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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. Larkin will go with the merits of the administrative procedure. International remail involves the shipment in bulk of large volumes of business documents, publications, and business correspondence to post offices abroad for mailing to the ultimate addressee. For example, American banks that have overseas depositors, credit card companies that have overseas cardholders have to send the monthly statements. Rather than go to the post office, affixing U.S. Postal Service's international air rate, and sending them off to... for delivery abroad, under international remail the courier will pick up those monthly statements in bulk, will... they would be unstamped. They would be put on an air plane that evening, and they would be delivered to a foreign post office the following morning, where they would be mailed at... usually at negotiated rates for ultimate delivery by that post office or by another foreign post office in some other country. The international remail involves a savings of time. Some shipments are delivered in half the time it would take the United States Postal Service to deliver, to deliver the same correspondence. It involves a savings in money. Some of... the record shows that savings of up to 50 percent exist in certain market for delivery by international remail. These savings of time and money save American jobs. The record shows that if remail were unavailable that certain publishers would move their printing operations abroad. Under the example I noted before, if remail were unavailable, that is, if low cost, reliable and quick service for delivery of statements were unavailable, the banks or credit card companies may think... start thinking about moving their computer billing operations abroad. So in short, this saves, saves American jobs. It promotes exports, and it does so without necessarily cutting into the business of the Postal Service because international trade is not a zero sum game. Now let me turn to the standing issue. The... in 1979 the United States Postal Service suspended the operation of the restrictions on private carriage of letters-- | <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 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. Larkin will go with the merits of the administrative procedure. International remail involves the shipment in bulk of large volumes of business documents, publications, and business correspondence to post offices abroad for mailing to the ultimate addressee. For example, American banks that have overseas depositors, credit card companies that have overseas cardholders have to send the monthly statements. Rather than go to the post office, affixing U.S. Postal Service's international air rate, and sending them off to... for delivery abroad, under international remail the courier will pick up those monthly statements in bulk, will... they would be unstamped. They would be put on an air plane that evening, and they would be delivered to a foreign post office the following morning, where they would be mailed at... usually at negotiated rates for ultimate delivery by that post office or by another foreign post office in some other country. The international remail involves a savings of time. Some shipments are delivered in half the time it would take the United States Postal Service to deliver, to deliver the same correspondence. It involves a savings in money. Some of... the record shows that savings of up to 50 percent exist in certain market for delivery by international remail. These savings of time and money save American jobs. The record shows that if remail were unavailable that certain publishers would move their printing operations abroad. Under the example I noted before, if remail were unavailable, that is, if low cost, reliable and quick service for delivery of statements were unavailable, the banks or credit card companies may think... start thinking about moving their computer billing operations abroad. So in short, this saves, saves American jobs. It promotes exports, and it does so without necessarily cutting into the business of the Postal Service because international trade is not a zero sum game. Now let me turn to the standing issue. The... in 1979 the United States Postal Service suspended the operation of the restrictions on private carriage of letters--) [/INST] </s> |
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 private express statutes. The 1979 suspension related to both domestic urgent letters and international urgent letters. Soon after the suspension, the practice... the international side of the urgent letter rule was used both to deliver urgent letters to... individually to foreign addressees and also to deliver international letters, urgent letters in bulk, to foreign post offices. In 1985 the United States Postal Service took exception to the delivery of letters, urgent letters, to foreign post offices and initiated a rule making to prohibit that practice. The users of remail, the remailers themselves with the help of the administration and members of Congress, participated in that rule making and the... eventually the Postal Service turned around and issued a rule that said remail was okay. It was lawful. The American Postal Workers Union and the National Association of Letter Carriers then sued the Postal Service, saying that the suspension was improper and therefore violated the postal monopoly laws. They alleged as their injury the possibility of losses of jobs, postal employment jobs, and the district court found that to meet the Article III injuring fact test but dismissed the case on the grounds that the postal employees were not in the zone of interest of the postal monopoly laws. The court of appeals reversed, and we're here on petition for certiorari. | <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... those laws... the restrictions on private carriage of letters are referred to the postal monopoly laws, also referred to in the briefs as the private express statutes. The 1979 suspension related to both domestic urgent letters and international urgent letters. Soon after the suspension, the practice... the international side of the urgent letter rule was used both to deliver urgent letters to... individually to foreign addressees and also to deliver international letters, urgent letters in bulk, to foreign post offices. In 1985 the United States Postal Service took exception to the delivery of letters, urgent letters, to foreign post offices and initiated a rule making to prohibit that practice. The users of remail, the remailers themselves with the help of the administration and members of Congress, participated in that rule making and the... eventually the Postal Service turned around and issued a rule that said remail was okay. It was lawful. The American Postal Workers Union and the National Association of Letter Carriers then sued the Postal Service, saying that the suspension was improper and therefore violated the postal monopoly laws. They alleged as their injury the possibility of losses of jobs, postal employment jobs, and the district court found that to meet the Article III injuring fact test but dismissed the case on the grounds that the postal employees were not in the zone of interest of the postal monopoly laws. The court of appeals reversed, and we're here on petition for certiorari.) [/INST] </s> |
