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We'll hear argument now on No. 89-1416, Air Courier Conference of America v. American Postal Workers Union. Mr. Farkas, you may proceed whenever you're ready. ORAL ARGUMENT OF L. PETER FARKAS ON BEHALF OF THE PETITIONER-- | Mr. Chief Justice, and may it please the Court: This case concerns in the first instance international remail. I thought I might open up by saying a little more about remail than we said in our briefs. I think it might be helpful to decide both the issues presented. I will then discuss the standing issue, and Mr. Larki... | <s>[INST] We'll hear argument now on No. 89-1416, Air Courier Conference of America v. American Postal Workers Union. Mr. Farkas, you may proceed whenever you're ready. ORAL ARGUMENT OF L. PETER FARKAS ON BEHALF OF THE PETITIONER-- (Sentiment: Mr. Chief Justice, and may it please the Court: This case concerns in the fi... |
Could you speak up a little bit, Mr. Farkas. I'm having a little trouble hearing. Perhaps if you raised the lectern a little. | --In 1979... can you hear me now? Thank you, Your Honor. In 1979, the United States Postal Service suspended the restrictions on private carriage of letters by... and that... those laws... the restrictions on private carriage of letters are referred to the postal monopoly laws, also referred to in the briefs as the pri... | <s>[INST] Could you speak up a little bit, Mr. Farkas. I'm having a little trouble hearing. Perhaps if you raised the lectern a little. (Sentiment: --In 1979... can you hear me now? Thank you, Your Honor. In 1979, the United States Postal Service suspended the restrictions on private carriage of letters by... and that.... |
Did you raise below the jurisdictional question at all, whether it was appropriately brought under the Administrative Procedure Act? | No, we did not and we disagree with the Government that that issue was either properly raised here and we also disagree with their position on the merits of that issue. In order to... under the zone of interest test, in order to look at whether... one looks to the statute and its legislative history to determine whethe... | <s>[INST] Did you raise below the jurisdictional question at all, whether it was appropriately brought under the Administrative Procedure Act? (Sentiment: No, we did not and we disagree with the Government that that issue was either properly raised here and we also disagree with their position on the merits of that iss... |
Is this, is this really an argument or is it part of an argument that the statute doesn't provide the private cause of action to anybody? | --No, this is not a private cause of action case. This is a judicial review case. And I think the judicial... if that's made clear, that also reflects on the... on the reviewability on the Administrative Procedures Act issue raised by the Government by the Postal Service. | <s>[INST] Is this, is this really an argument or is it part of an argument that the statute doesn't provide the private cause of action to anybody? (Sentiment: --No, this is not a private cause of action case. This is a judicial review case. And I think the judicial... if that's made clear, that also reflects on the...... |
At the time of the debate on the Postal Reorganization Act of 1970, was any of that debate addressed to the merits of the private express statute? | No, it wasn't. Congress specifically declined to change the private express statutes at that time, and the legislative history says so. In short, the Postal Reorganization Act was intended to make the Post Office into a more businesslike... Government-owned corporation. The unions opposed the Postal Reorganization Act ... | <s>[INST] At the time of the debate on the Postal Reorganization Act of 1970, was any of that debate addressed to the merits of the private express statute? (Sentiment: No, it wasn't. Congress specifically declined to change the private express statutes at that time, and the legislative history says so. In short, the P... |
Well, that's parallel with their contention here, isn't it? They're saying it's just a, a continuation of that, and we object. They're not being inconsistent. | Well, they are being inconsistent in the sense that, Justice Kennedy, that they were opposed to the Postal Reorganization Act because they thought it would cost them jobs. If that's so-- | <s>[INST] Well, that's parallel with their contention here, isn't it? They're saying it's just a, a continuation of that, and we object. They're not being inconsistent. (Sentiment: Well, they are being inconsistent in the sense that, Justice Kennedy, that they were opposed to the Postal Reorganization Act because they ... |
Well, they're still saying that. | --Well, but they're-- | <s>[INST] Well, they're still saying that. (Sentiment: --Well, but they're--) [/INST] </s> |
And then it shows they have a continuing interest in the enforcement and the operation of this statute. They say now that you've done it, just don't carry it too far. Isn't that... isn't that their claim? | --Well, but Congress has spoken by passing... by passing the Postal Reorganization Act over their objections, and Congress-- | <s>[INST] And then it shows they have a continuing interest in the enforcement and the operation of this statute. They say now that you've done it, just don't carry it too far. Isn't that... isn't that their claim? (Sentiment: --Well, but Congress has spoken by passing... by passing the Postal Reorganization Act over t... |
Well, the question is whether the-- | --That's not their intention to save postal jobs. | <s>[INST] Well, the question is whether the-- (Sentiment: --That's not their intention to save postal jobs.) [/INST] </s> |
--Well, it was... it was to keep jobs in some stat, in... at some level. | In any event, the purposes of the private express statutes are not clarified or helped by the Postal Reorganization Act. They were passed for different purposes and therefore, the Postal Reorganization Act is irrelevant to bringing the postal employees within the zone of interest of the postal monopoly laws. I'd like t... | <s>[INST] --Well, it was... it was to keep jobs in some stat, in... at some level. (Sentiment: In any event, the purposes of the private express statutes are not clarified or helped by the Postal Reorganization Act. They were passed for different purposes and therefore, the Postal Reorganization Act is irrelevant to br... |
Very well, Mr. Farkas. Mr. Larkin, we'll hear now from you. | Do you know-- | <s>[INST] Very well, Mr. Farkas. Mr. Larkin, we'll hear now from you. (Sentiment: Do you know--) [/INST] </s> |
Did you present testimony or present your views to the hearing? | We presented comments. | <s>[INST] Did you present testimony or present your views to the hearing? (Sentiment: We presented comments.) [/INST] </s> |
