the parties reached

impasse and the Committee unilaterally implemented revised terms

of employment that were continued in effect for a period of

approximately two months until a new collective bargaining

agreement was reached.

The interests of amici curiae are not represented by any of

the parties to this appeal. Accordingly, we submit that by this brief

the amici curiae provide an important and otherwise missing per-

spective to this Court.

SUMMARY OF ARGUMENT

Three Circuits of the United States Court of Appeals—the

Second, Eighth and District of Columbia Circuits—have had the

opportunity to evaluate the applicability of the antitrust laws to

employment terms maintained in effect or unilaterally implemented

by a multiemployer group after the expiration of a collective

bargaining agreement and after the bargaining parties had reached

(or were alleged to have reached) an impasse in negotiations. All

three courts concluded that employees may not mount antitrust

challenges so long as the unions they had designated as their

exclusive bargaining representatives remained in a collective bar-

RD cig ip PE Sih

5

gaining relationship with their employers. Having chosen to form

labor unions and to avail themselves of the benefits and protections

of the federal labor laws, so each court reasoned, the employees’

recourse was to the rights and economic weapons provided to them

by those laws.

While the three Court of Appeals decisions—Powell,’

Williams’ and Brown—all arose out of labor disputes between

professional athletes and sports leagues, the issues they presented

have far broader implications. As demonstrated below, rejection of

the principled approach reflected in these decisions and adoption of

the positions advocated by petitioners and their amici would cripple

if not destroy multiemployer bargaining, a longstanding method of

labor negotiation that, as this Court has itself emphasized, is a “vital

' factor” in effectuating the national policy of promoting labor peace

through strengthened collective bargaining. Charles D. Bonanno

Linen Serv., Inc. v. NLRB, 454 U.S. 404, 409 (1982).

Petitioners here make no showing that multiemployer

bargaining is any less “vital” today to the effectuation of this

national policy than it was in 1982; and they advance no principled

reason for denying to employers—who, with the consent of their

union counterparts, bargain collectively on a group basis—the nghts

and privileges indisputably exercisable by individual employers as

part of the collective bargaining process. Indeed, as is also shown

below, petitioners and their amici propose nothing short of a

“massive reshaping” of the collective bargaining regime intended by

Congress. Williams, 45 F.3d at 691.

2 Powell v. National Football League, 930 F.2d 1293 (8th Cir.

1989), cert. denied, 498 U.S. 1040 (1991).

> National Basketoall Ass'n v. Williams, 45 F.3d 684 (2d Cir.

1995), petition for cert. filed, 64 U.S.L.W. 3070, (U.S. July 24,

1995) (No. 95-137).

6

ARGUMENT

Multiemployer Bargaining Is a “Vital Factor” in

the Effectuation of the National Labor Policy that

Promotes Labor Peace Through Collective Bargaining.

As this Court has remarked on at least two occasions,

multiemployer bargaining is a practice that “long” antedated the

Wagner Act. Bonanno, 454 U.S. at 409; NLRB v. Truck Drivers

Local Union No. 449 (“Buffalo Linen”), 353 U.S. 87, 94 (1957).

Indeed, “[t]he existence of employer organizations that bargained

with unions of employees pre-dated the passage of the Sherman Act

in 1890.” Williams, 45 F.3d at 689. See Clarence E. Bennett,

Employers’ Associations in the United States: A Study of Typical

Associations, 21-22 (1921).

Although the National Labor Relations Act (“NLRA”)

makes no explicit reference to multiemployer bargaining, the

language of the NLRA clearly contemplates that employers may

participate in the bargaining process on a group basis. Thus,

Seciion 2(2) of the NLRA, 29 U.S.C. § 159(2), defines “employer”

as “any person acting as an agent of an employer, directly or indi-

rectly,” and Section 2(1), 29 U.S.C. § 159(1), defines “person” to

include “associations.” Bonanno, 454 U.S. at 406, 409.4 And, in

defining the rights and obligations of employers, the NLRA makes

no distinction between the employer who participates in the

collective bargaining process on its own and those who bargain on

a group basis through multiemployer “associations.”

