The opinion of the court was delivered by: LA Buy, District Judge.
Plaintiff Jewel Tea Company seeks a declaratory judgment,
injunctive relief and treble damages under the anti-trust
laws, charging that the defendant unions and the Associated
Food Retailers of Greater Chicago, Inc., an association of
independent retail stores, conspired to suppress competition
among retail meat markets in the Chicago area by limiting the
marketing hours for the sale of fresh meat. The sufficiency of
the complaint was sustained by this court and affirmed by the
Court of Appeals on an interlocutory appeal. (Jewel Tea Co. v.
Local Unions, et al., 274 F.2d 217, (7th Cir., 1960.) The
cause was remanded and tried by this court without a jury.
At the close of plaintiff's case this court allowed the
motion to dismiss of defendants Bromann and Associated on the
ground that there was no evidence showing that either or both
of these defendants conspired with the defendant union in
forcing the restrictive provision upon plaintiff. Since
plaintiff sought relief from the defendant unions apart from
the theory of conspiracy, the unions' motion to dismiss was
denied. The court must now determine, on the basis of the
entire record, whether the provision limiting marketing hours
for the sale of fresh meat in the collective bargaining
agreement between the defendant unions, plaintiff and other
employers violated the anti-trust laws, and entitled plaintiff
to the relief demanded.
This issue was not and could not have been previously
determined by this court or by the Court of Appeals in the
proceedings evaluating the pleadings. It was not possible at
the pleading stage to determine whether the challenged
provision was the means of effectuating a conspiracy, or was
a part of the conditions of employment. In affirming the
sufficiency of the complaint, the Court of Appeals predicated
its decision in part on the proper assumption of the existence
of the alleged conspiracy between the unions and non-labor
groups, and in part on the necessity of a trial to ascertain
whether the restraint was unreasonable. (274 F.2d 221, 222,
The adjudication of the issue now before the court
necessitates a review of the purport, history and effect of
the marketing hour restriction in the collective bargaining
agreement. The uncontroverted evidence shows that the
limitation upon market operating hours originated after the
butchers strike of 1919 in opposition to the prevailing 81
hour, 7 day work week. The ensuing 1920 collective bargaining
agreement governing Meat Cutters imposed limitations on hours
of labor and upon marketing hours. It provided:
"Article 1 — Nine hours shall constitute the basic
working day, hours shall be 8 A.M. to 6 P.M.,
excepting Saturdays and days preceding holidays
beginning at 8 A.M. and quitting at 9 P.M.,
allowing I hour for dinner and one-half hour for
supper. Employees must be dressed and ready for
work at 8 A.M.
"Article 2 — It is expressly understood that no
customers will be served who come into the market
after 6 P.M. and 9 P.M. on Saturdays and on days
preceding holidays, that all customers in the shop
at the closing hour be served, that all meats be
properly taken care of and markets placed in a
sanitary condition, such work not to be construed
as overtime. Overtime to be limited to 1 hour every
day and shall be performed behind locked doors.
The hours established by the 1919 strike continued until
1937, when the Saturday work hours and marketing hours were
reduced and set at 8:30 A.M. to 7 P.M. Further modifications
of working hours and correlative marketing hours were made in
1941, 1945, 1946 and in 1947, when they were set at 9 A.M. to
6 P.M. Monday through Saturday, with marketing hours no later
than 6 P.M. The hours thus established have continued to the
present. These changes, taken from agreements of Local 546,
were followed in the agreements of all the defendant unions,
except Local 189, which executes a separate agreement to meet
conditions peculiar to it.
From the inception of plaintiff's operation of meat markets
in the Chicago area in 1933, it entered agreements with the
defendant unions containing these marketing hour restrictions,
which were identical to agreements made with other meat market
employers in the Chicago area.
The current collective bargaining agreement includes a
"Service Contract" applicable to service meat markets, and a
"Self-Service Contract" applicable to self-service meat
markets. This differentiation began in December 1952, on the
advent of the self-service mode of vending meat in this area.
These contracts recognize the union as the exclusive
bargaining representative of all employees in the meat
department who process, wrap, handle and sell frozen and fresh
meats on the employer's premises. With minor exceptions, the
contracts require that the work entailed in the preparation
and sale of meat, including the replenishment of stock and
cleaning of counters shall be performed exclusively by the
meat department employees represented by defendant unions.
Both contracts provide that 8 hours shall constitute the basic
work day, which shall begin no earlier than 8 A.M. and end no
later than 6 P.M. They provide also that "at the employer's
discretion overtime at overtime rates may be worked after 8
hours in any one day and behind locked doors after 6 P.M."
They further specify that "market operating hours shall be 9
A.M. to 6 P.M. Monday through Saturday," and that no customer
shall be served who comes into the market before or after
these hours. The contracts do authorize the sale after 6 P.M.
of certain products other than fresh meat.
The collective bargaining agreement also provides that the
unions agree not to enter into a contract with any other
employer designating lower wages, or longer hours, or any more
favorable conditions of employment.
Similar contract provisions, or with variants for a single
night operation, are in operation in other metropolitan areas.
The record sets forth in detail the method of bargaining
between the employer group and the union group, followed since
1941, and the negotiations relative to the 1957, 1959 and 1961
contracts. Each group formulates its position independently.
The union's demands are based on a preliminary survey of
members, who are consulted in the course of negotiation, and
must ratify any agreement; and the employers meet in advance
of negotiations to explore their objectives, and caucus
periodically to determine their bargaining position.
On July 25, 1957, the defendant unions gave notice of their
desire to negotiate the new contract. They presented their
demands to the employer group on August 20. On August 9
plaintiff's principal negotiator, E.T. Vorbeck, and
representatives of various chain stores formulated 6 employer
demands for negotiations: night openings, female wrappers,
automatic wrapping machines, flexible work day, right to
pre-price off premises, and the right to sell fresh frozen
meats. On August 30, Vorbeck apprised Carl H. Bromann,
Secretary of Associated, who had acted as chairman for the
entire employer group in 1950, of the demands of the chain
of the scheduled meeting with the unions on September 5. On
that date the union representatives met and exchanged demands
with the representatives of the employer group, including
plaintiff, National Tea, Associated, Hillmans, High-Low,
Krogers, A & P, Piggly Wiggly, Goldblatts, Wieboldts,
Save-Way, Del Farm, Sure-Save and I.G.A. Substantially the
same group of employers continued to meet with the unions
through the 1957 negotiations.
It would serve no useful purpose and would unduly prolong
this opinion to detail the proposals and counter-proposals
made at the numerous meetings that followed. Suffice to note
they indicated that the unions from the outset did not want
night work; and that the employers' demand for night operating
hours were intertwined with the extension of working hours and
the "flexible day," which ...