Brown v. Pro Football, Inc., 518 U.S. 231, 13 (1996)

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Cite as: 518 U. S. 231 (1996)

Opinion of the Court

III

Both petitioners and their supporters advance several suggestions for drawing the exemption boundary line short of this case. We shall explain why we find them unsatisfactory.

A

Petitioners claim that the implicit exemption applies only to labor-management agreements—a limitation that they deduce from case law language, see, e. g., Connell, 421 U. S., at 622 (exemption for "some union-employer agreements") (emphasis added), and from a proposed principle—that the exemption must rest upon labor-management consent. The language, however, reflects only the fact that the cases previously before the Court involved collective-bargaining agreements, see id., at 619-620; Pennington, 381 U. S., at 660; Jewel Tea, supra, at 679-680; the language does not reflect the exemption's rationale, see 50 F. 3d, at 1050.

Nor do we see how an exemption limited by petitioners' principle of labor-management consent could work. One cannot mean the principle literally—that the exemption applies only to understandings embodied in a collective-bargaining agreement—for the collective-bargaining process may take place before the making of any agreement or after an agreement has expired. Yet a multiemployer bargaining process itself necessarily involves many procedural and substantive understandings among participating employers as well as with the union. Petitioners cannot rescue their principle by claiming that the exemption applies only insofar as both labor and management consent to those understandings. Often labor will not (and should not) consent to certain common bargaining positions that employers intend to maintain. Cf. Areeda & Hovenkamp, Antitrust Law ¶ 229'd, at 277 ("[J]oint employer preparation and bargaining in the context of a formal multi-employer bargaining unit is clearly exempt"). Similarly, labor need not consent to certain tactics that this Court has approved as part of the multiemployer

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