Labor Unions and Collective Bargaining, Public Workshop on Competition in Labor Markets 6 of 7

MR. RINNER: (Off mic) —
and so, many thanks to Doha and the competition
policy and advocacy section for I think really
assembling a wish list of top lawyers particularly
in the fields of antitrust and collective bargaining. I’ll go through the
intros real quick. We have a 5:30 stop time
and I want to hear as much from them as possible. You can read their bios. But I’ll go
down the line. Starting with Jonathan
Berry, who’s the principal deputy assistant
secretary for policy at the U.S. Department of Labor. Then going down the line,
we have Derek Ludwin, who is a partner at
Covington & Burling. Then next is Sanjukta
Paul, who is a law professor at Wayne
State University. And then, I see Steve
Cannon, who is the chairman of Constantine
Cannon and the managing partner of Constantine
Cannon’s Washington, D.C. office. And then, next to
Steve is Jeff Kessler. Jeff is the co-executive
chairman and co-chair for the antitrust,
competition and sports law practices at
Winston & Strawn. And then finally, we have
Matthew Ginsburg, who is associate general
counsel for the AFL-CIO. So let’s just
jump right in. So the focus of the panel
is going to be on the labor exemption from the
antitrust laws and, more generally, we’re going
to cover the past, the present and the future of
the intersection between these two areas of law,
antitrust and collective bargaining. As we’ll discuss, the
statutory and non- statutory labor exemptions
have a long history and have proven integral in
protecting the rights of workers to organize and
collectively bargain. When competitors come
together and agree on the prices that they will
charge to a purchaser of their inputs, antitrust
lawyers usually see that as an antitrust problem
and they’re agnostic to the underlying reasons
for such horizontal agreements. It’s unsurprising then
that after the Sherman Act was passed,
collective bargaining and unionization efforts were
on a collision course with the antitrust laws. But, as you will hear,
Congress passed a series of laws that are now known
as the labor exemption from the antitrust laws. These statutes immunize
labor organizations that are lawfully carrying
out their legitimate objectives. The labor exemption —
statutory exemption enables workers to
organize to eliminate competition among
themselves and to pursue their legitimate labor
interests, so long as they do not combine with
a non- labor group. That’s the words of
the Supreme Court. The statutory labor
exemption, however, does not address agreements
made between unions and employers. And so, recognizing
that this would subject collective bargaining
agreements between unions and employers to antitrust
scrutiny, the Supreme Court inferred a
non-statutory exemption to accompany the explicit
statutory carve-outs. The non-statutory labor
exemption has two main underlying rationales:
one, the need to provide for labor peace; and then,
two, the desire to allow labor policy, rather than
the antitrust laws, to control the realm of
collective bargaining. So at the same time, one
thing that units many antitrust lawyers, and
we’ll talk about this more, is an aversion to
exemptions or immunities from antitrust scrutiny. In fact, in 2007, the
bipartisan Antitrust Modernization Commission,
on which Steve Cannon sat, issued a report on
the state of antitrust law, with recommendations
for future development. In its discussion
of exemptions and immunities, the report
states, “Statutory immunities from the
antitrust law should be disfavored. They should be granted
rarely and only where, and for so long as a clear
case has been made that the question would
subject the actors to antitrust liability and
is necessary to satisfy a specific societal goal
that trumps the benefit of a free market to
consumers and the U.S. economy in general.”
on the one hand, an aversion to antitrust
immunity doctrines, even when there’s an expressed
statutory immunity, not to say anything about the
non- statutory immunity. But on the other hand,
we have this statutory federal policy to protect
collective bargaining. So some of the questions
today will explore this tension. But more broadly, we’ll
cover the purposes of the statutory and
non-statutory labor exemptions and how the
exemption is still being litigated today. And then, we’ll talk about
what might be next in this area. To start, we’re going
to forego opening statements. But I’m going to have a
kickoff question to each of our panelists that’ll
help us sort of, you know, look at some of the
big picture issues in this space. And then, we’ll get into
some of the more applied topics, digital,
sports and so on. So I’ll start
with Sanjukta. Could start us off by
providing some of the key background history
underlying antitrust law’s relationship to workers,
including what we now call the labor exemption
to antitrust law? DR. PAUL: Absolutely. Thank you. I’m going to try to
shake up our background assumptions about this
topic a little bit and actually I’m going to do
that by talking about what I would call the pre-
history of labor exemptions, something we
don’t talk about very much. Workers and workers’
organizations, in particular the Knights
of Labor, which was the AFL-CIO before there was
an AFL-CIO in the 1880s, were at the core of the
social movement that helped to get the Sherman
Act passed in the place. Thank you. Sorry. And together with farmers
organizations, historians agree that they were
really at the core of this anti-monopoly
movement. We know this as well
because legislators repeatedly referred
to this fact in the legislative record, which
I spent a chunk of my summer reading from
beginning to end. It’s true. And needless to say,
neither of these groups of people dreamed that
coordination between themselves, whether it
was in the form of joint bargaining or joint
price-setting as to their rates, would come within
the ambit of the statute. Now, we’ve heard sort
of the conventional framework for why we today
think this is the case. So I’m going to try to
unsettle our assumptions about that just
a little bit. Let me start with
first the facts. Quite simply, the
legislative record shows that legislators did not
intend for the Sherman Act to bring workers’
coordination or coordination between
farmers and small dealers within its grasp. It’s not really
a close question. I’m not the first
person to say this. Back in the early 20th
century, this was quite a hot topic and early
commentators made this point. We also know that it was
not legislators’ intent because they said so over
and over on the record. And they discussed it
because they were worried that the courts would
interpret it this way, right? So they talk about how can
we draft it to avoid this possibility. And that is exactly
what the courts did. As I read the record
in fact, the final redrafting of what we now
know as the Sherman Act was in fact done in large
part in an attempt to avoid precisely
this eventuality. It removed some language
about raising cost. And they thought that took
care of the problem by tracking the common law
language of restraint of trade. As you all know, the
restraint of trade doctrine at common law
did not actually prohibit price-fixing per se. And this was not an issue
in the same way at common law. Now, to really understand
this though, we have to understand what
legislators were trying to do. And it was quite
simple really. They were worried about
the power of the trusts. That’s why it’s
called antitrust law. The trusts were a new type
of business form that had not existed
until the 1880s. Trusts were like today’s
large corporations in all respects save one. There was an additional
formal layer to their corporate governance in
the form of these trust certificates that were
issued to shareholders in individual constituent
firms in exchange for voting power of their
shares that was held by a small centralized group
of trustees that — kind of like the board of
directors today, that now controlled all the
constituent firms as one. Trusts existed because
state corporate law at the time made outright
merger largely impossible. And the important thing
