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

Supreme Court, U.S.

Ce EL BO

(92) | FEB 16 1996

| CLERK

No. 95-388 ed

In the Supreme Court of the Anited States

OCTOBER TERM, 1995

ANTONY BROWN, ET AL., PETITIONERS,

V.

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 FOR AMERICAN TRUCKING

ASSOCIATIONS AS AMICUS CURIAE IN

SUPPORT OF RESPONDENTS

Daniel R. Barney Mark I. Levy

William H.H. Herrmann, Il Counsel of Record

ATA LITIGATION CENTER Eberhard W. Pfaller, Jr.

2200 Mill Road HOWREY & SIMON

| Alexandria, Virginia 22314 1299 Pennsylvania Ave., N.W.

(703) 838-1865 Washington, D.C. 20004

(202) 783-0800

Counsel for Amicus Curiae

American Trucking Associations

~ BEST AVAILABLE COPY):

TABLE OF CONTENTS

INTEREST OF THE AMICUS CURIAE.............cccecesesees 1

RS EUEE CTE PATRIA TINRIIIN E escnscccecssrssessncnsconenasenccnsonarees 3

I basicsth vaca ciatediiskidechdacassmintaptitcbaticiesieiensiuhdaseentnnennaeses 5

A MULTIEMPLOYER BARGAINING UNIT’S

IMPOSITION OF TERMS AT IMPASSE IN THE

COLLECTIVE BARGAINING PROCESS IS

PROTECTED BY THE NONSTATUTORY LABOR

EXEMPTION TO THE ANTITRUST LAWG................... 5

I. THE LAWFULNESS OF A MULTIEMPLOYER

BARGAINING UNIT’S IMPOSITION OF

TERMS AT IMPASSE IS GOVERNED BY

FEDERAL LABOR LAW AND IS NOT SUBJECT

SRP SBE PAIR ER IIS SPR UV i occsessercsmsorsasevecescesecnsoence 5

Il. PETITIONERS HAVE OFFERED NO

JUSTIFICATION FOR APPLYING THE

SHERMAN ACT IN THIS CASE............csccssseesseeeees 14

A. The Doctrine Of Narrow Construction Does

Not Justify Application Of The Sherman Act... 15

B. The Nonstatutory Labor Exemption Protects

The Collective Bargaining Process And Is Not

Confined To Collective Bargaining

C. Petitioners’ Position Would Be Unworkable

In Practice And Would Both Distort The

Collective Bargaining Process And Deter

Multiemployer Bargaining Units...................0++ 23

CONCLUSION

ae ere e te aire

iii

TABLE OF AUTHORITIES

CASES

ABF Freight Sys., Inc. v. NLRB, 1145S. Ct. 835

ithe esate pee eS 2

Amalgamated Ass'n of Street, Elec. Ry. & Motor

Coach Employees v. Lockridge, 403 U.S. 274

Amalgamated Meat Cutters Union Local No. 576 v.

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

FF RM taiicnssritticinccopnirce.... 11,19

American Ship Bldg. Co. v. NLRB, 380 U.S. 300

Rabhecstiniciineckthiaiinss 9, 10, 17, 18, 20

Associated General Contractors v. California State

Council of Carpenters, 459 U.S. 519 (1983)..0.......... 4,15

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

FO i sitscitesicescccesssacs, passim

Chevron U.S.A. Inc. v. Natural Resources Defense

Council, 467 U.S. 837 : ee a 14-15

Connell Constr. Co. v. Plumbers & Steamfitters

Local No. 100, 421 U.S. 616 i bsrttiiiaciciic 6, 13, 19

First National Maintenance Corp. v. NLRB, 452

U.S. 666 (1981) o.oo cecccccceeesccccs... ineethienielactei 10, 17, 18

Fort Halifax Packing Co. v. Coyne, 482 U.S. 1

RE nishitininicieinieaneciea 17, 20-21

Golden State Transit Corp. v. City of Los Angeles,

Ee IY ys rciesscssirsctenseerinc........ 14

iv

Golden State Transit Corp. v. City of Los Angeles,

GF Ek Be CEO eri cintieancincsrsineticincnominibiniionis Bide 14

H.K. Porter Co. v. NLRB, 397 U.S. 99 (1970)........ 11, 16-17

Hawaii v. Standard Oil Co., 405 U.S. 251 (1972).............. 26

Kaiser Steel Corp. v. Mullins, 455 U.S. 72 (1982).........00. 13

Kennedy v. Long Island R.R., 319 F.2d 366 (2d

Cir.), cert. denied, 375 U.S. 830 (1963).........00+ 11, 19

Laborers Health & Welfare Trust Fund v. Advanced

Lightweight Concrete Co., 484 U.S. 539 (1988)..... 22, 26

Livadas v. Bradshaw, 114 S. Ct. 2068 (1994)..............000 21

Local Union No. 189, Amalgamated Meat Cutters v.

Jewel Tea Co., 381 U.S. 676 (1965)..........csssssesessesees 2,6

Lodge 76, International Ass'n of Machinists v.

Wisconsin Employment Relations Comm'n, 427

Naas Be CSOT siesbndsnincniesckiinicinhsheainitiioeeniicietannisiietienionin 14

Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S.

FE iictisinesnssininiionainmiicninpaaiiaivohaniiaiaiaaian 17, 21

Mitsubishi Motors v. Soler Chrysler-Plymouth, 473

ee I TE cnnisiisinnnicisnsanneniednignnianianiblansaintannieaa 26

NLRB v. Crompton-Highland Mills, Inc., 337 U.S.

BOF CRO hiicnssiinscsnanisaisincnlaalitinisdabiiaciancelipapligaidcainsianaeditins 22

NLRB v. Katz, 369 U.S. 736 (1962).......00020000 8-9, 21, 22, 26

NLRB v. Nash-Finch Co., 404 U.S. 138 (1971) .........000000 12

NLRB v. Truck Drivers Local No. 449 (“Buffalo

EMM), SIDES. G7 AGG? sissies ncicsanrseresenizanens passim

National Basketball Ass’n v. Williams, 45 F.3d 648

(2d Cir. 1995), petition for cert. pending, No.

