[Federal Register Volume 59, Number 69 (Monday, April 11, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-8521]
[[Page Unknown]]
[Federal Register: April 11, 1994]
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DEPARTMENT OF JUSTICE
Antitrust Division
United States v. International Association of Machinists and
Aerospace Workers, et al.; Proposed Final Judgment and Competitive
Impact Statement
Notice is hereby given pursuant to the Antitrust Procedures and
Penalties Act, 15 U.S.C. section 16 (b) through (h), that a proposed
Final Judgment, Stipulation and Competitive Impact Statement have been
filed with the United States District Court for the District of
Columbia, in United States v. International Association of Machinists
and Aerospace Workers, et al., Civil Action No. 94-0690. The Complaint
in this case alleged that the International Association of Machinists
and Aerospace Workers (``IAM'') and three individuals, Tom Ducy,
William O'Driscoll and William Winpisinger, had violated Section 8 of
the Clayton Act. Section 8 prohibits the same person from serving as an
officer or director of two competing companies. The Complaint alleged
that the IAM served on the boards of two competing airlines Northwest
Airlines Corporation and Trans World Airlines, Inc., through its
representatives, the three individual defendants.
On March 30, 1994, the United States and the defendants filed a
Stipulation in which they consented to the entry of a proposed Final
Judgment providing the relief the United States seeks in the Complaint.
The proposed Final Judgment enjoins the IAM and the individual
defendants from conduct that would facilitate coordination between
competing airlines or that would facilitate the exchange of
confidential information between the two carriers. The proposed final
judgment prohibits the IAM board representatives from disclosing
confidential information to IAM representatives on the boards of other
airlines or to any other person not employed by the airline on whose
board they sit. The IAM representatives are also enjoined from entering
into or soliciting agreements in violation of the antitrust laws with
IAM representatives on the boards of other carriers and from engaging
in communications with other IAM representatives with the purpose or
effect of reducing competition between the two airlines. Furthermore,
the proposed Final Judgment enjoins the IAM from acting as a conduit
for exchanges of confidential information and provides that the IAM
shall require future board representatives to agree to be bound by the
terms of the proposed Final Judgment.
Public comment is invited within the statutory 60-day comment
period. Such comments, and responses thereto, will be published in the
Federal Register and filed with the Court. Comments should be directed
to Roger W. Fones, Chief, Transportation, Energy and Agriculture
Section, Antitrust Division, Department of Justice, room 9104, 555
Fourth Street NW., Washington, DC 20001, (telephone: 202-307-6351).
Constance K. Robinson,
Director of Operations, Antitrust Division.
Stipulation
Civil Action No.: 940690.
Filed: March 30, 1994.
Judge Richey.
United States of America, Plaintiff, v. International
Association of Machinists and Aerospace Workers, et al., Defendants.
It is stipulated by and between the undersigned parties, by their
respective attorneys, that:
1. The Court has jurisdiction over the subject matter of this
action and over each of the parties thereto, and venue of this action
is proper in the District of Columbia;
2. The parties consent that a Final Judgment in the form hereto
attached may be filed and entered by the Court, upon motion of any
party or upon the Court's own motion, at any time after compliance with
the requirements of the Antitrust Procedures and Penalties Act (15
U.S.C. 16), and without further notice to any party or other
proceedings, provided that Plaintiff has not withdrawn its consent,
which it may do at any time before the entry of the Proposed Final
Judgment by serving notice thereof on Defendants and by filing that
notice with the Court;
3. In the event Plaintiff withdraws its consent or if the proposed
Final Judgment is not entered pursuant to this Stipulation, this
Stipulation shall be of no effect whatever, and the making of this
Stipulation shall without prejudice to any party in this or any other
proceeding.
Dated: March 30, 1994.
For Plaintiff United States of America:
Anne K. Bingaman,
Assistant Attorney General
Steven C. Sunshine,
Constance K. Robinson,
Roger W. Fones,
Mary Jean Moltenbrey,
Attorneys, U.S. Department of Justice.
Michael D. Billiel,
DC Bar #394377,
Attorney, U.S. Department of Justice, Antitrust Division, 555 Fourth
Street, NW., room 9104, Washington, DC 20001, (202) 307-6666.
For Defendants International Association of Machinists and
Aerospace Workers, Tom Ducy, William O'Driscoll, and William W.