to understand about trusts is that they were a
mechanism to deal with what I would admit was
sometimes destabilizing competition in the
emerging national markets through a mechanism that
was different from prior forms of market
coordination because it concentrated power in
much fewer hands than was previously the case when
we had more regional and local markets. As Senator Sherman
said, John D. Rockefeller might have
been a fine man, but the danger was that he held
more power over economic coordination than
one man should. The somewhat challenging
thing for us today to understand is that the
people and legislators were focused on the
trusts insofar as they were like today’s large
firms, not insofar as they were like coordination
between firms or individuals, tiny firms,
Uber drivers, whoever. And this is the precise
opposite of the priorities that today’s
antitrust law sets, labor exemption or no
labor exemption. But the act, while
perhaps could have been drafted more clearly,
absolutely was aimed at the concentrated power of
the trust, which really is represented by large
corporations today. And again, the dispersed
nature of worker and farmer coordination
was not considered an antitrust problem. So what about those early
cases that preceded the New Deal and preceded also
the Clayton Act’s labor proviso? So the courts did not see
this the way that I see it and they largely
ignored legislative intent on both counts. I won’t go through the
whole development, but I want to highlight two
Supreme Court cases. One is the one that all
labor lawyers know as the Danbury Hatters’
case, Loewe v. Lawlor, and this actually
built on a couple of federal district
court decisions. And in that case, the
Supreme Court summarily dismissed legislative
intent with frankly a rather misleading
statement about attempts to pass a labor
exemption having failed. That’s not the case. The legislators rewrote
the statute, thinking that no labor exemption was
now necessary, right? The other thing I want to
highlight about Loewe v. Lawlor and the other
cases of that period that preceded the Clayton Act
and preceded the New Deal is what their rationale
was for breaking up labor strikes and boycotts. It was not that they were
anticompetitive or akin to price-fixing. And on the contrary, many
of these cases actually said that collective
bargaining over wages and working conditions would
actually be fine, that that — they either
implied or said that that itself would not
be a problem. Rather, they held that
employers had property or property-like rights that
were threatened by many types of common
strike activities. And furthermore, the
federal courts read those specific employer
rights into the federal antitrust law. At the same time, around
this same time, we had a trio of cases on the
merger side, E.C. Knight, Northern
Securities and finally, Standard Oil. And I won’t go
through all of them. But in Standard Oil is
really where we got the modern distinction
between unilateral and multilateral conduct. That is not something
that legislators contemplated. It did not exist
in the law before. And prior to Standard Oil,
for example in Northern Securities, the court
actually moved towards treating horizontal
mergers akin to price-fixing between
competitors. And that is in line with
the legislative intent that I’m highlighting
that was concerned with concentrated power and
with the problem being concentrating coordination
rights in too few hands. And again, this was a
major step in the process that eventually made
coordination between firms and individuals the,
quote, “supreme evil of antitrust,” which it was
not originally, rather than focusing on
concentrated corporate power. Now, very briefly, I think
that my colleague is going to talk about
the statutory and non-statutory
labor exemption. But what we now know as
the labor exemption to antitrust was articulated,
I would say, in a pair of Supreme Court cases in the
early 1940s, Hutcheson and Apex Hosiery. And these really knit
together the labor proviso that can be found
in section six of the Clayton Act together,
which had been rendered more or less a dead
letter by the Lochner era federal courts, knit
that together with the Norris-LaGuardia Act,
which as of New Deal vintage, and to some
extent also knit together judicial interpretations
of the Sherman Act and the Wagner Act as well,
which is the NLRA, or the basis of the NLRA. These cases said that
taking labor costs out of competition was not a
violation of the Sherman Act. Indeed, it’s important to
note that these cases said that that’s true as a
matter of the Sherman Act, that that is not what the
Sherman Act implied, not just sort of as it was
later modified by whatever the labor exemption is. And this is indeed, I
would submit, consistent with a careful reading
of the Lochner era labor antitrust cases as well
insofar as those cases focused on the means by
which workers sought to achieve union shops or to
better their wages and working conditions, often
involving secondary action, or other
activities that the courts considered to be
interference of employers’ property rights, as I
mentioned, rather than being concerned with
the end of collective bargaining, which we
just assume today is an antitrust violation. I just want to also
briefly say that we wouldn’t accept the
reasoning that the Lochner era courts used today
that focused on the means because — well, I don’t
have time to go into it. But they really focused
on the social status of workers and whether they
were sort of fit to engage in the kind of
coordination that businesspeople were, which
is quite alien, I think, to the way that we
would think about this. And however, we do use a
rationale that we cannot find in these cases about
collective bargaining itself constituting
antitrust violations. So I think I will
leave it there. MR. RINNER: Great. Thanks, Sanjukta. I’ll go over to Jon
to give us a bit more table-setting,
specifically from the labor perspective. So how did the background
employment law rules influence antitrust
law consideration? MR. BERRY: Thanks, Bill. So I’ll start by making
the conventional distinction between labor
law and employment law. Labor law speaks to the
process for collectively negotiating the
employment relationship. The rest of the panel is
going to talk about how labor law intersects
with antitrust law. So I just want to flag one
feature, which is namely that in a unionized
workplace, the National Labor Relations Act
requires unions and employers to bargain over
certain core terms of the employment relationship
such as wages, hours, time off, benefits and
workplace safety. Employment law, by
contrast, goes to the substance of those core
terms and sets some substantive
floors on those. So here’s just a quick
general overview for those who may not know. So with these topics,
wages and hours, the Fair Labor Standards Act sets a
minimum wage and requires overtime after
40 hours a week. I’m speaking
generalities. There are tons of
exemptions and lawyers make a lot of
money off of those. Time off, another one,
Family and Medical Leave Act guarantees up to 12
weeks unpaid leave for illness and for
family care. Congress is of course
currently considering whether to add some kind
of paid leave benefit mandate as well. Benefits, the Affordable
Care Act requires many employers to offer
subsidized health insurance. And ERISA, the Employee
retirement Income Security Act, puts a host of
obligations on employers who offer retirement
or health benefits. Safety, the occupational
safety and Health Act puts a general duty on
employers to protect employees from workplace
hazards and to comply with a variety of safety
standards on specific topics like chemical
exposure, fall protection and dangerous machines. So for workers who
are covered, and that coverage issue is very
important — we’ll come back to it later — for
workers who are covered, employment laws set a
fairly comprehensive floor for how those workers
will be treated. All else equal, again,
big caveat, this floor reduces the relative
desirability to workers of collective action. If the main concern at
your workplace is safety, maybe the OSHA act does
enough to reduce or address hazards that you
