The second Trump Administration has signaled its interest in applying the antitrust laws to protect workers from harm. Business conduct that distorts competition in labor markets is indeed covered by the antitrust laws, and various labor-related antitrust enforcement initiatives have been undertaken in recent years. In contrast, labor union collective bargaining to improve wages and conditions of employment is exempt from the antitrust laws, though some union activities may be subject to antitrust challenge. The Trump Administration might consider weighing both employer-side and union-side restraints in setting policy.
U.S. Antitrust and Workers
U.S. antitrust law is concerned with distortions of market processes that harm competition and consumers. The distortions usually stem from anticompetitive “seller side” restrictions by a monopoly supplier or by suppliers acting jointly, aimed at buyers.
Antitrust law also, however, reaches distortive “buyer side” restrictions involving a dominant buyer or a group of buyers. Restraints by employers aimed at employees are covered by this second category.
The Federal Trade Commission and the U.S. Department of Justice enforce the antitrust laws. Trump Administration antitrust enforcement is prioritizing harm to American workers.
In a publicly released February 26, 2025 directive, FTC Chairman Andrew Ferguson established a Joint Labor Task Force within the FTC “[t]
o prioritize investigation and prosecution of deceptive, unfair, or anticompetitive labor market conduct” that harms workers. The directive highlights various potential anticompetitive actions by employers:
- No-poach, non-solicitation, or no-hire agreements.
- Wage-fixing agreements.
- Noncompete agreements that excessively restrict employees from seeking new jobs.
- Labor-contract termination penalties.
- Labor market monopsonies involving anticompetitive actions by a firm to retain significant buyer (employment) power over workers.
- Collusion or unlawful coordination among firms on DEI requirements, which exclude certain workers from markets.
- The promotion of needless occupational licensing requirements.
- A variety of misleading or deceptive job-related practices.
The FTC’s “enforcement priorities mirror those outlined in the Jan[uary] 16, 2025, Antitrust Guidelines for Business Activities Affecting Workers jointly issued by the DOJ and FTC at the end of the Biden administration.”
The DOJ has not backed away from the Guidelines. Like the FTC, it is expected to continue a “pro-worker . . . antitrust enforcement” policy that enjoyed support under both the Obama Administration and the first Trump Administration.
The DOJ recently received a major boost to its labor enforcement efforts. On April 14, 2025, DOJ won its first labor market criminal antitrust case when a jury found the owner of a home health care company guilty of fixing the wages for home healthcare nurses in Las Vegas.
Unions and Antitrust Law
Unions can exercise a great deal of market power on the seller side of labor markets. But their exposure to antitrust is limited.
In the early days of American antitrust, courts viewed unions as “worker cartels” that restrained trade for labor. Traditional union tactics in labor disputes, such as strikes, boycotts, and picketing, were struck down as illegal contracts in restraint of trade under Section 1 of the Sherman Antitrust Act.
Congress then stepped in to limit antitrust’s reach. The Clayton Act of 1914 stated that unions are not illegal “conspiracies in restraint of trade.” It also denied courts the right to enjoin (block) union tactics that previously had been deemed violations of Section 1.
Some courts, however, narrowly interpreted the new Clayton Act language, finding that it did not apply to specific “secondary” union tactics. Congress reacted, denying courts the right to enjoin anticompetitive “secondary tactics” (including “secondary” rights and boycotts) under the Norris-LaGuardia Act of 1932.
The Clayton and Norris-Laguardia Acts basically are laws to protect collective bargaining by shielding broad categories of union activities from antitrust attack. They are bolstered by a judicially-invented “nonstatutory antitrust exemption” that “allows unions to negotiate contracts that would otherwise violate antitrust law.”
Nevertheless, neither statutes nor courts have held that unions are fully antitrust immune.
Furthermore, statutory language does not protect unions from possible suits alleging illegal monopolization in violation of Sherman Act Section 2. Sherman Act illegal monopolization requires (1) monopoly power plus (2) “bad acts” designed to undermine competition on the merits and thereby maintain a monopoly.
Unions and Monopoly Power
Labor economist Dr. Liya Palagashvili recently argued that FTC Chairman Ferguson’s recent labor “directive should also include an important source of market concentration: powerful labor unions with monopolistic characteristics.”
Palagashvili spotlights two examples of large union monopolies:
- The International Longshoreman’s Association (ILA) and the International Longshore and Warehouse Union (ILWU) control labor representation at 97% of America’s ports (the ILA on the East and Gulf Coasts, the ILWU on the West Coast).
- The International Brotherhood of Teamsters represents over 98% of all UPS total bargaining-unit employees.
Union monopoly power does not always help workers. Palagashvili points out that “union monopoly power doesn’t just boost wages indefinitely; in fact, when unions push too hard, this backfires and results in lower employment growth and fewer job opportunities for unionized workers.” For instance, “in the Rust Belt . . . powerful unions and frequent labor conflicts were responsible for approximately 55% of the region’s manufacturing employment decline.”
What’s more, dominant unions sometimes have engaged in “bad acts” to maintain their monopoly power, potentially raising antitrust questions. For example, Palagashvili explains that the ILA started a major strike in October 2024 not just to improve wages and benefits, but also to ban all automation at ports. This shut down every major port from Maine to Texas as an intentional way to “cripple” the economy, according to the ILA’s president.
Possible Remedies
Palagashvili suggests that the FTC publish research focused on how certain government-imposed rules or union protections may actually undermine competition and harm workers.
Palagashvili also recommends possible antitrust enforcement initiatives and legislative changes to curb union monopoly abuses:
- Capping the percentage of workers that a single union may represent in a given sector, say, 30%-40% (this would require legislation).
- Reviewing cases when a single union negotiates with multiple employers simultaneously, to preclude price-fixing arrangements (this would raise difficult antitrust issues and might be viewed as in tension with the national policy favoring collective bargaining).
- Providing greater flexibility for employers to enter or exit multi-employer bargaining arrangements (this might require legislation).
- Restricting “most-favored nation” clauses that mandate uniform terms across employers and discourage employers from negotiating better deals with new employees, harming competition (such clauses may be reachable under existing antitrust law).
The Public Policy Balance
The U.S. Supreme Court has called the antitrust laws “the Magna Carta of free enterprise.” It is entirely appropriate – indeed, commendable – that the Trump Administration should underscore that antitrust protects workers from harm due to anticompetitive behavior.
It is also clear, however, that anticompetitive behavior by unions may harm employers, workers, and the American economy. American law and public policy shields some anticompetitive conduct deemed essential to protecting the right to unionize and engage in collective bargaining.
This does not mean, however, that all competitive abuses by dominant unions should be given an antitrust free pass. In developing its labor antitrust policy, the Trump Administration may wish to keep this point in mind.
A nuanced approach, based on research, could target monopoly abuses by unions that go beyond what is needed to vindicate recognized labor rights. This would benefit both workers and employers.