John Marshall Harlan II

“ At the same time, the very existence of multi-employer units, and the obvious need for the employers involved to agree on collective policy, must invariably have competitive effects. The signatories to a collective bargaining agreement are frequently, by the very act of signing, agreeing with their own competitors on matters such as labor costs, certain nonlabor costs, services to be provided to the public, and (indirectly) price increases. ”

“ The exact extent of the 'labor exemption' or 'labor immunity' from statutes regulating competition has troubled this Court before; [5] however, since no collective bargaining agreement in the maritime industry is now before us, it would be inappropriate to suggest the affirmative extent of the immunity. The important point in this case is an opposite and two-edged one: the assessment agreement before us is not immune or exempt, for it raises 'shipping' problems logically distinct from the industry's labor problems ”

“ Certainly, since a 'modernization tax' on any one group of customers lowered, by an equivalent amount, the cost of modernization to others obligated to pay for it, an unfair allocation of the burden could properly be described as a 'preference' between that 'description of traffic' bearing a heavy burden and that 'description of traffic' whose burden was correspondingly lightened. ”

“ To the extent that, under the plan chosen, individual employers were unable to absorb the levy and debit it against future savings from modernization, the decision how much each employer was to pay necessarily affected that employer's customers as a class. To the extent that the plan went on to determine which of an employer's customers would ultimately pay which share of an employer's dues, the agreement also made choices among customers of an individual employer. ”

“ The difficulty, however, is that the principle is excessively broad: any significant multi-employer agreement on economic matters 'affects competition' with respect to prices and services to the public, even if it is a collective bargaining agreement or an employer agreement collateral thereto. ”

“ When the Court notes that only the assessment agreement must be filed and examined, it seems clear that it contemplates a Commission examination starting from the premise that the obligation to collect the Mech Fund will be fulfilled; at issue will be only the propriety of the choice of the route to that objective. ”

“ That paper did not destroy price competition for Volkswagen's trade; nor would a specific agreement to 'pass on' the additional $2.35 charge have done so. But the allocation agreement made Volkswagen a less desirable customer to each and every terminal company unless it did pass on the $2.35 charge. How the Commission could conclude that this collective imposition, by the terminal companies on themselves, of a heavy tax for handling one kind of product did not 'affect' competition among them for the trade of shippers of that product I simply cannot understand. ”

“ The allocation agreement involved in this case increases the cost to a terminal company of unloading one Volkswagen by $2.35. This is a substantial (25%) increase in the company's cost for handling this one product. Since the mechanization and modernization program is not expected to produce a significant (much less a compensatory) saving in the other costs of handling Volkswagens, no terminal company could, in the long run, 'absorb' this cost: companies do not absorb costs that are not expected to pay dividends in the future. ”

“ Since maritime employers are permitted to bargain as a group, and since they are required to bargain about certain subjects, the resulting agreements must have some exemption from the filing requirements of § 15 and from successful challenge under the antitrust laws or under the substantive principles in §§ 16 and 17 of the Shipping Act. ”

“ On the surface, it might appear that the argument should be the other way around: it makes some sense to speak of an 'undue or unreasonable preference or advantage' to, say, watermelons over automobiles when they are 'competing' for a finite amount of shipping space; it becomes much more difficult to find anything that can be called a 'preference' between such products with respect to any services that are available to both in unlimited quantities. ”

“ Multi-employer collective bargaining must therefore be reconciled with the sometimes competing policies of federal laws promoting and regulating competition, viz., the antitrust laws and, in the case of maritime labor relations, the Shipping Act. ”

“ However, the existence of such a categorical difference between the benefits received by different groups should at least invite inquiry whether charges are as appropriately proportioned as would be feasible. ”

“ Multi-employer collective bargaining units have long been recognized as among the unit classifications that the National Labor Relations Board may deem 'appropriate.' In National Labor Relations Board v. ”