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The Enduring Ambiguities of Antitrust Liability for Worker Collective Action 15_PAUL FINAL .DOCX (DO NOT DELETE) 4/2/2016 10:19 AM The Enduring Ambiguities of Antitrust Liability for Worker Collective Action Sanjukta M. Paul* This Article examines the regulation, by antitrust law, of collective action by low-wage workers who are classified as independent contractors, and who therefore presumptively do not receive the benefit of the labor exemption from antitrust law. Such workers find themselves in the position of most workers prior to the New Deal: at once lacking labor protections, yet exposed to antitrust liability for organizing to improve their conditions. I argue that this default rule is the legacy of a problematic history that is taken for granted by the contemporary antitrust framework. In Part I, I show that the threat of antitrust liability is a powerful constraint upon contemporary independent contractor workers’ own ability to take action to address their working conditions. In Part II, I trace the application of antitrust liability to worker collective action to the time before the labor exemption, arguing that pre-New Deal courts imported fundamentally hierarchical and coercive tenets from the common-law tradition into the fledgling antitrust law in order to apply it to contain worker organizing, thereby creating tensions with their own freedom of contract principles. In Part III, I show how the legal framework of the labor exemption reinforced the underlying assumption that antitrust regulates worker collective action, even as it immunized most workers from such liability (so long as they continued to be * David J. Epstein Fellow, UCLA School of Law. The guidance, interlocution, and inspiration I have received from Noah Zatz have been essential to this project. Julia Tomassetti’s comments on an earlier draft were also especially pivotal. I am grateful too to Scott Cummings, William Forbath, John Howe, Ethan Leib, Shae McCrystal, and Suresh Naidu for their insightful thoughts and comments at various points. This Article has also benefitted from audience comments at the Labour Law Research Network conference (University of Amsterdam), the Law & Society conference, the Class Crits conference (UC-Davis), and the Eighth Annual Colloquium on Scholarship in Labor & Employment Law (UNLV). I thank Garth Bostic for his able research assistance, Linda Karr O’Connor and Elyse Meyers of the UCLA Law Library for their valuable contributions, and UCLA School of Law for supporting this project. Finally, I thank Benjamin Barnett, as well as the other editors of the Loyola University Chicago Law Journal, whose thoughtful care and attention to this Article has improved it greatly. 969 15_PAUL FINAL .DOCX (DO NOT DELETE) 4/2/2016 10:19 AM 970 Loyola University Chicago Law Journal [Vol. 47 considered employees). In Part IV, I argue that the modern framework for antitrust does not compel the continued application of this default rule, and indeed supplies materials for a fresh, more balanced reconsideration of it. Ultimately, the situation of these workers is a test of what antitrust fundamentally says about labor, absent a specific exemption. Because that exemption is currently rooted in the New Deal network of labor regulation, antitrust’s treatment of labor becomes a baseline for critical conversations about how to reform our current framework of labor regulation—in the same way that it was the baseline for those conversations prior to the New Deal itself. In particular, antitrust functions as an outer limit for any such reform, and also for specific policy proposals to address the increasing prevalence of working relationships outside the bounds of employment. INTRODUCTION ..................................................................................... 971 I. THE IMPACT OF ANTITRUST ON CONTEMPORARY INDEPENDENT CONTRACTOR WORKERS ................................................................ 976 A. The Struggle for Decent Work and Decent Pay as Price-Fixing ............................................................................ 977 B. An Object Lesson in the Revival of Antitrust as a Bar to Worker Collective Action ............................................. 979 C. Universe of Potential Defendants ........................................... 984 D. Intersection with Work Law .................................................... 986 II. OF MARKETS, COMBINATIONS, AND SERVANTS: HOW ANTITRUST LAW CAME TO PUNISH WORKER COLLECTIVE ACTION................... 990 A. Classicist Trade Regulation and Nineteenth-Century Labor Regulation ............................................................................... 991 1. Classicist Trade Regulation .............................................. 993 2. Labor Regulation in the Gilded Age ................................. 