Comments. | Yes. Now as... just to follow up on the merits for the moment and I'll move on to the reviewability and standing issues. The issue with respect to revenue loss, which was the primary concern of the court of appeals. It's not simply whether or not the Postal Service forecasted or attempted to forecast how much revenue w... | <s>[INST] Comments. (Sentiment: Yes. Now as... just to follow up on the merits for the moment and I'll move on to the reviewability and standing issues. The issue with respect to revenue loss, which was the primary concern of the court of appeals. It's not simply whether or not the Postal Service forecasted or attempte... |
Mr. Secular, it strikes me-- | Yes. | <s>[INST] Mr. Secular, it strikes me-- (Sentiment: Yes.) [/INST] </s> |
--now these are your arguments on the merits, you say. | That's right. | <s>[INST] --now these are your arguments on the merits, you say. (Sentiment: That's right.) [/INST] </s> |
It strikes me there as something that could be made by any person from the general public, so to speak. Do they have any connection with the special standing you claim as being Postal Service employees? | Well, under the case law, as I understand it, standing is a separate inquiry and-- | <s>[INST] It strikes me there as something that could be made by any person from the general public, so to speak. Do they have any connection with the special standing you claim as being Postal Service employees? (Sentiment: Well, under the case law, as I understand it, standing is a separate inquiry and--) [/INST] </s... |
You say, in effect, that if you can show standing, then you can come in and make arguments that have nothing to do with the reason for your standing? | --Yes, we can assert the public interest once standing is established. I think the cases do... like the Sierra Club establishes that and some of the-- | <s>[INST] You say, in effect, that if you can show standing, then you can come in and make arguments that have nothing to do with the reason for your standing? (Sentiment: --Yes, we can assert the public interest once standing is established. I think the cases do... like the Sierra Club establishes that and some of the... |
Does that seem at all odd to you? | --Well, it's a... it's a bifurcated inquiry. I think it's consistent with the function of the zone of interest tests. The zone of interest test, as most recently articulated in Clarke, is a guide to the Court to determine who is an appropriate plaintiff, who should the Court hear from. It's, in effect, to screen out in... | <s>[INST] Does that seem at all odd to you? (Sentiment: --Well, it's a... it's a bifurcated inquiry. I think it's consistent with the function of the zone of interest tests. The zone of interest test, as most recently articulated in Clarke, is a guide to the Court to determine who is an appropriate plaintiff, who shoul... |
May I interrupt with a question, and I don't know if the record comments on this at all, but we're talking about a net loss... I mean, a loss of gross revenues. And presumably... and this is why you're objecting... there are also some jobs that are going to be lost as a result of this, which means that there are some c... | That's... what you're driving at is whether or not the net... whether there would be a loss of net revenue. | <s>[INST] May I interrupt with a question, and I don't know if the record comments on this at all, but we're talking about a net loss... I mean, a loss of gross revenues. And presumably... and this is why you're objecting... there are also some jobs that are going to be lost as a result of this, which means that there ... |
Yes. | Whether the costs incurred by a Postal Service in furnishing international mail service are greater than the loss of revenue. | <s>[INST] Yes. (Sentiment: Whether the costs incurred by a Postal Service in furnishing international mail service are greater than the loss of revenue.) [/INST] </s> |
Is there anything in the record that-- | Yes, we submitted a declaration by an economist which was not rebutted which tended to show... and the court of appeals cited to that, although without referencing the declaration... that there was a net loss, and that in fact-- | <s>[INST] Is there anything in the record that-- (Sentiment: Yes, we submitted a declaration by an economist which was not rebutted which tended to show... and the court of appeals cited to that, although without referencing the declaration... that there was a net loss, and that in fact--) [/INST] </s> |
--Is there anything to indicate the magnitude of the net loss? | --There are documents, and I don't have the number off the top of my head, but there are documents in the record from the Postal Service's comprehensive annual statement of operations which show a declining international mail volumes and textually a comment by the Postal Service that attributes at least a significant p... | <s>[INST] --Is there anything to indicate the magnitude of the net loss? (Sentiment: --There are documents, and I don't have the number off the top of my head, but there are documents in the record from the Postal Service's comprehensive annual statement of operations which show a declining international mail volumes a... |
I'm not sure that responds to my question. Is... and... and maybe it doesn't make any difference, but there's a little bit of a... sort of a little bit of a tension between-- | --I don't... yeah... I understand. I don't-- | <s>[INST] I'm not sure that responds to my question. Is... and... and maybe it doesn't make any difference, but there's a little bit of a... sort of a little bit of a tension between-- (Sentiment: --I don't... yeah... I understand. I don't--) [/INST] </s> |
--your standing argument that you're hurt by this and your relying entirely on the loss of gross revenues, it seems to me. | --Well, it was the Postal Service that cited the loss of gross revenue. There is no specific estimation of the loss of net revenue. And in fact, and I may regret saying this if the case proceeds any further, if the case goes back to the Postal Service and the Postal Service establishes that there is no significant loss... | <s>[INST] --your standing argument that you're hurt by this and your relying entirely on the loss of gross revenues, it seems to me. (Sentiment: --Well, it was the Postal Service that cited the loss of gross revenue. There is no specific estimation of the loss of net revenue. And in fact, and I may regret saying this i... |
Let me ask one other question. This gets a little closer to standing. Is there anything in the record to indicate the impact on loss of jobs? How many jobs are affected by-- | --No, what we cited to was the threat of job loss, which I think is sufficient to confer injury and fact standing under the cases. | <s>[INST] Let me ask one other question. This gets a little closer to standing. Is there anything in the record to indicate the impact on loss of jobs? How many jobs are affected by-- (Sentiment: --No, what we cited to was the threat of job loss, which I think is sufficient to confer injury and fact standing under the ... |