don’t think a union is worth the lift; likewise
with the FLSA perhaps, if your main concern
is overtime. So to the extent that
antitrust law concerns itself with the question
of workers’ practical economic incentives, it
should take into account, I think, how employment
law speaks to at least some of those incentives. And that’s all
I wanted to say. MR. RINNER: All right. Thanks, Jon. So I’ll go over to Derek. Sanjukta gave us a very
useful and informative discussion of some of the
background principles and the origin story of
what we call the labor exemption today. So I guess fast-forwarding
to today, what do we understand as the purpose
of the labor exemption and do you have a
different perspective from Sanjukta that
you might add? MR. LUDWIN: Sure. I’m not sure I have a
different perspective. I think I have some
additional modern day gloss that I will add. MR. RINNER: Sure. MR. LUDWIN: You know,
as you heard, labor law looks at the process of
bargaining and it protects the process of bargaining
and there are many cases that talk about how
national labor policy favors free and private
collective bargaining. And it does so between
two sides: labor and management. And the purpose of the
exemptions together is to protect that process. So taking them in turn,
the purpose of what is known as the statutory
exemption is pretty simple. It protects from antitrust
scrutiny, quote, “unilateral conduct,” sort
of flowing from Standard Oil, unilateral conduct by
a union acting on behalf of its members. Congress did not want
unions to be considered cartels and tried, and it
took more than one try, but eventually got enough
legislation in to make that happen. And it didn’t want —
because unions are not cartels, it did not
federal courts enjoining them from doing all of
the things that labor law says that they can do. Again, this is the
unilateral union actions. And the Congress didn’t
put in an express exemption. What it did is it put
in a prohibition on injunctions. But the, quote, “statutory
exemption” which flows from that prohibition on
injunction has as its basic purpose protecting
one-half, or really one- third, of this
bargaining process. The non-statutory labor
exemption protects the other two-thirds, the
other two parts of this bargaining process. And really what it does,
its purpose is to give practical content to
the statutory exemption because it’s all very well
for the union to have an exemption to go out and
unionize and maybe to strike and maybe to demand
collectively terms and conditions of employment. But that doesn’t really
get anyone anything if the union can’t then agree
with management on a contract that gives effect
to where they’ve landed on these terms and
conditions. So the non-statutory labor
exemption, it is read, it’s implied to cover
concerted conducted and it does so in two respects. First, as I’ve said,
it covers that, the agreement, the concerted
action between the union and management to give
effect to the fruits of the bargaining process. But the other thing it
does is it recognizes that management isn’t
always unilateral on its side. The law favors, national
labor policy favors multi- employer bargaining units. And if you are going to
have a group of employers working together on the
other side of a union working together, you
know, with its members, you can’t give effect if
the agreement among those employers about how to
respond to a demand by a union for an
industry-wide term or condition, if that’s
going to be subject to antitrust scrutiny. So, you know, the purpose
of the statutory and the non-statutory exemptions
working together are to protect this broader,
sort of soup to nuts collective bargaining
process and the agreements that arise as part
of that process. But an important part of
that is to preserve the balance that Congress
intended in this process. Labor law, and Jon can
speak in much more detail than I can about it,
but labor law and the collective bargaining
process, you know, is predicated on this
balance between things that unions can do,
strikes, and things that management can
do, lockouts. And what these exemptions
acting together do is protect both and maintain
that balance that exists and is supposed to
exist in the collective bargaining process. MR. RINNER: Thanks, Derek. So I’ll turn
to Steve next. So we’ve heard a lot about
what the labor exemptions protect, the activities
with the collective bargaining stage in terms
of union organizing activity. So what doesn’t
it protect? What are some of the
outer boundaries of the labor exemption as we
understand it today? MR. CANNON: Well, you
know, it is interesting that it took, what, 40
years from 1890 from the Sherman Act to at least
1932, to Norris- LaGuardia to clarify what I’m
convinced now was clear. You’ve convinced
me of that. But, so which actually
was pretty speedy for the Congress, I guess. Forty, 42 years is not
that — is not that slow. But, I mean, this, the
whole idea of what the exemption covers, both
the statutory and non- statutory, it has somewhat
of a parallel like in the state action doctrine,
which antitrust folks in the room know is this
question of conduct of state entities, et
cetera, not being subject to antitrust liability
because it’s the act of the state as sovereign
and not — and so therefore anticompetitive
activities you cannot reach a state on. That actually, as folks
know, is actually court-made law. It’s not statute-made law,
which makes it even more complicated. But here, there has been
a pretty good rollout, if you will, of cases over
the last 20, 30, 40, 60 years about what it
really does mean. And, you know, when you
get back to Hutcheson, which really started this
entire thing about, gee, you’ve got to make sure
that the union is acting in its self- interest and
it is not acting with — this is a double
negative, it’s not acting with a non-labor
organization, if you can follow those
double negatives. And that’s what the courts
have tried to flesh out. There are so many of these
cases around that it’s pretty easy to have any
number of examples. One, of all things, back
30, 40 years ago involving an international
longshoreman, you would not be surprised to hear
that if the union decided in protest not to unload
ships because of the Soviet invasion of
Afghanistan, that’s not covered. What a shock. However, there’s another
case involving the National Basketball
Players Association where decertification of an
agency for players was found to actually be
in their self-interest because it could have
an impact on terms and conditions of employments
that the players would have. There are all sorts of
other cases and another landmark case that we
haven’t talked about is H.A. Artists v. Actors’ Equity. The Supreme Court decided
in 1981 that essentially reaffirmed what everybody
calls now the economic interrelationship test
and held that agents that represented equity
members who had agreed to abide by the terms and
conditions for franchising those agents in fact did
qualify as a labor group. So when you start parsing
through these cases over the years, sometimes you
can just tell people knowing what the
broad principles are. There’s a little bit of
guessing going on whether or not the particular
activity that you are wanting to do
would cover it. And then, you get to the
non-statutory exemption and it’s essentially
a three-part test. Again, easy to say, not
terribly easy to interpret on occasion, although I
think there are plenty of cases around the
circumstances where there’s no question about
it that the non-statutory exemption applies. One is intimately related
to the mandatory subject of collective bargaining,
such as wages, hours, terms of working
conditions. It does not have
potential to restrain trade outside the
elimination of competition in wages and
working conditions. And then finally,
generally arises out of the collective
bargaining setting. And kind of the landmark
case here or the key case is known as the Connell
case in the Supreme Court which essentially said if
a union, a plumbers union, is going to a general
contractor and trying to get that general
contractor to agree that that general contractor
will not use a non-unionized plumbing