95-137 (filed July 24, 1995)..........ccccsscesscssccescosssecees 6, 27

Powell v. National Football League, 930 F.2d 1293

(8th Cir. 1989), cert. denied, 498 U.S. 1040

Prepmore Apparel, Inc. v. Amalgamated Clothing

Workers, 431 F.2d 1004 (5th Cir. 1970), cert.

dismissed, 404 U.S. 801 (1971)......cccccscscsceessesseesees 13-14

Reiter v. Sonotone Corp., 442 U.S. 330 (1979) ......cccececceee. 25

Richards v. Neilsen Freight Lines, 810 F.2d 898 (9th

Sal y S Dirt accscinigeitdnenad decane eh 13, 19

United Mine Workers v. Pennington, 381 U.S. 657

Rivne iisehitsheinniniyiictianclilas iicbtskecinidesades 6, 12, 16, 19, 22

STATUTES

National Labor Relations Act, 29 U.S.C. §§ 151

OE GI scien cninsestesenitecnesnastsiaonecnsinisabenshiasiainiiavinrtiinsiens passim

SUMMNI FRR, TD AT 0G ascsnsscssarnnsnsenservusnansinsn passim

OTHER AUTHORITIES

1 Phillip Areeda & Donald F. Turner, ANTITRUST

Ra, IEE GUD iiceshcrnsieninscnasinsisrinhaiicentanecabiresnonsisoanine 15

3A Norman J. Singer, SUTHERLAND STATUTORY

CONSTRUCTION § 73.01 (Sth ed. 1992).........c.scccseesees 15

E. Compton Timberlake, FEDERAL TREBLE

DAMAGE ANTITRUST ACTIONS § 3.02 (1965).......-+-+. 26

10 Julian O. von Kalinowski, ANTITRUST LAWS

AND TRADE REGULATION § 115.01[1] (1995)............ 26

Jn the Supreme Court of the United States

OCTOBER TERM, 1995

_No. 95-388

ANTONY BROWN, ET AL., PETITIONERS,

Vv.

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 FOR AMERICAN TRUCKING

ASSOCIATIONS AS AMICUS CURIAE IN

SUPPORT OF RESPONDENTS

INTEREST OF THE AMICUS CURIAE

American Trucking Associations, Inc. (“ATA”), a

not-for-profit corporation, is a trade association

consisting of motor carriers, state trucking associations,

and national trucking conferences. Its membership

includes more than 4,500 trucking companies and

industry suppliers of equipment and services. Directly

and through its affiliated organizations, ATA

represents more than 35,000 member companies and

every type and class of motor carrier operation in the

United States.

ATA was created to promote and protect the

interests of the trucking industry. It regularly appears

in this Court and other courts to present the views of

the trucking industry. ATA submitted a brief as amicus

curiae in the seminal multiemployer bargaining case of

NLRB v. Truck Drivers Local No. 449 (“Buffalo Linen”),

353 U.S. 87 (1957), and has been involved as amicus in

labor law and other cases in this Court. See, e.g., ABF

Freight Sys., Inc. v. NLRB, 114 S. Ct. 835 (1994).

A number of unionized motor carrier members

of ATA collectively bargain with their employees’

union through multiemployer bargaining units

pursuant to the National Labor Relations Act. The

largest multiemployer unit in the trucking industry

consists of 24 less-than-truckload motor carriers whose

collective bargaining agreement covers approximately

120,000 workers. Another large multiemployer unit

includes 17 automobile transport companies with

approximately 12,000 employees. See also Local Union

No. 189, Amalgamated Meat Cutters v. Jewel Tea Co., 381

U.S. 676, 713 n.20 (1965) (opinion of Goldberg, J.)

(“trucking” is one of the “important industries” where

multiemployer bargaining occurs).

Although individual trucking companies may

have different reasons for participating in

multiemployer bargaining units, one prevalent reason

is to counter the bargaining strength of the

International Brotherhood of Teamsters, a union of 1.8

million members that represents the majority of

employees in the unionized segment of the trucking

industry. See Charles D. Bonanno Linen Service, Inc. v.

NLRB, 454 U.S. 404, 409 n.3 (1982) (“’[mJultiemployer

bargaining * * * enables smaller employers to bargain

“on an equal basis with a large union”’”) (citations

ite

omitted). Unlike professional sports franchises and

leagues such as respondents in this case, which have

special needs for uniformity in collective bargaining,

trucking companies have considerable business

discretion in selecting the appropriate mode of

bargaining and may join or withdraw from

multiemployer bargaining units based on the relative

advantages and disadvantages of those alternatives.

ATA has a strong interest in the outcome of this

case. A number of its members currently engage in

multiemployer bargaining. Moreover, the decision

whether or not to participate in multiemployer

bargaining is based on the competing advantages and

disadvantages of such bargaining units, including the

potential antitrust risks that multiemployer bargaining

entails. Accordingly, ATA’s members are directly

affected by the decision below on the scope of the

nonstatutory labor exemption to the antitrust laws in

the context of multiemployer bargaining, and in

particular whether a multiemployer bargaining unit's

imposition of terms of employment at impasse in the

collective bargaining process is subject to Section 1 of

the Sherman Act. In addition, because employers may

have different reasons and enjoy greater flexibility in

deciding whether to join a multiemployer bargaining

unit in the trucking industry than in a professional

sports league, ATA’s participation as amicus curiae will

give the Court a broader perspective on the important

legal question presented in this case. The parties have

consented to the filing of this brief.

SUMMARY OF ARGUMENT

A multiemployer bargaining unit’s imposition of

terms at impasse is an integral part of the collective

=

bargaining process under the National Labor Relations

Act. Federal labor law governs both the propriety of

employer conduct at impasse and the operations of

multiemployer bargaining units, and it clearly covers

the challenged activity in this case. Petitioners’ attempt

to apply the rules and remedies of the antitrust laws to

that conduct is irreconcilable with the established

system of federal labor law and, if accepted by this

Court, would seriously impair national labor policy.

Petitioners have advanced no reason to subject

such collective bargaining activity to antitrust scrutiny.

Contrary to their argument for a narrow construction,

this Court has recognized that the nonstatutory labor

exemption is “a broad * * * exemption from the antitrust

laws” (Associated General Contractors v. California State

Council of Carpenters, 459 U.S. 519, 539 (1983)), and in no

event should it be narrower than is appropriate to

effectuate its purposes.

Petitioners also are incorrect that the exemption

is restricted to collective bargaining agreements

themselves. This argument ignores the elemental

principle that the NLRA protects the collective

bargaining process. Nor does impasse mark the

termination of the process; rather, it is simply a

temporary suspension of negotiations that typically is

overcome, and it represents a critical phase in the

strategic and economic contest between management

and labor. Finally, exclusion of this collective

bargaining conduct from the exemption would pose

enormous practical difficulties and would improperly

disrupt collective bargaining and discourage

multiemployer units.

nie

Accordingly, a multiemployer bargaining unit's

use of the self-help weapon of imposing terms at

impasse is part and parcel of the collective bargaining

process under the NLRA and falls squarely within the

nonstatutory labor exemption.

ARGUMENT

A MULTIEMPLOYER BARGAINING UNIT’S

IMPOSITION OF TERMS AT IMPASSE IN THE

COLLECTIVE BARGAINING PROCESS IS

PROTECTED BY THE NONSTATUTORY LABOR

EXEMPTION TO THE ANTITRUST LAWS.

