Posts tagged Sherman Antitrust Act
The FTC’s Indefensible Position on Collective Bargaining
April 19, 2023 // In remarks last week at the University of Utah School of Law, FTC Commissioner Alvaro Bedoya argued that independent contractors should be allowed to bargain collectively. He acknowledged that courts have always treated collective bargaining by contractors as illegal under federal antitrust law. But he claimed that these courts have made a mistake: in fact, Congress never meant to stop small contractors, like truckers or plumbers, from forming a union and bargaining together. Bedoya’s interpretation would upset a century of careful balancing between antitrust and labor policy. It would also expose the contractors themselves to serious risks of abuse. And it would undermine well-established rules against collusion, price fixing, and other restraints on trade. To see why Bedoya is so wrong, you have to understand labor law and antitrust law’s tangled history. Let’s start with section 1 of the Sherman Antitrust Act. Adopted in 1890, section 1 banned all contracts and conspiracies in restraint of trade. It did not, however, define trade restraints. Instead, it incorporated common-law standards. Under the common law, unions were treated no differently from any other combination of buyers or sellers. If they conspired to fix labor prices, they violated the law. And collective bargaining could be seen as one form of price fixing. As a result, the law sometimes treated unions as, essentially, labor cartels.
Labor Board Backs USC College Athletes in Case, Arguing They Are ‘Employees’ Who Should Be Paid and Permitted To Unionize
December 20, 2022 // The National Labor Relations Board (NLRB) will take the side of student athletes in an unfair labor practices case against USC, the Pac-12 Conference, and the National College Athletics Association (NCAA). If a judge sides with the NLRB, it could mean that student athletes across the nation will be reclassified as “employees” of their respective schools who are entitled not only to compensation, but to other employee benefits such as the right to unionize.