As has been well recognized, multiemployer bargaining

affords both management and labor a number of advantages that

* Similarly, Section 4(b) of the Norris-LaGuardia Act, 29

U.S.C. § 104(b), bars the issuance of injunctions prohibiting any

person from becoming or remaining “a member of any labor

organization or of any employer organization.” (Emphasis added.)

e pie iit an aes

7

facilitate the collective bargaining process and thus foster labor

peace. Indeed, the multiemployer mode of bargaining “has become

s as important for unions as for employers.” /d. at 421 n.2

(Burger, C.J., dissenting). See also id. at 409 n.3; Buffalo Linen,

353 US. at 96.°

Thus, for example, multiemployer bargaining enables the

development of industry-wide programs providing benefits to

employees that individual employers might otherwise be unable (or

unwilling) to provide. Additionally, by enabling unions (and

employers) to concentrate their bargaining resources on the negotia-

tion of a unitary, industry-wide contract, multiemployer bargaining

“enhances the efficiency and effectiveness of the collective bargain-

ing process and thereby reduces industrial strife.” Jd at 410 n3

(quoting NLRB v. Charles D. Bonanno Linen Serv., 630 F.2d 25, 28

(Ist Cir. 1980), aff'd, 454 U.S. 404 ( 1982)).°

As a practical fact, if not by definition, the multiemployer

mode of bargaining posits that employers who are competitors in the

output or product market will agree among themselves upon the

terms and conditions that will govern the relationships with their

employees. Indeed, multiemployer bargaining contemplates such

joint conduct for the precise purpose of avoiding the disadvantages

that competition in the labor market may cause. But, as the Court

5 Absent NLRB order, of course, multiemployer bargaining

requires the consent of both labor and management. See, e¢.g.,

NLRB v. American Printers & Lithographers, 820 F.2d 878, 882 n.4

(7th Cir. 1987); NLRB v. New York Typographical Union No. 6, 632

F.2d 171, 183 (2d Cir. 1980); NLRB v. Beckham, Inc., 564 F.2d

190, 192 (Sth Cir. 1977), Tennessee Products & Chem. Corp. v.

NLRB, 423 F.2d 169, 178 (6th Cir.), cert. denied, 400 US. 822,

(1970).

6 “T]he limited funds and personnel of unions often make it

very difficult for a union to negotiate separate agreements with each

employer in industries where employer units are small.” Bonanno,

454 USS. at 421 n.2 (Burger, C.J., dissenting).

8

has made clear, that is not an evil. To the contrary, a cardinal

benefit of multiemployer bargaining is that it enables members of

the multiemployer unit to avoid “the competitive disadvantages

resulting from nonuniform contractual terms.” Buffalo Linen, 353

U.S. at 96. Indeed, as the National Labor Relations Board (the

“NLRB” or “Board”) maintained in Bonanno, multiemployer bar-

gaining enables employers to make concessions ““without fear that

other employers will refuse to make similar concessions to achieve

a competitive advantage.’” Bonanno, 454 U:S. at 410.

Not surprisingly, in light of these advantages, multiemployer

bargaining has become “the preferred bargaining mechanism” in

many industries. Jd. at 410. In the mid-1950’s, approximately four

million employees were covered by collective bargaining agreements

signed by unions with “thousands of employer associations.”

Buffalo Linen, 353 U.S. at 95. By 1980, over 40% of “major”

collective bargaining agreements (i.e., those covering 1,000 or more

employees) were multiemployer agreements. Bonanno, 454 U.S. at

410.

Multiemployer bargaining has also received direct congres-

sional approval. Thus, at the time of the Taft-Hartley debates,

Congress rejected proposals to limit or outlaw multiemployer

bargaining—proposals that were greeted “with a storm of protest

that their adoption would tend to weaken and not strengthen the

process of collective bargaining and would conflict with the national

labor policy of promoting industrial peace through effective

collective bargaining.” Buffalo Linen, 353 U.S. at 95; Bonanno, 454

U.S. at 409.