I. THE LAWFULNESS OF A MULTIEMPLOYER

BARGAINING UNIT’S IMPOSITION OF

TERMS AT IMPASSE IS GOVERNED BY

FEDERAL LABOR LAW AND IS NOT

SUBJECT TO THE ANTITRUST LAWS.

At issue in this case is conduct that is an integral

part of the collective bargaining process: a

multiemployer bargaining unit’s imposition of terms

and conditions of employment in response to an

impasse in bargaining with the union. Nevertheless,

petitioners, supported by the federal artitrust

enforcement authorities, seek to have courts and juries

scrutinize that conduct under the antitrust laws and to

impose treble damages on the members of the

multiemployer unit for collective actions taken in the

course of the bargaining process. As the court below

correctly concluded, interjection of antitrust rules and

remedies into the collective bargaining process in that

way would impair the policies of the federal labor laws

and would be irreconcilable with the fundamental

w@e

principles underlying the nonstatutory labor exemption

that this Court has recognized for half a century.!

The nonstatutory labor exemption reflects “a

proper accommodation between the congressional

policy favoring collective bargaining under the

[National Labor Relations Act] and the congressional

policy favoring free competition in business markets

[under the antitrust laws].” Connell Constr. Co. v.

Plumbers & Steamfitters Local No. 100, 421 U.S. 616, 622

(1975). The exemption thus serves to “harmoniz{[e] the

Sherman Act with the national policy expressed in the

National Labor Relations Act.” United Mine Workers v.

Pennington, 381 U.S. 657, 665 (1965). This “harmon[y]}”

between the federal labor and antitrust laws requires

that the labor exemption encompass the imposition of

terms by a multiemployer bargaining unit at impasse.”

1 As the court of appeals explained, and as is undisputed in this

Court, the multiemployer conduct challenged here was “lawful

under the labor laws,” and “primarily affect[s] only a labor

market” and “has no anti-competitive effect on the product

market.” Pet. App. 10a, 16a. Accordingly, this case is not

controlled by the Court’s previous decisions holding that the

nonstatutory labor exemption does not apply to employer-

employee activities that are outside the proper scope of the labor

laws and restrain competition in a product market. See, ¢.g.,

Connell Constr. Co. v. Plumbers & Steamfitters Local No. 100, 421 U.S.

616 (1975); United Mine Workers v. Pennington, 381 U.S. 657 (1965);

compare Local Union No. 189, Amalgamated Meat Cutters v. Jewel Tea

Co., 381 U.S. 676 (1965) (upholding nonstatutory labor exemption).

2 We note that the most recent cases on this issue in the courts of

appeals, which have involved a wide array of judges (including

several well known for their expertise in labor and antitrust law),

have all agreed that the nonstatutory labor exemption applies to

the activities of multiemployer bargaining units in the collective

bargaining process. See, e.g., Pet. App. 3a (Edwards, C.J., joined by

Randolph, J.); National Basketball Ass’n v. Williams, 45 F.3d 684 (2d

|

uit

1. It is clear that federal labor law regulates

a multiemployer bargaining unit’s imposition of terms

of employment at impasse in collective bargaining.

Multiemployer bargaining units are well established

under the federal labor laws and play an important role

in collective bargaining. As this Court explained in

NLRB v. Truck Drivers Local No. 449 (“Buffalo Linen”),

353 U.S. 87, 94-95 (1957):

Multi-employer bargaining long antedated

the Wagner Act * * *.

[In enacting the Taft-Hartley amendments, ]

Congress refused to interfere with such

bargaining because there was cogent

evidence that in many industries the multi-

employer bargaining basis was a vital factor

in the effectuation of the national policy of

promoting labor peace through strengthened

collective bargaining.

The Court has recognized the many interests of both

employers and employees that multiemployer

bargaining serves:

“Multiemployer bargaining offers

advantages to both management and labor.

It enables smaller employers to bargain ‘on

an equal basis with a large union’ and avoid

‘the competitive disadvantages resulting

from non-uniform contractual terms.’ At the

Cir. 1995) (Winter, J., joined by Pratt & Calabresi, JJ.), petition for

cert. pending, No. 95-137 (filed July 24, 1995); Powell v. National

Football League, 930 F.2d 1293 (8th Cir. 1989) (John R. Gibson, J.,

joined by Wollman, J.), cert. denied, 498 U.S. 1040 (1991).

he

same time, it facilitates the development of

industry-wide, worker benefit programs that

employers otherwise might be unable to

provide. More generally, multiemployer

bargaining encourages both sides to adopt a

flexible attitude during negotiations; as the

Board explains, employers can make

concessions ‘without fear that other

employers will refuse to make similar

concessions to achieve a competitive

advantage,’ and a union can act similarly

‘without fear that the employees will be

dissatisfied at not receiving the same benefits

which the union might win from other

employers.’ Finally, by permitting the union

and employers to concentrate their

bargaining resources on the negotiation of a

single contract, multiemployer bargaining

enhances the efficiency and effectiveness of

the collective bargaining process and thereby

reduces industrial strife.”

Charles D. Bonanno Linen Service, Inc. v. NLRB, 454 U.S.

404, 409-410 n.3 (1982) (citations omitted). As the

amicus filings in the present case attest,

“[m]ultiemployer bargaining * * * continue[s] to be the

preferred bargaining mechanism in many industries.”

Id. at 410.

With respect to the issue in this case, the subject

of impasse in collective bargaining negotiations raises a

host of significant and recurring labor law questions.

Such questions include both the definition of impasse

and the types of employer conduct at impasse that are

consistent with labor policy. See, e.g., NLRB v. Katz, 369

U.S. 736, 745 (1962) (employer’s imposition, at impasse,

a SRT ENTE NN LN En A

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of terms offered to but rejected by union during

negotiations is not an unfair labor practice); American

Ship Bldg. Co. v. NLRB, 380 U.S. 300, 318 (1965)

(employer’s lockout of employees at impasse is not an

unfair labor practice); Bonanno Linen, 454 U.S. at 412

(definition of impasse). As the cited cases illustrate,

these and many other matters concerning impasse are

to be resolved under the National Labor Relations Act.

Likewise, federal labor law governs the existence

and operation of multiemployer bargaining units. For

instance, the labor laws determine the appropriateness

of and conditions for multiemployer bargaining, the

circumstances in which an employer is allowed to

withdraw from the unit, and the propriety of specific

multiemployer conduct during the collective

bargaining process. See Buffalo Linen, supra

(multiemployer lockout in response to union strike is

not an unfair labor practice); Bonanno Linen, supra

(impasse does not justify employer’s withdrawal! from

multiemployer unit, but employer can negotiate

individual interim agreement with union); id. at 412

(NLRB has accepted multiemployer bargaining “as an

instrument of labor peace”); Robert A. Gorman, LABOR

LAW 86-89 (1976) (discussing NLRB certification of

multiemployer bargaining units).

