Since the 1950s, the major American labor unions have pursued a strategy of cooperation rather than competition. Under Article XX of the AFL-CIO Constitution and similar “no-raid” agreements, unions may not encroach on one another’s established collective bargaining relationships. Some labor scholars have argued that these agreements likely harm unionized workers by diminishing union officials’ incentives to lower dues payments, innovate, or otherwise provide the best possible services for their members. To varying degrees, scholars have also blamed the long-term decline in private-sector union membership on a lack of competitive pressure.
This Note analyzes Article XX and similar agreements from an antitrust perspective, analogizing them to anticompetitive market-division agreements. Unlike prior antitrust analyses of labor unions—which focus on the welfare of end consumers—I view workers as consumers of labor unions’ services and consider only their welfare as relevant. Counterarguments based on union democracy and labor history have some merit, but the current status quo of zero antitrust enforcement seems difficult to justify when, in most industries, an agreement like Article XX could be considered illegal per se.
The federal antitrust agencies and classes of unionized workers might be able to challenge these agreements under the Sherman Act. Although labor’s statutory exemption from the antitrust laws is sometimes said to generally protect “self- interest[ed]” union activities, a preliminary reading of the text and legislative history shows that the exemption might not protect activities that demonstrably harm workers. Although courts have not directly confronted the issue, at least some of the case law is compatible with this interpretation. In such cases, courts should balance any evidence of anticompetitive harm against evidence of benefits to workers, including benefits that are not normally cognizable in antitrust such as increased union density.
This Note is not intended to downplay the uphill battle that unions currently face nor to argue that interunion rivalry is always desirable. Nonetheless, I am confident that targeted and careful application of the antitrust laws in specific markets could help increase the dynamism of organized labor and make unionization look like a better bet for unorganized workers.