According to the Court, those debates “demonstrate[d] that

Congress refused to interfere with such bargaining because there was

cogent evidence that in many industries the multiemployer bargain-

ing basis was a vital factor in the effectuation of the national policy

of promoting labor peace through strengthened collective bargain-

ing.” Buffalo Linen, 353 U.S. at 95; Bonanno, 454 U.S. at 409.

The long history of multiemployer bargaining, the refusal by

Congress to outlaw or limit the practice, the significant advantages

sii RA Siva

ee ee se

ACS ect ah SADE A allen Pre Rt AR pA a lap RE WE

il N SS rie OL a ns teen ed:

9

that accompany the multiemployer mode of bargaining, the wide-

spread utilization of the mechanism, and the “cogent evidence” of

the “vital” role multiemployer bargaining has played in the effectua-

tion of national labor policy have led this Court, the lower federal

courts, and the NLRB consistently to reject efforts (whether

mounted by labor or management) that would undermine the integ-

rity or stability of multiemployer bargaining units.

Thus, since 1958, the Board’s rules (“reflect[ing] an

increasing emphasis on the stability of multiemployer units,”

Bonanno, 454 U.S. at 410-11) have barred both employers and

unions from withdrawing from multiemployer bargaining once

negotiations have commenced absent mutual consent or special

circumstances. See, e.g., Retail Assocs., Inc., 120 N.L.R.B. 388

(1958); Bonanno, 454 U.S. at 410-11. In Hi-Way Billboards, Inc.,

206 N.L.R.B. 22 (1973), enforcement denied, 500 F.2d 181 (Sth Cir.

1974), the Board held that an impasse in negotiations was not a

“special circumstance” that permitted withdrawal—a position

subsequently adopted by this Court in Bonanno.

In Bonanno, impasse had been reached more than six

months before the employer gave notice of its purported withdrawal

from the multiemployer unit, that employer had been the target of

a selective strike (and had hired replacements), and most of its

fellow association members had locked out their employees for some

five months. 454 U.S. at 407-08. Notwithstanding these circum-

stances, the Court approved the Board’s rationale that there was

“little warrant for regarding an impasse as a rupture of the bargain-

ing relation which leaves the parties free to go their own ways.” /d.

at 412.’ Adopting the Board’s conclusion that “permitting with-

drawal at impasse would as a practical matter undermine the utility

’ The Court came to this conclusion over the dissent of Chief

Justice Burger, who characterized the record facts as showing “no

signs that the parties would returm to the bargaining table,” and as

reflecting “no ‘temporary deadlock or hiatus in negotiations,’” but

rather “a complete breakdown in negotiations coupled with a pro-

longed strike and lockout.” Bonanno, 454 U.S. at 422.

10

of multi-employer bargaining” (id.), the Court emphasized that the

“proper and pre-eminent goal” was “[mJaintaining the stability of

the multiemployer unit.” /d. at 419.

Preservation of the integrity of the multiemployer

bargaining unit was, of course, justification for the multiemployer

lockout in Buffalo Linen, 353 U.S. at 93-94; and it was “the key”

(Bonanno, 454 U.S. at 419) to the Court’s decision in NLRB v.

Brown, 380 U.S. 278 (1965), finding no unfair labor practice when

the members of a multiemployer unit hired temporary replacements

following a lockout.

While these cases arose under the federal labor laws, they

surely involved conduct that, if antitrust principles applied, constitut-

ed price-fixing and a group boycott, per se violations of the

Sherman Act. Williams, 45 F.3d at 692. But it is worthy of note

that there is not even a hint in the Court’s opinions that conduct

permitted under the federal labor laws (including even a lockout, a

weapon not expressly authorized by the statutory language, Buffalo

Linen, 353 U.S. at 92) could expose the members of a multiem-

ployer unit to antitrust liability. Nor do these cases suggest that

members of a multiemployer unit do or should—because of the anti-

trust laws or otherwise—enjoy less than the full range of rights and

privileges under the labor laws because they bargain on a group

basis.