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 whether a party asserting a violation of an act was the party who's rightfully entitled to pursue that suit. The private express statutes were originated in the late 19... late 1700's as a general tax provisions and as a means of paying for post roads. The only time that Congress ever debated the postal monopoly laws were in 1845. And at that time, there were two... two reasons advanced for the postal monopolies. The first one was to help bind and build the frontier and connect it to the rest of the country. The second reason was to control the flow of information. At the time it was believed unfair that some individuals might take advantage of commercially useful information that travelled faster than the mails could carry them. Never in the history of any consideration of, of a postal monopoly laws were the interests of postal employees ever considered. Therefore, we contend that the postal employees are not within the zone of interest of the postal monopoly laws and the case was properly dismissed by the district court. The unions here have not seriously challenged... in fact they appear to have abandoned the contention that the private express statutes give them standing. They now turn to the Postal Reorganization Act of 1970 as the appropriate statute to look to for standing purposes for zone of interest purposes. We believe that the Postal Reorganization Act does not confer standing because it was no more a postal employment act... it no more promoted postal employment... Congress no more considered postal employment... that is, in numbers... in promulgating that act-- | <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 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 whether a party asserting a violation of an act was the party who's rightfully entitled to pursue that suit. The private express statutes were originated in the late 19... late 1700's as a general tax provisions and as a means of paying for post roads. The only time that Congress ever debated the postal monopoly laws were in 1845. And at that time, there were two... two reasons advanced for the postal monopolies. The first one was to help bind and build the frontier and connect it to the rest of the country. The second reason was to control the flow of information. At the time it was believed unfair that some individuals might take advantage of commercially useful information that travelled faster than the mails could carry them. Never in the history of any consideration of, of a postal monopoly laws were the interests of postal employees ever considered. Therefore, we contend that the postal employees are not within the zone of interest of the postal monopoly laws and the case was properly dismissed by the district court. The unions here have not seriously challenged... in fact they appear to have abandoned the contention that the private express statutes give them standing. They now turn to the Postal Reorganization Act of 1970 as the appropriate statute to look to for standing purposes for zone of interest purposes. We believe that the Postal Reorganization Act does not confer standing because it was no more a postal employment act... it no more promoted postal employment... Congress no more considered postal employment... that is, in numbers... in promulgating that act--) [/INST] </s> |
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... on the reviewability on the Administrative Procedures Act issue raised by the Government by the Postal Service.) [/INST] </s> |
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 because they ended Civil Service protection for employees, and it was predicted to reduce postal employment in the long run because it was predicted to, to help the Post Office automate and help the Post Office get the Congress off its back to keep it from automating. And, therefore, the purposes of the act, of the 1970 act, do not bring the postal employees within the zone of interest of the private express statutes. | <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 Postal Reorganization Act was intended to make the Post Office into a more businesslike... Government-owned corporation. The unions opposed the Postal Reorganization Act because they ended Civil Service protection for employees, and it was predicted to reduce postal employment in the long run because it was predicted to, to help the Post Office automate and help the Post Office get the Congress off its back to keep it from automating. And, therefore, the purposes of the act, of the 1970 act, do not bring the postal employees within the zone of interest of the private express statutes.) [/INST] </s> |
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 thought it would cost them jobs. If that's so--) [/INST] </s> |
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 their objections, and Congress--) [/INST] </s> |
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 to... with the Court's permission, I'd like to save the... my remaining time for rebuttal. | <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 bringing the postal employees within the zone of interest of the postal monopoly laws. I'd like to... with the Court's permission, I'd like to save the... my remaining time for rebuttal.) [/INST] </s> |
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 would be lost. The question is the failure of the Postal Service to examine the economic tradeoffs that are involved. For example, international mail, just like any other class of mail, is expected to make a contribution to the maintenance of the Postal Service's institutional infrastructure. The Court has examined the rate-making procedures set forth in the Postal Reorganization Act in the National Greeting Card case. And essentially there are two types of costs which arise in the Postal Service rate-making scheme. One are attributable costs, those costs which can be attributed to a specific class of mail, and other cost, which is simply assigned on an equitable basis, based on statutory criteria, to all the classes of mail in order to preserve the Postal Service's institutional infrastructure. Now, while international mail is outside the scheme of the Postal Rate Commission, it has historically... and the evidence we submitted in the record makes that clear... it has historically made a contribution to the, to the Postal Service's institutional costs. | <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 attempted to forecast how much revenue would be lost. The question is the failure of the Postal Service to examine the economic tradeoffs that are involved. For example, international mail, just like any other class of mail, is expected to make a contribution to the maintenance of the Postal Service's institutional infrastructure. The Court has examined the rate-making procedures set forth in the Postal Reorganization Act in the National Greeting Card case. And essentially there are two types of costs which arise in the Postal Service rate-making scheme. One are attributable costs, those costs which can be attributed to a specific class of mail, and other cost, which is simply assigned on an equitable basis, based on statutory criteria, to all the classes of mail in order to preserve the Postal Service's institutional infrastructure. Now, while international mail is outside the scheme of the Postal Rate Commission, it has historically... and the evidence we submitted in the record makes that clear... it has historically made a contribution to the, to the Postal Service's institutional costs.) [/INST] </s> |
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--) [/INST] </s> |
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 inappropriate plaintiffs, those plaintiffs whose interests are so marginal or inconsistent with the statute that presumption is fair that that particular plaintiff would not be a reasonable plaintiff for the Court to hear. But once someone has satisfied the zone of interest test and comes before the Court as a reasonable plaintiff, I think the cases then allow that plaintiff to challenge the legality under the statute without regard to the specifics of his interests. Just to finish up the point on costs. The question that the Postal Service did not examine was what effect would the loss of revenue that it forecasted have on the remaining users of the mail. This is very, very simplistic for anyone who is familiar with the rate-making process, but the Postal Service calculated the cost under its worst-case scenario as a little bit over 3 percent of its total revenue. That's an enormous amount of money. 