Sunday, June 26, 2011

Dreamliner Proving a Nightmare: Boeing's NLRB Dispute

The Boeing 787 "Dreamliner" is a 21st century long-range jet airliner developed to keep Boeing the leader in the increasingly-competitive global aviation market. Boeing boasts that the Dreamliner is the company's most fuel-efficient craft ever and the world's first major airliner to use composite materials for most of its construction. [2]. Boldly referred to as "America's next great export" by Boeing Executive Vice President and General Counsel J. Michael Luttig, the Dreamliner was greeted with great enthusiasm by airline carriers lining up to upgrade their fleets. [3]

In order to accommodate demand, Boeing sought certain assurances from International Association of Machinists and Aerospace Workers Union, District 751 ("IAM District 751"), the machinists union in Washington state. Boeing proposed a controversial 10-year, no-strike contract to the union. This extraordinary demand - prohibiting union employees from engaging in the protected, legal activity of striking - was undoubtedly the result of decades of tumultuous relations between Boeing and its workers. Since 1977, IAM District 751 has gone on strike five times, including a 58-day walkout three years ago that cost Boeing an estimated $2 billion [4]. IAM District 751 rejected the contract and sought a less-radical agreement to manufacture the Dreamliner.

On October 28, 2009, Boeing announced that they would move much of the Dreamliner construction to a brand new plant in South Carolina, pointing to labor stability as a key factor in the decision. South Carolina is a so-called "right-to-work" state where labor costs are lower, unions are virtually non-existent and workers are generally more compliant. [5] Boeing spent about $1 billion building the South Carolina plant and hired approximately 1,000 workers, and the new plant will begin constructing Dreamliners this August. [6]
On April 20, 2010, the NLRB Acting General Counsel Lafe Solomon filed a complaint with the National Labor Relations Board alleging that Boeing had violated two sections of the National Labor Relations Act because its statements to IAM District 751 were coercive to employees and its actions were motivated by a desire to retaliate for past strikes and to chill future strike activity. IAM District 751 President Tom Wroblewski summarized the complaint: "By opening the line in Charleston, Boeing tried to intimidate our members with the idea that the company would take away their work unless they made concessions at the bargaining table. But the law is clear: American workers have a right to pursue collective bargaining, and no company – not even Boeing – can threaten or punish them for exercising those rights." [8]
Labor law precedent clearly prohibits "runaway shops," where a company shuts down a unionized plant and re-opens a non-union one somewhere else to avoid or punish the union. In this sense, removing available work in retaliation for legally protected activity is prohibited, just like discrimination based on religion, race or gender. Nevertheless, the board has historically given companies a great deal of latitude in making capital decisions and often defers to the rational business judgment of an employer. Boeing General Counsel Lutting has stated "Boeing has every right under both federal law and its collective bargaining agreement to build additional U.S. production capacity outside of the Puget Sound region." [9] Boeing also notes that the Washington state plants remain active on some Dreamliner production and the majority of other Boeing projects, with the South Carolina plant simply an expansion.
The ramifications of this case are potentially massive and the political rhetoric is already heated. Many Democrats supporting the union and Republicans supporting Boeing are embracing the litigation as a national referendum on the future of unions even beyond what has happened this past year in Wisconsin and other states. While the case is far from over and many of the legal arguments are nuanced (for example, had Boeing simply opened the South Carolina plant without proposing the 10-year, no-strike contract to IAM District 751 there would likely be no violations of labor law), the fact of the matter is that despite Boeing's highly-touted record of creating jobs and maintaining a strong workforce in the United States, no company above the law and Boeing will likely have to argue the merits of its decision-making for several years.
1. Norris, G.; Thomas, G.; Wagner, M., and Forbes Smith, C. (2005). Boeing 787 Dreamliner - Flying Redfined.  Aerospace Technical Publications International. ISBN 0-9752341-2-9.
2. Boeing. "Commercial Airplanes - 787 Dreamliner - Background."  Press Release.

Saturday, June 11, 2011

Guest Blog: Professor William Wiecek: "The Rule of Law: A Holmesian Critique"

Oliver Wendell Holmes
Library of Congress
When Oliver Wendell Holmes, Jr. took the oath of office as Associate Justice of the Massachusetts Supreme Judicial Court on December 15, 1882, he swore to uphold the Commonwealth's Constitution, which included in Art. XXX of its Declaration of Rights, a guarantee of separation of powers, "to the end it may be a government of laws and not of men."  He thereby formally committed, in the most solemn way possible, to sustain the rule of law.  The constitutional clause, originally drafted by John Adams a century earlier, encapsulates a major element of the rule-of-law ideal: subordination of all government authority and officials to law.  It serves as a synecdoche for other limits on governmental power that comprise the rule of law: no one is above the law; all are equal before the law; no one can be punished except for violation of known law, and by the established procedures of law.

But what did Justice Holmes think of the rule of law that he had sworn to uphold?  He did not write explicitly on the subject, so we must infer his views from his thoughts on related topics.   A comparison of Holmes's ideas to the rule-of-law tradition is arresting: while Holmes did not reject the ideal of the rule of law,  the major landmarks of his thought sometimes sit uncomfortably with it.