Indeed, and even apart from the “sports” trilogy of Powell,

Williams, and Brown, when such arguments have been advanced and

the antitrust laws specifically invoked, the federal courts have

uniformly rejected the contention.

Thus, in Kennedy v. Long Island Rail Road Co., 319 F.2d

366 (2d Cir.), cert. denied, 375 U.S. 830 (1963), the Second Circuit

rejected a Sherman Act challenge to a multiemployer strike

insurance fund, holding that the fund “was an instrument of self-

help properly employed in the process of collective bargaining.” Jd.

at 371. In Clune v. Publishers’ Ass'n, 214 F. Supp. 520 (S.D.N.Y.),

aff'd, 314 F.2d 343 (2d Cir. 1963), the Second Circuit affirmed the

district court’s holding that a multiemployer lockout of its unionized

1]

employees was not a “group boycott” under the antitrust laws, but

was instead conduct sanctioned by federal labor policy. Accord

Chicago Midtown Milk Distrs., Inc. v. Dean Foods Co., 1970 Trade

Cas. (CCH) § 73,286 (7th Cir. 1970); Newspaper Drivers &

Handlers’ Local No. 372 v. NLRB, 404 F.2d 1159 (6th Cir. 1968),

cert. denied, 395 U.S. 923 (1969).

Similarly, in Amalgamated Meat Cutters & Butchers

Workmen v. Wetterau Foods, Inc., 597 F.2d 133, 136 (8th Cir.

1979), the Eighth Circuit held that the replacement of striking work-

ers “cannot constitute a violation of the antitrust law” because this

is conduct that “[flederal labor policy sanctions.” Accord United

Brick & Clay Workers v. Junction City Clay Co., 158 F.2d 552 (6th

Cir. 1946). Likewise, in Prepmore Apparel, Inc. v. Amalgamated

Clothing Workers, 431 F.2d 1004 (Sth Cir. 1970), cert. dismissed,

404 U.S. 801 (1971), the Fifth Circuit rejected an antitrust claim

asserting that multiple employers, in retaliation for a strike, had

refused to deal with the union concerning wages and working condi-

tions. See also California State Council of Carpenters v. Associated

Gen. Contractors, Inc., 107 L.R.R.M. 2724, 2725 (9th Cir. 1981)

(“although multiemployer bargaining units may affect or restrain

competition in the area of wages and working conditions, such

restraints will not be considered to violate the antitrust laws”);

Amalgamated Clothing & Textile Workers Union v. J.P. Stevens &

Co., 475 F. Supp. 482 (S.D.N.Y. 1979) (rejecting antitrust claim

based upon alleged conspiracy to fix wages and discriminate against

employees favoring unionization), vacated as moot, 638 F.2d 7 (2d

Cir. 1980).

In sum, as both Congress and the courts have recognized,

multiemployer bargaining has long been a fundamental feature of

the collective bargaining process and an essential element of national

labor policy. Assuming arguendo that antitrust policy should be

concerned at all with disputes that involve only the labor market,"

8 But see Cox, Labor and the Antitrust Laws—A Preliminary

Analysis, 104 U. Pa. L. Rev. 252, 254 (1955) (“No one seriously

suggests that antitrust policy should be concemed with the labor

12

the antitrust laws have not been—and should not in this case be—

allowed to subvert fundamental principles of federal labor policy.

See Wood v. National Basketball Ass'n, 809 F.2d 954 (2d Cir.

1987).

Il.

Adoption of the Positions Advanced by

Petitioners Would Undermine Multiemployer

Bargaining and Thus Subvert Fundamental

Principles of Federal Labor Policy.

Despite the “vital” role multiemployer bargaining plays in

the effectuation of national labor policy, petitioners would construct

a separate collective bargaining regime for the multiemployer

method of negotiation. More specifically, petitioners and their amici

would expose the members of multiemployer groups to treble

damage antitrust liability for conduct that is not only licensed by

federal labor law, but which constitutes a routine—indeed, essen-

tial—part of the collective bargaining process. As demonstrated

below, there is no justification for this position or for the destruction

of the multiemployer bargaining process it would cause.