Winpinsinger:
Allison Beck,
General Counsel, International Association of Machinists and
Aerospace Workers, 9000 Machinists Place, Upper Marlboro, MD 20772.
Final Judgment
Plaintiff, United States of America, filed its Complaint on March
30, 1994. Plaintiff and defendants, by their respective attorneys, have
consented to the entry of the Final Judgment without trial or
adjudication of any issue of fact or law. This Final Judgment shall not
be evidence against or an admission by any party with respect to any
issue of fact or law. Therefore, before the taking of any testimony and
without trial or adjudication of any issue of fact or law herein, and
upon consent of the parties, it is hereby
Ordered, Adjudged, and Decreed, as follows:
I
Jurisdiction
This Court has jurisdiction of the subject matter of this action
and of each of the parties consenting hereto. The Complaint states a
claim upon which relief may be granted against the defendants under
section 8 of the Clayton Act, 15 U.S.C. 19.
II
Definitions
As used herein, the term:
(A) Airline means any scheduled air passenger carrier as defined in
49 U.S.C. 1301(3) or 1301(22);
(B) Confidential Information means non-public information relating
to an airline's costs, performance, service, operations, pricing,
marketing, scheduling, equipment purchasing, route selection decisions
or plans, or any other commercial decisions, learned by virtue of an
IAM Board Representative's service on the board of directors of an
airline.
(C) Grand Lodge means the Grand Lodge of the International
Association of Machinists and Aerospace Workers, AFL-CIO, and all
directors, officers, employees, members, agents, consultants,
representatives, or other persons acting for or on behalf of any of
them;
(D) IAM means the International Association of Machinists and
Aerospace Workers, AFL-CIO each of its divisions and subdivisions,
including Districts and Locals, subsidiaries, and affiliates, each
other person directly or indirectly, wholly or in part, owned or
controlled by it, and all directors, officers, employees, members,
agents, consultants, representatives, or other persons acting for or on
behalf of any of them;
(E) IAM Board Representative means an individual who the IAM
nominates or appoints to, or who represents the IAM on, the board of
directors of any airline;
(F) Information Relating to Labor Relations means all information
required to fulfill the IAM's duty of fair representation relating to
wages, hours, benefits, grievances, strikes, organizing efforts, past
practices, and other terms and conditions of employment for any
employee represented by the IAM pursuant to the Railway Labor Act (45
U.S.C. 151, et seq.);
(G) Person means any natural person, corporation, firm, company,
sole proprietorship, partnership, association, institution,
governmental unit, labor union, or other legal entity; and
(H) Relating to means concerning, pertaining to, referring to, or
relevant to.
III
Applicability
(A) This Final Judgment applies to the defendants and to each of
their successors, assigns, and to all other persons in active concert
or participation with any of them who shall have received actual notice
of the Final Judgment by personal service or otherwise.
(B) Nothing herein contained shall suggest that any portion of this
Final Judgment is or has been created for the benefit of any third
party and nothing herein shall be construed to provide any rights to
any third party.
IV
Prohibited Conduct
1. Defendant IAM shall require any IAM Board Representative to
refrain from:
(A) Engaging, directly or indirectly, in any communications of
Confidential Information with any IAM Board Representative on the board
of directors of any other airline;
(B) Disclosing, directly or indirectly, any Confidential
Information of the airline of which he or she is a director to any
person who is not employed by such airline;
(C) Voluntarily receiving, directly or indirectly, any Confidential
Information (except Information Relating to Labor Relations) from the
IAM relating to any other airline;
(D) Agreeing with (or soliciting an agreement by) any other IAM
Board Representative serving on the board of directors of any other
airline that their respective airlines would reduce or eliminate actual
or potential competition between them in violation of sections 1 or 2
of the Sherman Act (15 U.S.C. 1-2)--including any agreement,
understanding, or solicitation of an agreement to:
(i) Increase any current fare;
(ii) Refrain from decreasing any current fare;
(iii) Set the amount, duration or restrictions of any future fare;
(iv) Eliminate, reduce, or narrow any current fare, including any
promotion or discount fare;
(v) Refrain from introducing or extending any promotion or discount
fare;
(vi) Reduce or refrain from advertising any service or fare;
(vii) Reduce flight schedules, frequency, or capacity;
(viii) Eliminate or reduce existing service;
(ix) Refrain from establishing any service; or
(x) Limit, set the price of, or refrain from providing any service
to any other airline, including gates, ticketing, facilities, or ground
handling.
on any route or for any service for which the two airlines are actual
or potential competitors.