3 percent, if it were distributed evenly over the rest of the rate structure, could mean, for example, close to a penny increase on the first class stamp. The question is what is the rationale for making the remaining users of the mail pay ultimately more for their postage so that the customers of the international remailers could have, in essence, free access to the remailers. Maybe there is a public interest rationale. The Postal Service never articulated it. That's what troubled the court of appeals and that's why the court of appeals remanded the case back to the Postal Service to articulate that kind of rationale. | <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 should the Court hear from. It's, in effect, to screen out inappropriate plaintiffs, those plaintiffs whose interests are so marginal or inconsistent with the statute that presumption is fair that that particular plaintiff would not be a reasonable plaintiff for the Court to hear. But once someone has satisfied the zone of interest test and comes before the Court as a reasonable plaintiff, I think the cases then allow that plaintiff to challenge the legality under the statute without regard to the specifics of his interests. Just to finish up the point on costs. The question that the Postal Service did not examine was what effect would the loss of revenue that it forecasted have on the remaining users of the mail. This is very, very simplistic for anyone who is familiar with the rate-making process, but the Postal Service calculated the cost under its worst-case scenario as a little bit over 3 percent of its total revenue. That's an enormous amount of money. 3 percent, if it were distributed evenly over the rest of the rate structure, could mean, for example, close to a penny increase on the first class stamp. The question is what is the rationale for making the remaining users of the mail pay ultimately more for their postage so that the customers of the international remailers could have, in essence, free access to the remailers. Maybe there is a public interest rationale. The Postal Service never articulated it. That's what troubled the court of appeals and that's why the court of appeals remanded the case back to the Postal Service to articulate that kind of rationale.) [/INST] </s> |
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 costs that are going to be saved. That's inherent in your position, isn't it? | 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 are some costs that are going to be saved. That's inherent in your position, isn't it? (Sentiment: That's... what you're driving at is whether or not the net... whether there would be a loss of net revenue.) [/INST] </s> |
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 portion of that loss to the growing practice of remailing. So there is something in the record-- | <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 and textually a comment by the Postal Service that attributes at least a significant portion of that loss to the growing practice of remailing. So there is something in the record--) [/INST] </s> |
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 of net revenue, it may be that we're not going to prevail ultimately in the court of appeals. That... having addressed the-- | <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 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 of net revenue, it may be that we're not going to prevail ultimately in the court of appeals. That... having addressed the--) [/INST] </s> |
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 cases.) [/INST] </s> |
--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 there was a type of service that the public needed the Postal Service couldn't provide. So, in theory at least, the mail volume that was generated by the urgent letter exemption is not volume that the Postal Service was already processing. | <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 there was any diversion. The philosophical assumption of the urgent letter exemption was that there was a type of service that the public needed the Postal Service couldn't provide. So, in theory at least, the mail volume that was generated by the urgent letter exemption is not volume that the Postal Service was already processing.) [/INST] </s> |
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 from the urgent letter exemption. As to... briefly on the question of judicial review and whether or not the... this case can probably brought under the Administrative Procedure Act. The only justification that's been offered for raising that issue for the first time is the notion that this is in essence a jurisdictional claim, and the authority for that proposition is Block v. Community Nutrition Institute. I would point out that what Block was focusing on is whether the substantive statute precluded review in its entirety, not simply a question of whether the APA was applicable. And it was on that basis that the Court characterized the preclusion... the issue as jurisdictional. There's no basis in the case law for treating the availability of the APA as jurisdictional. In fact, Califano v. Sanders settled that the APA was not a jurisdictional statute. This... the jurisdictional statutes involved here were the Federal question statute and section 409 of the Postal Reorganization Act. That's what creates jurisdiction in the district courts for bringing this lawsuit and seeking the relief that we sought. At that point, I would point out, it's the Government that focused and defined the issues in terms of the APA zone of interest test. So I think there's no basis for that issue being raised here for the first time. | <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 the loss in revenue or job impact from the urgent letter exemption. As to... briefly on the question of judicial review and whether or not the... this case can probably brought under the Administrative Procedure Act. The only justification that's been offered for raising that issue for the first time is the notion that this is in essence a jurisdictional claim, and the authority for that proposition is Block v. Community Nutrition Institute. I would point out that what Block was focusing on is whether the substantive statute precluded review in its entirety, not simply a question of whether the APA was applicable. And it was on that basis that the Court characterized the preclusion... the issue as jurisdictional. There's no basis in the case law for treating the availability of the APA as jurisdictional. In fact, Califano v. Sanders settled that the APA was not a jurisdictional statute. This... the jurisdictional statutes involved here were the Federal question statute and section 409 of the Postal Reorganization Act. That's what creates jurisdiction in the district courts for bringing this lawsuit and seeking the relief that we sought. At that point, I would point out, it's the Government that focused and defined the issues in terms of the APA zone of interest test. So I think there's no basis for that issue being raised here for the first time.) [/INST] </s> |
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 by the statute in question. Now, the argument advanced by petitioner in this case focuses primarily on the notion that the private express statutes are different from the Postal Reorganization Act, which is the organic statute involved. And we're claiming a violation of the postal... of the private express statutes, which date back to the seven... 1700's, when there were no postal unions, and therefore we couldn't be within the zone of interest. I'd like to address that argument. First of all, let's start with what it is we're contending, because I think that's the beginning of a standing inquiry. Our contention on the merits is that the Postal Service acted in excess of its authority, that it abused its discretion. It acted arbitrarily in... and capriciously. The source of the authority to act that we claim the Postal Service exceeded, or the source of discretion which we say it abused, is 39 U.S.C. 601(b). That is the one provision which the Postal Service claims is the source of its authority to suspend the private express statutes. The argument that is being made is that 601 should not be considered part of the Postal Reorganization Act. It should be considered some sort of 19th century enactment. And let me digress and just address the history here, which is summarized in our brief. | <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 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 by the statute in question. Now, the argument advanced by petitioner in this case focuses primarily on the notion that the private express statutes are different from the Postal Reorganization Act, which is the organic statute involved. And we're claiming a violation of the postal... of the private express statutes, which date back to the seven... 1700's, when there were no postal unions, and therefore we couldn't be within the zone of interest. I'd like to address that argument. First of all, let's start with what it is we're contending, because I think that's the beginning of a standing inquiry. Our contention on the merits is that the Postal Service acted in excess of its authority, that it abused its discretion. It acted arbitrarily in... and capriciously. The source of the authority to act that we claim the Postal Service exceeded, or the source of discretion which we say it abused, is 39 U.S.C. 601(b). That is the one provision which the Postal Service claims is the source of its authority to suspend the private express statutes. The argument that is being made is that 601 should not be considered part of the Postal Reorganization Act. It should be considered some sort of 19th century enactment. And let me digress and just address the history here, which is summarized in our brief.) [/INST] </s> |