Nearly forty years ago, this Court anticipated

that “inevitable questions concerning multi-employer

bargaining [are] bound to arise in the future” (Buffalo

Linen, 353 U.S. at 96), and multiemployer bargaining

has in fact “raised a variety of problems requiring

resolution.” Bonanno Linen, 454 U.S. at 410. Such issues

“Congress * * * ‘intended to leave to the Board’s

specialized judgment.’” Buffalo Linen, 353 U.S. at 96

(citation omitted).

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The ultimate problem is the balancing of the

conflicting legitimate interests [of employers

and employees]. The function of striking that

balance to effectuate national labor policy is

often a difficult and delicate responsibility,

which the Congress committed primarily to

the National Labor Relations Board, subject

to limited judicial review.

Ibid. Under that approach, “the ground rules for

multiemployer bargaining * * * have evolved and are

still evolving, as the Board, employing its expertise in

the light of experience, has sought to balance the

‘conflicting legitimate interests’ in pursuit of the

‘national [labor] policy * * *.’” Bonanno Linen, 454 U.S.

at 413 (citations omitted). The assessment of “the

significance of impasse and the dynamics of collective

bargaining” (ibid.), in order to promote “the stability of

multiemployer units” and avoid “undermin[ing] the

utility of multiemployer bargaining” (id. at 410, 412), “is

precisely the kind of judgment that Buffalo Linen ruled

should be left to the Board.” Id. at 413.

Significantly, petitioners and the federal antitrust

authorities nowhere contend that a multiemployer

bargaining unit’s imposition of terms at impasse is not

covered by the National Labor Relations Act. Indeed, it

is settled law under the Act that an individual

employer's right to “institute unilaterally * * * working |

conditions” at impasse is one of the “tools of economic

self-help” available in collective bargaining. American

Ship Bldg. Co., 380 U.S. at 316. See also, e.g., First

National Maintenance Corp. v. NLRB, 452 U.S. 666, 675

(1981) (“employer * * * may bargain to impasse * * * and

use the economic weapons at [its] disposal to attempt to

secure [its] aims”). Federal labor law is no less

i ae Li

-_ =

applicable to such imposition of terms by a

multiemployer bargaining unit.3

2. The foregoing analysis makes clear that

the lawfulness of a multiemployer bargaining unit’s

imposition of terms upon impasse critically implicates

national labor policy and should be judged under the

federal labor laws. To superimpose antitrust processes,

rules, and remedies on those applicable under the

NLRA, as petitioners urge, would strike at the very

heart of the system of labor law and intolerably intrude

upon the collective bargaining process.

First of all, under the federal labor laws,

“Congress * * * created the National Labor Relations

Board to supervise the collective-bargaining process

** * [and] see that the process worked.” H.K. Porter Co.

v. NLRB, 397 U.S. 99, 103 (1970). Congress thus

“entrusted * * * [the] administration and development

[of national labor law] to a centralized, expert agency”

utilizing “’specially designed procedures * * * to obtain

uniform[ity].” Amalgamated Ass'n of Street, Elec. Ry. &

Motor Coach Employees v. Lockridge, 403 U.S. 274, 286,

287 (1971). Petitioners, by contrast, would turn over the

formulation and application of rules governing

m::uemployer bargaining to federal courts and juries

sitting in individual antitrust suits across the country.

By ignoring this Court’s admonition that “‘[a]

multiplicity of tribunals and a diversity of procedures

3 Lower courts have not distinguished under federal labor law

between the rights of individual employers and those of multiple

employers. See, e.g., Amalgamated Meat Cutters Union Local No. 576

v. Wetterau Foods, Inc., 597 F.2d 133, 135-136 (8th Cir. 1979);

Kennedy v. Long Island R.R., 319 F.2d 366, 371-372 (2d Cir.), cert.

denied, 375 U.S. 830 (1963).

~12-

are quite as apt to produce incompatible or conflicting

adjudications as are different rules of substantive law,’”

petitioners’ approach improperly “sacrifice[s]

important federal interests in a uniform law of labor

relations centrally administered by an expert agency.”

Id. at 287, 291 (citation omitted); see also NLRB v. Nash-

Finch Co., 404 U.S. 138, 144 (1971).

In addition to different tribunals and

procedures, petitioners’ proposal also would wrench

multiemployer bargaining from its moorings in labor

law and create a body of substantive rules that bear no

relationship to federal labor policies. Under the NLRA,

the principles governing multiemployer bargaining are

designed to “effectuate national labor policy” (Buffalo

Linen, 353 U.S. at 96) “in the light of experience”

(Bonanno Linen, 454 U.S. at 413) based on such practical

considerations as “the stability of multiemployer units”

and “the dynamics of collective bargaining.” Id. at 410,

413. Antitrust courts and juries, on the other hand, are

guided solely by the principle of economic competition

under the often malleable standard of unreasonable

restraints of trade. Application of competition-based

standards would take no account of the labor law

interest in multiemployer bargaining and predictably

would forbid collective bargaining activity that the

labor laws now permit, e.g., multiemployer lockouts

(Buffalo Linen, supra) and perhaps the very existence of

multiemployer bargaining itself (Buffalo Linen, supra;

Pennington, 381 U.S. at 664). The detriment to national

labor policy is manifest.

Lastly, petitioners would substitute the antitrust

regime of treble damages (as well as costs and

attorneys’ fees) for the labor law’s remedial scheme of

NLRB orders to cease and desist from unfair labor

Yi

-if-

practices and bargain in good faith. As this Court has

recognized, however, “the range and nature of those

remedies that are and are not available is a

fundamental part and parcel of the operative legal

system established by the National Labor Relations

Act.” Lockridge, 403 U.S. at 287. See also id. at 288-289

n.5 (emphasizing importance of limitations on NLRA’s

“remedial aspects”). Petitioners’ invocation of antitrust

remedies would upset the careful remedial balance

struck by Congress in the labor laws.4

4 Notwithstanding petitioners’ assertion (Pet. Br. 32), Connell is

not to the contrary. That case involved conduct that violated the

labor laws. See 421 U.S. at 634 (conduct was “illegal” under the

NLRA); Kaiser Steel Corp. v. Mullins, 455 U.S. 72, 85 (1982).

Moreover, the portion of the opinion relied upon by petitioners

followed the Court’s conclusion that the nonstatutory labor

exemption did not apply, and therefore it has no bearing on the

issue presented here. Finally, the Court’s conclusion that antitrust

remedies could be employed in addition to labor law remedies in

that case was tied to the particular provision at issue there and is

' not of general application. See Connell Constr. Co., 421 U.S. at 634

(“[T]he question [is] whether Congress meant to preclude antitrust

suits based on the ‘hot cargo’ agreements that it outlawed in 1959.

