Sometimes You Get Sued and Your Best Employees Come To Your Defense...

It's every manager's worst nightmare. You did the right thing with some problematic employees, but then you got investigated/sued.

Getting sued is a scarlet letter.  Without question, it's much better not to get sued, but if you do the right thing and get sued as a result, sometimes you LOOK LIKE A BETTER LEADER THAN OTHERS AROUND YOU.

Such is the case with Missouri Softball Coach Ehren Earleywine, who's had a lot of success at Mizzou but was recently under investigation.  Here's a basic rundown of what transpired with the help Earlywine of reporting from the Kansas City Star:

1. Earleywine had been under investigation by the athletic department, and later the main campus through MU’s Office for Civil Rights & Title IX, for more than four months.

2. Former athletic director Mack Rhoades, who resigned July 13 to accept a similar position at Baylor, launched the investigation after receiving a complaint from several players alleging verbal abuse by Earleywine.

3. Missouri’s compliance department quietly interviewed team members during the season before the team’s Unity Council publicized the investigation May 7 by announcing the Tigers were playing under protest in a show of support to Earleywine.

4. After a first-round exit in the SEC softball tournament, Earleywine asked the players to end the protest, which Mizzou’s players agreed to do before hosting an NCAA regional. The Tigers dominated regional play, but lost to Michigan in the NCAA super regional round.

5. Missouri has concluded its Title IX investigation into Earleywine with no finding that he violated federal non-discrimination statutes.

Earleywine, a Jefferson City, Mo., native, is 453-154 in 10 seasons as Missouri’s coach. The Tigers have appeared in a NCAA regional every season of Earleywine’s tenure, advancing to a super regional eight times and appearing in three consecutive Women’s College World Series from 2009-11.

Here's what Earleywine said when the complaints first became public:

“There’s a couple of kids on the team that probably have things, exchanges between myself and them or different scenarios, that they would have liked to see handled differently,” Earleywine said. “I’m tough on kids. I make them accountable and there’s discipline in our program. I’m a throwback. If that’s demeaning, maybe, but it’s not about them, the person, it’s about their performance as a player.”

“I’m trying to build resiliency and toughness in people, and hoping that they’ll be better people when they graduate from here because they’ve been through some tough stuff,” Earleywine said. “Have I used some inappropriate language? Yes. Is that grounds for firing a coach? I think if you set that precedent, there won’t be a coach left in America. Outside of that, I’m not ashamed of anything that I’ve done.”
 
Here's what managers of people should learn from this:
 
1. There's an art to dealing with employees who won't get with the program. While you should treat everyone with respect, low performers and disrupters have to be addressed.
 
2. Tough decisions are yours and yours alone.  Don't expect anyone to help you.  This includes addressing low performance and attitude as the whole team sees it.  You've got to figure out the best way to deal with it.  Your goals should be to get performance out of the team as a whole, develop individual talent and treat everyone with respect.  But you have to be tough when circumstances and specific individuals call for it.
 
3. If you do what's outlined above - get performance out of the team as a whole, develop individual talent and treat everyone with respect - people will rally behind you if something bad happens - like a lawsuit, investigation, etc.
 
Of course, your employees can't attend a meeting under protest and make it public in a way that matters, right?
 
But your ability to deal with employees who won't get with the program is one of the most important things you can do.  And the reality is this - if you manage teams for more than a decade (especially if you manage a department with more than 10 people and multiple managers) and you haven't been the subject of a lawsuit or investigation of what I'll call nuisance value - you probably haven't been managing for results hard enough.
 
You play to win the game. Treat all with respect, but don't accept disruption or refusal to be part of a team.  Good HR pros will have your back - as well as some advice about ways you can avoid the investigation/lawsuit next time.
 

Amazon Sues Target For Non-Compete: 3 Things We Can Learn (or Remember)...

Dilbert

Every once in awhile we get reminded of the issue of non-competes - this week is one of those weeks. Amazon vs Target this time around, here's your level set:

Amazon.com is suing to enforce a noncompete agreement involving former logistics executive Arthur Valdez, who recently was hired by Target, a key rival in the retail market.

In a lawsuit filed Monday in King County Superior Court, Amazon says it wants to keep Valdez, who until recently oversaw Amazon’s international supply-chain expansion operations, from using the “confidential strategic knowledge” he possesses at Target.

Amazon argues that Valdez, who is set to become Target’s chief supply chain and logistics officer starting March 28, is in breach of an agreement that binds him to an 18-month timeout in which he cannot compete against his former employer.

The lawsuit underscores Amazon’s competitive streak — and the oversight it exerts over its intellectual property as rivals encroach on fields it helped develop. In 2014, Amazon sued Zoltan Szabadi, who left a job with Amazon Web Services for Google’s cloud-computing unit. It’s not clear whether these legal broadsides always work: Szabadi’s LinkedIn profile shows he has worked at Google uninterrupted since May 2014.