--Was there anything to show the impact on jobs of the 1979 regulation? | No, there's no evidence of that. | <s>[INST] --Was there anything to show the impact on jobs of the 1979 regulation? (Sentiment: No, there's no evidence of that.) [/INST] </s> |
Because there would have been some history to work with there I suppose? | Well, one of the interesting issues that is raised by... and I may be wasting my time by elaborating on this. I think there are a couple of questions that are raised by the urgent letter exception, and one is whether or not there was any diversion. The philosophical assumption of the urgent letter exemption was that th... | <s>[INST] Because there would have been some history to work with there I suppose? (Sentiment: Well, one of the interesting issues that is raised by... and I may be wasting my time by elaborating on this. I think there are a couple of questions that are raised by the urgent letter exception, and one is whether or not t... |
Yes, I see. | It's also... now I'm really just speculating but I think it's fair... one could theorize that the marketing activities of the express mail industry have increased the overall market, and possibly increased the Postal Service's express mail business. So it would be difficult to forecast the loss in revenue or job impact... | <s>[INST] Yes, I see. (Sentiment: It's also... now I'm really just speculating but I think it's fair... one could theorize that the marketing activities of the express mail industry have increased the overall market, and possibly increased the Postal Service's express mail business. So it would be difficult to forecast... |
Let me go back to Block for a second. That wasn't really a fact that there was no review. There was no review for the particular class of litigant that was before the Court. | That's correct. As I indicated in earlier responses, the standing question as the case now... as the case now appears before the Court is defined solely in terms of the zone of interest test. The zone of interest test focuses on whether the plaintiff is arguably within the zone of interest to be protected or regulated ... | <s>[INST] Let me go back to Block for a second. That wasn't really a fact that there was no review. There was no review for the particular class of litigant that was before the Court. (Sentiment: That's correct. As I indicated in earlier responses, the standing question as the case now... as the case now appears before... |
Well, where is... is that particular statutory section set out in your brief? | 601 is in the statutory appendix. | <s>[INST] Well, where is... is that particular statutory section set out in your brief? (Sentiment: 601 is in the statutory appendix.) [/INST] </s> |
Whereabouts? Well, don't worry... don't take time from your argument to-- | Just to paraphrase it, it provides that the Postal Service may suspend the foregoing section or any part thereof where the public interest requires the suspension. It's referring to section 601(a), which sets forth certain conditions under which mail that would otherwise be covered by the private express statutes can b... | <s>[INST] Whereabouts? Well, don't worry... don't take time from your argument to-- (Sentiment: Just to paraphrase it, it provides that the Postal Service may suspend the foregoing section or any part thereof where the public interest requires the suspension. It's referring to section 601(a), which sets forth certain c... |
--The present structure authorizing the suspension of the PES? | Yes, the present structure which can be read as authorizing suspension of the private express statute. And I would point out that was enacted without any debate. Be that as it may, there is no historical practice of suspending the private express statutes, which dates back to the 19th century. It's a modern development... | <s>[INST] --The present structure authorizing the suspension of the PES? (Sentiment: Yes, the present structure which can be read as authorizing suspension of the private express statute. And I would point out that was enacted without any debate. Be that as it may, there is no historical practice of suspending the priv... |
Well, was there any debate or discussion or was the statute that was finally formed in 1960, was that changed in any way in the Postal Reorganization Act of 1970? | Only in the sense that Post Office was changed... postmaster... the reference to Postmaster General was changed to Postal Service. | <s>[INST] Well, was there any debate or discussion or was the statute that was finally formed in 1960, was that changed in any way in the Postal Reorganization Act of 1970? (Sentiment: Only in the sense that Post Office was changed... postmaster... the reference to Postmaster General was changed to Postal Service.) [/I... |
Well, no substantive change? | No substantive change. | <s>[INST] Well, no substantive change? (Sentiment: No substantive change.) [/INST] </s> |
So, no part of the debate over the Postal Reorganization Act in 1970 involved this statute, which you say is the crux of the Government's power to move here... the Post Office's power to move. | That's correct. But I would point out that there really wasn't any reason for Congress to be thinking in terms of suspensions of the private express statutes when it debated the Postal Reorganization Act. | <s>[INST] So, no part of the debate over the Postal Reorganization Act in 1970 involved this statute, which you say is the crux of the Government's power to move here... the Post Office's power to move. (Sentiment: That's correct. But I would point out that there really wasn't any reason for Congress to be thinking in ... |
No, that wasn't what they were thinking about. | That's right. | <s>[INST] No, that wasn't what they were thinking about. (Sentiment: That's right.) [/INST] </s> |
And it seems to me that greatly weakens your case for standing. The court of appeals relied on the Postal Reorganization Act, saying that there had been considerable discussion of the role of postal workers and the concern for them. But in... that may well have been. But it seems to me that what you're talking about is... | Well, I... let me make two responses to that... to that point, Mr. Chief Justice. One is that I don't think that the 1960 statute could have been fairly interpreted, at least in terms of congressional intent, as authorizing suspensions of the monopoly. The Postal Service really began to view 601(b) as a source of autho... | <s>[INST] And it seems to me that greatly weakens your case for standing. The court of appeals relied on the Postal Reorganization Act, saying that there had been considerable discussion of the role of postal workers and the concern for them. But in... that may well have been. But it seems to me that what you're talkin... |
