Ensconced in a corner of federal labor policy is the labor exemption from federal antitrust law. Every so often, it takes center stage, as it did last fall when the U.S. Court of Appeals for the 9th Circuit decided California ex rel. Brown v. Safeway Inc., 615 F.3d 1171 (9th Cir. 2010), order for reh’g en banc (Feb. 11, 2011), which ruled that a group of large grocery stores committed an antitrust violation by their collaborative efforts to resist a union strike in Los Angeles in 2003. The full court has just recently ordered en banc rehearing, scheduled for March 21, and that may present an occasion to correct what in the authors’ view was a misapplication of the labor antitrust exemption.
There is a fundamental conceptual conflict between federal labor and antitrust law. After all, unions are fundamentally a cartel of workers whose very purpose is to restrain competition — namely, competition over wages in a particular industry or geographic locale. Recognizing this, Congress early on limited the Sherman Act, 15 U.S.C. 1 et seq., to exempt from its reach the concerted actions of union members (read: “strikes”), which would otherwise be a classic group boycott. See United Mine Workers v. Pennington, 381 U.S. 657, 668 (1965).
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