Anticonsumer Effects of Union Mergers: An Antiitrust Solution

Should unions and corporations be treated identically under the antitrust laws? This article explores this provocative question by examining whether union mergers should be subject to the antitrust laws. Currently unions and corporations are treated very differently. Large corporate mergers are blocked if their effect may be substantially to lessen competition, or to tend to create a monopoly . They are permitted if they are likely to be benign, procompetitive, or proconsumer. Collective bargaining, by contrast, enjoys a broad exemption from the antitrust laws. If they follow appropriate procedures, unions - even unions that, when taken together, cover all workers within a given industry - are permitted to merge or to coordinate their activity. There is no review of these mergers or of this coordinated activity to determine whether monopoly power, cartel-type behavior, or other anticompetitive or anticonsumer activity will result. This Article asks whether mergers or joint conduct between labor unions should be examined under a standard similar to that used to scrutinize corporate activity. This piece outlines an alternative proposal that would allow workers within individual companies to form a union or otherwise coordinate their bargaining, but then subjects all proposed mergers or other alliances of these units to the provisions of the antitrust laws. We take Congress\u27 concerns in the area as a given and demonstrate that Congress could substantially have reached its primary goals in a better way. An approached that treated union activity identically to corporate activity might very well reduce the anticompetitive potential of unions without ignificantly sacrificing their protective and efficiency-enhancing aspects. This Article focuses upon some of the implications and practical consequences that could arise from this alternative policy