Petitioners contend principally that the members of a

multiemployer bargaining unit should be exposed to antitrust liabil-

ity for any concerted conduct taken with respect to the terms of

employment—including even the maintenance of the status quo—at

the moment the collective bargaining agreement expires.” Altemna-

tively, they propose that antitrust liability may attach to joint

employer conduct—whether that conduct be maintenance of the

status quo or the implementation of new terms of employment—

when the parties have reached their first bargaining impasse.'°

market per se”).

° Brief for Petitioners (“Pet. Br.”) at 45-47.

10 Id. at 47-48.

13

The Department of Justice and the Federal Trade Commis-

sion, as amici, urge what seems properly characterized as an

“{mpasse-plus” test, suggesting that any concerted conduct by the

members of a multiemployer group be subject to antitrust scrutiny

once the employers have had a reasonable opportunity to consult

with counsel (so as to determine that impasse has in fact occurred)

and to adjust their business operations in order “to eliminate” any

“restraint” —not just refrain from the imposition of new employment

terms—that could give rise to antitrust liability.”

None of these proposed standards can be squared with

fundamental principles of federal labor policy; and each would

undermine, if not destroy, the practice of multiemployer bargaining,

a “vital” element of that national policy.

But for the opinion of the district court that was reversed by

the decision on appeal,’® petitioners’ principal contention—that

antitrust exposure should attach to any concerted conduct affecting

the terms of employment as soon as the collective bargaining

agreement expires—has been rejected by every court to address the

issue. And it is rejected in this very case by the Department of

Justice and Federal Trade Commission.’ The reason is plain:

following expiration of a collective bargaining agreement and at

least until impasse, employers are required to maintain the status

quo by adhering to the previously bargained terms of employment.

See Laborers Health & Welfare Trust Fund v. Advanced Lightweight

'! Brief for the United States and the Federal Trade Commis-

sion as Amici Curiae Supporting Petitioners (“U.S. Br.”) at 24.

'2 Brown v. Pro Football, Inc., 782 F. Supp. 125 (D.D.C.

1991), rev'd, 50 F.3d 1041 (D.C. Cir. 1995), cert. granted, 64

U.S.L.W. 3414 (U.S. December 8, 1995) (No. 95-388).

13 See U.S. Br. at 16-17.

14

Concrete Co., 484 U.S. 539, 544 n.6 (1988); NLRB v. Katz, 369

U.S. 736, 742-43 (1962)."*

Nor is there any merit to petitioners’ suggestion’® that

union consent to a change in the status quo (or, more accurately, a

union’s demand, backed by the threat of antitrust litigation, for the

elimination of an employment term to which it had previously

agreed but now views as a “restraint”) would do no offense to the

NLRA’s bargaining scheme.

The status quo obligation is not intended merely to protect

the interests of unions or employers; rather, “[f]reezing the status

quo ante after a collective agreement has expired [is intended to]

promote[] industrial peace by fostering a non-coercive atmosphere

that is conducive to serious negotiations on a new contract.”

Laborers Health & Welfare Trust Fund, 484 U.S. at 545. See also

Litton Fin. Printing Div. v. NLRB, 501 U.S. 190, 198, 203 (1991)

(purpose of status quo obligation is to facilitate good faith collective

bargaining). Conduct that is required by federal labor law cannot

violate the antitrust laws.

Nor, for several reasons, should this Court adopt either

petitioners’ alternative contention that impasse marks the moment

when concerted conduct by a multiemployer group becomes subject

to antitrust attack or the Government’s nebulous “impasse-plus”

standard.

First, as even the Government appears to acknowledge,

there is often considerable uncertainty as to whether negotiations

have reached an impasse—such uncertainty, in fact, that the Board

‘4 Even after impasse, employers are unquestionably permitted

by the NLRA to maintain the status quo. See, e.g., Huck Mfg. Co.

v. NLRB, 693 F.2d 1176, 1186 (Sth Cir. 1982); Taft Broadcasting

Co., 163 N.L.R.B. 475 (1967), enf'd sub nom. American Fed'n of

Television & Radio Artists v. NLRB, 395 F.2d 622 (D.C. Cir. 1968).