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 be carried outside the mail. In essence, if an individual puts appropriate postage on a letter, seals it, and marks it appropriately, the letter can be carried outside the mail. That privilege of carrying letters outside the mail was enacted in 1852. In 1852 the Postal Service... Congress enacted a statute which gave the Postal Service the authority to manufacture embossed envelopes with postal on the envelopes and permitted the Post Office... and further provided that those... letters sealed in those envelopes could be carried outside the mail. In 1864, Congress passed another statute which authorized the Postmaster General to suspend the 1852 law. In other words, to revoke the privilege of carrying letters outside the mail. That original 1864 enactment never authorized the Post Office Department to suspend the monopoly, and that was clear as the statute developed in 1872, in 1938. And it wasn't until 1960 when the... when Title 39 was revised, that the present structure came into effect. | <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 conditions under which mail that would otherwise be covered by the private express statutes can be carried outside the mail. In essence, if an individual puts appropriate postage on a letter, seals it, and marks it appropriately, the letter can be carried outside the mail. That privilege of carrying letters outside the mail was enacted in 1852. In 1852 the Postal Service... Congress enacted a statute which gave the Postal Service the authority to manufacture embossed envelopes with postal on the envelopes and permitted the Post Office... and further provided that those... letters sealed in those envelopes could be carried outside the mail. In 1864, Congress passed another statute which authorized the Postmaster General to suspend the 1852 law. In other words, to revoke the privilege of carrying letters outside the mail. That original 1864 enactment never authorized the Post Office Department to suspend the monopoly, and that was clear as the statute developed in 1872, in 1938. And it wasn't until 1960 when the... when Title 39 was revised, that the present structure came into effect.) [/INST] </s> |
--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 private express statutes, which dates back to the 19th century. It's a modern development.) [/INST] </s> |
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.) [/INST] </s> |
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 terms of suspensions of the private express statutes when it debated the Postal Reorganization Act.) [/INST] </s> |
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 something quite different from that. | 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 authority to suspend the monopoly for reasons of policy with respect to certain specific classes of mail, after the Postal Reorganization Act was enacted. That's an historical response. | <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 talking about is something quite different from that. (Sentiment: 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 authority to suspend the monopoly for reasons of policy with respect to certain specific classes of mail, after the Postal Reorganization Act was enacted. That's an historical response.) [/INST] </s> |
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 Postal Service. | 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 the Postal Service. (Sentiment: Well, this--) [/INST] </s> |
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. The policies of the Postal Reorganization Act cannot be achieved without the monopolies. Similarly, the purposes of the monopoly, viewed post-1970, are to effectuate and guarantee the conditions under which the policies of the Postal Organization Act can be realized. The court of appeals, I think fairly, characterized the private express statutes as a linchpin of the entire statutory scheme. Let me also point out, and I think this is an important-- | <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 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. The policies of the Postal Reorganization Act cannot be achieved without the monopolies. Similarly, the purposes of the monopoly, viewed post-1970, are to effectuate and guarantee the conditions under which the policies of the Postal Organization Act can be realized. The court of appeals, I think fairly, characterized the private express statutes as a linchpin of the entire statutory scheme. Let me also point out, and I think this is an important--) [/INST] </s> |
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 cases from Data Processors on through Clarke would have been different. In Data Processors, for example, the claim, the only claim on the merits that was made, was that the allowance of national banks to perform data processing services was a violation of the National Bank Act. When it came to standing, the court looked not the national... the policies of the National Bank Act but to the policies of the National Bank Service Corporation Act of 1962, a much later enactment. And it developed a zone of interest tests on the basis of the interests that were protected by that statute. Similarly, in the Investment Corporation case that followed just a couple of years later, the claim on the merits that was advanced by the plaintiffs was that the regulation allowing... you know, the ruling allowing national banks to provide investment services was in violation of the Glass-Steigal Act. Well, there was no finding at any time by the court that the Glass-Steigal Act was designed to protect the interests of businesses in the stock brokerage business. It was designed to protect and safeguard the interest of the national banks. Nonetheless, the court, citing Data Processors, found that the policies recognized in Data Processors were sufficient to confirm standing. That also true in Clarke. In Clarke the statute that formed the basis for the claim on the merits were the anti-branching provisions of title XII. Instead of focusing narrowing on the anti-branching policies, the court looked to the overall policies of the National Bank Act. So, I think-- | <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 if that were true then there would be... the holdings of the banking law cases from Data Processors on through Clarke would have been different. In Data Processors, for example, the claim, the only claim on the merits that was made, was that the allowance of national banks to perform data processing services was a violation of the National Bank Act. When it came to standing, the court looked not the national... the policies of the National Bank Act but to the policies of the National Bank Service Corporation Act of 1962, a much later enactment. And it developed a zone of interest tests on the basis of the interests that were protected by that statute. Similarly, in the Investment Corporation case that followed just a couple of years later, the claim on the merits that was advanced by the plaintiffs was that the regulation allowing... you know, the ruling allowing national banks to provide investment services was in violation of the Glass-Steigal Act. Well, there was no finding at any time by the court that the Glass-Steigal Act was designed to protect the interests of businesses in the stock brokerage business. It was designed to protect and safeguard the interest of the national banks. Nonetheless, the court, citing Data Processors, found that the policies recognized in Data Processors were sufficient to confirm standing. That also true in Clarke. In Clarke the statute that formed the basis for the claim on the merits were the anti-branching provisions of title XII. Instead of focusing narrowing on the anti-branching policies, the court looked to the overall policies of the National Bank Act. So, I think--) [/INST] </s> |