There is no legislative history * * * suggesting that labor-law

remedies for § 8(e) violations were intended to be exclusive, or

that Congress thought allowing antitrust remedies in cases like the

present one would be inconsistent with the remedial scheme of the

NLRA”); see also id. at 636 n.17 (“in cases like this one, * * * an

independent federal remedy [under the antitrust laws] * * * is

consistent with the NLRA”). The courts of appeals have

understood this part of Connell to be narrowly limited. See, 2.g.,

Richards v. Neilsen Freight Lines, 810 F.2d 898, 906 (9th Cir. 1987)

(Kennedy, J.) (“Connell does not suggest that every violation of

section 158(e) gives rise to an antitrust suit. It is not paradoxical

that a labor law violation may still be within the antitrust

exemption, for the violation will carry its own remedies under the

labor laws”); Prepmore Apparel, Inc. v. Amalgamated Clothing

Workers, 431 F.2d 1004, 1007 (Sth Cir. 1970) (conduct that violated

-14-

Accordingly, a multiemployer bargaining unit's

imposition of terms at impasse is a matter properly left

to federal labor law and, under the nonstatutory labor

exemption, is not subject to the Sherman Act. The

antitrust laws should not be used to take away the

economic weapons available to employers in collective

bargaining under the NLRA. See Golden State Transit

Corp. v. City of Los Angeles, 475 U.S. 608, 614-618 (1986);

Lodge 76, International Ass'n of Machinists v. Wisconsin

Employment Relations Comm'n, 427 U.S. 132, 144-148, 153

(1976); see also Golden State Transit Corp. v. City of Los

Angeles, 493 U.S. 103, 111 (19839).

Il. PETITIONERS HAVE OFFERED NO

JUSTIFICATION FOR APPLYING THE

SHERMAN ACT IN THIS CASE.

Petitioners and the federal antitrust enforcement

authorities do not really take issue with these basic

principles. Rather, they assert various grounds why the

nonstatutory labor exemption should be inapplicable in

this case. None of the reasons they offer, however,

justifies the application of the antitrust laws to what is

quintessentially a labor law issue.°

the NLRA was exempt from the Sherman Act), cert. dismissed, 404

U.S. 801 (1971).

5 The government's brief presents the views of the Department

of Justice and the Federal Trade Commission but was not filed on

behalf of the National Labor Relations Board. In a footnote to the

conclusion of its brief, the government cryptically observes that

the Board disagrees with the court of appeals’ “expansive

formulation” of the nonstatutory labor exemption. U.S. Am. Br. 27

n.10. Of course, “this Court reviews judgments, not opinions.”

sleet iat iia

-15-

A. The Doctrine Of Narrow Construction

Does Not Justify Application Of The

Sherman Act.

The principal argument of both petitioners and

the government is that exemptions from the antitrust

laws should be narrowly construed. However, this

Court has recognized that “[flederal policy has * * *

developed * * * a broad labor exemption from the

antitrust laws” to reflect the “separate body of labor

law specifically designed” to govern employer-

employee relations. Associated General Contractors, 459

U.S. at 539-540 & n.43 (emphasis added) (citing

nonstatutory labor exemption). See also 1 Phillip

Areeda & Donald F. Turner, ANTITRUST LAW { 229a at

189 (1978) (“the bulk of labor activities * * * are exempt

from the antitrust laws”). Moreover, as the government

itself acknowledges (U.S. Am. Br. 16), the general

maxim of narrow construction must be tempered by the

recognition that, where “both [the Sherman Act and the

National Labor Relations Act] cannot be given full

effect, * * * the antitrust laws should yield to the more

specific, and later enacted, obligations of the NLRA.”

Finally, the canon of narrow construction of antitrust

exemptions is offset here by the equally well-settled

canon that the National Labor Relations Act should be

given a “liberal statutory construction” and exceptions

to it are to be “narrowly construed.” 3A Norman J.

Singer, SUTHERLAND STATUTORY CONSTRUCTION

§ 73.01 at 319 (5th ed. 1992).

Although exemptions from the antitrust laws

should not be needlessly overbroad, they must be

Chevron U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S.

837, 842 (1984).

«Me

broad enough to accomplish the purpose of the

exemption. As this brief demonstrates, application of

the antitrust laws here would be inconsistent with the

rationale of the nonstatutory labor exemption. What

petitioners and the government propose is not an

appropriately focused exemption but an unduly

grudging one that frustrates rather than furthers the

policies of the exemption. In fact, their approach would

call into question the legality of multiemployer

bargaining at all. But see Pennington, 381 U.S. at 664

(“[wJe think it [is] beyond question” that

multiemployer bargaining is not a violation of the

Sherman Act).

B. The Nonstatutory Labor Exemption

Protects The Collective Bargaining Process

And Is Not Confined To Collective

Bargaining Agreements.

Petitioners construct an argument that the

nonstatutory labor exemption is confined to collective

bargaining agreements and therefore does not extend to

any allegedly anticompetitive activity outside the

agreement itself. All petitioners succeed in

establishing, however, is the unexceptionable

proposition that the exemption covers such agreements.

Nothing in either law or logic supports petitioners’

more sweeping assertion that the exemption is limited

to collective bargaining agreements and applies only to

those agreements.

Petitioners’ argument overlooks. the

fundamental precept of federal labor law that the

NLRA governs and protects the collective bargaining

process. As this Court repeatedly has explained,

“[{s]ince 1935 the story of labor relations in this country

-17-

has largely been a history of governmental regulation

of the process of collective bargaining.” H.K. Porter Co.,

397 U.S. at 102. Accordingly, “[t]he NLRA is concerned

primarily with establishing an equitable process for

determining terms and conditions of employment, and

not with particular substantive terms of the bargain

that is struck.” Metropolitan Life Ins. Co. v.

Massachusetts, 471 U.S. 724, 753 (1985). See also, e.g.,

American Ship Bldg. Co., 380 U.S. at 317 (the “central

purpose” of the NLRA was to protect “the process of

collective bargaining”); First National Maintenance Corp.,

452 U.S. at 674 (the NLRA proscribes “conduct by

unions and employers that * * * [is] deleterious to the

[collective bargaining] process”); Fort Halifax Packing

Co. v. Coyne, 482 U.S. 1, 20 (1987) (“the NLRA is

concerned with ensuring an equitable bargaining

process, not with the substantive terms that may

emerge from such bargaining”). Petitioners’

constricted view of the labor exemption is irreconcilable

with this settled understanding of federal labor policy.

