Fort Stewart Schools v. Federal Labor Relations Authority Page 16

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Media for Fort Stewart Schools v. Federal Labor Relations Authority

Audio Transcription for Oral Argument - January 10, 1990 in Fort Stewart Schools v. Federal Labor Relations Authority

Antonin Scalia:

--Not... not for the union to show that there will be benefits that will compensate against the increase... taxing on the budget, but for the employer to prove that there aren't.

Is that right?

William E. Persina:

--Well, yes, Your Honor.

The burden is placed on the employer, and I think its properly placed, at least as an initial matter, for two very good reasons.

Number one, it is the employer who is asserting the right.

Number two, it is the employer who knows best what its operation is all about and what sort of effects a particular bargaining proposal will have on that operation as a cost matter.

And again, I come back to this sort of analysis as being something that is not at all, or should not be at all, alien to... to agency employers.

So we don't think that the burden is inappropriately placed.

What the... what the employer must show is that the benefits do not offset the costs.

And again, that is a matter that is... we think should be within the ability of agency managers to do.

I would assume they do it in the absence of a compensating benefits test for a particular course of action they may have under consideration.

Antonin Scalia:

I would... I would stop hectoring you on this if... if you would say that when the agency says the employer must show the benefits do not offset cost, the agency means economic benefits do not outset the cost.

But you... you cannot say that, can you?

William E. Persina:

Well, Your Honor, I cannot say that the Authority has ever addressed whether it will look at only economic benefits, or it will look at economic and intangible benefits.

I would really refer... the Authority's spoken word on this is in the Wright-Patterson test where it gives examples of compensating benefits.

Byron R. White:

Could I ask... I probably should know, but here we've got two... two different representatives for the United States Government.

Do you have... how is that?

[Laughter]

William E. Persina:

It's not the first time the question's been asked, Your Honor.

Byron R. White:

Well, I'm sure it isn't and... and I'm not sure I've ever had an answer.

William E. Persina:

Well, Congress, when it decided to regulate labor relations affairs in the Federal government, set up an independent establishment in the Executive Branch--

Byron R. White:

Right.

William E. Persina:

--the Authority, to adjudicate matters between the private party, unions--

Byron R. White:

Right.

William E. Persina:

--and a governmental agency in its capacity as an employer.

Antonin Scalia:

Humphries Executor v. United States is the answer, right?

William E. Persina:

Excuse me, Your Honor?

Antonin Scalia:

Humphries Executor v. United States.

William E. Persina:

Well, I believe that is the case.

I... there is a... there is a Supreme Court case and I do not have the cite at my fingertips--