'S Pet. Br. at 45-47.

ae ee

15

and different courts (and even different members of the same

court)}—as well as the lawyers the Government urges members of a

multiemployer group to consult—might well reach different deter-

minations on the matter.’ Indeed, even within the course of a

single labor dispute, an impasse can be reached on multiple occa-

sions (and, by definition, broken with the same frequency).'’ As

this Court emphasized in Bonanno:

As a recurring feature in the bargaining process,

impasse is only a temporary deadlock or hiatus in

negotiations “which in almost all cases is eventually

broken, through either a change of mind or the

application of economic force.

454 US. at 412 (quoting the NLRB).

In short, the transitory, if not ephemeral, nature of a

bargaining impasse makes that stage of the collective bargaining

process especially unsuitable as a point of demarcation, even if

employers dutifully seek legal advice. Cf Carpenter Sprinkler

Corp. v. NLRB, 605 F.2d 60, 64 (2d Cir. 1979) (existence of

impasse is a “[complex] question of fact”).

Second, the argument advanced by petitioners and their

amici that there is no need to accommodate the federal labor laws

once impasse has been reached"* is premised upon a mistaken view

of both the nature and significance of a bargaining impasse.

At impasse, an employer, to be sure, is no longer required

to maintain the status quo and may unilaterally implement revised

terms of employment; and the members of a multiemployer unit

may enter into interim agreements with the union. But impasse

'© See, e.g., Bonanno, 454 U.S. at 426 (Burger, C.J., dissent-

See, e.g., U.S. Br. at 23-24.

'8 See Pet. Br. at 37-38: U.S. Br. at 7

16

neither rids an employer of its duties under the federal labor laws,

nor eliminates the need to continue to accord full reign to national

labor policy.

In the first instance, impasse does not leave the employer

free to implement whatever new terms and conditions of em-

ployment it may desire. Whatever the source of the unilateral

implementation night, that right is circumscribed by the cardinal

federal labor law principle that the terms implemented may be only

those reasonably comprehended by the employer’s last proposal to

the union.'? Indeed, while an employer, before a union enters the

picture, may be exercising a purported common law right to set the

terms of employment, Katz, 369 U.S. 736, teaches that once the

union is recognized and collective bargaining begins—once, that is,

a collective bargaining relationship has been established—the NLRA

forbids the employer from changing those terms prior to impasse

notwithstanding their supposed common law origin.

Nor does the fact that a member of a multiemployer unit

may at impasse enter into an interim agreement with the union

change the equation. Even after such an interim agreement is

signed, the “pre-eminent goal” of the labor laws remains the stability

of the multiemployer unit and thus the multiemployer group may

continue to insist “that parties remain subject to unit negotiations in

accordance with their original understanding.” Moreover, as this

Court made clear in Bonanno, impasse does not “initiate any right

to execute an [interim] agreement inconsistent with the duty to abide

by the results of group bargaining.” Bonanno, 454 US. at 415,

416, 419.

By insisting that members of a multiemployer group, at

expiration or impasse, act individually, petitioners and their amici

'9 See, e.g., Emhart Indus., Hartford Div. v. NLRB, 907 F.2d

372, 377 (2d Cir. 1990); Southwest Forest Indus., Inc. v. NLRB, 841

F.2d 270; 273 (9th Cir. 1988); United Steelworkers v. Fort Pitt Steel

Casting Div., 635 F.2d 1071, 1078 (3d Cir. 1980), cert. denied, 451

U.S. 985 (1981); Taft Broadcasting Co., 163 N.L.R.B. at 478.

DBE haa by Mn PEE

17

utterly disregard these principles. Rather than fostering the “pre-

eminent goal” of unit stability, they would stand the labor laws on

their head and require conduct (e.g., unilateral implementation of

new terms on an individual basis) that would subvert such stability.

