“ Jewel alleges on the other hand that the night operation of self-service markets requires no butcher to be in attendance and does not infringe any other legitimate union concern. Customers serve themselves; and if owners want to forgo furnishing the services of a butcher to give advice or to make special cuts, this is not the unions' concern since their desire to avoid night work is fully satisfied and no other legitimate interest is being infringed. ”

“ We therefore have a situation where the unions, having obtained a marketing-hours agreement from one group of employers, have successfully sought the same terms from a single employer, Jewel, not as a result of a bargain between the unions and some employers directed against other employers, but pursuant to what the unions deemed to be in their own labor union interests. ”

“ Thus the dispute between Jewel and the unions essentially concerns a narrow factual question: Are night operations without butchers, and without infringement of butchers' interests, feasible? The District Court resolved this factual dispute in favor of the unions. It found that 'in stores where meat is sold at night it is impractical to operate without either butchers or other employees. ”

“ To begin with, courts are themselves not without experience in classifying bargaining subjects as terms or conditions of employment. Just such a determination must be frequently made when a court's jurisdiction to issue an injunction affecting a labor dispute is challenged under the Norris-LaGuardia Act, which defines 'labor dispute' as including 'any controversy concerning terms or conditions of employment.' Norris-LaGuardia Act, § 13 (c) , 47 Stat. ”

“ But the issue before us is not the broad substantive one of a violation of the antitrust laws-was there a conspiracy or combination which unreasonably restrained trade or an attempt to monopolize and was Jewel damaged in its business?-but whether the agreement is immune from attack by reason of the labor exemption from the antitrust laws. See note 3, supra. The fact that the parties to the agreement are but a single employer and the unions representing its employees does not compel immunity for the agreement. ”

“ Notes
↑ The practice in the Chicago area is for the employers and the butchers to execute separate, but similar, collective bargaining agreements for self-service and service markets. A self-service market is 'one in which fresh beef, veal, lamb, mutton or pork are available for sale on a prepackage self-service basis.' Semi-self-service markets, those in which fresh meat is made available on a prepackaged basis but there is also a service counter offering custom cutting for those who prefer it, are governed by the self-service contract. ”

“ In the same vein, defendants adduced evidence that in the sale of delicatessen items, which could be made after 6 P.M. from self-service cases under the contract, 'practically' always during the time the market was open the manager, or other employees, would be rearranging and restocking the cases. There was also evidence that even if it were practical to operate a self-service meat market after 6 P.M. without employees, the night operations would add to the workload in getting the meats prepared for night sales and in putting the counters in order the next day.' 215 F.Supp., at 844. ”

“ The trial court had before it evidence concerning the history of the unions' opposition to night work, the development of the provisions respecting night work and night operations, the course of collective bargaining negotiations in 1957, 1959, and 1961 [7] with regard to those provisions, and the characteristics of meat marketing insofar as they bore on the feasibility of night operations without butchers.
The unions' opposition to night work has a long history. Prior to 1919 the operating hours of meat markets in Chicago were 7 a.m. ”

“ As evidence of the conspiracy Jewel relied in part on the events during the 1957 contract negotiations-the acceptance by Associated of the market-hours restriction and the unions' imposition of the restriction on Jewel through a strike threat. ”