US SUPREME COURT DECISIONS

Respondent brought this action under §§1 and 2 of the Sherman Act against petitioners, seven local unions, Associated Food Retailers of Greater Chicago, Inc. (Associated), an association of retail food stores, and Associated's secretary and treasurer, alleging that petitioners and Associated had conspired to restrain competition in retail meat markets in the Chicago area by limiting the marketing hours for the sale of fresh meat through a clause in the collective bargaining agreement between Associated and petitioners and between respondent and petitioners. The District Court, after trial, held that there was no evidence in the record to support a finding of a conspiracy to force the restrictive provision on respondent, that the marketing hours limitation was imposed by the unions to serve their own interests respecting conditions of employment, and that such action was clearly within the labor exemption of the Sherman Act. The Court of Appeals reversed the dismissal of the complaint as to the unions and Associated, and, without upsetting the District Court's finding that, apart from the contractual provision itself, there was no evidence of conspiracy, concluded that a conspiracy in restraint of trade was shown. It held that the employer-union contract concerning working hours is unlawful, as the establishment of the hours of work is a function of the employer.

Held: The judgment is reversed. Pp. 381 U. S. 679-735.

331 F.2d 547, reversed.

MR. JUSTICE WHITE, joined by THE CHIEF JUSTICE and MR. JUSTICE BRENNAN, concluded that:

1. This controversy involving whether a proposed bargaining subject is a term or condition of employment is not within the exclusive primary jurisdiction of the National Labor Relations Board. Pp. 381 U. S. 684-688.

(a) Courts have had experience in classifying bargaining subjects as terms or conditions of employment, as under the Norris-LaGuardia Act. P. 381 U. S. 686. chanrobles.com-red

Page 381 U. S. 677

(b) The primary jurisdiction doctrine does not require resort to an administrative proceeding when the case must eventually be decided on a controlling legal issue unrelated to the administrative determination. P. 381 U. S. 686.

(c) There is no procedure available in this case for obtaining a determination by the Labor Board. P. 381 U. S. 687.

2. Exemption of union-employer agreements from the coverage of the Sherman Act is a matter of accommodating that Act to the policy of the labor laws, as this Court pointed out in United Mine Workers v. Pennington, ante, p. 381 U. S. 657, and the fact that employers and unions are required to bargain about wages, hours and working conditions weighs heavily in favor of antitrust exemption for agreement on these subjects. P. 381 U. S. 689.

3. A provision establishing the particular hours of work would be within the ambit of wages, hours and working conditions requiring mandatory bargaining, and the unions' success in obtaining that provision through negotiation in pursuit of their own policies falls within the protection of the national labor policy, and is exempt from the Sherman Act. Pp. 381 U. S. 689-691.

4. Likewise, a marketing hours restriction would be exempt if night operation of meat markets would require night employment of butchers, impair the butchers' jurisdiction, or substantially affect their workload. P. 381 U. S. 692.

5. But if self-service markets could conduct night operations without affecting the vital interests of butchers, there might be restraint on the product market, and the limitation imposed by the unions might be nothing more than an attempt to protect one group of employers from competition from another group, which is conduct not exempt from the Sherman Act. Pp. 381 U. S. 692-693.

6. The resolution by the District Court of the question of whether night operations without butchers, and without infringement of the butchers' interests, are feasible, in favor of the unions' position, was supported by evidence in the record, and is not clearly erroneous. Pp. 694- 381 U. S. 697.

MR. JUSTICE GOLDBERG, joined by MR. JUSTICE HARLAN and MR. JUSTICE STEWART, concluded that:

The history of legislative enactments in the area of collective bargaining demonstrates a consistent congressional purpose to limit severely judicial intervention into the formulation of labor policy through the use of the antitrust laws. Congress intended to foreclose judges and juries from making essentially economic judgments chanrobles.com-red

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in antitrust cases by determining whether unions or employers had good or bad motives for their agreements on mandatory subjects of collective bargaining. Pp. 381 U. S. 697-735.

(a) Where Congress deemed there were specific abuses on the part of labor unions, it enacted specific proscriptions in the labor statutes. Pp. 381 U. S. 707-708

(b) The Court should follow the approach of United State v. Hutcheson, 312 U. S. 219, that the labor exemption from the antitrust laws derives from a synthesis of all pertinent legislation, and hold that collective bargaining activity concerning mandatory subjects of bargaining under the National Labor Relations Act is not subject to the antitrust laws. Pp. 381 U. S. 709-710.

(c) Multiemployer bargaining is not illegal or opposed to the national labor policy. Pp. 381 U. S. 712-713.

(d) Labor contracts establishing standardized wages, hours or other conditions of employment are often secured by bargaining with multiemployer associations or through bargaining with market leaders that sets a "pattern," and the policy of pattern bargaining should not lead to antitrust liability merely because of its form. P. 381 U. S. 722.

(e) In this case, 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 be put at a competitive disadvantage. Pp. 381 U. S. 727-728.

(f) Since it is clear that the large, automated self-service markets employ fewer butchers per volume of sales than service markets do, the Union has a legitimate interest in keeping service markets competitive so as to preserve jobs. P. 381 U. S. 728.

(g) The direct interest of the Union in not working undesirable hours by curtailing all business at those hours is a far cry from the indirect interest of a union in fixing prices and allocating markets solely to increase the profits of favored employers. Pp. 381 U. S. 728-729.

(h) If unions are held liable under the antitrust laws for activities concerning mandatory subjects of collective bargaining, then the employer parties to such bargaining would also be subject to antitrust penalties, which would be clearly contrary to congressional chanrobles.com-red

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policy and manifestly unfair in view of their statutory duty to bargain. Pp. 381 U. S. 729-730.