Concerted Refusals Research Articles

“MATTERS OF MUTUAL INTEREST” FOR PURPOSES OF A STRIKE Vanachem Vanadium Products (Pty) Ltd v National Union of Metalworkers of South Africa [2014] 9 BLLR 923 (LC)

The concept of “matters of mutual interest” is used in a number of sections and definitions in the Labour Relations Act 66 of 1995 (LRA). This is an indication that this is an important concept in labour law, and it is therefore imperative that it be properly understood. At times this concept is misunderstood to be synonymous with disputes of interest, however, that is not necessarily the case. This concept is used, for example, in the definitions of both collective agreement and strike contained in section 213 of the LRA. It is also used in section 134 of the LRA which deals with dispute resolution. In spite of its importance, the LRA does not provide a definition for the concept. As a result the interpretation of this concept has raised some challenges as it will be seen from Vanachem Vanadium Products (Pty) Ltd v National Union of Metalworkers of South Africa ([2014] 9 BLLR 923 (LC)). In this matter, the court was required to determine whether certain matters were matters of mutual interest for purposes of strike action. Section 213 of the LRA defines “strike” as: “the partial or complete concerted refusal to work, or the retardation or obstruction of work, by persons who are or have been employed by the same employer or by different employers, for the purpose of remedying a grievance or resolving a dispute in respect of any matter of mutual interest (author’s own emphasis) between employer and employee …”
 Based on the above definition, the purpose of the refusal to work by employees must be to “remedy a grievance” or “resolve a dispute in respect of matters of mutual interest between the employer and employees”. A dispute which does not fall under matters of mutual interest is therefore not covered for purposes of a strike. The correct interpretation of this concept in this context is important as it ultimately determines whether or not a trade union and its members may strike in support of a particular demand. This note will consider the concept of “matters of mutual interest” and the way it has been interpreted and then evaluate the finding in Vanachem Vanadium Products v NUMSA in order to determine whether the court was correct in its determination of whether disputes or demands raised by NUMSA for purposes of a strike were matters of mutual interest or not.

Analyzing the Motivations of a Joint Venture to Provide High-Quality Music Download Service to Mobile Phones

Abstract This article explores the motivations of a joint venture to provide a high-quality music download service for mobile phones that resulted from a case of a concerted refusal to trade; this refusal was a violation of Antimonopoly Law. We analyze 5 years of monthly compact disk (CD) singles sales in order to identify the incentive for the concerted refusal to trade. The results show that when a CD single is ranked within the top three according to national sales charts, the effect of this factor is significantly greater than can be attributed to any simple ranking proportional effect, which is a prediction of the rank based on the number of sales in the week. Furthermore, we find that the complementary relationship among major companies as expressed by a joint venture could offer benefits. Commitment to a joint venture for the purpose of conveying one’s recognition of the venture and potentially beneficial intentions are a key determinant for joint venture formation.

Analyzing the Motivations of a Joint Venture to Provide High-Quality Music Download Service to Mobile Phones

This article explores the motivations of a joint venture to provide a high-quality music download service for mobile phones that resulted from a case of a concerted refusal to trade; this refusal was a violation of Antimonopoly Law. We analyze five years of monthly compact disk (CD) singles sales in order to identify the incentive for the concerted refusal to trade. The results show that when a CD single is ranked within the top three according to national sales charts, the effect of this factor is significantly greater than can be attributed to any simple ranking proportional effect, which is a prediction of the rank based on the number of sales in the week. Furthermore, we find that the complementary relationship among major companies as expressed by a joint venture could offer benefits. Commitment to a joint venture for the purpose of conveying one’s recognition of the venture and potentially beneficial intentions are a key determinant for joint venture formation.