(E) Engaging directly in any communications with any IAM Board
Representative on the board of directors of any other airline with the
purpose or effect of:
(i) Increasing any current fare;
(ii) Decreasing any current fare;
(iii) Affecting any future fare;
(iv) Eliminating, reducing, or narrowing any current fare,
including any promotion or discount fare;
(v) Introducing or extending any promotion or discount fare; or
(vi) Reducing or refraining from advertising of any service or
fare.
on any route or for any service for which the two airlines are actual
or potential competitors.
(F) Engaging directly in any communications with any IAM Board
Representative on the board of directors of any other airline with the
purpose or effect of:
(i) Eliminating or reducing flight frequency or capacity;
(ii) Eliminating or reducing existing service;
(iii) Establishing any service; or
(iv) Limiting, withholding or pricing services provided to any
other airline, including gates, ticketing, facilities, and ground
handling,
on any route or for any service for which the two airlines are actual
or potential competitors, provided however that this paragraph does not
prohibit communications that the defendant establishes are primarily
Information Relating to Labor Relations.
2. Defendants Tom Ducy, William O'Driscoll and William Winpinsinger
are enjoined and restrained from doing anything prohibited by this
Final Judgment, including prohibitions 1(A)-(F) above.
3. The Grand Lodge is enjoined and restrained from:
(A) Nominating or appointing as an IAM Board Representative, any
person unless such person certifies in writing that he or she agrees to
be bound by the terms of this Final Judgment, including prohibitions
1(A)-(F) above;
(B) Nominating or appointing as an IAM Board Representative any
person who is an active official or employee of a District Lodge or
Local Lodge which already has another active official or employee
serving as an IAM Board Representative on the board of another airline;
(C) Disclosing, directly or indirectly, any Confidential
Information (except Information Relating to Labor Relations) obtained,
directly or indirectly, from any IAM Board Representative serving on
the board of directors of an airline to any person who is not employed
by that airline;
(D) Diclosing, directly or indirectly, any Confidential Information
(except Information Relating to Labor Relations) obtained, directly or
indirectly, from any IAM Board Representative to any other IAM Board
Representative on the board of directors of any other airline.
V
Compliance Program
(A) The Grand Lodge is ordered to maintain an antitrust compliance
program, which shall include designating, within 30 days of entry of
this Final Judgment, an Antitrust Compliance Officer with
responsibility for accomplishing the antitrust compliance program and
with the purpose of achieving compliance with this Final Judgment. The
Antitrust Compliance Officer shall, on a continuing basis, supervise
the review of the current and proposed activities of the Grand Lodge to
ensure that it complies with this Final Judgment. The Antitrust
Compliance Officer shall be responsible from the date of entry of this
Final Judgment for accomplishing the following activities:
(1) Distributing, within 60 days from the entry of this Final
Judgment, a copy of this Final Judgment to all officers of the IAM;
(2) Distributing in a timely manner a copy of this Final Judgment
to any officer who succeeds to a position described in Section V(A)(1);
(3) Obtaining from each officer of the Grand Lodge an annual
written certification that he or she:
(1) Has read, understands, and agrees to abide by the terms of this
Final Judgment; and
(2) Has been advised and understands that his or her failure to
comply with this Final Judgment may result in conviction for criminal
contempt of court.
(4) Maintaining a record of recipients to whom the Final Judgment
has been distributed and from whom the certification in section V(A)(3)
has been obtained.
(B) The Antitrust Compliance Officer shall be responsible for
distributing a copy of the Final Judgment to any person nominated or
appointed by the Grand Lodge as an IAM Board Representative, and
obtaining from such person a written certification that he or she:
(1) Has read, understands, and agrees to abide by the terms of this
Final Judgment; and
(2) Has been advised and understands that his or her failure to
comply with this Final Judgment may result in conviction for criminal
contempt of court.
VI
Certification
(A) Within 75 days after the entry of this Final Judgment, the
Grand Lodge shall certify to the plaintiff whether it has designated an
Antitrust Compliance Officer and has distributed the Final Judgment in
accordance with section V above.
