Document Type

Conference Proceeding

Publication Date



A central aim of the antitrust laws is the promotion of competition. A central aim of collective bargaining is the elimination of competition-according to classical trade union theory, the elimination of wage competition among all employees doing the same job in the same industry. Given these disparate aims, the antitrust laws and collective bargaining will almost inevitably tend to clash. To harmonize them, the type of competition which the law is intended to foster must be carefully distinguished from the type of competition which union-employer bargaining can properly displace. The Supreme Court's last major effort to draw the demarcation line produced the Pennington and Jewel Tea decisions of 1965. Even more than other leading Supreme Court decisions, I find that Pennington and Jewel Tea provide a sort of Rorschach test for their commentators. The observer looks into the Justices' opinions and sees reflected those elements of the labor-antitrust problem which have always fascinated him. Since I participated as union counsel in these cases, I suspect I am peculiarly disposed to this reaction. Nonetheless, I believe some of the most novel and potentially most significant thinking of the Court can best be understood in light of the union arguments in the 1965 cases. So I will risk the charge of egocentricity, and begin there.