You're either yawning at this point, or you're interested - so I'll make it quick. Dig deep into this article from the Seattle Times and you'll see some key things we all should remember (or learn if you don't have a lot of experience with these things).  Lessons include:

1. Non-Competes are there to DARE you to go to work for a competitor.  Who's a competitor? Hell, we're not going to tell you that. We're daring you, after all.  Better than you think we'll frame anyone under the sun as a competitor. That's enough to keep most of our talent from jumping ship, even for a better offer.

2. You can still hire a person under a non-compete, and there are ways to mitigate your risk. One of the best ways to protect your company after hiring someone under a non-compete is to put them in a role that won't use the IP under the agreement.  If you're hiring a sales person, it's to let the former company know that the sales pro in question won't be calling on former customers for the duration of the Non-Compete.  Target claims to have tried to do that:

Target spokeswoman Molly Snyder said in an email: “We have taken significant precautions to ensure that any proprietary information remains confidential and we believe this suit is without merit.

3. If both companies are hard-headed about their positions related to the Non-Compete, the company with a significantly bigger checkbook wins.  Always remember this kids. Amazon vs Target is a couple of heavyweights who will spend what they need to, and a judge will ultimately decide. But, if you're a small company and you decide to pick off key talent from a bigger company, get ready to get drained. The company with the bigger checkbook will win, because they'll just bleed you dry on legal fees. Eventually, your C-level folks in a smaller company are going to say, "enough", and you might even be in the position of terminating someone you hired that had a non-compete - which is probably the worst position you can be in.

Can you hire someone under a non-compete?  Yes!  If you think the company in question might balk at it, you need to be prepared. 

Optics related to the role they're going in at your company matter.  

So does the size of your checkbook.  Lawyers cost money. Film at 11.


HEY BIG COMPANY: Are Your Management Trainees Bristling At Being Salaried Employees?

Ah yes... The time honored tradition of the management trainee position.  You know it, you love it. You recognize the value.

But are you legal when it comes to classifying those trainees as exempt?

Sigh - I know.

Someday my boys are going to grow up and they may land in a management training program right out of school.  If they even so much as give a peep about not getting comped appropriately for the work they're doing as grunts, you know I'm going to tell them ST_U and do the job.  Because you and I know that's the way the world works.

They have access to a program.  The best way to get ahead is to work hard and get promoted 5 times before you're 30.  That's what the ballers do.

Of course, most of your management trainees aren't ballers -and that's where most of the lawsuits about management trainees not getting hourly pay get started.  Burger King recently experienced this with I-can-t-keep-calm-i-m-a-management-trainee their class of Management Trainees - More from the always sexy TopClassActions.com:

"According to allegations in a recently filed overtime pay class action lawsuit brought by a former employee, Burger King Corp. misclassified its operations coaches and trainees as exempt employees in order to stiff them of overtime pay, saving the fast-food chain millions of dollars.

By classifying the coaches and trainees as exempt employees with no supervisory or administrative responsibilities, whose jobs consisted of performing “menial laborious tasks, including, operating cash registers, cleaning bathrooms, greeting and serving customers, and cooking food,” Burger King intentionally and repeatedly violated the federal Fair Labor Standards Act, according to the unpaid overtime class action lawsuit filed by plaintiff Ronald R."

Dunn kids - don't ever do complain about this.  I'm serious. I'll hunt you down - maybe even take back the Toyota I did you a solid by giving you.  But I digress - here's more:

“This was done so the Defendant would not have to pay their employees overtime while they were waiting for positions to open up, as Defendant continually hired for this position where the supply far exceeded the available positions,” according to wage and hour class action lawsuit.

“Due to high turnover, Defendant filled these spots like the NFL keeps a practice squad, waiting until someone quit or was fired, but in the interim working many hours in restaurants performing non-exempt duties without being compensated for overtime hours worked. This decision was made at the highest corporate level, was wrong, and the actors knew it,” the class action lawsuit states.

“The policy saves millions of dollars in labor costs,” according to unpaid overtime class action lawsuit.

New hires in Burger King’s corporate leadership development program, who would eventually become coaches and managers, had to work at least four days a week, up to 13 hours a day, cooking hamburgers and French fries and cleaning restrooms, the class action lawsuit alleges. Once in management, the trainees would be expected to know how every aspect of the restaurant is run so that they can train other workers. But the overtime pay lawsuit maintains that overtime is mandated during the training program, during which “reasonable lunch breaks” are denied.

According to the unpaid overtime class action lawsuit, Ronald spent five months in the trainee program, where he regularly worked 60-hour work weeks. Even after he was promoted to a sales, profit and operations coach, Ronald claims that he never supervised two or more full-time employees, the threshold needed to satisfy the executive exemption.

The overtime pay class action lawsuit, filed in a Florida federal court, seeks to represent a nationwide Class of Burger King employees who in the past three years have been classified as trainees in the leadership program and/or who have worked as a sales, profit and training coach in one of Burger King’s more than 10,000 restaurants across the country.

There are some 1,500 employees who may qualify to be part of the Class, the wage and hour class action lawsuit states. Burger King is headquartered in Miami."