(B) For four years after the entry of this Final Judgment, on or
before its anniversary date, the Grand Lodge shall file with the
plaintiff a statement as to the fact and manner of its compliance with
the provisions of of section V(A).
VII
Plaintiff Access
(A) To determine or secure compliance with this Final Judgment and
for no other purpose, duly authorized representatives of the plaintiff
shall, upon written request of the Assistant Attorney General in charge
of the Antitrust Division, and on reasonable notice to any defendant
made to its principal office, be permitted, subject to any legally
recognized privilege:
(1) Access during such defendant's office hours to inspect and copy
all documents in the possession or under the control of such defendant,
who may have counsel present, relating to any matters contained in this
Final Judgment; and
(2) Subject to the reasonable convenience of such defendant and
without restraint or interference from it, to interview officers,
employees or agents of such defendant, who may have counsel present,
regarding such matters.
(B) Upon the written request of the Assistant Attorney General in
charge of the Antitrust Division made to any defendant's principal
office, such defendant shall submit such written reports, under oath if
requested, relating to any matters contained in this Final Judgment as
may be reasonably requested, subject to any legally recognized
privilege.
(C) No information or documents obtained by the means provided in
section VII shall be divulged by the plaintiff to any person other than
a duly authorized representative of the Executive Branch of the United
States, except in the course of legal proceedings to which the United
States is a party, or for the purpose of securing compliance with this
Final Judgment, or as otherwise required by law.
VIII
Further Elements of the Final Judgment
(A) Jurisdiction is retained by this Court for the purpose of
enabling any of the parties to this Final Judgment to apply to this
Court at any time for further orders and directions as may be necessary
or appropriate to carry out or construe this Final Judgment, to modify
or terminate any of its provisions, to enforce compliance, and to
punish violations of its provisions.
(B) This Final Judgment shall terminate ninety (90) days after the
Grand Lodge or any District or Local Lodge ceases to have the right to
have an IAM Board Representative on the boards of directors of more
than one airline.
(C) Entry of this Final Judgment is in the public interest.
Certificate of Service
I hereby certify that I have caused a copy of the foregoing
proposed Final Judgment to be served on counsel for defendants in this
matter in the manner set forth below:
By first class mail, postage prepaid: Allison Beck, General
Counsel, International Association of Machinists and Aerospace Workers,
9000 Machinists Place, Upper Marlboro, MD 20772. For defendants
International Association of Machinists and Aerospace Workers, Tom
Ducy, William O'Driscoll, and William W. Winpisinger.
Dated: March 30, 1994.
Michael D. Billiel,
DC Bar #394377, Antitrust Division, U.S. Department of Justice, 555
Fourth Street, NW., Washington, DC 20001, (202) 307-6666.
Competitive Impact Statement
Pursuant to section 2(b) of the Antitrust Procedures and Penalties
Act, 15 U.S.C. 16 (b)-(h), the United States submits this Competitive
Impact Statement relating to the proposed Final Judgment submitted for
entry with the consent of defendants International Association of
Machinists and Aerospace Workers, Tom Ducy, William O'Driscoll, and
William Winpisinger, in this civil antitrust proceeding.
I
Nature and Purpose of the Proceeding
On March 30, 1994, the United States filed a civil antitrust
complaint alleging that the International Association of Machinists and
Aerospace Workers (``IAM'') and the three individual defendants, who
serve as the IAM's representatives on the boards of Northwest Airlines
Corporation (``Northwest'') and Trans World Airlines, Inc. (``TWA''),
had violated section 8 of the Clayton Act, 15 U.S.C. 19. Section 8 bars
the same person from serving as an officer or director of two competing
companies.\1\
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\1\Section 8 provides in relevant part: ``No person shall, at
the same time, serve as a director or officer in any two
corporations * * * that are (A) engaged in whole or in part in
commerce; and (B) by virtue of their business and location of
operation, competitors, so that the elimination of competition by
agreement between them would constitute a violation of any of the
antitrust laws.'' 15 U.S.C. 19(a)(1). The term ``person'' includes
corporations and associations. 15 U.S.C. 12.
