Arthur Goldberg

“ Yet, it is clear that such a result was precisely what the National Labor Relations Act was designed to prevent. The only alternative to resolution of collective bargaining issues by force available to the parties under the Court's holding is the encouragement of fraud and deceit. An employer will be forced to take a public stand against a union's wage demands, even if he is willing to accept them, lest a too ready acceptance be used by a jury to infer an agreement between the union and employer that the same wages will be sought from other employers. ”

“ It is precisely this type of speculation that Congress has rejected.
The plain fact is that is makes no sense to turn antitrust liability of employers and unions concerning subjects of mandatory bargaining on whether the union acted 'unilaterally' or in 'agreement' with employers. A union can never achieve substantial benefits for its members through unilateral action; I should have thought that the unsuccessful history of the Industrial Workers of the World, which eschewed collective bargaining and espoused a philosophy of winning benefits by unilateral action, proved this beyond question. ”

“ Nor does my view mean that where a union operates as a businessman, exercising a proprietary or ownership function, it is beyond the reach of the antitrust laws merely because it is a union. On the contrary, the labor exemption is inapplicable where the union acts not as a union but as an entrepreneur. ”

“ If Pennington were an action for injunctive relief, what would be the appropriate remedy to reach the labor cost which is at the heart of the alleged antitrust violation? A judicial determination of the wage rate? A judicial nullification of the existing rate with a direction to negotiate a lower one? I cannot believe that Congress has sanctioned judicial wage control under the umbrella of the Sherman Act, for, absent a national emergency, [23] Congress has never legislated wage control in our free-enterprise economy. ”

“ If a union and employer are prevented from discussing and agreeing upon issues which are, in the great majority of cases, at the central core of bargaining, unilateral force will inevitably be substituted for rational discussion and agreement. Plainly and simply, the Court would subject both unions and employers to antitrust sanctions, criminal as well as civil, if in collective bargaining they concluded a wage agreement and, as part of the agreement, the union has undertaken to use its best efforts to have this wage accepted by other employers in the industry. ”

“ This is made clear by a simple question that the Court does not face. Where there is an 'agreement' to seek uniform wages in an industry, in what item is competition restrained? The answer to this question can only be that competition is restrained in employee wage standards. That is, the union has agreed to restrain the free competitive market for labor by refusing to provide labor to other employers below the uniform rate. ”

“ Congress in the Norris-LaGuardia Act and other labor statutes, as this Court recognized in Apex and Hutcheson, determined that judicial notions of the social and economic desirability of union action should not govern antitrust liability in the area of collective bargaining. The fact that a purpose-motive approach necessarily opens the door to basing criminal or civil penalties under the Sherman Act on just such a determination and to making courts the arbiters of our national labor policy is borne out not only by the history of cases like Alco-Zander but also by the cases decided today. ”

“ The Court's approval of judges and juries determining the permissible wage scale for working men in an industry is confirmed by the Court's express statement 'there are limits to what a union or an employer may offer or extract in the name of wages,' Pennington, 381 U.S., at 665, 85 S.Ct., at 1591. To allow a jury to infer an illegal 'conspiracy' from the agreed-upon wage scale means that the jury must determine at what level the wages could be fixed without impelling the parties into the ambit of the antitrust laws. ”

“ Since it is clear that the large, automated self-service markets employ fewer butchers per volume of sales than service markets do, the Union certainly has a legitimate interest in keeping service markets competitive so as to preserve jobs. ”

“ The kind of competition which is suppressed by employer-union agreement on uniform wages can only be competition between unions to see which union will agree to supply labor at a lower rate, or competition between employers in the sale of their products based on differences in labor costs. ”

“ The Court in Pennington today ignores this history of the discredited judicial attempt to apply the antitrust laws to legitimate collective bargaining activity, and it flouts the clearly expressed congressional intent that, since ' (t) he labor of a human being is not a commodity or article of commerce,' [21] the antitrust laws do not proscribe, and the national labor policy affirmatively promotes, the 'elimination of price competition based on differences in labor standards,' Apex Hosiery Co. ”

“ I cannot believe that Congress, which has manifested a clear general purpose of promoting labor peace and stability, and, in particular, has a long history of attention to collective bargaining in coal, [27] one of our basic industries, intended that these employer efforts to perfect a solid front in bargaining with the miners' union should have the effect of subjecting the employers, as well as the union, to the penalties of the antitrust laws. ”

“ Despite allegations of conspiracy, which connotes clandestine activities, it is no secret that the United Mine Workers acting to further what it considers to be the best interests of its members, espouses a philosophy of achieving uniform high wages, fringe benefits, and good working conditions. As the quid pro quo for this, the Union is willing to accept the burdens and consequences of automation. ”

“ Therefore to the extent that the Union's uniform policy limiting hours of selling fresh meat has the effect of aiding one group of employers at the expense of another, here the union policy, unlike that in Pennington, aids the small employers at the expense of the large. ”

“ As the facts of Pennington illustrate, the jury is therefore at liberty to infer such an agreement from 'clear' evidence that a union's philosophy that high wages and mechanization are desirable has been accepted by a group of employers and that the union has attempted to achieve like acceptance from other employers. ”

“ Yet the Court today holds 'the alleged agreement between UMW and the large operators to secure uniform labor standards throughout the industry, if proved, was not exempt from the antitrust laws.' 381 U.S., at 669, 85 S.Ct., at 1592.
The rational thing for an employer to do, when faced with union demands he thinks he cannot meet, is to explain why, in economic terms, he believes that he cannot agree to the union requests. Indeed, the Labor Act's compulsion to bargain in good faith requires that he meaningfully address himself to the union's requests. ”

