U.S. Federal Antitrust Agencies Announce Cooperation Initiative With Labor Agencies In Merger Review
As highlighted in the FTC’s press release:
The DOL will train appropriate personnel from the Antitrust Agencies on the issues under their jurisdiction.
The NLRB, meanwhile, will train appropriate personnel from Antitrust Agencies on the duty to bargain in good faith, successor bargaining obligations, and unfair labor practices, among other topics. Specifically, and as highlighted in the FTC’s press release:
- The DOL will train appropriate personnel from the Antitrust Agencies on the issues under their jurisdiction.
- The NLRB will train appropriate personnel from Antitrust Agencies on the duty to bargain in good faith, successor bargaining obligations, and unfair labor practices, among other topics.
- The Antitrust Agencies and the DOL and NLRB plan to meet biannually to discuss implementation and coordination of the activities described in the MOU.
In addition, the MOU makes clear that it supplements, and does not supersede, the previously identified bilateral agreements between the DOL, NLRB, and the Antitrust Agencies. For example, the FTC and DOL entered into a Memorandum of Understanding in September 2023 regarding coordination on investigations.
Inter-agency cooperation, while not new, has been a hallmark of the Biden Administration’s “Whole of Government Approach” outlined in the 2021 Executive Order on Promoting Competition in the American Economy. Antitrust Agencies, for example, have announced initiatives in the healthcare sector with other federal agencies. The Antitrust Agencies are not new to focusing on labor issues, as evidenced by the DOJ’s aggressive prosecution of alleged wage-fixing and no-poach agreements, and the FTC’s attempt at a noncompete ban. The MOUs envisage agency cooperation and information-sharing, which will likely lead to more government eyes on employers. This could slow down merger review and result in additional civil and criminal investigations. Merging parties before the Antitrust Agencies and those engaging with the NLRB should be aware of this inter-agency cooperation and beware that their documents and information could spawn antitrust investigations.