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The Complaint alleges that the IAM serves as a director of both
Northwest and TWA through its representatives, the three individual
defendants. Pursuant to agreements entered into with the two airlines
in 1993, the international president of the IAM appointed Tom Ducy,
former general secretary and treasurer of the IAM, to the Northwest
board of directors and William O'Driscoll, the current president of IAM
District 142, and William W. Winpisinger, the former president of the
IAM, to the TWA board of directors. The Complaint seeks relief that
will prevent the defendants from continuing to violate section 8.
On March 30, 1994, the United States and the defendants filed a
Stipulation in which they consented to the entry of the proposed Final
Judgment that provides the relief the United States seeks in the
Complaint. Under the proposed Final Judgment, the defendants will be
prohibited from exchanging confidential information or from engaging in
communications that could facilitate anticompetitive coordination
between TWA and Northwest. The proposed Final Judgment would also
prevent anticompetitive coordination between or among other airlines
that in the future have IAM representatives on their boards of
directors. The IAM will further be required to institute a compliance
program to ensure that it does not renew the alleged violation.
Additionally, the proposed Final Judgment requires that the IAM file
annual reports with the Government certifying that it has complied with
section V(A) of the Final Judgment.
The United States and the defendants have stipulated that the Court
may enter the proposed Final Judgment after compliance with the
Antitrust Procedures and Penalties Act, 15 U.S.C. 16 (b)-(h), provided
that the United States has not withdrawn its consent. The proposed
Final Judgment provides that its entry does not constitute any evidence
against or admission by any party with respect to any issue of fact or
law.
Entry of the proposed Final Judgment will terminate the action
against the defendants, except that the Court will retain jurisdiction
over the matter for further proceedings that may be required to
interpret, enforce, or modify the Final Judgment, or to punish
violations of any of its provisions. The Final Judgment will terminate
ninety days after no part of the IAM (the Grand Lodge or any District
or Local Lodge) has the right to have a representative on the board of
more than one airline.
II
Description of the Practices Involved in the Alleged Violations
Section 8 of the Clayton Act is a prophylactic provision designed
to prevent restraints on competition that may arise from interlocking
directorates or management. Interlocks can restrict competition both by
facilitating coordination between competing companies and by providing
a conduit for the exchange of competitively sensitive information.
Congress intended section 8 ``to nip in the bud incipient violations of
the antitrust laws by removing the opportunity or temptation to such
violations through interlocking directorates.'' United States v. Sears,
Roebuck & Co., 111 F. Supp. 614, 616 (S.D.N.Y. 1953). The ``opportunity
or temptation'' for antitrust violations arises not only where the same
natural person serves as a director or officer of competing companies,
but also where an entity such as a corporation or labor union serves as
a director or officer of two companies through representatives or
deputies.
In this case, the IAM serves as a director of Northwest and TWA,
important actual and potential competitors in the air passenger
transportation industry, competing for passengers on thousands of
routes both within the United States and between the United States and
international destinations. In 1993, the IAM entered into agreements
with TWA pursuant to which the airline's employees agreed to wage
reductions in exchange for an equity interest in the company and
representation on TWA's board of directors. Pursuant to these
agreements, the president of the IAM appointed William W. Winpisinger,
former president of the IAM, and William O'Driscoll, chairman of
District 142 of the IAM, to the TWA board of directors. In August 1993,
the IAM entered into similar agreements with Northwest. The president
of the IAM appointed Tom Ducy, former secretary/treasurer of the IAM to
the Northwest board of directors.
As a result of the restructuring of Northwest and TWA, the same
individual--the president of the IAM--has the power to appoint
directors of two important competitors, raising the competitive
concerns under section 8. With representatives on the boards of both
Northwest and TWA, the IAM could have the opportunity to facilitate
exchanges of confidential information or facilitate anticompetitive
coordination between the two airlines. Because members of the IAM are
employees and shareholders of both Northwest and TWA, they would
potentially benefit from a reduction of competition between the two
airlines, and thus the IAM may also have the incentive to engage in
such anticompetitive conduct.
For example, the IAM representatives may be able to use their
positions as directors to coordinate decisions by the two airlines on
pricing or entry and exit of particular markets in such a way that
competition between Northwest and TWA is reduced. The directors may
also be in a position to exchange information on competitively
sensitive subjects such as future pricing or marketing strategies. Such
anticompetitive conduct, while potentially in the interest of the union
members/shareholders at both airlines, would harm consumers. The
proposed Final Judgment is designed to prevent such abuses from arising
out of the IAM's representation on the boards of multiple airlines. In
formulating the relief in the proposed Final Judgment, however, the
Department has taken into account the limited antitrust immunity that
applies to certain activities of labor unions. See Connell Construction
Co. v. Plumbers & Steamfitters Local Union No. 100, 421 U.S. 616
(1975).