But did... but did that have any... but did its viewing when it did at the 1960 statute in such a way have anything to do with the Postal Reorganization Act? | The governor's report in 1973 didn't address the issue as... in any thorough way. But let me move onto another response. | <s>[INST] But did... but did that have any... but did its viewing when it did at the 1960 statute in such a way have anything to do with the Postal Reorganization Act? (Sentiment: The governor's report in 1973 didn't address the issue as... in any thorough way. But let me move onto another response.) [/INST] </s> |
Well, what is your answer to that question, the question I just asked you? Did the position taken by the Post Office after the Postal Reorganization Act about the authority in the... have anything to do with the postal reorganization? | No. | <s>[INST] Well, what is your answer to that question, the question I just asked you? Did the position taken by the Post Office after the Postal Reorganization Act about the authority in the... have anything to do with the postal reorganization? (Sentiment: No.) [/INST] </s> |
Before you move on, can I ask another question about the same section? | Yes. | <s>[INST] Before you move on, can I ask another question about the same section? (Sentiment: Yes.) [/INST] </s> |
Why is that the crucial section? It seems to me what you are doing is claiming the benefit of the monopoly, and this is a section authorizing the Postal Service to eliminate the monopoly as to certain portions. But the statute that you claim gives you the protection is the basic conferral of the monopoly upon the Posta... | Well, this-- | <s>[INST] Why is that the crucial section? It seems to me what you are doing is claiming the benefit of the monopoly, and this is a section authorizing the Postal Service to eliminate the monopoly as to certain portions. But the statute that you claim gives you the protection is the basic conferral of the monopoly upon... |
Not the later provision, whenever it was adopted, allowing an exception from it. | --Well, I'm not sure, claiming the protection of the monopoly is precisely the right characterization. | <s>[INST] Not the later provision, whenever it was adopted, allowing an exception from it. (Sentiment: --Well, I'm not sure, claiming the protection of the monopoly is precisely the right characterization.) [/INST] </s> |
Well, you're claiming it was... you're within the zone of interests for which the monopoly was designed. It seems to me that that's your claim. I don't see how the exception statute does anything except affect the scope of the monopoly. | Well, our argument on standing, our basic argument on standing, treats the Postal Reorganization Act and the private express statutes as functionally a... an integrated statutory scheme. And that's because essentially the purposes of the Postal Reorganization Act and the postal monopoly laws are crucial interdependent.... | <s>[INST] Well, you're claiming it was... you're within the zone of interests for which the monopoly was designed. It seems to me that that's your claim. I don't see how the exception statute does anything except affect the scope of the monopoly. (Sentiment: Well, our argument on standing, our basic argument on standin... |
But they were... they were the linchpin before the Postal Reorganization Act and afterwards, weren't they? | --That's correct. That's correct. | <s>[INST] But they were... they were the linchpin before the Postal Reorganization Act and afterwards, weren't they? (Sentiment: --That's correct. That's correct.) [/INST] </s> |
The Postal Reorganization Act didn't change them. | That's correct. But a related point, which I haven't articulated quite yet, is that it shouldn't matter whether private express statutes and the Postal Reorganization Act are considered one statute or two statutes or however many statutes, because if that were true then there would be... the holdings of the banking law... | <s>[INST] The Postal Reorganization Act didn't change them. (Sentiment: That's correct. But a related point, which I haven't articulated quite yet, is that it shouldn't matter whether private express statutes and the Postal Reorganization Act are considered one statute or two statutes or however many statutes, because ... |
Does this... again I'll ask you the question I asked. Does this seem logical or sensible to you? | --Well, I think it depends, Mr. Chief Justice, on the case. We use the term, and I think this is the one bit of terminology we attempted to add the case law. The inquiry must be statute specific. In a given case, it may very well be appropriate that... to hear from a plaintiff who is claiming an interest from an enactm... | <s>[INST] Does this... again I'll ask you the question I asked. Does this seem logical or sensible to you? (Sentiment: --Well, I think it depends, Mr. Chief Justice, on the case. We use the term, and I think this is the one bit of terminology we attempted to add the case law. The inquiry must be statute specific. In a ... |
Mr. Secular, I'm not quite clear on why it is essential to the Postal Reorganization Act and the various things it accomplished that there also be a monopoly. | --The basic rationale for that was articulated in the 1973 Governor's Report. Briefly, what... the focus is on the requirement of the Postal Reorganization Act that the Postal Service provide universal service at uniform rates. Those... both those concepts are important. The Postal Service cannot provide uniform servic... | <s>[INST] Mr. Secular, I'm not quite clear on why it is essential to the Postal Reorganization Act and the various things it accomplished that there also be a monopoly. (Sentiment: --The basic rationale for that was articulated in the 1973 Governor's Report. Briefly, what... the focus is on the requirement of the Posta... |
I don't see how that follows. It just depends on how the rate is. You, you can provide universal service at uniform rates so long as the rate is high enough. | Well, the statute also-- | <s>[INST] I don't see how that follows. It just depends on how the rate is. You, you can provide universal service at uniform rates so long as the rate is high enough. (Sentiment: Well, the statute also--) [/INST] </s> |
Even if other people are scream... cream skimming, the people left will pay the freight. | --We can get into an economic debate on that, Justice Scalia. The result of that would be that the rates charged by the Postal Service would skyrocket above and beyond the rate of inflation, which would have a devastating impact on volume. I think that it's fair to say the system-- | <s>[INST] Even if other people are scream... cream skimming, the people left will pay the freight. (Sentiment: --We can get into an economic debate on that, Justice Scalia. The result of that would be that the rates charged by the Postal Service would skyrocket above and beyond the rate of inflation, which would have a... |