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 enactment which is, which is different, although related to, the enactment which is... which will control the merits. And I think this is clearly one of those cases. I think we've got a much stronger case here, because the relationship between the statutes at issue is so intimate. The policies involved are critically interrelated. They don't make sense without one or the other. And for that reason, I think it's fair to characterize the zone of interest as the zone of interest that would flow from the Postal Reorganization Act and the private express statutes viewed as an integrated, functional whole. And I certainly think that there's enough legislative history to indicate that that's how Congress thought of the relationship between-- | <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 given case, it may very well be appropriate that... to hear from a plaintiff who is claiming an interest from an enactment which is, which is different, although related to, the enactment which is... which will control the merits. And I think this is clearly one of those cases. I think we've got a much stronger case here, because the relationship between the statutes at issue is so intimate. The policies involved are critically interrelated. They don't make sense without one or the other. And for that reason, I think it's fair to characterize the zone of interest as the zone of interest that would flow from the Postal Reorganization Act and the private express statutes viewed as an integrated, functional whole. And I certainly think that there's enough legislative history to indicate that that's how Congress thought of the relationship between--) [/INST] </s> |
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 service at a uniform rate to thinly populated rural areas if it's going... if at the same time private companies can skim off profitable mail service in highly populated urban areas. That's essentially the underlying rationale of the private express statutes to... as found by the Governor's 1973 report. It's to prevent cream skimming. Cream skimming must be prevented in order to allow the Postal Service not only to provide universal service but to charge the same rate for transporting a letter from Washington, say, to Alaska. | <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 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 service at a uniform rate to thinly populated rural areas if it's going... if at the same time private companies can skim off profitable mail service in highly populated urban areas. That's essentially the underlying rationale of the private express statutes to... as found by the Governor's 1973 report. It's to prevent cream skimming. Cream skimming must be prevented in order to allow the Postal Service not only to provide universal service but to charge the same rate for transporting a letter from Washington, say, to Alaska.) [/INST] </s> |
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 devastating impact on volume. I think that it's fair to say the system--) [/INST] </s> |
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 tradeoff which the Postal Service never examined. | <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 between whether or not rates go up more than or less than the rate of inflation. It's that tradeoff which the Postal Service never examined.) [/INST] </s> |
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 the Postal Service. That's essentially the rationale that was articulated in the 1973 Governor's Report. It's the rationale that underscores the conditions which the Postal Service imposed when it suspended the private express statutes for urgent letters, and it's that basic rationale that the Postal Service ignored. There's one other point I want to make, just to follow up on Justice Scalia's question. One of the... another one of the policies of the Postal Reorganization Act which I may have neglected to mention is the requirement that the Postal Service break even, that it... it's... it cannot run at a loss. It cannot make a profit. Over time the Postal Service is to break even. And the basic thrust of that, in terms of the 1970 reorganization, was to ensure that the Postal Service would no longer ultimately have to depend on subsidies from the taxpayer. That's another aspect of the Postal Reorganization Act which is dependent on the maintenance of the private express statutes. | <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 those particular areas where rates... where rates... where a lower rate could be charged by a private business while competing with the Postal Service. That's essentially the rationale that was articulated in the 1973 Governor's Report. It's the rationale that underscores the conditions which the Postal Service imposed when it suspended the private express statutes for urgent letters, and it's that basic rationale that the Postal Service ignored. There's one other point I want to make, just to follow up on Justice Scalia's question. One of the... another one of the policies of the Postal Reorganization Act which I may have neglected to mention is the requirement that the Postal Service break even, that it... it's... it cannot run at a loss. It cannot make a profit. Over time the Postal Service is to break even. And the basic thrust of that, in terms of the 1970 reorganization, was to ensure that the Postal Service would no longer ultimately have to depend on subsidies from the taxpayer. That's another aspect of the Postal Reorganization Act which is dependent on the maintenance of the private express statutes.) [/INST] </s> |
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 administration in the White House. After the strike was settled, the unions and the administration met, settled on the broad outlines of the statute, and presented it to Congress. That PRA is unique in that aspect. But I think it clearly demonstrates that the employees are within the zone of interest in that act. | <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 collectively bargained by the unions and representatives of the administration in the White House. After the strike was settled, the unions and the administration met, settled on the broad outlines of the statute, and presented it to Congress. That PRA is unique in that aspect. But I think it clearly demonstrates that the employees are within the zone of interest in that act.) [/INST] </s> |