subcontractor, then that is not covered
by the exemption. On the employer side,
there are other examples of where the exemption
simply will not apply. An interesting one from
the Ninth Circuit, any number of years ago,
involving a grocers union action where the court
ruled that a group of groceries, or grocers,
could not come together and make an agreement that
if one of the grocers was a subject of a strike,
that the other grocers would all come together
and basically have a revenue-sharing agreement. Gee, that sounds pretty
obvious that you couldn’t do that. But you’d be surprised. People have — that case
is — obviously that happened. There are all sorts of
other agreements that I won’t go into. Time is pretty limited. But there are just any
number of cases like that about — and the question
is always where do you draw that line between
something that is affecting the labor market
and something that is affecting essentially
the commercial market. So that’s — thanks, Bill. MR. RINNER: Thanks, Steve. So it does sound like
there’s a lot of mischief out there still —
MR. CANNON: There is. Yeah, there is. MR. notwithstanding
these clear limits. So why don’t we go
to Jeff, speaking of mischief — I’m
only kidding. The labor exemption
has attracted a lot of attention in the sports
context on some cases I’m sure you’ve been
involved in. Could you walk us through
how courts have recently applied the exemption
in this area? MR. KESSLER: Yes. So in sports, it’s been
really remarkable because it’s mostly been about the
non-statutory exemption. There’s very few sports
cases actually involving the statutory labor
exemption, about the union. But there a quite
a bit – – do this? Okay, sorry. There are quite a number
of cases involving the non-statutory exemption. And most of the cases
have been the employers in a multi-employer
bargaining unit, basically the teams in
the league, invoking the exemption against
the union. So if you go back through
the history, as we heard, of where the labor
exemption came from, we used to like to say that
like Samuel Gompers would be turning in his grave
because it became a weapon for employers to say even
though what we want to impose, let’s say, at
the labor law — so at impasse, you could impose
your last best offer in bargaining. Or you can continue the
status quo of a prior restriction. That could be imposed by
the employers and they would assert the
non-statutory labor exemption, saying it
protects the collective bargaining process
and therefore we are protected. This was battled out by
various sports unions against the teams and
the employers in a whole series of cases as to
when you’d have coverage and when you wouldn’t
have coverage in the 1970s through the 1980s. And it came to culmination
in a Supreme Court case called Brown v. Pro Football. And in Brown v. Pro Football, the Supreme
Court, much to my personal chagrin, because I did not
agree with the result, ruled that as long
as there is a labor relationship between the
group of multi-employer bargainers and the union,
even if the collective bargaining agreement
expired, even if you got to a point of impasse in
the bargaining, then the non-statutory exemption
would continue. What did this lead to? It led to the plethora of
strikes and lockouts that you’ve seen in
professional sports since Brown v. Pro Football because the
consequence of this is that the only choice for
the sports player unions to be able to assert
antitrust rights against their employer unions
essentially has been to end their union. They disclaim it, which
you can do under labor law. You can actually get a
majority of workers to say I disclaim
you as a union. If you’re a certified
union, sometimes there’s a decertification election. But so you have this
perverse situation where workers are fighting to
get rid of their union and you have the employers —
and this should tell you something as lawyers. The employers say, no,
you’ve got to stay a union. We want you to be
unionized because we need our non-statutory
labor exemption. I remember very well,
Matt, the first time the NFLPA, which was a
remember of the AFL-CIO had to go explain to the
AFL- CIO why it was good for the workers for them
to stop being a union. This was back in 1989. And you can imagine that
the general counsel at the AFL-CIO spent a few
minutes thinking about that. but eventually came to
the conclusion, and the AFL-CIO supported us, you
know, you know, think about it like we became
like right to work advocates, that the union
members didn’t want to be in a union so that they
could invoke the antitrust laws against the
employer restraints. Most recently, that has
played out in the context of lockouts because the
preferred strategy by employers in these leagues
in recent years has been not to impose their last
best offer or continue the status quo but to conduct
a lockout of the workers. And we had the last major
case in this was the Brady litigation, which
was in 2011 in the district court
of Minnesota. And the first argument
there was so the union disclaimed, just before
the end of the collective bargaining agreement, and
filed an antitrust case before Judge Nelson. It ended up in the
district court of Minnesota seeking a
preliminary injunction against a lockout
because, absent a non-statutory labor
exemption, a lockout would be a group boycott of all
the employees, probably a per se illegal group
boycott against the workers in that context,
absent an exemption. So a injunction
was sought. And the fight by the NFL
was, well no, you really can’t stop being a union. And they went to the NLRB
and they said don’t let them stop being a union. They’re refusing to
bargain with us in good faith. The NLRB ended up
never deciding that. They argued to the court
should stay its ruling until the NLRB acted. The court rejected that
and then the court found the exemption had ended
with disclaimer because it was no longer and
purpose for the exemption once there was no longer
a collective bargaining relationship and
enjoined the lockout. Then
Norris-LaGuardia Act. On appeal, the big issue
was not the non-statutory labor exemption. It was the
Norris-LaGuardia Act. Now, the Norris-LaGuardia
Act was another pro-labor union statute that was
passed to essentially prevent state courts,
mostly were the culprits, but federal courts as
well from enjoining strikes. That was really what the
Norris-LaGuardia Act was intended to do. It doesn’t say anything,
by the way, about lockouts. However, it’s been
interpreted to also protect again sort of
the idea that there’s a non-statutory application
of the Norris-LaGuardia Act to protect lockouts. So the issue was, well,
if the labor exemption to the antitrust law is
ended, should the Norris-LaGuardia Act still
protect the employer’s lockout. And what the Eighth
Circuit decided in a 2-1 decision is they
said yes and no. They said that it
protects employer lockouts for workers who
are under contract. But it may not protect
employer lockouts for free agents or new players
who were coming into the league as rookies. But it reversed the
injunction that was in effect at that time. Now, interesting
question about all this, because it’s
sort of like it makes you sort of your head explode
in terms of what you would think should be
liberal/conservative issues on this, if you
think about the Supreme Court. How would a textualist
think about a non- statutory labor exemption,
okay, that’s used by employees against unions
when you have a specific statute, section six of
the Clayton Act that creates an exemption and
no other text in any congressional law that
creates a non-statutory labor exemption? I’m just asking. MR. BERRY: Did you want
me to answer that now or later? MR. RINNER: Oh no,
you’ll get your chance. We’re going to circle back
to sports because that was great. But I do want to give
Matt a chance to jump in. And it’s going to shift
gears a little bit to actually where the last
panel ended, on the digital question. So how should we think
about how the labor exemption has been applied
or should apply in digital markets? MR. GINSBURG: Great. Thanks, Bill. And actually, I hadn’t
planned on it, but it’s a nice segue from because
you don’t think of your average NFLPA member and