Already... they've already skyrocketed far beyond the rate of inflation. | --Well, the Postmaster General has made that a fact, and I think that points up our argument on the merits. 3 percent loss of revenue, if that's all that the Postal Service is talking about, could very well be the difference between whether or not rates go up more than or less than the rate of inflation. It's that trad... | <s>[INST] Already... they've already skyrocketed far beyond the rate of inflation. (Sentiment: --Well, the Postmaster General has made that a fact, and I think that points up our argument on the merits. 3 percent loss of revenue, if that's all that the Postal Service is talking about, could very well be the difference ... |
Maybe competition might determine it, too. | I'm not sure I understand the thrust of the question, Justice Scalia. | <s>[INST] Maybe competition might determine it, too. (Sentiment: I'm not sure I understand the thrust of the question, Justice Scalia.) [/INST] </s> |
Determine how fast rates go up, as it does in other segments of the economy. We're talking economics here. | Well, the problem with that is that the Postal Service has to maintain a fixed, nationwide infrastructure, which prevents it, I think, from responding to competition out on the fringes in those particular areas where rates... where rates... where a lower rate could be charged by a private business while competing with ... | <s>[INST] Determine how fast rates go up, as it does in other segments of the economy. We're talking economics here. (Sentiment: Well, the problem with that is that the Postal Service has to maintain a fixed, nationwide infrastructure, which prevents it, I think, from responding to competition out on the fringes in tho... |
But the employees of the Postal Service are within the zone of interest that that actively, as you say, intended to protect? | Oh, there's no question of that. | <s>[INST] But the employees of the Postal Service are within the zone of interest that that actively, as you say, intended to protect? (Sentiment: Oh, there's no question of that.) [/INST] </s> |
The purpose of this legislation, of establishing the Post Office is-- | A substantial-- | <s>[INST] The purpose of this legislation, of establishing the Post Office is-- (Sentiment: A substantial--) [/INST] </s> |
--is to ensure employment to people? | --A substantial purpose of the 1970 reorganization was to address the legitimate grievances... that the phrase that's found on the House report... of the employees. The statute was literally a response to a nationwide work stoppage. It was literally collectively bargained by the unions and representatives of the admini... | <s>[INST] --is to ensure employment to people? (Sentiment: --A substantial purpose of the 1970 reorganization was to address the legitimate grievances... that the phrase that's found on the House report... of the employees. The statute was literally a response to a nationwide work stoppage. It was literally collectivel... |
We'll hear argument first this morning in No. 89-1493, the Air Line Pilots Association, International v. Joseph O'Neill. Mr. Gold. | Thank you, Mr. Chief Justice, and may it please the Court: This case concerns the duty of fair representation this Court has implied from the Railway Labor Act and the National Labor Relations Act. In particular it concerns the end of a long and bitter strike well-chronicled in the press between the Air Line Pilots Ass... | <s>[INST] We'll hear argument first this morning in No. 89-1493, the Air Line Pilots Association, International v. Joseph O'Neill. Mr. Gold. (Sentiment: Thank you, Mr. Chief Justice, and may it please the Court: This case concerns the duty of fair representation this Court has implied from the Railway Labor Act and the... |
Call the what award? The Order and-- | Order and Award. Yes. It was issued as an order of the bankruptcy court. It's undisputed that all but two of its terms were negotiated between the parties, but it was under the auspices of the court. Court had attempted as part of the reorganization as far back as July to get the parties to settle this dispute, because... | <s>[INST] Call the what award? The Order and-- (Sentiment: Order and Award. Yes. It was issued as an order of the bankruptcy court. It's undisputed that all but two of its terms were negotiated between the parties, but it was under the auspices of the court. Court had attempted as part of the reorganization as far back... |
--[inaudible] statutory. | --Yes. And we acknowledge that and we acknowledge the bite of the duty in terms of its obligations of honesty and good faith. Those... those aspects-- | <s>[INST] --[inaudible] statutory. (Sentiment: --Yes. And we acknowledge that and we acknowledge the bite of the duty in terms of its obligations of honesty and good faith. Those... those aspects--) [/INST] </s> |
But not arbitrariness? | --Not arbitrariness in the sense that the court of appeals understood arbitrariness. The district court, after extensive discovery and on the union's motion for summary judgment, concluded that there's nothing to indicate that the union made any choice other than on the best deal that the union thought it could constru... | <s>[INST] But not arbitrariness? (Sentiment: --Not arbitrariness in the sense that the court of appeals understood arbitrariness. The district court, after extensive discovery and on the union's motion for summary judgment, concluded that there's nothing to indicate that the union made any choice other than on the best... |
But would you think that that was within the district court's finding that the union got the best deal it could? | --Yes. | <s>[INST] But would you think that that was within the district court's finding that the union got the best deal it could? (Sentiment: --Yes.) [/INST] </s> |
Including no deal, in effect... just abandoning the strike? Is that clear? I'm not sure. | The... well, we believe that the court of appeals' opinions said that the union proceeded on an honest, good-faith determination that this was the best way to proceed and that that satisfied the standard. The court of appeals, on the other hand as we understand it, and this is the line of demarkation, said that the cou... | <s>[INST] Including no deal, in effect... just abandoning the strike? Is that clear? I'm not sure. (Sentiment: The... well, we believe that the court of appeals' opinions said that the union proceeded on an honest, good-faith determination that this was the best way to proceed and that that satisfied the standard. The ... |