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 Association and Continental Airlines and its Chief Executive, Mr. Lorenzo. The strike began in '83 after... 1983 after Continental went into bankruptcy and abrogated the collective bargaining agreement between the parties. And the events here concern the situation in August, September, and October of 1985. At that point, the union was faced with the following facts of life. One, despite substantial expense and unstinting effort, the union had failed to significantly affect Continental's business. Secondly, Continental at that point had 1,600 working pilots, either permanent replacements or crossovers, and there were 1,000 strikers. Third, Continental, in recognition of that, had withdrawn recognition of the union. Fourth, Continental had put out what was called its 85-5 vacancy bid which would have tied up all the most desireable jobs in the air line, the captain and first officer jobs, for the foreseeable future. And finally, insofar as strikers had bid for those jobs, Continental had sued to invalidate those bids as fraudulent. Against that background, the union, after internal meetings and discussions, authorized the negotiation of the a settlement. As matters turned out, given the difficulties to only be expected in such a bitter strike and with such a large company, the settlement proceeded under the auspices of the bankruptcy court, which had jurisdiction over Continental at that point. After very intensive efforts, a long, complex document emerged called the Order and Award which is in the joint appendix. | <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 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 Association and Continental Airlines and its Chief Executive, Mr. Lorenzo. The strike began in '83 after... 1983 after Continental went into bankruptcy and abrogated the collective bargaining agreement between the parties. And the events here concern the situation in August, September, and October of 1985. At that point, the union was faced with the following facts of life. One, despite substantial expense and unstinting effort, the union had failed to significantly affect Continental's business. Secondly, Continental at that point had 1,600 working pilots, either permanent replacements or crossovers, and there were 1,000 strikers. Third, Continental, in recognition of that, had withdrawn recognition of the union. Fourth, Continental had put out what was called its 85-5 vacancy bid which would have tied up all the most desireable jobs in the air line, the captain and first officer jobs, for the foreseeable future. And finally, insofar as strikers had bid for those jobs, Continental had sued to invalidate those bids as fraudulent. Against that background, the union, after internal meetings and discussions, authorized the negotiation of the a settlement. As matters turned out, given the difficulties to only be expected in such a bitter strike and with such a large company, the settlement proceeded under the auspices of the bankruptcy court, which had jurisdiction over Continental at that point. After very intensive efforts, a long, complex document emerged called the Order and Award which is in the joint appendix.) [/INST] </s> |
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 it was an obstacle to reorganization. And finally it was in this October period that the union came forward. The court had also indicated that it wanted, if it was going to put its efforts into it, to have authorized representatives and to have a binding conclusion to the matter. And that, too, was very much in the union's interest as the negotiators saw it, because of the grave distrust between the parties. It was a substantial matter to the union that whatever was concluded would be enforceable, because, as I say, the level of distrust between Mr. Lorenzo and ALPA was substantial at the time. In late October this agreement as embodied in the Order and Award was reached, and thereafter this lawsuit followed. The lawsuit was brought by a class of striking pilots alleging that the union, in taking the course that it did, had violated the statutory duty of fair representation. After 18 months of-- | <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 as July to get the parties to settle this dispute, because it was an obstacle to reorganization. And finally it was in this October period that the union came forward. The court had also indicated that it wanted, if it was going to put its efforts into it, to have authorized representatives and to have a binding conclusion to the matter. And that, too, was very much in the union's interest as the negotiators saw it, because of the grave distrust between the parties. It was a substantial matter to the union that whatever was concluded would be enforceable, because, as I say, the level of distrust between Mr. Lorenzo and ALPA was substantial at the time. In late October this agreement as embodied in the Order and Award was reached, and thereafter this lawsuit followed. The lawsuit was brought by a class of striking pilots alleging that the union, in taking the course that it did, had violated the statutory duty of fair representation. After 18 months of--) [/INST] </s> |
--[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 construct and on that view of the standard to be applied determined that summary judgment was appropriate. On appeal, the court of appeals disagreed on two grounds. First, the court of appeals took the position that the duty of fair representation goes not only to the union's bona fides, but also provides for judicial review of the substance of the union's action. As the court put it, union actions must be based on relevant, permissible factors and must be a rational result of such factors, as rational was determined either by a judge or a jury. And the court of appeals determined that a finder of fact could find that the agreement put members in a substantially worse position than if no settlement had been made and the strike had been abandoned and individuals had made unconditional offers to return. In addition, the court-- | <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 deal that the union thought it could construct and on that view of the standard to be applied determined that summary judgment was appropriate. On appeal, the court of appeals disagreed on two grounds. First, the court of appeals took the position that the duty of fair representation goes not only to the union's bona fides, but also provides for judicial review of the substance of the union's action. As the court put it, union actions must be based on relevant, permissible factors and must be a rational result of such factors, as rational was determined either by a judge or a jury. And the court of appeals determined that a finder of fact could find that the agreement put members in a substantially worse position than if no settlement had been made and the strike had been abandoned and individuals had made unconditional offers to return. In addition, the court--) [/INST] </s> |
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 court of... the trier of fact should have determined whether this deal was good enough when compared with what would have happened hypothetically in the event that the union had made an unconditional offer to return to work. | <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 court of appeals, on the other hand as we understand it, and this is the line of demarkation, said that the court of... the trier of fact should have determined whether this deal was good enough when compared with what would have happened hypothetically in the event that the union had made an unconditional offer to return to work.) [/INST] </s> |
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 reading the court of appeals' opinion what goes into this calculus. And that is one of our prime concerns. | <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 the calculus of factors that are to be taken into account are both disregarded. We don't know from reading the court of appeals' opinion what goes into this calculus. And that is one of our prime concerns.) [/INST] </s> |
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 solely on the basis of what was good for the members of this bargaining unit? | 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 if-- | <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 determined solely on the basis of what was good for the members of this bargaining unit? (Sentiment: 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 if--) [/INST] </s> |