If impasse is not a special circumstance justifying an employer’s

withdrawal from a multiemployer unit, and if the employer’s right

at impasse to enter into an interim agreement leaves it with a “duty

to abide by the results of group bargaining,” impasse simply cannot

mark the time when the members of a multiemployer unit become

forbidden from further joint conduct with respect to employment

terms (or, as the Government suggests,”’ from even discussing

matters designed to preserve the integrity of the unit).

Nor is there merit to petitioners’ characterization of unilater-

al implementation as an end in itself or to their efforts to distinguish

unilateral implementation from other economic weapons concededly

available to multiemployer units at various stages of the bargaining

process.

In American Ship Building Co. v. NLRB, 380 U.S. 300, 316-

17 (1965), this Court recognized that the unilateral imposition of

employment terms was one of the economic weapons employers

were permitted to utilize by the labor laws. Other federal courts and

the Board have adopted the same characterization. See, e.g., NLRB

v. Plainville Ready Mix Concrete Co., 44 F.3d 1320, 1340 (6th

Cir.), cert. denied, 116 S. Ct. 474 (1995); NLRB v. McClatchy

Newspapers, Inc., 964 F.2d 1153, 1164 (D.C. Cir. 1992) (Edwards,

J., statement accompanying per curiam opinion); Colorado-Ute Elec.

Ass'n, Inc. v. NLRB, 939 F.2d 1392, 1404 (10th Cir. 1991), cert.

denied, 504 U.S. 955 (1992); Local Union No. 47 v. NLRB, 927

F.2d 635, 645 (D.C. Cir. 1991); Hi-Way Billboards, 206 N.L.R.B.

at 23.

Moreover, petitioners’ contention that unilateral implementa-

tion is principally designed to serve the employer’s business interests

rather than to influence the bargaining process conflicts directly with

20 See US. Br. at 18.

18

the principle that unilateral implementation may, indeed, serve to

end an impasse and revive the parties’ bargaining duty that was, at

impasse, only temporarily suspended. Sez, e.g., Fort Pitt Steel, 635

F.2d at 1078; Hi-Way Billboards, 206 N.L.R.B. at 23; Circuit-Wise,

Inc., 309 N.L.R.B. 905, 921 (1992); Storer Communications, Inc.,

294 N.L.R.B. 1056, 1090 (1989); Transport Co. of Texas, 175

N.L.R.B. 763, n.1 (1969).

Although petitioners would disable the members of a

multiemployer bargaining unit from agreeing among themselves to

maintain the status quo or to implement new terms of employment

when the labor laws clearly permit them to do so, they would permit

those very same multiemployers (see Pet. Br. at 40) to commit

themselves to joint bargaining positions, hire replacement workers,

contribute to a strike insurance fund, withdraw benefits contained in

an expired agreement—and, indeed, even lock out their employ-

ees.” There is simply no principled basis for this argument.

21 The reaching of impasse obviously signifies the temporary

inability of the bargaining parties to reach an agreement. While the

employer is then licensed to impose employment terms (either by

continuing the provisions of the expired agreement or by implement-

ing new terms), it can gain the assurance of labor peace that a no-

strike provision affords only by reaching a new agreement with the

union. Thus, unilateral implementation is most often a device de-

signed to cause the union to reconsider its bargaining position and

thereby stimulate further negotiation; and the terms imposed are

almost always more stringent or less charitable than those the

employer is prepared to accept as part of an agreement with a no-

strike commitment that assures labor peace.

* Citing Buffalo Linen, 353 U.S. at 97, petitioners suggest that

the members of a multiemployer unit can lock out their employees

only “as a defensive measure to protect the integrity of the unit.”

See Pet. Br. at 40 n.25. But they ignore, in this context, the Court’s

holding in American Ship, 380 U.S. at 301-02, 310-11, that an em-

ployer does not commit an unfair labor practice by locking out its

employees solely to bring economic pressure in support of its bar-

gaining position. There is in American Ship no suggestion that the

19

In defense of their approach, petitioners urge the Court to

draw a distinction between “terms” and “tactics,” and to exclude

from the category of “tactics” the employer’s right, after impasse,

to maintain the status quo or unilaterally implement new terms of

employment. But the supposed distinction between terms and tactics

is one for which petitioners offer no case support (but for the dissent

below); and their corollary of convenience—that an employer’s

imposition of terms is not an economic weapon—is, as demonstrated

above, a long-discredited notion.”