Nor does impasse represent the termination of

the collective bargaining process. “As a recurring

feature in the bargaining process, impasse is only a

temporary deadlock or hiatus 11 negotiations ‘which in

almost all cases is eventually broken.’ * * * Hence,

‘there is little warrant for regarding an impasse as a

rupture of the bargaining relation.’” Bonanno Linen, 454

U.S. at 412 (citations omitted). In fact, as the

government points out (U.S. Am. Br. 24), “impasse

could occur more than once within the course of a

single labor dispute.” Moreover, impasse reflects the

parties’ bargaining strategies and is an occasion for

each party to employ the economic weapons at its

disposal to induce the other side to accept its

bargaining proposals. Thus, “an impasse may be

» &

‘brought about intentionally by one or both parties as a

device to further * * * the bargaining process,” and it

often is the “‘application of economic force’” that

breaks an impasse. Bonanno Linen, 454 U.S. at 412

(citations omitted); see also First National Maintenance

Corp., 452 U.S. at 675. Like other economic weapons

available to employers, such as shutdowns and

lockouts, a multiemployer bargaining unit’s imposition

of terms at impasse is an integral part of the ongoing

collective bargaining process.®

Although they seek to restrict the nonstatutory

labor exemption to collective bargaining agreements,

petitioners ultimately are forced to concede (Pet. Br. 40)

that the exemption extends to such actions as lockouts

that are not part of any agreement. This concession is

necessary to accommodate the decisions of this Court

holding that lockouts are not an unfair labor practice

and that their use by multiemployer bargaining units

falls within the nonstatutory labor exemption. See

American Ship Building Co., supra; Buffalo Linen, supra.

At the same time, however, it is fatally inconsistent

with their central submission that the exemption

protects only collective bargaining agreements and not

6 This is a complete answer to Judge Wald’s dissent below (Pet.

App. 51a-58a). In particular, although the unilateral imposition of

terms at impasse does temporarily set the substantive conditions

of employment during the period until agreement is reached, that

does not make it any the less an economic tool that is part of the

bargaining process. In this regard, it is no different from a lockout,

which is an accepted practice under the labor laws, and which,

even if engaged in by a multiemployer bargaining unit, is within

the labor exemption. See Buffalo Linen, supra, and American Ship

Building Co., supra. There simply is no basis, either in law or in the

practicalities of the collective bargaining process, for Judge Wald’s

attempted distinction between “terms” and “tactics.”

Ce ee

-19-

other actions that occur as part of the collective

bargaining process.

Petitioners equally fail in their attempt (Pet. Br.

18-30) to predicate the nonstatutory labor exemption on

the theory that the employees consent to the

multiemployers’ allegedly anticompetitive conduct

when they sign a collective bargaining agreement.

Once again, that argument does not explain such

concerted activities as multiemployer lockouts that are

protected by the exemption but are not embodied in the

eventual agreement. More fundamentally, the

exemption does not rest on the notion of employees’

assent to anticompetitive practices or waiver of their

rights under the antitrust laws. Rather, as the Court

has explained, it reflects sound legal principles that

“harmoniz[e]” (Pennington, 381 U.S. at 665) and

“accommodat[e]” (Connell, 421 U.S. at 622) the labor

and antitrust laws. Petitioners’ “consent” argument is

made from whole cloth and, other than the proffered

virtue of being exceedingly narrow (but see pages 15-

16, supra), finds no support in the decisions of this

Court.’

7 Contrary to petitioners’ assertion (Pet. Br. 22), it is not the case

that “most lower courts” have limited the nonstatutory labor

exemption to collective bargaining agreements consented to by a

union. See pages 6-7 note 2, supra.; see also, e.g., Neilsen Freight

Lines, 810 F.2d at 905 (Kennedy, J.) (holding that “concerted action

*** was protected [by the exemption] although it was outside the

context of a collective bargaining relation”); Amalgamated Meat

Cutters, 597 F.2d at 136; Long Island R.R., 319 F.2d at 372-373.

Indeed, under petitioners’ view, Connell would have been an easy

case, and the Court’s extensive analysis would have been

unnecessary, because it was undisputed that the challenged

conduct was not part of a collective bargaining agreement. See 421

U.S. at 625-626, 636; Neilsen Freight Lines, 810 F.2d at 905.

-20-

Finally, petitioners assert (Pet. Br. 29-30, 34-37,

47) that an employer’s imposition of terms at impasse is

not part of the collective bargaining process — or

indeed of federal labor law — because it arises under

state common law. In their view, it merely represents

the employer’s right to conduct its business as it

wishes, including the right to set terms and conditions

of employment, in the absence of a collective

bargaining agreement. This novel and startling

proposition is utterly unfounded (and, we note, is not

advanced by the government).

It simply is untenable to suggest that states are

free to eliminate the employer’s accepted right to

impose terms at impasse and thereby upset the

fundamental and longstanding balance that federal law

has established between the parties in collective

bargaining negotiations. Contrary to petitioners’

theory, this Court and the NLRB have recognized that

the employer “has been given” by federal iabor law

various “weapons to counterbalance the employees’

power of strike,” including the “tool[ ] of economic self-

help” to “institute unilaterally * * * working conditions

[at impasse].” American Ship Bldg. Co., 380 U.S. at 316.8

8 Fort Halifax, the authority upon which petitioners rely for this

proposition (Pet. Br. 34-35), is not to the contrary. There, in the

course of holding that a state’s requirement of severance payments

to employees of closed plants was not preempted by the NLRA,

the Court observed that

[a]bsent a collective-bargaining agreement, * * * state

common law generally permits an employer to run the

workplace as it wishes. * * * The parties may enter

negotiations designed to alter this state of affairs, but, if

impasse is reached, the employer may rely on pre-existing

state law to justify its authority to make employment

decisions.

oat.

What is more, federal labor law exhaustively

regulates this area of employer-employee relations. It

defines the pivotal concept of impasse (Bonanno Linen,

454 U.S. at 412); it precludes employers from

unilaterally changing the status quo, even after the

expiration of the collective bargaining agreement, until

impasse has been reached (Katz, supra); it requires that

the terms unilaterally imposed after impasse be limited

to those proposed to the union during negotiations

482 U.S. at 21. Read in context and against the backdrop of

established federal labor law, this passage simply means that the

substantive employment terms an employer may set are a function

of state law; an employer cannot pay wages or provide working

conditions that are made illegal under the state’s police power.

See Metropolitan Life Ins. Co., 471 U.S. at 755 (employers cannot

“exempt themselves” from state law). But the employer’s right

unilaterally to impose terms at impasse in collective bargaining

negotiations under the NLRA is a federal right, even though the

particular terms the employer can impose in the exercise of that

federal right are constrained by state law. In other words, the

question whether an employer can unilaterally impose terms at

impasse is a matter of federal law and is separate from and

precedent to the question whether the specific substantive terms it

sets are legal as a matter of state law. Although petitioners boldly

assert that Fort Halifax “negates the Court of Appeals’ logic” and

fault the majority below for “not even mention[ing] the case” (Pet.

Br. 37), the court was correct that the case is essentially irrelevant,

and indeed it is not even cited by the government.