“ Collective bargaining problems have not ended as a matter of course in Labor Board or court proceedings, or in governmental seizure or other intervention. While the negotiations have not always been easy and many difficult issues have arisen, the procedure for solving them has gone from the earlier jungle-type economic warfare to the reasoned and rational process of the conference table. ”

“ The wisdom of permitting industry-wide and multi-employer bargaining is for Congress to decide, unless this Court is to return to the discredited approach of the majority in Duplex and substitute its notion for that of Congress as to how unions and employers should conduct their collective bargaining. ”

“ Since collective bargaining inevitably involves and requires discussion of the impact of the wage agreement reached with a particular employer or group of employers upon competing employers, the effect of the Court's decision will be to bar a basic element of collective bargaining from the conference room. ”

“ Even if the self-service markets could operate after 6 p.m., without their butchers and without increasing the work of their butchers at other times, the result of such operation can reasonably be expected to be either that the small, independent service markets would have to remain open in order to compete, thus requiring their union butchers to work at night, or that the small, independent service markets would not be able to operate at night and thus would be put at a competitive disadvantage. ”

“ The assumption running through the Court's opinion in Pennington, as well as the opinion of my Brother DOUGLAS, is that giving full scope to the congressional exemption of labor unions from the antitrust laws will operate to the advantage of large employers and big unions to the prejudice of small employers. ”

“ This quotation was a part of the statement of Samuel Gompers to the House Committee in which he argued for adoption of a labor exemption to the Sherman Act. He stated his fear that while he did not believe that courts would declare the existence of labor unions per se to be violations of the Sherman Act, he believed that such protocols as the one discussed above would be held unlawful and stated that the manufacturers' association involved had already been sued. He was therefore seeking a congressional enactment declaring such a protocol lawful both for labor and business. ”

“ What constitutes a 'normal and legitimate' union object was to be determined by the courts; the Duplex Court held that a secondary boycott was not such an object. Section 20 was swept away on the ground that it only applied to controversies between 'employers and employees,' and that 'it would do violence to the * * * language employed,' id., at 472, 41 S.Ct., at 178, to hold that the section included an attempt to organize a new employer. ”

“ They also are completely different from the situation in which an employer signs a collective bargaining agreement the terms of which contain a 'most favored nation' clause, or labor standards on a sliding scale adjusted to the average or some other prevailing wage standard.↑ It is clear that the small service butcher shops cannot operate at night without butchers on duty. ”

“ Experience in this area shows that frequently unions first organize the small and weak employers. These small employers are understandably afraid that unless other, larger employers are also organized, effective competition will be impossible. ”

“ Moreover, while these cases involve suits against unions, we should not overlook the fact that if unions are held liable under the antitrust laws for collective bargaining activities concerning mandatory subjects, then the employer parties to this mandatory collective bargaining would also be subject to antitrust penalties, criminal and civil. ”

“ In Allen Bradley Co. v. Local Union No. 3, Intern. Broth. of Elec. Workers, 325 U.S. 797, 65 S.Ct. 1533, 89 L.Ed. 1939, the only relevant case in this area since Hutcheson, the Court reaffirmed the Hutcheson holding 'that a union's exemption from the Sherman Act is not to be determined by a judicial 'judgment regarding the wisdom or unwisdom, the rightness or wrongness, the selfishness or unselfishness of the end of which the particular union activities are the means. ”

“ A 'protective wage clause' in the national wage agreement provided that signatory companies would not buy coal mined under terms and conditions less favorable than those in the national wage agreement. ”

“ National Labor Relations Board, 110 U.S.App.D.C. 294, 293 F.2d 133.↑ Today, between 80% and 100% of the workers under union agreement are covered by multi-employer contracts in such important industries as men's and women's clothing, coal mining, building construction, hotel, longshoring, maritime, trucking, and warehousing. Between 60% and 80% of unionized workers are under multi-employer pacts in baking, book and job printing, canning and preserving, textile dyeing and finishing, glass and glass-ware, malt liquor, pottery and retail trades. ”

“ Consistent with this view, the Union welcomes automation, insisting only that the workers participate in its benefits. [1]
Jewel Tea presents another and different aspect of collective bargaining philosophy. The Chicago Local of the Amalgamated Meat Cutters bargains for its members with small, independent service butchers as well as large automated self-service chains. It seeks from both a uniform policy that no fresh meat be sold after 6 p.m. ”

“ Similarly in 1945 a number of strikes following a breakdown in negotiations resulted in government seizure of 235 mines. When the Government seized the mines once again in 1946 because of a breakdown in negotiations over a welfare fund, a settlement was reached only through the active intervention of the Secretary of the Interior, who himself negotiated the beginning of the program of welfare fund benefits. ”

“ The ownership of a controlling or substantial interest in a company which conspires with others in violation of the antitrust laws does not in itself impose antitrust liability on the owner. Hartford-Empire Co. v. United States, 323 U.S. 386, 403, 65 S.Ct. 373, 382, 89 L.Ed. 322; Buckeye Powder Co. v. E. I. du Pont de Nemours P. Co., 223 other grounds, 248 U.S. 55, 39 S.Ct. 38, 63 L.Ed. 123; Union Pacific Coal Co. ”