your average Uber driver as having a
lot in common. But in many ways, they
both really depend on this intersection between,
you know, the labor exemption is, in a way,
the intersection between antitrust law and labor
law in terms of their rights. And I’m just going to
frame the issue because I know we’re going to
get into it more. But, you know, if you take
Uber and Lyft and the other app-based companies
at their word, all of the people that they’ve
retained to do the work are independent
contractors. You know, you can guess
where I stand on that question. But let’s just take them
at their word for a moment. You know, the question
then is whether if they organize, if they
organized a boycott, if they organized to
bargain, you know, do they violate — or do they
fall within the labor exemption or are they
violating the antitrust laws. And just as a first cut,
it’s not entirely clear from the case law what the
answer is because we know — you know, we know from
Columbia River Packers about selling fish and
we know from the Grease Peddlers case about
selling yellow grease, whatever that was back
then, you know, that the sale of commodities by
small businesspeople is the sort of thing that’s
outside of the labor exemption. So when you get together
to set the price of grease, whether or not you
do it through a union form or not, that’s outside. But when you have people,
as I think is generally true with many, if not
most of those app-based companies, who are
basically selling their labor and very little
else and have almost no capital investment in the
work they do and are in the sort of common law
agency sense very much controlled by the app or
the coordinator or the company, however you
want to characterize the control, that looks quite
a bit different from, you know, Columbia River
Packers or the Grease Peddlers. So is the question — just
to frame the question, and we can get more into
it, the question is, you know, to what extent
is the labor exemption coextensive with what the
NLRB says is an employee versus an independent
contractor, perhaps what some other agency says,
whether the Department of Labor says you’re an
employee or an independent contractor, whether a
state department of labor or state unemployment
office says you’re an employee or an
independent contractor or is there something more
fundamental about the purposes of the antitrust
laws that maybe would not intend to get at people
who are basically just selling their labor and
have very little capital investment in
their business. And, you know, the other
sort of touchstone in this area of course is
Superior Court Trial Lawyers, which was not a
labor exemption case but a case where you had, you
know, defense attorneys here in the district,
public defenders in the District who conducted a
group boycott to get the rates raised for
reimbursement for taking on public defense cases. You know, the Supreme
Court of course found that that was unlawful
under the antitrust law. But it was not litigated
as a labor exemption case. So is there something
different about people who perhaps fall right over
the line into independent contractor status, but
really the services they’re selling are
unskilled services? They’re driving their own
personal vehicle which they use to take their
kids to school and all the other things as
well versus perhaps a professional who’s an
attorney or an accountant who gets together. So these are
the questions. I don’t think we have
answers, and I know we’re going to have a bit of
a debate and discussion about that. MR. RINNER: All right. Thanks, Matt. MS. PAUL: Can I
add one thing too? MR. RINNER: Yeah. I was going to go to you
next, but please go on. MS. PAUL: Oh, sorry. Well, I was just going
say that I think one thing I just want to add to
what Matt said is that Columbia River Packers
Association and the Grease Peddlers case, neither of
those involved sort of primary joint bargaining,
you know, with the immediate buyer
of the commodity. And so, I would submit
that it was not really teed up until Superior
Court Trial Lawyers Association and then
obviously that can be distinguished
in certain ways. Also I think that was
wrongly decided and there was a dissent, but —
MR. RINNER: All right. Good. Well, I’ll stick with
you, Sanjukta, and taking you from the legislative
history of the Sherman Act all the way to the
present day on these digital questions. So, you know, we could
talk of a new gig economy and how digital markets
are really causing many to question whether
the existing antitrust standards are still
fit for the job. Others take the view
that, you know, we have the tools. It’s just a question of
how we apply them and how we apply them in an
intelligent way. But so, and maybe you have
some of the answers to the questions
that Matt posed. And I’ll start
with one of them. So should the antitrust
labor exemption turn on the employee versus the
independent contractor classification? MS. PAUL: Yeah. So I think Matt started
to talk about that. I mean, I think I would
say it’s settled that the labor exemption, you know,
as a matter of existing law, that it’s broader
than just employee status. But I think there’s
questions about how much broader and I do think
that the gig economy tees up that question
in various ways. I would just add a
couple of things. One is that the mandatory
arbitration clauses that Uber includes in its
contracts with drivers have frustrated, I think,
the judicial resolution of the independent
contractor versus employee issue. I also would just — this
was started to be talked about at the end of
the last panel — the platform’s own extensive
coordination of the ride services market I think
raises novel antitrust issues as to them. I think we should discuss
that as well if we’re discussing the
coordination of the drivers. And also, I think this
was mentioned in the last panel, but that the kind
of market coordination that the platforms
are engaging in also constitutes control over
drivers in a way that militates toward I think
the employee status of the drivers. But I think that — I
think just really briefly to Matt, because we’re not
going to decide it all right now, I think that
the labor exemption is clearly broader than
just employee status. I think we don’t know
exactly how much broader. I do think that the early
cases like Columbia River Packers Association and
the Grease Peddlers definitely involved
secondary action. So in that period, we
really didn’t have any cases saying that just
straight up collective bargaining is a violation
of the Sherman Act, absent any type
of exemption. In fact, I think that most
people would have assumed that that is not the case. And even, for example,
Thurman Arnold, who prosecuted — did not
want a broad labor exemption at the time,
I think took a more pragmatic attitude toward
coordination among labor unions and sought to
prosecute it where it was economically or socially
harmful in some specific way, not in this sort of
generic manner that it’s a distortion of markets
for workers to engage in coordination. So, I mean, I think we
really need to get away from that concept. I think that’s a very,
very new concept actually, relatively
new in antitrust law. I think, if I may add one
thing, I think that the interesting thing about
the platforms is that they tee up that question in
a new way because they stretch the boundaries
of what a firm is. We assume that firms in
antitrust law are able to engage in price- setting
internally, right? If you go back to what
I was saying originally about the legislative
intent, the original trusts at which the
law was aimed were functionally large
corporations. They were not — I mean,
they weren’t sort of cartels, right? So what I call in my work
the firm exemption to antitrust law, which we
should be talking about if we’re talking about
the labor exemption to antitrust law, is, first
of all, should be on the table when we’re
discussing the labor exemption. The Wagner Act, in its
text, talks about this and says that one of the
purposes of labor law and of the labor exemption is
to create true freedom of association for workers to
parallel the freedom of association that capital
already enjoys through the firm. I think that this