Refusal to Deal

This paper examines how Article 82 of the EC Treaty (prohibiting the abuse of a dominant position) should be applied to refusal to supply cases. As a starting point, and for the sake of clarification, this paper explains (a) why the antitrust analysis of refusals to supply customers differs from the analysis of refusals to supply competitors (Part II), and (b) why a distinction must also be made between unilateral and concerted refusals to supply (Part III). The paper then deals with unilateral refusals to supply competitors. In this connection, there are two preliminary issues, namely (a) whether a distinction should be made between a first-time refusal to supply and the termination of an existing supply relationship; and (b) whether a distinction should be made between refusal to deal involving tangible property rights and refusal to licence IPRs. These issues are addressed in Part IV and Part V respectively. Part VI considers the respective merits of the various possible ways to apprehend unilateral refusals to supply under Article 82 (per se legality v. rule of reason approach v. the screens approach v. the exhaustive checklist approach). In Part VII an attempt is made to formulate a multi-pronged legal test. Part VIII briefly deals with the relationship between refusal to supply abuses and other types of potentially abusive conduct under Article 82. Finally, Part IX concludes by making a number of recommendations.

Partial strikes under the railway labor act: The need for a doctrine of unprotected concerted activity

In light of use by airline unions of partial-strike tactics, such as concerted refusals to bid for overtime work and so-called ” CHAOS” tactics involving unannounced refusals to fly after passengers have been ticketed and are ready to board, the authors examine whether the Railway Labor Act (RLA) should be interpreted to permit employers to discipline employees for engaging in such tactics, or whether these are a protected form of economic pressure. Although in many respects bargaining duties and economic weapons under the RLA are read consonant with precedents under the National Labor Relations Act (NLRA) (which governs all industries other than rail and air transport), there are a few decisions suggesting that during the period when self-help may be resorted to, employees can engage in partial strike activities as long as they violate no court order but are subject to permanent replacement in limited circumstances. These decisions, the authors submit, fail to take account of Supreme Court decsions since the 1930s that some economic pressures by unions, such as slowdowns and sitins, may not violate the labor laws but nor are they protected by those laws so as to immunize partial strikers from employer discipline. These decisions are not based on unique features of the NLRA. Rather, they give recognition to the background assumptions of Congress that employers may act to protect their property interests as long as they do not run afoul of NLRA or RLA protections and that employees who engage in partial-strike activities are subject to employer discipline even where not strictly necessary to maintain operations. Moreover, these tactics skew the bargaining process by giving employees an essentially risk-free gambit to pressure their economic position through planned disruption of carrier operations.

On Refusing to Deal With Rivals

The article is about refusals to deal with competitive rivals as an antitrust offense. The basic claim of the article is that refusals to deal should be eliminated as a separate antitrust offense except in the case of essential facilities. I begin with a brief examination of the current odd distinction between concerted refusals to deal by groups of competitors on the one hand and refusals by single firm monopolists on the other. Concerted refusals were once considered per se illegal, even though the latter have never been. In the mid 1980s the Supreme Court ruled that group refusals were not always illegal per se, but seemingly left some residual element of the per se rule to deal with cases where the group has market power or control of an element essential for competition. This residue of per se illegality makes no sense given that single firm refusals are judged by a rule of reason. There is no basis for supposing that concerted refusals are intrinsically more harmful than single-firm refusals. The confusion about the standards of liability as between concerted and single-firm refusals pales beside a larger confusion about why refusals to deal are an antitrust offense at all. Generally firms do not have a duty to deal with rivals for the good and sufficient reason that forcing firms to do so undermines a central premise of rivalrous competition. I interpret that to imply a Schumpeterian model. Unfortunately, antitrust law has not had the courage of Schumpeter's convictions. Hence the requirement that firms with market dominance deal with rivals or give a reasonable business excuse for refusing to do so. Requiring reasonable business justification only seems sweetly reasonable. The Supreme Court has offered neither a theory nor a coherent standard for requiring a dominant firm to deal with rivals. Essential facilities doctrine offers a coherent theory, but the Court has never formally accepted it. Critics have been unhappy with essential facilities doctrine, finding it to be a standardless invitation to impose a duty to deal on firms. I argue to the contrary that essential facilities doctrine is both a coherent and a limited framework for imposing a duty to deal. There remain some vexing issues in both theory and application. On the theory side is the conflict between the fact that an essential facility is by implication a natural monopoly, yet the doctrine's effect is to force competition that, according to natural monopoly theory, is neither sustainable nor efficient. I argue for a reconciliation based on the fact that the sharing of essential facilities doctrine is designed to test the existence of natural monopoly. On the practical side is defining the terms of dealing and overseeing their implementation. The practical issues are illustrated by two on-going controversies in communications law, one involving competitor access to local exchange facilities, the other access by Internet service providers to cable broadband facilities.