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 that would impair our position nationwide and other bargaining units would be hurt. Now, can they take into account other bargaining units in the deal that they make or must their... all their actions be for the best interest of the single bargaining unit at issue? | --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 will only get on in the labor market for that calling and skill what the union is able to do, that would be a legitimate consideration. Now where one would come out if the union was firmly of the view that it would advance the situation of A and B somewhere else while harming these people, I find a much more difficult question. But I do think that, in a world in which you have competition in the product and service markets for the union be forced to look only at the situation of the particular unit, as if it was a discrete entity, when in fact it isn't, would be to... wouldn't be to further the notion the court of appeals had, mainly a rationality standard. It would be to require the union to proceed in a way that is irrational. I think we're very, very far from that on anything in this case. The negotiators proceeded who were out of this system's board, this master executive counsel. The Continental system appeared to proceed and took their view as they were trying to get the best deal that they could get, not the best deal for... in a different and wider perspective. It's our view that the court of appeals erred in subjecting this agreement to this kind of substantive scrutiny. We believe that the duty of fair representation, as the Court said in Steele, is a duty to act in behalf of all those for whom it acts without hostile, namely irrelevant or invidious, discrimination against them. | <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 strike, but that would impair our position nationwide and other bargaining units would be hurt. Now, can they take into account other bargaining units in the deal that they make or must their... all their actions be for the best interest of the single bargaining unit at issue? (Sentiment: --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 will only get on in the labor market for that calling and skill what the union is able to do, that would be a legitimate consideration. Now where one would come out if the union was firmly of the view that it would advance the situation of A and B somewhere else while harming these people, I find a much more difficult question. But I do think that, in a world in which you have competition in the product and service markets for the union be forced to look only at the situation of the particular unit, as if it was a discrete entity, when in fact it isn't, would be to... wouldn't be to further the notion the court of appeals had, mainly a rationality standard. It would be to require the union to proceed in a way that is irrational. I think we're very, very far from that on anything in this case. The negotiators proceeded who were out of this system's board, this master executive counsel. The Continental system appeared to proceed and took their view as they were trying to get the best deal that they could get, not the best deal for... in a different and wider perspective. It's our view that the court of appeals erred in subjecting this agreement to this kind of substantive scrutiny. We believe that the duty of fair representation, as the Court said in Steele, is a duty to act in behalf of all those for whom it acts without hostile, namely irrelevant or invidious, discrimination against them.) [/INST] </s> |
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 cases is that arbitrary in that sense means hostile action against an individual or a subgroup of the bargaining force. In other words, the union generally processes grievances by doing certain preliminary steps. An individual shows that without any justification, any reason, the union doesn't do those things for him and he is harmed. We would think that that is arbitrary and that it adds something to the concept of discriminatory, because discrimination, certainly as it was used in Steele, has a notion of a class-based wrong. So what we would suggest is that this test is a test of good faith and honesty of purpose as the Court said in Ford Motor and that what arbitrary means is that discrimination, which is either class based or is simply inexplicable and harmful, is a wrong. | <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 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 cases is that arbitrary in that sense means hostile action against an individual or a subgroup of the bargaining force. In other words, the union generally processes grievances by doing certain preliminary steps. An individual shows that without any justification, any reason, the union doesn't do those things for him and he is harmed. We would think that that is arbitrary and that it adds something to the concept of discriminatory, because discrimination, certainly as it was used in Steele, has a notion of a class-based wrong. So what we would suggest is that this test is a test of good faith and honesty of purpose as the Court said in Ford Motor and that what arbitrary means is that discrimination, which is either class based or is simply inexplicable and harmful, is a wrong.) [/INST] </s> |
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 duty doesn't create a liability for honest mistakes, so--) [/INST] </s> |
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 renegotiation of agreements even if it doesn't apply in what are arguably simpler cases involving grievance handling. And third, we argue that the court of appeals was certainly wrong in terms of the way it understood whatever duty of adequate representation that exists, that instead of looking at the matter in terms of the practical and legal uncertainties at the time, looking at the situation that actually faced the union, and looking also at the fact that the ultimate agreement provided for benefits for the striking employees such as severance pay, recall in seniority order, and so on that were not legally required, that this was not an agreement which was... is challengeable even under a duty of care. | <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 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 renegotiation of agreements even if it doesn't apply in what are arguably simpler cases involving grievance handling. And third, we argue that the court of appeals was certainly wrong in terms of the way it understood whatever duty of adequate representation that exists, that instead of looking at the matter in terms of the practical and legal uncertainties at the time, looking at the situation that actually faced the union, and looking also at the fact that the ultimate agreement provided for benefits for the striking employees such as severance pay, recall in seniority order, and so on that were not legally required, that this was not an agreement which was... is challengeable even under a duty of care.) [/INST] </s> |
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-- (Sentiment: Well, basically--) [/INST] </s> |
--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 cases, higher than negligence. But our-- | <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 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 cases, higher than negligence. But our--) [/INST] </s> |
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 kind of a limitation, or don't we find that the arbitrary component of Vaca against Sipes' standard imports some degree of reasonableness inquiry? | --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 nonveterans was a distinction which was invidious and irrelevant or relevant to the union's task. So the reasonableness was in setting up the classifications. As we point out, the Court did not go on to see whether veterans got too much seniority or too little; and we certainly acknowledge that, in terms of drawing distinctions, there is a reasonableness component. The second point I would like to make is that the Lockridge case which is the last case which fully explores the nature of this duty, like Steele, which was the first case, talks entirely in terms of honesty and good faith. In terms of why there should be such a duty, if I could in... given Justice Kennedy's question, we believe that the answer is that this is a statutory duty, and it comes out of a statute whose overriding function was to take judges and juries out of the substance of labor relations and to put those tasks into the hands the parties. We discuss and cite the H.K. Porter case and Senator Walsh's famous statement there that the act takes the parties to the negotiating table and leaves them there. To have judges and juries saying this deal is not good enough, even though it was honest, even though it was based on a fair judgment of the circumstances and that you had to do it a different way is to get-- | <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 for that kind of a limitation, or don't we find that the arbitrary component of Vaca against Sipes' standard imports some degree of reasonableness