The best way to proceed taking into account what? Is there a wade into that, the damage to the power of the union that would have occurred from unconditionally giving in after a long strike and bitter strike? | The-- | <s>[INST] The best way to proceed taking into account what? Is there a wade into that, the damage to the power of the union that would have occurred from unconditionally giving in after a long strike and bitter strike? (Sentiment: The--) [/INST] </s> |
Is that part of the factor that the union was allowed to take into account? | --As we understand the court of appeals' decision, the host of uncertainties and the nature of the factors that are to... I'm sorry, the role of the host of uncertainties that the union and the striking pilots faced and the calculus of factors that are to be taken into account are both disregarded. We don't know from r... | <s>[INST] Is that part of the factor that the union was allowed to take into account? (Sentiment: --As we understand the court of appeals' decision, the host of uncertainties and the nature of the factors that are to... I'm sorry, the role of the host of uncertainties that the union and the striking pilots faced and th... |
Well, what do you think for purposes of a good-faith test which you are urging? Do you take into account for good faith the fact that the union was looking to its national power and how that would be eroded by losing a strike of this sort that had gone on for 2 years and was so bitter? Or is good faith to be determined... | Well, it seems to us that if we reach that point, and there does not seem in this case to be any evidence opposing that conundrum, that the union is entitled to take into account the... the total situation of the pilots. After all, these are people following or calling with a skill, and we certainly would believe that ... | <s>[INST] Well, what do you think for purposes of a good-faith test which you are urging? Do you take into account for good faith the fact that the union was looking to its national power and how that would be eroded by losing a strike of this sort that had gone on for 2 years and was so bitter? Or is good faith to be ... |
To sacrifice the members of this bargaining-- | --Well-- | <s>[INST] To sacrifice the members of this bargaining-- (Sentiment: --Well--) [/INST] </s> |
--unit for the benefit of members of other bargaining units. | --With all deference, that isn't what I said. | <s>[INST] --unit for the benefit of members of other bargaining units. (Sentiment: --With all deference, that isn't what I said.) [/INST] </s> |
Well, no, I'm... well, it's the way I would put it. Are they and-- | No, I-- | <s>[INST] Well, no, I'm... well, it's the way I would put it. Are they and-- (Sentiment: No, I--) [/INST] </s> |
--I mean, it's like the word sacrifice. It's not necessarily a bad thing. The union has the interest of many bargaining units nationally. It might well intelligently decide that we could get a better deal from the employer of this bargaining unit by throwing in the towel on unconditionally giving up the strike, but tha... | --I think the union can take into account the total labor market situation. What I started to say is that if the union determines that tossing in the towel would undermine its situation... would undermine the total situation facing pilots overall, including the striking pilots, who have a calling, have a skill, and wil... | <s>[INST] --I mean, it's like the word sacrifice. It's not necessarily a bad thing. The union has the interest of many bargaining units nationally. It might well intelligently decide that we could get a better deal from the employer of this bargaining unit by throwing in the towel on unconditionally giving up the strik... |
Mr. Gold, the court of appeals used the word "arbitrary". Do you say that the... that arbitrary has no place in the test or that they simply misunderstood the meaning of the word arbitrary? | We believe that they misunderstood the meaning of the word arbitrary. As we detail in our brief starting on page 14, the court has used different formulations to delineate the scope of the duty of fair representation, and the court has used the word arbitrary in doing so. We believe that the fairest reading of all the ... | <s>[INST] Mr. Gold, the court of appeals used the word "arbitrary". Do you say that the... that arbitrary has no place in the test or that they simply misunderstood the meaning of the word arbitrary? (Sentiment: We believe that they misunderstood the meaning of the word arbitrary. As we detail in our brief starting on ... |
Well, Mr. Gold, that was going to be my question. Suppose the union commits what in other circumstances, say, in the legal profession, would be malpractice. It misses a grievance deadline. But it's in very good faith. It... now is there liability there? | No, the essence of our argument is that this duty doesn't create a liability for honest mistakes, so-- | <s>[INST] Well, Mr. Gold, that was going to be my question. Suppose the union commits what in other circumstances, say, in the legal profession, would be malpractice. It misses a grievance deadline. But it's in very good faith. It... now is there liability there? (Sentiment: No, the essence of our argument is that this... |
So we're talking here about a standard that applies across the board, administration of the contract, grievances, routine procedures, as well as the more complex context of conducting bargaining? | --Well, we make three different arguments in support of our position that the court of appeals was wrong here. The first is the one you've just stated. The second is that at the very least this test of honesty and good purpose ought to apply in the most complex situations, namely the negotiation of agreements or the re... | <s>[INST] So we're talking here about a standard that applies across the board, administration of the contract, grievances, routine procedures, as well as the more complex context of conducting bargaining? (Sentiment: --Well, we make three different arguments in support of our position that the court of appeals was wro... |
Well, I... on duty of care, you'll recall from the Rawson case where the union allegedly negligently contributed to the death of mine workers, we said that the union could not be sued under State law. And now you're saying there's a broad immunity based on a good-faith standard under Federal law. I know of-- | Well, basically-- | <s>[INST] Well, I... on duty of care, you'll recall from the Rawson case where the union allegedly negligently contributed to the death of mine workers, we said that the union could not be sued under State law. And now you're saying there's a broad immunity based on a good-faith standard under Federal law. I know of-- ... |
