246
Opinion of the Court
kin & N. Fidandis, Mediation and the Dynamics of Collective Bargaining 139-140 (2d ed. 1986); it may differ from bargaining only in degree, see 1 Hardin, supra, at 691-696; Taft Broadcasting Co., 163 N. L. R. B., at 478; it may be manipulated by the parties for bargaining purposes, see Bonanno Linen, supra, at 413, n. 8 (parties might, for strategic purposes, "precipitate an impasse"); and it may occur several times during the course of a single labor dispute, since the bargaining process is not over when the first impasse is reached, cf. J. Bartlett, Familiar Quotations 754:8 (16th ed. 1992). How are employers to discuss future bargaining positions during a temporary impasse? Consider, too, the adverse consequences that flow from failing to guess how an antitrust court would later draw the impasse line. Employers who erroneously concluded that impasse had not been reached would risk antitrust liability were they collectively to maintain the status quo, while employers who erroneously concluded that impasse had occurred would risk unfair labor practice charges for prematurely suspending multiemployer negotiations.
The United States responds with suggestions for softening an "impasse" rule by extending the exemption after impasse "for such time as would be reasonable in the circumstances" for employers to consult with counsel, confirm that impasse has occurred, and adjust their business operations, Brief for United States et al. as Amici Curiae 24; by reestablishing the exemption once there is a "resumption of good-faith bargaining," id., at 18, n. 5; and by looking to antitrust law's "rule of reason" to shield—"in some circumstances"— such joint actions as the unit-wide lockout or the concerted maintenance of previously established joint benefit or retirement plans, ibid. But even as so modified, the impasse-related rule creates an exemption that can evaporate in the middle of the bargaining process, leaving later antitrust courts free to second-guess the parties' bargaining decisions
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