Moreover, in the near future the IAM may acquire the right to name
representatives to the boards of additional airlines. The proposed
Final Judgment will also apply to any future interlocks, and will
prevent any anticompetitive communications in those situations as well.
III
Explanation of the Proposed Final Judgment
The proposed Final Judgment is intended to insure that the IAM's
representatives on airline boards of directors do not have the ability
to use their position to restrain competition, either by engaging in
coordination or by exchanging sensitive business information. The
proposed Final Judgment creates a ``fire wall'' between the directors
to prevent the types of anticompetitive conduct that is the target of
Section 8.
A. Prohibited conduct. Section IV of the proposed Final Judgment
contains prohibitions that run against both the individual defendants
and the IAM. Section IV(1) provides that the IAM shall require its
present and any future board representatives to refrain from certain
types of conduct. Section IV(2) requires the individual defendants to
abide by the terms of the decree, including the prohibitions in Section
IV(1). Section IV(3) contains injunctions against the IAM itself.
Sections IV(1) (A)-(C) are intended to prevent IAM directors from
exchanging confidential competitively sensitive information that they
learn about through their board position. Section IV(1)(A) prohibits
IAM directors on the boards of different airlines from exchanging
certain confidential information. Section IV(1)(B) prohibits an IAM
representative from disclosing confidential information of the airline
of which he or she is a director to any person not employed by that
airline. Section IV(1)(C) prohibits an IAM representative from
voluntarily receiving confidential information from the IAM. An
exception to IV(1)(C) is made for information relating to labor
relations. ``Information relating to labor relations'' is specifically
defined, and is limited to enumerated subjects closely related to labor
relations, where communication of the information is required to
fulfill the IAM's duty of fair representation of the employees it
represents.
Section IV(1)(D) prohibits an IAM director from agreeing with or
soliciting an agreement by an IAM director on the board of another
airline that would reduce or eliminate competition between the two
carriers in violation of the Sherman Act. The provision lists several
types of agreements that would fall under this prohibition, including
agreements to increase fares, eliminate discount fares, eliminate or
reduce service, or refrain from establishing new service.
Sections IV(1) (E) and (F) enjoin the IAM directors from engaging
in communications with IAM representatives on the board of another
airline that have the purpose or effect of reducing competition between
the two carriers. These provisions are designed to prevent the IAM
representatives from using their positions to facilitate coordination
between the airlines. The IAM representatives are specifically enjoined
from discussing competitively sensitive subjects, including current or
future pricing and decisions on increasing or reducing capacity or
frequency. The IAM directors may engage in communications about the
subjects listed in IV(1)(F), however, if the communications are related
to labor relations. For example, a communication about legitimate
strike-related activities of the union, while relating to reductions in
service, would not violate IV(1)(F)(ii).
The prohibitions of Section IV(3) run against the IAM. Section
IV(3)(A) prohibits the IAM from appointing any person to the board of
directors of any airline unless that person certifies in writing that
he or she agrees to be bound by the terms of the proposed Final
Judgment, including the prohibitions in section IV(1) (A)-(F). Thus,
future IAM board representatives will be prevented from using their
position to facilitate coordination between airlines or the exchange of
confidential information. In order to prevent the possibility that IAM
officials with close day-to-day contacts will sit on the boards of
competing carriers, section IV(3)(B) prohibits the IAM from having
active officers or employees of the same District or Local Lodge from
serving concurrently on the boards of more than one airline.
Sections IV(3) (C)-(D) are designed to prevent the IAM from acting
as a conduit for exchanges of confidential information that are
proscribed by section IV(1). Section IV(3)(C) prohibits the IAM from
disclosing confidential information received from an IAM representative
on the board of any airline to any person not employed by that airline.
Section IV(3)(D) prohibits the IAM from disclosing confidential
information obtained from an IAM representative on the board of any
airline to any IAM representative on the board of any other airline.
These provisions have exceptions for information related to labor
relations.