--I know of no parallel in all of the law, other than for sovereign immunity, which gives an immunity that tests... is that extensive. | --The... as we understand Rawson, Justice Kennedy, the Court also said that a negligence claim would not be actionable under the duty of fair representation. It was not simply that it would not be... there would be an actionable State law claim. So that the standard is certainly, from what we know from this Court's cas... | <s>[INST] --I know of no parallel in all of the law, other than for sovereign immunity, which gives an immunity that tests... is that extensive. (Sentiment: --The... as we understand Rawson, Justice Kennedy, the Court also said that a negligence claim would not be actionable under the duty of fair representation. It wa... |
Mr. Gold, I had really thought that our cases had spoken in terms of a reasonableness component to the arbitrary standard here and that you would have us read that out of the standard and limit it to negotiations or actions taken in bad faith or with hostility. Now, do you really find support in our case law for that k... | --Well, if I can, there are two things I'd like to say about that. First of all, as we attempt to develop in our reply brief, the wide range of reasonableness language is in Ford Motor Company... this is at pages 2 to 4 of our reply brief. And the context there was to determine whether a distinction between veterans or... | <s>[INST] Mr. Gold, I had really thought that our cases had spoken in terms of a reasonableness component to the arbitrary standard here and that you would have us read that out of the standard and limit it to negotiations or actions taken in bad faith or with hostility. Now, do you really find support in our case law ... |
You don't suggest that fairness has any part of it, do you? | --Well, fairness in the sense of-- | <s>[INST] You don't suggest that fairness has any part of it, do you? (Sentiment: --Well, fairness in the sense of--) [/INST] </s> |
Is it [inaudible]-- | --a duty of loyalty, fairness in the sense of-- | <s>[INST] Is it [inaudible]-- (Sentiment: --a duty of loyalty, fairness in the sense of--) [/INST] </s> |
--I know, but you sounded like you were saying substantively it was fair. | --You mean-- | <s>[INST] --I know, but you sounded like you were saying substantively it was fair. (Sentiment: --You mean--) [/INST] </s> |
The terms agreed upon were fair. | --We believe that we can meet-- | <s>[INST] The terms agreed upon were fair. (Sentiment: --We believe that we can meet--) [/INST] </s> |
I know, but you don't-- | --that standard, but we're-- | <s>[INST] I know, but you don't-- (Sentiment: --that standard, but we're--) [/INST] </s> |
--You mean judges are supposed to decide whether they were fair or not? | --Well, no. We are arguing that that is precisely what labor relations is not about. There are a lot of mean, unfair deals out there when you take into account that the company had the power and the union had less. | <s>[INST] --You mean judges are supposed to decide whether they were fair or not? (Sentiment: --Well, no. We are arguing that that is precisely what labor relations is not about. There are a lot of mean, unfair deals out there when you take into account that the company had the power and the union had less.) [/INST] </... |
Oh, it... you don't really... you've been living... the unions have been living with this Vaca standard for a long time, and I have noticed in all the cases that come around here that you've been really hurt very much by that element in it. I had thought the judges thought about arbitrariness that no fool in his right ... | Well, that is... that is certainly not the view... the view you just stated is certainly not the view of Vaca that the Fifth Circuit in embraced in this case. | <s>[INST] Oh, it... you don't really... you've been living... the unions have been living with this Vaca standard for a long time, and I have noticed in all the cases that come around here that you've been really hurt very much by that element in it. I had thought the judges thought about arbitrariness that no fool in ... |
That may be. But haven't you been living with the arbitrariness standard interpreted in that way for a long time? | We have been living with a regime which is going to end with this case one way or another in which different courts have taken different views. The Seventh Circuit, for example, has consistently taken the view that I have just outlined. Other courts have been back and forth, some distinguishing between negotiation and ... | <s>[INST] That may be. But haven't you been living with the arbitrariness standard interpreted in that way for a long time? (Sentiment: We have been living with a regime which is going to end with this case one way or another in which different courts have taken different views. The Seventh Circuit, for example, has co... |
Does the Seventh Circuit go right across the board with this test? | --It had up until the Thomas case, when it appeared to draw a distinction between negotiation and nonnegotiation. | <s>[INST] Does the Seventh Circuit go right across the board with this test? (Sentiment: --It had up until the Thomas case, when it appeared to draw a distinction between negotiation and nonnegotiation.) [/INST] </s> |
Well, that's the last case, isn't it? | I-- | <s>[INST] Well, that's the last case, isn't it? (Sentiment: I--) [/INST] </s> |
In the Seventh Circuit? | --I believe there is subsequent case which could be fairly read to go back the other way, but I'm not positive. I'd like to, if I could, save a moment or two for rebuttal. | <s>[INST] In the Seventh Circuit? (Sentiment: --I believe there is subsequent case which could be fairly read to go back the other way, but I'm not positive. I'd like to, if I could, save a moment or two for rebuttal.) [/INST] </s> |
Very well, Mr. Gold. Mr. Harper, we'll hear now from you. | And I'd like to point out for the Justice that, you know, our discovery got stopped along the way. So the discovery at this particular point in time is far from being completed. We focused only on the pilot negotiators who made the decision or were involved in the decision at the end to settle the strike. I thought the... | <s>[INST] Very well, Mr. Gold. Mr. Harper, we'll hear now from you. (Sentiment: And I'd like to point out for the Justice that, you know, our discovery got stopped along the way. So the discovery at this particular point in time is far from being completed. We focused only on the pilot negotiators who made the decision... |