The collective bargaining regime petitioners and their amici

would construct exclusively for the multiemployer bargaining

process not only departs from that intended by Congress; it would

labor law rights of single employers and multiemployer units would

differ in this regard. Indeed, the Court described the question

presented in American Ship as “that expressly reserved in” Buffalo

Linen, without even a hint (although Buffalo Linen involved a

multiemployer group) that the nature of the employer unit might

make the slightest difference. See 380 U.S. at 301-02.

* In her dissent, Judge Wald acknowledged that in American

Ship, 380 US. at 316, this Court itself had “suggested that post-im-

passe unilateral imposition of terms may qualify as an economic

pressure tactic.” Pet. App. 53a-54a. Citing NLRB v. Tex-Tan, Inc.,

318 F.2d 472, 480-81 n.20 (Sth Cir. 1963), however, she opined that

an employer’s right to unilaterally impose terms after impasse was

“best understood not as a ‘bargaining tactic’ but as part of the

employer’s residual right to continue operating as dictated by

business necessity once her statutory duty to bargain has been

exhausted.” Pet. App. 53a-54a. In Tex-Tan, a case decided two

years before American Ship, the employer did, indeed, institute wage

changes that it described as “a matter of economic necessity” (318

F.2d at 480), but the Court of Appeals (citing Katz, 369 U.S. at

745) was quick to point out that even after impasse the employer

had “‘no license to grant wage increases greater than any he has

ever offered the union at the bargaining table... .’” Tex-Tan, 318

F.2d at 481 n.20.

20

rob the members of multiemployer units of what this Court has

found to be an essential benefit of that process—the ability to avoid

“the competitive disadvantages resulting from non-uniform contrac-

tual terms” (Buffalo Linen, 353 U.S. at 96)—while simultaneously

exposing them to treble damage antitrust liability that their single

employer counterparts do not face.

Under petitioners’ construct, the members of a multi-

employer group, while able to “commit” to a joint bargaining posi-

tion, would lack the power to enforce that commitment. Indeed,

they could avoid antitrust exposure after contract expiration or

impasse only if their concerted conduct resulted in an acceptance of

the union’s demands. If, instead of accepting a union proposal for

a $10 per hour increase, the multiemployer group’s members, rather

than shutting down their industry, elected to continue the wage scale

called for by the expired collective agreement until a new labor con-

tract was reached, or proceeded to implement a $9 per hour in-

crease, petitioners would (notwithstanding their invitation to a rule

of reason trial) surely assert that the group’s conduct constituted a

per se violation of the Sherman Act.

With the knowledge that the multiemployer groups facing

them across the bargaining table would risk antitrust liability for

maintaining the old terms or implementing new ones once impasse

was reached, unions would have powerful motive to bargain in a

manner designed to create an impasse at the earliest possible time

and present the employers with the Hobson’s choice of defending an

antitrust litigation or entering into interim agreements, on terms

acceptable to the union, that would whipsaw them one by one into

submission.

Faced with such a choice, no rational employer would

voluntarily bargain on a group basis. As a consequence, the salutary

benefits—for both management and labor—of multiemployer

bargaining, a mode of collective bargaining “vital” to the effec-

tuation of national labor policy, would be sacrificed. Petitioners

present no justification for such a result.

21

CONCLUSION

For the foregoing reasons, amici curiae respectfully submit

that the judgment of the Court of Appeals should be affirmed.

Respectfully submitted,

HOWARD L. GANZ

Counsel of Record

STEVEN C. KRANE

PROSKAUER ROSE GOETZ &

MENDELSOHN LLP

1585 Broadway

New York, New York 10036

(212) 969-3000

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YORK, REALTY ADVISORY BOARD

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SERVICE COMMITTEE

February 16, 1996