B. Compliance program and certification. In addition to the
prohibition contained in Section IV, the IAM is obligated under Section
V to establish an antitrust compliance program. This program would
require the IAM to designate an Antitrust Compliance Officer within 30
days of the entry of the Final Judgment. The Antitrust Compliance
Officer would be responsible for distributing copies of the Final
Judgment to designated individuals. All officers of the Grand Lodge of
the IAM would be required to certify annually that they understand and
agree to abide by the terms of the Final Judgment. In addition, the
Antitrust Compliance Officer is responsible for obtaining written
certification from any person appointed by the IAM as a director of an
airline that he or she agrees to be bound by the terms of the Final
Judgment. For four years after the entry of the Final Judgment the
Antitrust Compliance Officer must file an annual certification with the
Government as to the IAM's compliance with the provisions of section V.
C. Effect of the proposed final judgment on competition. The relief
in the proposed Final Judgment is designed to prohibit the IAM and its
representatives on the boards of competing airlines from engaging in
the type of anticompetitive conduct that section 8 seeks to prevent.
The proposed Final Judgment will prevent the IAM representatives from,
directly or indirectly, facilitating coordination between airlines or
from exchanging confidential information. The Department of Justice
believes that the proposed Final Judgment contains sufficient
provisions to prevent antitrust violations by the IAM and the
representatives it has or will appoint to the boards of Northwest, TWA,
or any other airline. At the same time, however, the proposed Final
Judgment allows the IAM, through its board representatives, to protect
the interests of its members.
IV
Remedies Available to Potential Private Litigants
Section 4 of the Clayton Act, 15 U.S.C. 15, provides that any
person who has been injured as a result of conduct prohibited by the
antitrust laws may bring suit in federal court to recover three times
the damages suffered, as well as costs and reasonable attorney's fees.
Entry of the proposed Final Judgment will neither impair nor assist the
bringing of such actions. Under the provisions of section 5(a) of the
Clayton Act, 15 U.S.C. 16(a), the Judgment has no prima facie effect in
any subsequent lawsuits that may be brought against any defendant in
this matter.
V
Procedures Available for Modification of the Proposed Final Judgment
As provided by the Antitrust Procedures and Penalties Act, any
person believing that the proposed Final Judgment should be modified
may submit written comments to Roger W. Fones, Chief, Transportation,
Energy & Agriculture Section, U.S. Department of Justice, Antitrust
Division, 555 Fourth Street, NW., room 9104, Washington, DC 20001,
within the 60-day period provided by the Act. These comments, and the
Department's responses, will be filed with the Court and published in
the Federal Register. All comments will be given due consideration by
the Department of Justice, which remains free to withdraw its consent
to the proposed Final Judgment at any time prior to entry.
VI
Alternative to the Proposed Final Judgment
The alternative to the proposed Final Judgment would be a full
trial of the case against the IAM and the individual defendants. In the
view of the Department of Justice, such a trial would involve
substantial cost to the United States, and is not warranted because the
proposed Final Judgment provides relief that will remedy the violations
of the Clayton Act alleged in the United States' Complaint.
VII
Determinative Materials and Documents
No materials and documents of the type described in section 2(b) of
the Antitrust Procedures and Penalties Act, 15 U.S.C. 16(b), were used
in formulating the proposed Final Judgment.
Dated: March 30, 1994.
Respectfully submitted,
Michael D. Billiel,
DC Bar #394377, Attorney, U.S. Department of Justice, Antitrust
Division, 555 Fourth Street, NW., room 9104, Washington, DC 20001,
(202) 307-6666.
Certificate of Service
I hereby certify that I have caused a copy of the foregoing
Competitive Impact Statement to be served on counsel for defendants in
this matter in the manner set forth below:
By first class mail, postage prepaid: Allison Beck, General
Counsel, International Association of Machinists and Aerospace Workers,
9000 Machinists Place, Upper Marlboro, MD 20772. For defendants
International Association of Machinists and Aerospace Workers, Tom
Ducy, William O'Driscoll, and William W. Winpisinger.
Dated: March 30, 1994.
Michael D. Billiel,
DC Bar #394377, Antitrust Division, U.S. Department of Justice, 555
Fourth Street, NW., Washington, DC 20001, (202) 307-6666.
[FR Doc. 94-8521 Filed 4-8-94; 8:45 am]
BILLING CODE 4410-01-M
