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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1996
- **Citation:** 518 U.S. 231

## Text

« 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

ee ee oe nk eas hehe awe e ane il
INimmmes Ur AMT CURIAE .... 2... ce cease 2
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

ATTORNEYS FOR AMICI CURIAE
LEAGUE OF VOLUNTARY
HOSPITALS AND HOMES OF NEW
YORK, REALTY ADVISORY BOARD
OF NEW YORK AND TANKER
SERVICE COMMITTEE

February 16, 1996

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_2172%3A20. Public record. Not legal advice.