The Sling - Union-Busting as an Unfair Method of Competition
Legal director Sandeep Vaheesan speaks on how union-busting should be treated as an illegal monopolistic practice under antitrust law because it gives firms an unfair competitive advantage by violating workers’ rights and undermining law-abiding rivals
Monopolization comes in many flavors. As we have seen over the years, firms use assorted and creative methods to acquire or maintain dominant positions. Exclusive dealing, predatory pricing, and tying are some of the competitively suspect practices familiar to antitrust lawyers and economists. But the courts have made clear the list of “anticompetitive” or unfair practices that are actionable under the Sherman Act is not a closed set. Deception and other tortious conduct, for instance, can constitute illegal conduct. Given the elasticity of antitrust law, union-busting fits within the Sherman Act’s prohibition on monopolization and should be challenged by public and private enforcers. A class action lawsuit (Mizell v. UPMC) filed by health care professionals in 2024 against UPMC, the dominant hospital system in Western Pennsylvania, offers an excellent vehicle for expanding the scope of monopolization law and competition policy.
Under well-established antitrust doctrine, monopolization has power and conduct elements. To show a violation of the anti-monopolization section of the Sherman Act, plaintiffs need to demonstrate that the defendant has monopoly power and that this power was acquired or maintained through improper conduct, as opposed to “a consequence of a superior product, business acumen, or historic accident.” Firms that acquire their monopolies through the latter methods are at liberty to enjoy the fruits of their market dominance. But firms that use improper means to obtain or perpetuate a monopoly are not so free, and they can face the force of the courts’ broad equitable and legal remedial powers, including radical restructuring. This distinction between permissible and impermissible paths to monopoly reveals one implicit function of the antitrust laws: Pressure firms to grow and succeed by developing “superior product[s]” instead of other less salutary means.
Critically, what constitutes improper conduct is not cast in stone. Courts have applied the concept dynamically and elastically over time. In United States v. Microsoft, the D.C. Circuit wrote, “the means of illicit exclusion, like the means of legitimate competition, are myriad.” In this spirit, the Supreme Court has ruled that practices like deception can constitute illegal monopolization. For instance, in a 1965 decision, the Court ruled that procuring a patent through fraud on the U.S. Patent and Trademark Office can constitute illegal monopolization.
An interesting expression of this theme came in a 2002 decision from the Sixth Circuit. In Conwood v. U.S. Tobacco, the court affirmed a jury verdict in favor of a smokeless tobacco maker that had faced an onslaught of property destruction and theft by the dominant manufacturer. Conwood persuaded a jury that U.S. Tobacco had, among other practices, destroyed its product racks and removed its products at convenience stores and other retailers. While the conduct did not resemble a traditional antitrust violation, the court nonetheless held it ran afoul of the Sherman Act. Rejecting U.S. Tobacco’s argument that tortious conduct could never violate the antitrust laws, the unanimous three-judge panel ruled that it could in “rare gross cases.” Further, tort law did not displace the Sherman Act: “merely because a particular practice might be actionable under tort law does not preclude an action under the antitrust laws as well.” The court concluded the U.S. Tobacco’s misconduct “rose above isolated tortious activity and was exclusionary without a legitimate business justification.”