995 B. The Sherman Act and Its Relationship to Labor ..................... 997 C. Parity: A Bridge from Feudal Labor Regulation to Modern Trade Regulation ................................................................... 1000 1. The Argument from Parity .............................................. 1001 2. Implementing Parity in the Courts .................................. 1004 a. The Workingmen’s Amalgamated Case: Three Ambiguous “Evils” ................................................... 1004 i. Violence and Coercion Toward Unwilling Third Parties ....................................................... 1007 ii. Interrupting Commerce by Refusing to Work .... 1008 15_PAUL FINAL .DOCX (DO NOT DELETE) 4/2/2016 10:19 AM 2016] Enduring Ambiguities 971 iii. A Work Stoppage Aimed at Improvement of Working Conditions ............................................ 1010 b. The Danbury Hatters Case ........................................ 1013 3. The Corporate Exemption ............................................... 1016 III. THE LABOR EXEMPTION: AN UNSTABLE PARADIGM .................... 1020 A. The Norris-La Guardia Act ................................................... 1021 B. Solidification of the Paradigm .............................................. 1024 1. Apex Hosiery ................................................................... 1024 2. Hutcheson ....................................................................... 1027 C. The Normal Science of the Labor Exemption ........................ 1028 1. Generally ......................................................................... 1028 2. Normal Science Case Law and “Independent Contractor” Workers ....................................................... 1030 IV. ANTITRUST LIABILITY FOR WORKER COLLECTIVE ACTION: THE VERY IDEA ............................................................................ 1033 A. The Inherent Normative Content of Punishing Worker Collective Action Under Antitrust ......................................... 1034 B. Doctrinal Fault Lines ............................................................ 1036 1. The Wayward Meaning of Price-Fixing ......................... 1036 2. The Professional Privilege .............................................. 1041 3. First Amendment Protection for Worker Collective Action?: “Economic” and “Political” Protest ................. 1043 CONCLUSION ....................................................................................... 1048 INTRODUCTION In the winter of 1999, following a series of strikes at America’s ports aimed at improving poor working conditions and low pay, a number of individual truck drivers found themselves served with subpoenas by the U.S. Federal Trade Commission (“FTC”), which was investigating their potential participation in a price-fixing conspiracy.1 These men, who were working punishing hours yet hardly breaking even, were grassroots leaders in an episode of collective action among low-wage workers that was somewhat unusual for the period. Their participation and leadership in these expressions of solidarity was the basis for the investigation. 1. See infra Part I.B (discussing antitrust as a barrier to worker collective action). 15_PAUL FINAL .DOCX (DO NOT DELETE) 4/2/2016 10:19 AM 972 Loyola University Chicago Law Journal [Vol. 47 In this Article, I examine the origins of the rule that antitrust law largely prohibits collective action by workers who fall outside the bounds of employment, and who therefore presumptively do not receive the benefit of the labor exemption from antitrust law.2 The threat that organizing for decent wages and working conditions will be prosecuted as price-fixing is a powerful constraint upon such workers’ ability to take action to change their circumstances. Antitrust has historically structured the nature and content of labor regulation in this country, and it is currently poised to do so again in a new form. It did so directly and punitively in the Gilded Age. It did so indirectly and somewhat under the surface during the New Deal era. In today’s deregulation era, it is of increasing significance in regulating workers who fall outside the bounds of the National Labor Relations Act (“NLRA”)3 (and other employment and labor law), as a limit upon new forms of labor regulation that would bring these nontraditional workers within their scope, and as a potential baseline for labor law reform generally. In contrast to the neoclassical interpretation of antitrust, which holds that the doctrine is justified on economic grounds independent of politics and moral norms, I adopt the perspective that antitrust has essential and irreducible political or normative content. While the neoclassical interpretation has certainly been challenged, it still holds great sway as the
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