inquiry? (Sentiment: --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 nonveterans was a distinction which was invidious and irrelevant or relevant to the union's task. So the reasonableness was in setting up the classifications. As we point out, the Court did not go on to see whether veterans got too much seniority or too little; and we certainly acknowledge that, in terms of drawing distinctions, there is a reasonableness component. The second point I would like to make is that the Lockridge case which is the last case which fully explores the nature of this duty, like Steele, which was the first case, talks entirely in terms of honesty and good faith. In terms of why there should be such a duty, if I could in... given Justice Kennedy's question, we believe that the answer is that this is a statutory duty, and it comes out of a statute whose overriding function was to take judges and juries out of the substance of labor relations and to put those tasks into the hands the parties. We discuss and cite the H.K. Porter case and Senator Walsh's famous statement there that the act takes the parties to the negotiating table and leaves them there. To have judges and juries saying this deal is not good enough, even though it was honest, even though it was based on a fair judgment of the circumstances and that you had to do it a different way is to get--) [/INST] </s> |
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] </s> |
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 mind would ever have agreed to this. This is completely irrational. Now, that's a... that's a... that isn't looking over the shoulders of the union or really second guessing you. | 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 his right mind would ever have agreed to this. This is completely irrational. Now, that's a... that's a... that isn't looking over the shoulders of the union or really second guessing you. (Sentiment: 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.) [/INST] </s> |
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 some not. I do want to emphasize that-- | <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 consistently taken the view that I have just outlined. Other courts have been back and forth, some distinguishing between negotiation and some not. I do want to emphasize that--) [/INST] </s> |
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 burden of the argument in your brief was that the settlement was much worse than a return to surrender, but you don't really rely on that? | <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 or were involved in the decision at the end to settle the strike. I thought the burden of the argument in your brief was that the settlement was much worse than a return to surrender, but you don't really rely on that?) [/INST] </s> |
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. So, this would--) [/INST] </s> |
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 indisputed. But-- | <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, and that making a deal was the best course. That was his finding viewed that that was indisputed. But--) [/INST] </s> |
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 was proceeding on the basis of uncertainty. | <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 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 was proceeding on the basis of uncertainty.) [/INST] </s> |
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 master executive counsel voted against an unconditional return to work before the negotiators went to negotiate. And that's simply part of the problem of having-- | <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 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 master executive counsel voted against an unconditional return to work before the negotiators went to negotiate. And that's simply part of the problem of having--) [/INST] </s> |
--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. We believe that the language and legislative history of Section 9(b) of the act, as well as the contemporaneous interpretation of the act by the Board, make it clear that the rule is not permitted. Section 9(b) requires that the Board determine the appropriate unit in each case. The Board and the unions argue that those words refer solely to the proceeding in which the Board is to issue unit determinations. In their view, as long as the Board goes through the formality of the hearing the requirements of the statute are met, even if that formality is an empty one leading in every case to the same preordained result. Of course Section 9(c) already requires hearings in contested representation cases, so in the Board's view the "in each case" language, which was added deliberately by amendment to the Wagner bill, adds nothing to the statute. Well, those words do mean something, and their meaning is demonstrated not only by the words themselves, but by both the legislative history of Section 9(b) and the Board's contemporaneous and longstanding interpretation of that section. The statutory language and its history were clear enough in 1980 and again in 1982 for the Board itself to hold that the adoption of a rule that a unit of registered nurses would be appropriate in every case would be, quote, 9(b) responsibility to decide in each case whether the requested unit is appropriate. | <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 establish a rule determining that eight specific bargaining units, and only those units, are appropriate for every acute care hospital in the United States. We believe that the language and legislative history of Section 9(b) of the act, as well as the contemporaneous interpretation of the act by the Board, make it clear that the rule is not permitted. Section 9(b) requires that the Board determine the appropriate unit in each case. The Board and the unions argue that those words refer solely to the proceeding in which the Board is to issue unit determinations. In their view, as long as the Board goes through the formality of the hearing the requirements of the statute are met, even if that formality is an empty one leading in every case to the same preordained result. Of course Section 9(c) already requires hearings in contested representation cases, so in the Board's view the "in each case" language, which was added deliberately by amendment to the Wagner bill, adds nothing to the statute. Well, those words do mean something, and their meaning is demonstrated not only by the words themselves, but by both the legislative history of Section 9(b) and the Board's contemporaneous and longstanding interpretation of that section. The statutory language and its history were clear enough in 1980 and again in 1982 for the Board itself to hold that the adoption of a rule that a unit of registered nurses would be appropriate in every case would be, quote, 9(b) responsibility to decide in each case whether the requested unit is appropriate.) [/INST] </s> |
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: That's right.) [/INST] </s> |
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 case-by-case determination of the... of each case, in fact it did not rely on the extraordinary circumstances exception for the purpose now asserted by the Board, that exception is so narrow as to be illusory. The Board has made it clear in the rulemaking that it will no longer consider the individual facts and circumstances of each hospital, and it will disregard all of the factors it regards as critical in every other industry, and that it always regarded as critical in this industry. | <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 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 case-by-case determination of the... of each case, in fact it did not rely on the extraordinary circumstances exception for the purpose now asserted by the Board, that exception is so narrow as to be illusory. The Board has made it clear in the rulemaking that it will no longer consider the individual facts and circumstances of each hospital, and it will disregard all of the factors it regards as critical in every other industry, and that it always regarded as critical in this industry.) [/INST] </s> |
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> |
Subsets and Splits