This distinction between the federal right to impose unilateral

terms at impasse as part of the collective bargaining process, and

the state law right to set a particular substantive term, also

disposes of petitioners’ reliance (Pet. Br. 28-30, 34-37) on

Metropolitan Life Ins. Co., supra, and Livadas v. Bradshaw, 114 S. Ct.

2068 (1994). For the same reason, petitioners’ discussion of the

difference between the “bargaining process” and the “end result of

bargaining” in Metropolitan Life (Pet. Br. 35-36) gets the Court’s

decision exactly backwards.

-.

(NLRB v. Crompton-Highland Mills, 337 U.S. 217, 223-225

(1949); Katz, 369 U.S. at 745 & n.12; Laborers Health &

Welfare Trust Fund v. Advanced Lightweight Concrete Co.,

484 U.S. 539, 543 n.5 (1988)); and it determines whether

an employer can withdraw from a multiemployer

bargaining unit at impasse and whether it can negotiate

individual agreements with the union for the interim

period of impasse (Bonanno Linen, supra). There is no

basis to carve out from this web of federal labor law

regulation the single issue — and the most fundamenital

issue — of the employer’s imposition of terms at

impasse and to commit that question exclusively to the

province of state law.?

9 Although the government also emphasizes the application of

the nonstatutory labor exemption to collective bargaining

agreements, it does not frame the theory of the exemption, as

petitioners do, in terms of employee consent or state common law.

Rather, it argues that the exemption is limited to “duties” and

“obligations” that labor law “requires” of employers (U.S. Am. Br.

17-19); absent such requirements, “[e]mployers are * * * able to

comply with both the labor laws and the antitrust laws, and

should so comply. *** After impasse, nothing in employers’

specific legal obligations established by the NLRA conflicts with

the antitrust laws’ prohibition against combinations in restraint of

trade.” Id. at 17, 19; see also id. at 23-24. As the government

acknowledges (id. at 19), this is a reformulation of its “narrow

construction” argument, which, as already discussed, is

unavailing. Moreover, the government's theory finds no support

in the text or reasoning of this Court’s decisions. And most

importantly, it fails to explain the right of a multiemployer

bargaining unit to engage in a post-impasse lockout (since that is

not “required” by federal labor law) and thus is inconsistent with

Buffalo Linen. Indeed, multiemployer bargaining itself is not a

“duty” or “obligation” under the NLRA and-therefore would

appear, contrary to Pennington (381 U.S. at 664), to be subject to the

antitrust laws under the government's theory. In the end, the

government’s virtually monolithic focus on the policy of

competition would improperly invoke the antitrust laws to

Re

C. Petitioners’ Position Would Be

Unworkable In Practice And Would Both

Distort The Collective Bargaining Process

And Deter Multiemployer Bargaining

Units.

Petitioners seek (Pet. Br. 40) to reassure the

Court that their position leaves adequate alternatives

available to employers and would not upset the process

of collective bargaining. These assurances are

misplaced and provide cold comfort to employers that

must deal with the practical implications of the Court’s

decision. Contrary to petitioners’ submission, their

position would be unworkable in practice and would

both distort the collective bargaining process and deter

multiemployer bargaining units.

|

According to petitioners, each employer in a

multiemployer bargaining unit can, at impasse,

individually decide “unilaterally to implement its own

preferred employment terms without fear of antitrust

liability, since it is only the collusive imposition of

restraints that runs afoul of the Sherman Act.” Pet. Br.

40 (emphases in original).!° In reality, employers will

remove important economic weapons and bargaining strategies

that the labor laws allow to employers.

10 Petitioners also suggest (Pet. Br. 40) that some collectively

imposed terms would be upheld under the Rule of Reason if they

do not constitute an “unreasonable” restraint of trade. Whatever

the applicability of the Rule of Reason in the context of sports

leagues — and both petitioners and the government merely note

that possibility but conspicuously decline to commit themselves to

that position — it would not appear to be applicable in most other

industries, where under traditional principles a collective

|

-24-

have two likely choices: either to continue the terms of

the now-expired collective bargaining agreement that

the multiemployer unit previously accepted, or to

impose the terms the multiemployer unit

unsuccessfully proposed to the union during

negotiations. These were, after all, the terms that

commended themselves to at least a majority of the

employers, and it can be expected that most if not all of

the employers would adhere to them even in the

exercise of their individual judgment.

But either course is fraught with antitrust peril.

Both alternatives have their origin in a collective

agreement among employers in the multiemployer

bargaining unit (in either the prior collective bargaining

agreement or the negotiating proposals during the

current bargaining process). Under petitioners’

position, the nonstatutory labor exemption for those

concerted activities would lapse upon the expiration of

the collective bargaining agreement and the occurrence

of impasse in the negotiations. Accordingly, a decision

by the employers to impose terms previously set on a

collective basis, even if now made by each employer

individually, is a virtual invitation for the employees to

hale them into ccurt in an antitrust suit. Indeed,

petitioners ominously warn of their view (Pet. Br. 30)

that “the salaries * * * the clubs may impose upon

impasse * * * may not start from a level that is

cellusively fixed by the clubs in a unilateral effort to

eliminate competitive market forces.”

It is far from clear whether an employer’s

individual decision to impose a term previously

agreement among competitors to set the price they pay for goods

or services would be a per se violation of the Sherman Act.

-25-

reached through concerted action is, as a legal matter,

sufficient to withdraw from the collective agreement

and establish independent conduct outside the scope of

the Sherman Act. But even apart from that, the parallel

decisions of the employers to impose previously

agreed-upon terms could readily be alleged as a claim

of concerted activity under the antitrust laws and could

well necessitate discovery and be enough to get past

summary judgment and require submission to a jury at

trial. Worse yet, employers in a multiemployer unit

will engage in continuing discussions and exchanges of

information with each other in the course of the

ongoing bargaining process; their post-impasse

participation in the multiemployer bargaining process

thus will be used as evidence of collusion among

individual employers that will provide additional

fodder for an antitrust plaintiff. Petitioners therefore

present employers in a multiemployer unit with a

Hobson’s choice: whatever they do, they are likely to

find themselves enmeshed in a burdensome and

protracted antitrust case, and to face the prospect of

treble damages and attorneys’ fees, for conduct that,

petitioners assure the Court (Pet. Br. 40), may be

undertaken “without fear.”1

11 These risks are of particular concern because of the substantial

burdens of antitrust litigation and the drastic nature of the

antitrust remedy of treble damages and attorneys’ fees. See, e.g.,

Reiter v. Sonotone Corp., 442 U.S. 330, 344-345 (1979) (noting that

antitrust suits “add a significant burden to the already crowded

dockets of the federal courts,” “impose a heavy litigation burden,”

saddle defendants with the substantial “cost of defending * * *

[such] actions,” and pose a danger of “frivolous claims brought to

extort nuisance settlements”); id. at 345 (Rehnquist, J., concurring)

(expressing concern that antitrust suits “‘add a substantial volume

of litigation to the already strained dockets of the federal courts

and could be used to exact unfair settlements from [defendants]’”);

—,

This outcome is fundamentally unfair to

employers in multiemployer bargaining units. Such

unfairness is exacerbated by the fact that the existence

of an impasse is not always clear. See Laborers Health &

Welfare Trust Fund, 484 U.S. at 543 n.5 (“‘[i]mpasse is an

imprecise term of art’” and “‘its application can be

difficult’”). If employers erroneously conclude that no

impasse has been reached and thus collectively

maintain the status quo as the NLRA requires (see Katz,

supra), they will be subject to treble damages.

