FTC Does 180 and Withdraws From Pact With NLRB, DOL

Less than a month ago, the National Labor Relations Board (NLRB) announced it was entering into an agreement with the Federal Trade Commission (FTC)  and Department of Labor “to strengthen worker protections and fair competition by collaborating on labor issues in antitrust merger investigations.” 

Specifically, under that agreement, the agencies would be “soliciting information from worker stakeholders and organizations, seeking production of employer information and data related to labor markets, utilizing NLRB and DOL public data sets, and contacting the NLRB and DOL for additional information under bilateral pre-existing interagency MOUs.”

Interestingly, the FTC announced on Sept. 27 it would no longer be maintaining that agreement with the other agencies. The agency released a statement, noting, “The Federal Trade Commission has notified the other parties that it will withdraw from a Memorandum of Understanding with federal labor agencies related to merger investigations. The agency will continue to closely scrutinize all issues related to mergers, including potential impacts on labor, in accordance with its merger guidelines.”

Notably, the FTC did not specify a reason for backtracking from the arrangement. Given the agreement was in effect for less than a month, there is not a lot of data available to evaluate what impact this arrangement may have had. 

Nevertheless, when it comes to labor law, employers should know that many complex issues can come into play during mergers and acquisitions when there are collective bargaining agreements in effect. Some agreements can even impose certain conditions that must be honored before a deal can be consummated. While this agreement may be over, labor law considerations remain in play in M&A – and the FTC, as it said, will be watching.