has to be part of our conversation because in
the form of a firm itself, you already have
association. It’s not one person. It’s not, right? There’s already economic
coordination happening. Bringing this back to
Uber, I think that Uber and the other labor
platforms really are useful, in a way, insofar
as they stretch sort of our conception of what a
firm can do and what its boundaries are. They sort of claim
something like single entity status, or at least
they want the benefit, you know, whether it’s a joint
venture or something, they want, you know,
essentially the benefits of entity status for
antitrust purposes and they want to disclaim
that status for labor law purposes. So they want the
benefits and not the responsibilities or
the risks, right? It’s not just
labor law either. But without even getting
into that normative question though, we can
see how it is different from prior sorts of firms
that were firms that owned plants that were, you
know, supposed to have efficiencies, that
reduced cost in some way. We just assume that those
efficiencies, first of all, productive
efficiencies can be imputed to the
services economy. I think that’s not
obvious at all, right? And that is, at a deep
level, what leads us as a default matter to condemn
coordination among Uber drivers but to sort of
have a mindset — I don’t think that this is all —
that it’s sort of blatant hypocrisy. I think we’re all — we
sort of are trained to think this way. But to see Uber as a
firm that is entitled to deference, even when now
it is technically going beyond what conventionally
were the boundaries of what I would call the
firm exemption to antitrust law because it
is coordinating the prices of services that it is
telling us that it doesn’t sell and that are sold by
supposedly independent businesspeople, right? And they’re engaging in
lots of coordination of that market beyond just
the prices as well. So without even — I mean,
I obviously have my views on this. But even apart from my
views or what we might disagree upon, I think we
should be able to agree that this unsettles some
of the deeper assumptions of antitrust law. And I just want to get
this in there, that we are talking about the
labor exemption on this panel. The fact is there are
unstated exemptions to antitrust law that
are written in. If we go back to first
principles, property is actually an
exemption, right? Federal antitrust law
defers to state property law all the time, which
is interesting actually because of federal
supremacy. And it was internalized
into federal antitrust law fairly early, as I
said, in that trio of early cases, Knight,
Northern Securities was an outlier and then
Standard Oil. But the reason why there
are always exemptions is not necessarily
a bad thing. It’s because economic
coordination is inevitable. There is no such thing
as pure competition. The firm itself is
limit upon competition. So let us have an honest
debate about what types of limits on competition
we are willing to cognize or accept or not as
a matter of first principles and why exactly
is it that an Uber driver’s association is
a distortion of market outcomes whereas Uber’s
price coordination is efficient. We really need to
approach this with fresh eyes. MR. RINNER: So I assume
everyone on the panel agrees with all of that? Would anyone like to
chime in or should we — all right, well so —
MR. LUDWIN: I will, for the — MR. RINNER: Okay. MR. LUDWIN: Expressing
only my own views, to be clear. But I think it goes back
to a premise that’s baked into that whole calculus,
which is that Uber controls prices and —
because the other way to look at it is that Uber is
a technology platform that really makes markets,
almost like an auction, where you have drivers
who can choose to accept a ride or not accept a
ride, who can be on the Uber platform, the Lyft
platform on neither, who are incentivized by
Uber’s algorithms during rush hour to still work by
getting paid more for the same ride. And, you know, on the
other side of that platform are probably
almost all, if not all of us who, go downstairs,
open our Uber or Lyft app, take a look at what it’s
going to cost me to go home now and decide
either I accept that or, you know what, I’ll
take the Metro today. So the notion of control
is so important I think to the construct and, I
mean, it’s a premise that we have to question
because if Uber is not a firm in the sense of
controlling price, but it is really a market-maker,
then, you know, it’s not the analogue, for labor
law purposes, it’s not the management side of a
group of drivers who are independent, again, who
are not signed by a contract to have to
do anything with this particular employer. So an association of those
drivers collectively agreeing to, you know, not
participate on the Uber platform — and I’m making
this up — for, you know, without x or y term
doesn’t necessarily flow. Two, Uber, on the other
side, is the bargaining. Now, it could be and there
could be, as you said, an argument for an exemption
on the drivers. I haven’t thought through
that hard enough, and I agree with you that the
non-statutory labor exemption extends more
broadly than just to people who are
currently in the union. But I do think the
control point matters. MS. PAUL: So, can I very
very briefly respond to that? So I think the main thing
that I would say on this control point though is
that I think this misses the point, to be honest,
because if we don’t say about cartels that there’s
a lack — that the cartel is mandatory, that,
you know, they’ve got gangsters out
there enforcing. You know, that is not a
requirement of section 1 liability, right? Entirely voluntary
agreements to set prices are illegal under section
one, as it’s currently interpreted. So I don’t think we should
be setting — I don’t know why we set this
higher standard where we say that Uber has to be
actually controlling them and that the question is
whether Uber drivers, you know, have the freedom
to decline and not participate in
this market. The point is that there is
still effectively this, for a moment, an analogue
to a cartel but that’s controlled from the top
down by Uber, right? And I think that the only
way — I haven’t frankly thought through this
sufficiently and I think your rejoinder is
interesting and I’ll think about it more. The way to make sense of
your comment, to me, is that this is like Chicago
Board of Trade and that Uber is like the New York
Stock Exchange or like the Chicago Board of Trade
or something and it’s a market- maker
in that sense. I don’t think that’s a
viable argument in the end. But I think that’s the
direction you have to go to make it work. I don’t think that on the
cartel point that there is this difference, that
the control point I think is not the way to
distinguish the two forms of coordination. MR. RINNER: So I want
to bring in our labor expert, and I think one
thing is clear, is that so much turns on this
employee versus independent contractor
distinction. So Jon, could you — so
leaving antitrust aside, how does labor law treat
this distinction between an employer — independent
contractor on the one hand versus an
employee on the other? And then, for gig economy
workers, I mean, as we’re talking about, does this
binary distinction really make sense? Is it the best policy? Is there any middle
ground that might afford workers some rights that
traditional independent contractors
did not enjoy? MR. BERRY: Thanks, Bill. And I promise I’ll bring
it back to antitrust at the end. So in both labor law and
employment law, this employee/contractor
distinction is pretty foundational. Employees have all those
rights that I walked through earlier, overtime
entitlement, safety protections, organizing
rights, the works. Independent contractors
do not, being generally treated as independent
business owners, capable of taking care
of themselves. And so, unfortunately,
while the stakes are high when it comes to which
side of the line a worker falls on, that line isn’t
necessarily the clearest. So under the Fair Labor
Standards Act, for example, we tend to look
at the degree to which workers are economically
dependent on a business. Economic dependence is a
