OMI Urges Appeals Court to Reject Immunity for Kroger-Albertsons No-Hire Agreement During 2022 Strike
Amicus brief argues antitrust law does not allow competing employers to collude to strip workers of bargaining power
The Open Markets Institute filed an amicus brief in the U.S. Court of Appeals for the Tenth Circuit urging the court to reverse a lower court decision that shielded a no-hire agreement between grocery giants Kroger and Albertsons from antitrust liability.
The case, Morgan v. Kroger, stems from a 2022 strike by unionized Kroger workers in Colorado. As Kroger employees prepared to strike following unsuccessful contract negotiations, Kroger and its direct competitor Albertsons agreed that Albertsons would not hire Kroger workers during the work stoppage.
Open Markets argues that the agreement deprived workers of one of their most important sources of leverage during a strike: the ability to seek employment with a competing unionized employer. Without the agreement, Kroger workers and their union could have used competition between the two grocery chains for workers to strengthen their position at the bargaining table. Instead, the companies’ agreement eliminated an outside employment option and weakened workers’ bargaining power.
“Kroger and Albertsons are direct competitors for workers, and antitrust law does not give them a free pass to stop competing simply because one of them is facing a strike,” said Tara Pincock, Policy Counsel at the Open Markets Institute. “Workers depend on competition among employers for better wages, benefits, and working conditions. Allowing powerful corporations to collude to eliminate those choices would turn antitrust law on its head and give employers a powerful new weapon against organized workers.”
The district court dismissed the workers’ antitrust claim, concluding that the agreement was protected by the “nonstatutory labor exemption,” a narrow, judge-made exception created to avoid antitrust interference with sector-wide collective bargaining.
Open Markets argues that the lower court stretched that exemption far beyond its intended purpose. Kroger and Albertsons were engaged in separate, bilateral negotiations with their workers and were not members of the same multiemployer bargaining unit. Their no-hire agreement also did not concern the core subjects of collective bargaining, such as wages, hours, or other terms and conditions of employment.
As the brief explains, the Supreme Court has limited the nonstatutory labor exemption to multiemployer collective bargaining. Extending it to the Kroger-Albertsons agreement would instead risk creating what another federal appeals court has called an “anything goes in a strike context” rule for employers.
The brief also argues that labor and antitrust law reinforce rather than conflict with one another in this case. Federal labor law protects workers from discrimination based on strike or organizing activity, while antitrust law outlaws no-hire agreements among competing employers. There is therefore no justification for creating an implied exemption from antitrust law for the companies’ conduct.
“Congress enacted the antitrust laws to protect people from concentrated private power, including workers confronting powerful employers,” said Sandeep Vaheesan, Legal Director at the Open Markets Institute. “Competition for workers gives them the freedom to leave, find better opportunities, and strike for a fair deal at the bargaining table. Courts should not expand a narrow exemption into a license for rival corporations to suppress that beneficial competition.”
Open Markets urges the Tenth Circuit to reverse the district court’s decision.