For the same reason, petitioners’ proposal would

skew the collective bargaining process. Because of this

threat of treble damages liability for collective activity

after impasse, employers would have a strong incentive

to err on the side of concluding that impasse has

occurred. Such premature suspension of negotiations

would be inimical to the most basic labor law policies.

Mitsubishi Motors v. Soler Chrysler-Plymouth, 473 U.S. 614, 633

(1985) (observing that horizontal antitrust claims “often occasion

the monstrous proceedings that have given antitrust litigation an

image of intractability”); Hawaii v. Standard Oil Co., 405 U.S. 251,

266 (1972) (the remedy of treble damages and attorneys’ fees

“should provide no scarcity of members of the Bar to aid

prospective plaintiffs in bringing these suits”); 10 Julian O. von

Kalinowski, ANTITRUST LAWS AND TRADE REGULATION §

115.01[1] at 115-3 (1995) (treble damages are a “severe sanction”);

E. Compton Timberlake, FEDERAL TREBLE DAMAGE ANTITRUST

ACTIONS § 3.02 at 13 (1965) (“[G]iving threefold the damage

sustained is a drastic remedy ***. [M]Jany unfounded actions are

brought in the hope that the cost of defending, plus the possible

penalty of having to pay treble damages and attorneys’ fees, will

bring about a settlement”). This case is illustrative: the litigation

lasted some four years in the district court and resulted in an

award of treble damages of more than $30 million and attorneys’

fees of $1.7 million. See Pet. App. 8a-9a.

Sia

Pa

Petitioners’ proposal would further distort the

collective bargaining process by giving employees a

new and potent economic weapon to use against

employers. See Williams, 45 F.3d at 689 (for more than

100 years after enactment of the Sherman Act, the

practices of multiemployer bargaining units were never

challenged). Indeed, employees can strategically utilize

antitrust litigation in the midst of collective bargaining

whenever — and however often — impasse occurs. See

pages 17-18, supra.

Perhaps most importantly, petitioners’ theory

would improperly deter multiemployer bargaining

units. In many industries that have multiemployer

bargaining, including trucking, employers have

considerable latitude to decide, as a matter of business

judgment, whether to engage in multiemployer

bargaining. In some circumstances, in fact,

multiemployer bargaining advances the interests of

employees, e.g., by “’facilitat[ing] the development of

industry-wide, worker benefit programs.’” Bonanno

Linen, 454 U.S. at 409 n.3 (citation omitted). Confronted

with the virtual certainty of antitrust litigation and

potential treble damages liability if (as commonly

happens) impasse is reached, prudent employers could

well elect to forgo multiemployer bargaining in favor of

individual negotiations. Such a forseeable consequence

of petitioners’ argument could be contrary in some

situations to the best interests of employees (ibid.),

impair “‘the efficiency and effectiveness of the

collective bargaining process’ (id. at 410 n.3), and

discourage the use of a multiemployer bargaining

process that has proven “in many industries * * * [to be]

a vital factor in the effectuation of the national policy of

promoting labor peace through strengthened collective

bargaining.” Buffalo Linen, 353 U.S. at 95.

» %-

Based on these concerns about the effect of their

position on the collective bargaining process,

petitioners complain (Pet. Br. 31) that the decision

below rests on an impermissible “judicial desire to

adjust the balance of power between employees and

employers.” The court of appeals, however, expressly

disclaimed any such ruling. See Pet. App. 31a.

Moreover, for the reasons explained above, the

court of appeals’ holding is justified by considerations

of national labor policy, and in particular by the

recognized interest in promoting multiemployer

bargaining, and not by an unfettered policy judgment

to favor one party or the other in collective bargaining

by providing additional economic weapons to

strengthen that side’s bargaining position. The Court's

explanation of this distinction in Bonanno Linen is

equally apt here (454 U.S. at 418-419):

[T]he National Labor Relations Act does not

constitute the Board as an “arbiter of the sort

of economic weapons the parties can use in

seeking to gain acceptance of their bargaining

demands” * * * or give “the Board a general

authority to assess the relative economic

power of the adversaries in the bargaining

process and to deny weapons to one party or

the other because of its assessment of that

party’s bargaining power.” * * * But the Board

has refused to enter that proscribed area * * *.

Instead, it looked at its statutory mandate

and duty — to promote labor peace through

strengthened collective bargaining * * *.

* * * [T]he Board in this case has

developed a rule which, although it may

-29-

deny * * * a particular economic weapon,

does so in the interest of the proper and pre-

eminent goal, maintaining the stability of the

multiemployer unit.

The unbroken line of multiemployer bargaining cases

back to Buffalo Linen demonstrates that this is a

legitimate concern of federal labor law and, under the

nonstatutory labor exemption, is a proper basis to

exempt from the antitrust laws the multiemployer

action challenged here. Consistent with the basic

approach of the labor laws, the court of appeals

properly refrained from injecting itself, in the guise of

the Sherman Act, into the bargaining relationship and

economic contest between employers and unions.!2

12 Petitioners also object (Pet. Br. 42) that the court of appeals has

terced employees to waive their labor law rights in order to

preserve their claims under the Sherman Act. However, as the

court correctly observed (Pet. App. 24a), “the inception of a

collective bargaining relationship between employers and

employees irrevocably alters the governing legal regime.” The

employees’ election to bargain collectively gives them a variety of

important rights but, as the nonstatutory labor exemption

recognizes, also requires that the conflicting policies of the labor

laws and the antitrust laws be reconciled. Thus, the decision

below simply reflects the fact that if employees are not unionized,

the labor exemption is inapplicable, and accordingly the Sherman

Act remains in full force.

-30-

CONCLUSION

For the foregoing reasons, the judgment of the

court of appeals should be affirmed.

Respectfully submitted.

Daniel R. Barney Mark I. Levy

William H.H. Herrmann, III Counsel of Record

ATA LITIGATION CENTER Eberhard W. Pfaller, Jr.

2200 Mill Road HOWREY & SIMON

Alexandria, Virginia 22314 1299 Pennsylvania Ave., N.W.

(703) 838-1865 Washington, D.C. 20004

(202) 783-0800

Counsel for Amicus Curiae

February 16, 1996 American Trucking Associations