Per Se Illegality of Concerted Refusals to Deal: A Rule Ripe for Reexamination

Section 1 of the Sherman Act proscribes [e]very contract, combination . . . or conspiracy, in restraint of trade. Early Supreme Court cases interpreting this provision held that it required a determination by the trier of fact of the of the challenged conduct in each case — an approach which came to be known as the of reason. In subsequent cases, however, the Court has held that certain conduct is unreasonable per se. That is, once a court has determined that such conduct has taken place, it is foreclosed from undertaking an inquiry into the reasonableness of that conduct. One form of activity that has been declared unreasonable per se is the group boycott, or concerted refusal to deal. Recently, this particular doctrine has been the subject of much concern and criticism by lower federal courts and commentators. Although many courts adhere unquestioningly to this per se rule, others have either found the doctrine inapplicable to the facts at bar or resorted to limiting a rule upon which the Supreme Court has placed no limitations. As a result, the present state of the law reflects much confusion. Recently, in Continental T.V., Inc. v. GTE Sylvania Inc. the Supreme Court took a step unprecedented in at least the last sixty-five years of antitrust jurisprudence — it overturned a per se rule which had outlawed all vertical territorial and customer restraints in which the buyer acquired title to the goods, and reinstated a rule of reason analysis for this type of conduct. One of the rationales given by the Sylvania Court for rejecting a per se approach was the frequent criticism the old rule — the Schwinn doctrine had received both in the literature and in the lower courts.The Supreme Court has repeatedly indicated its adherence to the per se rule respecting group boycotts. Yet, in view of the recent treatment this rule has received in the courts and in the law journals, the Sylvania decision gives reason to believe that this particular doctrine might also be the subject of reexamination and possible modification. This Article will first explore the development of the rule holding concerted refusals to deal unreasonable per se and the justification for such an approach. It will then consider why many courts and commentators are dissatisfied with the present approach and will discuss how lower federal courts have avoided using it. Finally, the Article suggests that criticism of the per se rule is justified, and proposes a partial return to a rule of reason analysis, with carefully defined criteria for testing legality and a more narrowly circumscribed per se rule.

Sherman Act Limitations on Noncommercial Concerted Refusals to Deal

Sherman Act Limitations on Noncommercial Concerted Refusals to Deal

Antitrust Laws: Concerted Refusals to Deal: Public Injury

Antitrust Laws: Concerted Refusals to Deal: Public Injury

Restraint of Trade. In General. British Court Holds Concerted Refusal to Deal Void under Restrictive Trade Practices Act. In re Chemists' Fed'n Agreement (No. 2) (Restrictive Practices Ct. 1958)

Restraint of Trade. In General. British Court Holds Concerted Refusal to Deal Void under Restrictive Trade Practices Act. In re Chemists' Fed'n Agreement (No. 2) (Restrictive Practices Ct. 1958)

Proving Injury to Competition in Private Antitrust Suits Provoked by Concerted Refusals to Deal

Proving Injury to Competition in Private Antitrust Suits Provoked by Concerted Refusals to Deal

Private Suits, Public Injury and Market Effects under the Sherman Act: Antitrust Laws. Sherman Act. Concerted Refusals to Deal

Private Suits, Public Injury and Market Effects under the Sherman Act: Antitrust Laws. Sherman Act. Concerted Refusals to Deal

Concerted Refusals to Deal under the Federal Antitrust Laws

Concerted Refusals to Deal under the Federal Antitrust Laws

Regulation of Business: Sherman Act: Concerted Refusals to Deal Not Illegal Per Se

Regulation of Business: Sherman Act: Concerted Refusals to Deal Not Illegal Per Se

Restraint of Trade. Sherman Act: Competitors' Agreements. Independent Insurance Agents' Concerted Refusal to Deal with Certain Insurers Not Illegal Per Se

Restraint of Trade. Sherman Act: Competitors' Agreements. Independent Insurance Agents' Concerted Refusal to Deal with Certain Insurers Not Illegal Per Se