pretty thorny concept, meaning that sometimes
you have business models spring up, like some of
the ones we’re discussing today, where those models
don’t fall cleanly on one side or the other. And again, the
stakes are high. To your second question,
Bill, I think that a — so a binary distinction
for gig workers means either no protections
while they get — while they get to keep working
under a current business model or a whole host of
rights and entitlements at the risk that the
business model changes radically or
just disappears. So if I’m a company whose
smartphone platform connects handymen with
projects and I’m suddenly the employer of all those
handymen, as maybe is just happening now in
California, the full suite of federal workplace
safety rules now applies to me, this despite the
fact that I may know very little about these
handymen individually and the fact that I provide
no onsite supervision to their work whatsoever. So maybe I’m forced to
provide — furnish live supervisors, if not
one-to-one, then maybe on some kind of random
rotating basis. Maybe I can absorb that
cost, maybe I can’t. And if I can’t, then
shut down and a whole lot of handymen are now going
to miss out on the work opportunities I was
connecting them with. So given the sharp binary
here, yeah, I do think that the question of an
appropriate middle group is something
worth exploring. So there are legislative
proposals for some sort of intermediate independent
worker status that would confer some, but not all
of the rights and benefits that typically come
with employee statutes. The challenge there I
think is really drawing the right line. And I don’t know whether
anything close to a societal consensus has
emerged about how to draw it. So while it has some
precursors, the gig economy that we’re talking
about has really only started to take its
current shape in the last decade. Contrast that with the
employee/contractor distinction, which mostly
only started carrying federal workplace rights
and obligations as of the New Deal, after
Anglo-American law had had a century to really
digest and unpack the meaning of the
Industrial Revolution. So instead, bringing it
full circle, I’d like to suggest that an expanded
antitrust exemption is something that’s work
exploring further. Instead of getting into
the substance of which workers ought to have
what rights at what cost, an expanded exemption
would presumably remove a cloud on a process, namely
some kind of a collective action outside of the NLRA
that those workers could use to at least attempt
to negotiate terms and conditions of work that
may make sense in the context of a particular
service like ride-sharing without killing
the whole model. There’s a lot to
think through there. So I’m glad we’re having
this conversation. MR. RINNER: So, thanks. So I promised in our time
we would get back to sports. And I want to start with
I think the question we left off with Jeff, and
I think I’ll put it to Derek, because I think
you had a reaction. So is the non-statutory
labor exemption just simply too old for
employers to, you know, go after the players and
hurt them in this context? What do you think? MR. LUDWIN: No. But I’ll expand. So to provide context to
my answer, which is no, you know, go back — go
back to the beginning of the relationship. The NFL Players
Association, players decided to get together to
enter into a collective bargaining relationship
with the employers, collective employers, the
teams in a given league. As part of that, they
went and they demanded collective terms,
league-wide terms that would apply to
all of the teams. So this is the classic
collective bargaining process at work that
Jon talked about. And we know from labor
law, section 8(b)(3), that a union may withdraw
from collective bargaining with a multi-employer
bargaining unit only before bargaining on a
new contract has begun. If you all think about the
airport, there’s a big sign above the TSA
screening that says once you start this process,
you can’t turn around and go back. And there’s lots of
good reasons for that. And labor law has lots of
good reasons for saying we want these parties
to bargain. We’re going to
make them bargain. We’re going to make them
bargain in good faith, which means once you take
on the protections and the weapons of the collective
bargaining process, which, for Jeff’s clients
involve strikes and collective demands, you
can’t just suddenly turn it off and say, you know
what, that’s not working very well. I didn’t like the
counteroffer, we’re done. So what Jeff refers to
as the weapon of the non-statutory labor
exemption actually presupposes the weapon
of the antitrust laws. What the Supreme Court
said in Brown, and I’ll read it, because it’s
pretty apt, “Congress, through these exemptions,
hoped to prevent judicial use of antitrust law to
resolve labor disputes.” It’s that simple. So decertification
effort is an effort to weaponized
antitrust law in the middle of a collective
bargaining process. Now, I say in
the middle of. Jeff and I can disagree
of when that collective bargaining process ends. The Supreme Court agreed
with us on that, that it survives past impasse. Jeff and I would both
agree that no one has decided how much longer
past, and we can come back to that if Bill
wants us to later. But the basic point is the
weaponization here is not of the statute, of the
statutory exemption. It’s of antitrust
law to begin with. MS. PAUL: An alternative
way to look at that is that it’s the
weaponization of labor law by employers to prevent
competition in one of the few instances where
workers have sufficient bargaining power to
make it work for them. MR. KESSLER: So Derek’s
history doesn’t go back far enough. (Laughter.) And it
doesn’t go up to the present enough
either, so. MR. LUDWIN: We’re going
back to Madison v. Marbury. MR. KESSLER: So starting
way back, starting way back, in sports, the teams
got together and imposed joint terms before there
was any labor union in any professional sport. So it was not a question
of players first came together and forming
labor, saying we want you all to bargain together. It was a response to the
fact that the competing employers set terms and
conditions of employment collectively, which, by
the way, was an antitrust violation before any of
these unions were formed. So that’s the actual
history of how it came about. But going forward, what
brown makes absolutely clear is that the labor
exemption does have an end point, okay? It says that
unequivocally. You’re right. It doesn’t identify
exactly when that is, except it says it probably
— well, it says two things. One, I believe it says
that if you decertify, disclaim, that’s the
end point because the relationship ends. It suggests even that if
you had an impasse that was so long that
bargaining became meaningless, you might
even end the exemption even before that. But wherever that point
is, it’s there somewhere. And this flows from
another part of the NLRA, which is section seven,
that says that just like workers have a right to
collectively bargain, they have a right not to
collectively bargain. And so, what happens in
these cases is that they decide that bargaining
is actually not in their interest, for whatever
reason, okay, and I can give you all the reasons
why in sports unions have concluded that for one
reason is striking is extraordinarily different
when your average career is three years long and
the employer’s average lifetime is
multigenerational passing on of the team. So it sort of distorts the
ability to use strike as a meaningful weapon
against employers. And if you can’t strike,
but they can lock out, then labor law doesn’t
seem like such a good remedy for you, while
antitrust law would be a great permanent remedy
for the workers. And what’s inevitably
happened is when unions have disclaimed in sports,
again, a total reversal of any other
employment context. It’s the employers who
insist the unions get reformed as a condition
of settling with the workers. So, but going back to the
original disclaimer back in 1989 through 1992, when
the antitrust action was settled, which was the
Reggie White case, there’s a provision in that
antitrust class action that says if the union’s