Take, for example, Holmes's positivism, most clearly expressed in "The Path of the Law" (1897).  In the tradition of Jeremy Bentham and John Austin, Holmes sought to dissociate the commands of law from the precepts of morality.  Law is the command of the sovereign, not a secular restatement of divine law.  Recall his insistence that law is no more than the prediction of what courts will do, producing his "bad man" theory of law.  The rule of law, by contrast, has an implicit moral basis.  Why, for example, should laws not be retroactive?  There may be pragmatic answers to that question, but surely the underlying impulse is a moral one: it would be wrong to hold someone liable for an act innocent at the time it was done.

Similarly with Holmes's pragmatism, and his rejection of formalist approaches to law ("the life of the law has not been logic, it has been experience").  If we evaluate a law's validity not by criteria of logic and consistency but only by the results it produces, is that entirely conformable to the rule of law?  Should we altogether discard formalist approaches to law, which aim to guarantee the certainty that the rule of law seeks for its norms of conduct?  Does a results-oriented approach to law run the risk of unprincipled opportunism, of justifying a law because it produces results we like?

Holmes was an early proponent of the "living constitution," a view currently reviled by Justice Antonin Scalia and other conservatives.  "The provisions of the Constitution are not mathematical formulas having their essence in their form," Holmes wrote in 1914; " they are organic, living institutions transplanted from English soil. Their significance is vital, not formal; it is to be gathered not simply by taking the words and a dictionary, but by considering their origin and the line of their growth."[1]  Six years later he insisted that "the case before us must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago."[2]  The rule of law might is not incompatible with the biological metaphors that capture Holmes's vision of the Constitution, but its formalistic aspects (as criteria of a law's validity) constrain the ever-evolving organism that is the law, and direct its growth.
Finally, the rule of law seeks to constrain state power in order to protect individual liberty.  Yet the basic postulate of Holmes's jurisprudential thought is that law ultimately rests on power, "the will of the dominant forces of the community" to have their way.[3]  He expressed this aphoristically many times: "the foundation of jurisdiction is physical power."[4]  Legislation is "a means by which a body, having the power, put burdens disagreeable to them on the shoulders of somebody else."[5]  The measure  of a law's merit is its "correspondence to the actual equilibrium of force in the community."[6]  He carried these views into his judging. Though he eventually was persuaded to confine the power of the state in the interests of personal freedom to communicate,[7] he had originally adopted a much more permissive approach[8], one that left ample room for governmental suppression of speech.[9]  The point here is not to berate Holmes's early indifference to speech freedoms, but rather to point out that the rule of law was not well served by his original encounters with the First Amendment.  Even more egregious an offense against rule-of-law ideals was Buck v. Bell (1927),[10] where Holmes in his enthusiasm for eugenics validated gross intrusions on bodily integrity and reproductive autonomy through involuntary sterilization of those whom the state deemed unfit (and whom Holmes casually dismissed as "imbeciles").
We assume that all American jurists, especially towering figures like Oliver Wendell Holmes, support the ideal of the rule of law.  But we can make that assumption only because the idea itself is gauzy and manipulable in common discourse, and because we sometimes put our desire to admire great jurists ahead of our willingness to evaluate their ideas critically.

[1] Gompers v. United States, 233 U.S. 604, 610 (1914) .
[2]  Missouri v. Holland, 252 U.S. 416, 433 (1920).
[3] Holmes to Felix Frankfurter,  24 March 1914,  in Holmes and Frankfurter: Their Correspondence, 1912-1934 (1996), 19.
[4] McDonald v. Mabee, 243 U.S. 90, 91 (1917).
[5] Holmes, "The Gas-Stokers' Strike," (1873), in Sheldon M. Novick, ed., The Collected Works of Justice Holmes: Complete Public Writings and Selected Judicial Opinions of Oliver Wendell Holmes (1995),  I, 323
[6] Holmes, "Montesquieu," in Collected Works, III, 425, 429.
[7] Abrams v. United States, 250 U.S. 616 (1919) (Holmes, J. dissenting); Gitlow v. New York, 268 U.S. 652 (1925) (Holmes, J. dissenting).
[8] McAuliffe v. City of New Bedford, 155 Mass. 216, 29 N.E. 517 (1892); Schenck v. United States, 249 U.S. 47 (1919); Frohwerk v. United States, 249 UI.S. 204 (1919); Debs v. United States, 249 U.S. 211 (1919).
[9] Cf. Dennis v. United States, 341 U.S. 494 (1951), an application of Holmes's  clear-and-present-danger formula via Learned Hand's Carroll Towing balancing approach.
[10] 274 U.S. 200 (1927).

William M. Wiecek is the Congdon Professor of Public Law and Legislation at the Syracuse University College of Law.  He is also a Professor of History at Syracuse University's Maxwell School.  He has written or edited seven books, as well as numerous articles and chapters, on slavery and its abolition, republicanism, nineteenth-century constitutional development, nuclear power, and the United States Supreme Court.  Professor Wiecek has written a history of the United States Supreme Court from 1941 to 1953, covering the chief-justiceships of Harlan Fiske Stone and Fred Vinson, for the Holmes Devise History of the Supreme Court of the United States. For his authorship of this work, he was awarded the John Phillip Reid Prize by the American Society for Legal History for the best book in legal history published in 2006.  He has taught courses in legal and constitutional history, constitutional law, property, race and law, corporations, civil procedure, and Roman law.