Is this on the discrimination point? | It is on both the arbitrariness of the settlement and on the discrimination point. With regard to the discrimination point, the court of appeals relied on a very expansive reading of Erie Resistor, which this Court later rejected in the IFA case just last year. So, this would-- | <s>[INST] Is this on the discrimination point? (Sentiment: It is on both the arbitrariness of the settlement and on the discrimination point. With regard to the discrimination point, the court of appeals relied on a very expansive reading of Erie Resistor, which this Court later rejected in the IFA case just last year.... |
What case last year, Mr. Gold? | --Trans World Air Lines v. Flight Attendants. I think it's 489 U.S.-- | <s>[INST] What case last year, Mr. Gold? (Sentiment: --Trans World Air Lines v. Flight Attendants. I think it's 489 U.S.--) [/INST] </s> |
But what did the district court assume on that point? Mustn't the district court have assumed that the union was uncertain as to what involved? | --Yes. | <s>[INST] But what did the district court assume on that point? Mustn't the district court have assumed that the union was uncertain as to what involved? (Sentiment: --Yes.) [/INST] </s> |
Well, is it entitled to do that on a motion for summary judgment? | I don't think it assumed it. There were 1,600 pages of deposition records or the motion for summary judgment showing that the union was proceeding on the basis that this wasn't locked up, that it was dealing with a hostile employer, and that making a deal was the best course. That was his finding viewed that that was i... | <s>[INST] Well, is it entitled to do that on a motion for summary judgment? (Sentiment: I don't think it assumed it. There were 1,600 pages of deposition records or the motion for summary judgment showing that the union was proceeding on the basis that this wasn't locked up, that it was dealing with a hostile employer,... |
But that was controverted, wasn't it? And wasn't... among the things controverted, wasn't the certainty of the law one of the controverted matters? | --But are we going to be in a position where the certainty of the law is to depend on whether a jury says that a single district court decision somewhere else makes the law certain? I don't think that at all the court... the district court was right in terms of understanding that there was uncertainty, and the union wa... | <s>[INST] But that was controverted, wasn't it? And wasn't... among the things controverted, wasn't the certainty of the law one of the controverted matters? (Sentiment: --But are we going to be in a position where the certainty of the law is to depend on whether a jury says that a single district court decision somewh... |
Whether there's uncertainty is not the issue. On your theory, the issue is whether the union itself was uncertain. That... that's a good faith-- | Well, that was not disputed. The only dispute... the court of appeals decided that it was certain, not that the union was not uncertain. By the same token, we're having a discussion here, and Mr. Harper insists on having a discussion, whether this deal was better or worse than an unconditional return to work. The maste... | <s>[INST] Whether there's uncertainty is not the issue. On your theory, the issue is whether the union itself was uncertain. That... that's a good faith-- (Sentiment: Well, that was not disputed. The only dispute... the court of appeals decided that it was certain, not that the union was not uncertain. By the same toke... |
--I think you've answered the question Mr Gold. | --Okay. | <s>[INST] --I think you've answered the question Mr Gold. (Sentiment: --Okay.) [/INST] </s> |
We'll hear argument first this morning in No. 90-97, American Hospital Association v. National Labor Relations Board. Mr. Holzhauer. | Mr. Chief Justice, and may it please the Court: This case presents the narrow statutory question of whether the National Labor Relations Act permits the Board to establish a rule determining that eight specific bargaining units, and only those units, are appropriate for every acute care hospital in the United States. W... | <s>[INST] We'll hear argument first this morning in No. 90-97, American Hospital Association v. National Labor Relations Board. Mr. Holzhauer. (Sentiment: Mr. Chief Justice, and may it please the Court: This case presents the narrow statutory question of whether the National Labor Relations Act permits the Board to est... |
Mr. Holzhauer, we have to determine what the meaning of the "in each case" language is in this context, and it occurs to me that this Court, for example, has an obligation to consider each case on its plenary docket, and yet we search for rules of general applicability to be applied to these cases. | That's right. | <s>[INST] Mr. Holzhauer, we have to determine what the meaning of the "in each case" language is in this context, and it occurs to me that this Court, for example, has an obligation to consider each case on its plenary docket, and yet we search for rules of general applicability to be applied to these cases. (Sentiment... |
Now, isn't the Board doing essentially a similar thing in searching for some kind of rule of general applicability for most cases, leaving, of course, its extraordinary circumstances out if necessary? | Sure. Well, the Board is making that argument. They're arguing that the extraordinary circumstances exception allows it to consider in each case whether there are exceptions allowing a different result from the rule. But the extraordinary circumstances exception, which the Board did not say in its rulemaking allowed ca... | <s>[INST] Now, isn't the Board doing essentially a similar thing in searching for some kind of rule of general applicability for most cases, leaving, of course, its extraordinary circumstances out if necessary? (Sentiment: Sure. Well, the Board is making that argument. They're arguing that the extraordinary circumstanc... |
Counsel, suppose the Board... is this, what, is this the second rule that the NLRB has ever adopted? It's not much more than the second, anyway. | I believe that this is the first substantive rule they have adopted. | <s>[INST] Counsel, suppose the Board... is this, what, is this the second rule that the NLRB has ever adopted? It's not much more than the second, anyway. (Sentiment: I believe that this is the first substantive rule they have adopted.) [/INST] </s> |
The first substantive one. I think they have-- | Right. It's not the procedural rules. | <s>[INST] The first substantive one. I think they have-- (Sentiment: Right. It's not the procedural rules.) [/INST] </s> |
--Now, but there's a lot of law that the NLRB has made. | That's right. | <s>[INST] --Now, but there's a lot of law that the NLRB has made. (Sentiment: That's right.) [/INST] </s> |
I mean, all sorts of rules about what constitutes an unfair labor practice, and so forth. | That's right. | <s>[INST] I mean, all sorts of rules about what constitutes an unfair labor practice, and so forth. (Sentiment: That's right.) [/INST] </s> |
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