not being formed, I think it was in 60 days or 30
days or whatever it was, it was a provision put in
at the request of the NFL teams, then the NFL had
the right to void the class action settlement
and go back to litigating. So they were demanding
that the union be reformed. And the union was reformed
because they liked the settlement and they didn’t
want to give it up and it’s there. But again, to me, this is
sort of like a perversion of whatever the labor
exemption meant, whatever the non-statutory labor
exemption meant, it wasn’t supposed to be, and
I agree with my colleague here exactly. It’s a weaponization
by employers of the antitrust non-statutory
labor exemption to use against labor
in that context. And just to give you one
other twist on this to tie sports to the gig
economy and independent contractors, there are
athletes who fit into this kind of amorphous bucket
as well, like tennis players, for example. And so, what tennis
players have done historically because, you
know, they’re treated as independent contractors. So they couldn’t formally
unionize at all, is that we’ve ended up in these
situations in both men’s and women’s tennis where
the players broke away because they couldn’t
collectively bargain or strike in some way that
they thought was possible to form their own
competing leagues. And that’s how they sort
of — so they went from labor to management or
to capital and in effect sort of carried it to
its logical conclusion. That didn’t work
all that well. And what then happened in
both men’s and women’s tennis was eventual legal
battles and settlements where today both the ATP,
the men’s tour, and the WTA, the women’s tour, has
players and tournament owners, which would really
be the management and labor, have equal votes. And they developed this
bizarre system where they have a neutrally hired
president who is the tie- breaker in the vote. And I think both labor and
management would agree it’s become a very
unsatisfactory system. In other words, the
tournaments don’t like it and the players
don’t like it. In other words, they would
be more comfortable in a traditional
labor/management relationship. But this whole amorphous
statute of, you know, they’re not employees,
you know, they compete in tournaments prevented
that from coming in. So I don’t know what’s
going to happen in either of those organizations. I just can tell you
have a situation where neither side likes the
current arrangements in terms of that. MR. RINNER: So I want to
shift gears a little bit, and I know we’re
low on time. But there’s a few of you
who haven’t had a chance for a little
while to weigh in. So I’ll start with Matt. A lot of the discussion
has sort of focused on I guess what we might say
call nontraditional arrangements between
employers and employees, the gig economy,
sports, for example. I have a question about
how the labor exemption might apply to public
sector unions, which is in some ways a slightly
less traditional model than the for-profit
corporation and the employee relationship
and specifically how the non-statutory labor
exemption applies. So for example, in the
First Amendment context, last year the Supreme
Court held that the agency shop provision of
a collective bargaining agreement that required
non-union members to pay union dues violated
those non-members’ first Amendment rights. The court emphasized in
that case the differences between public and private
sector bargaining. In the private sector,
unions negotiate with for-profit companies
whereas public sector unions negotiate against
the government, which is ultimately funded
by the taxpayer. And in that case, that
made that public sector bargaining activity a
matter of public concern. So I guess my question is
whether these differences between public and private
sector unions could spill over into how courts or
the Supreme Court might consider the labor
exemption, whether the statutory or non-statutory
labor exemption. MR. GINSBURG: I mean, I
don’t actually think so. I know the issue’s been
raised here and there. But it hasn’t really
gained any traction and because, I mean, again I
think that if you look back into the broad terms
used in the Clayton Act and in the Norris-
LaGuardia Act, I mean, the thrust of it is the broad
right of employees to get together to negotiate
their terms. And in effect, you know,
if it’s a charter school that’s a private school
providing a public service, there’s no
question it’s squarely within the labor
exemption. And if you cross the
street to the public school and engage in
the same collective bargaining, the same
activity’s at play. So I just don’t — I don’t
see a particular issue there. And in addition, the fact
that you have the state on the other side and
all of the collective bargaining in states that
permit such collective bargaining have passed
very detailed statutory and regulatory regimes
for that collective bargaining, show a very
clear purpose of the sort that’s broadly analogous
to the state action exemption that would
permit that sort of bargaining, you know,
outside of the realm of the antitrust laws. So I haven’t seen it
become an issue in any litigation and I don’t
really see it becoming an issue. MR. RINNER: So we’re
almost out of time. Steve, we had a series
of questions about the writers’ guild case that
you and Jeff were both involved in. I’m not sure we have
enough time to get into the details of that case. But what I will ask is in
some ways the case does raise the question of what
are the limits on what employers can do when
bargaining with a union that’s protected
by labor law. Do they depend on the
bargaining power of the counterparty? MR. CANNON: Yeah. Well, let me say first
that the cases obviously — thank you, Jeffrey. It’s several months’ old,
but now it is brand new again. The judge has consolidated
the three agency cases against the guild,
which is our client. We represent the
guild in this matter. We’re going to get a new
complaint from Jeff and his co-agencies
pretty shortly. So it’s a little bit
in the early stage. But yeah, that is an issue
in the case and I must say I think that from the
guild’s standpoint, this really is not a
cutting-edge case. From what the guild
has done is wrapped in decades of precedent from
the Supreme Court and other cases in terms of
their ability to control the franchising of the
agents that will then represent some of
the guild members. So I don’t think that’s
really an issue. I think Jeff and I
probably disagree with that. But look, you’ve
got a minute or so. You want to — MR.
KESSLER: Yeah, there’s no time to really do it. I’d just say it’s an
interesting case because the parties don’t really
disagree that unions have the right to franchise, if
you want to call it, or certify agents in these
industries where they do that. That’s not the subject
of the disagreement. The subject of the
disagreement has to do with, as you said, sort
of the limits of this. So one of our issues
in this case will be adjudicated is that, in
this case, the writers’ guild combined with, for
example, managers and lawyers to engage in a
coordinated, in our view, concerted action against
the agents and the managers and lawyers
are non-labor parties. And that takes it, at
least in our view, out of the statutory exemption. And, in terms of the
conduct, it them becomes whether or not it’s a
proper invocation of the non- statutory exemption,
when we’re not even talking now employers
versus labor in terms of this. We’re talking about the
use of other actors, in our view, going after
commercial activity. But there isn’t time
really to debate that now or discuss it. I think it poses extremely
interesting questions about, you know, where the
exemption would end or not end in this
type of a case. MR. CANNON: That would
take us through dinner, I think. MR. KESSLER: At
least, at least. MR. RINNER: Well, the
court will have plenty of time. MR. CANNON: Yeah. MR. RINNER: And
certainly both sides are well-represented. We are out of time, and I
just want to thank all of the panelists
for coming out. This has really
been enjoyable. I wish we could go on
forever, but time is what it is. Thank you. (Applause.)

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