Bonus points by the NFL practice squad reference.  BTW, lunch is when the business you joined makes money.  But I continue to digress - you're no baller.  Get prepared for a life in the trenches, my class action suit friends.


All the Best Uber Drivers I've Had Want to be Contractors, Not Employees...

If you follow Uber at all (ride-sharing instead of taxis for the uninitiated), you probably saw this week that a court in California declared an Uber driver an employee instead of a contractor.

Earlier today, I saw this piece by the LinkedIn Editorial team - Chariot is Decidely Not the Uber of Employers. Uber

Which is to say that a lot of liberal sources think it's a travesty that Uber can manage its company on the back of contractors.  These folks think that's unfair - that all Uber drivers should be employees.

It's easy to agree with that, but here's the dirty little secret - the best Uber drives don't want to be employees - they want to be contractors.

Case in point - I'm about 40 rides into my experience as a Uber customer.  Here's a rundown of the best drivers I've had:

--The commercial real estate agent who was going through a messy divorce and needed money.  He not only did the ride, but gave me his card for all my ride needs moving forward in that city.

--The Middle Eastern guy who was finishing up college and told me about the software idea he and his brother we're working on the side.

--The middle manager in Corporate America who needed money for a trip his son was taking and was doing rides on the side.

Translation - the thing they loved about Uber was the flexibility - they could drive when they wanted to, and all of them had an end goal in mind.  They weren't looking to be employees, they were looking to be opportunistic and use the service towards their goals.  

Oh, and 2 of the 3?  Offered me bottled water that came out of their own pocket. Hmmm...

They were attempting to be entrepreneurial.  You gotta love that.  America, etc.

Making Uber drivers employees will end up in the "museum of unintended consequences"... We'll sue a firm like Uber into oblivion to force what we think is right, and as a result, Uber will staff up with employees during regular business hours - normal 8 hour shifts, etc.

And the entrepreneurial people I described using Uber for their own goals - they'll be dead to Uber because they can't be employees.

I get the laws.  But sometimes we kill the spirit of the best labor with laws.

Drivers who want to be employees or at least drive a car someone else owns?  They should go to a more formal place called taxi companies (although if the libbies dug in, they'd find not everything is kosher there).  And everything you experience at taxi companies is how we got to Uber in the first place.


Is Anyone Else Fascinated by the Abercrombie and Fitch Supreme Court Case?

Surely you're in professional awe of some of the issues in play in the current Abercrombie and Fitch Supreme Court case focused on Religious Discrimination, right?

Need a reset?  Here you go:

An Abercrombie and Fitch manager declined to hire Samantha Elauf, then 17 years old, at a Tulsa, Okla., store because the head scarf she wore to a job interview violated the company’s “look policy,” a dress code requiring staff to wear attire similar to what the store sells.

While managers correctly believed Ms. Elauf was a Muslim, she didn’t tell them her religion and its requirements, so the company's position is that it shouldn’t be liable for discrimination. To do so, A&F lawyers claim, “is asking employers to treat applicants differently based on stereotypes or assumption about whether something is likely a religious practice.”

Ugh.  Look policies and a connection to religious beliefs.  How you feel about this probably depends on whether you think candidates should always identify any personal appearance markers (head scarf, beards, etc) as being representative of religious beliefs.

If they identify, there's no question.  But it they don't identify, should you have the right as an employer to dismiss as a candidate based on something as nebulous as "look policy"?

Double ugh.

Here's a couple of Supreme Court Justices weighing in over the last week:

JUSTICE ALITO: "All right. Let's say four people show up for a job interview at Abercrombie. And this is going to sound like a joke, but, you know, it's not. (Laughter.) So the first is a Sikh man wearing a turban; the second is a Hasidic man wearing a hat; the third is a Muslim woman wearing a hijab; the fourth is a Catholic nun in a habit. Now, do you think ... that those people have to say, 'We just want to tell you, we're dressed this way for a religious reason. We’re not just trying to make a fashion statement.'?"

JUSTICE KAGAN: "But you're essentially saying that the problem with the rule is that it requires Abercrombie to engage in what might be thought of as an awkward conversation, to ask some questions. Now, people can disagree about whether one can ask those questions in a way that's awkward at all, but you’re saying we should structure the whole legal system to make sure that there is no possibility of that awkward conversation ever taking place. But the alternative to that rule is a rule where Abercrombie just gets to say, 'We're going to stereotype people and prevent them from getting jobs. We'll never have the awkward conversation because we're just going to cut these people out and make sure that they never become Abercrombie employees.' Now, between those two options, the option of using a stereotype to make sure that somebody never gets a job and using a stereotype to have an awkward conversation, which does this statute seem to think is the worst problem?"

It will be interesting to see how this one comes back.

BTW, Elauf if now employed at an Urban Outfitters location.  No joke.  They hired her, and it would seem their look policy is a little different that A&Fs - which is probably apparent to EVERYONE.


The Non-Compete Sliding Scale: Degree of Talent vs. Quality of HR Pro...

Got a call from a good friend who had been presented with the first non-compete of her career to sign.  Her questions were good ones - what should I do? - and more importantly - Am I allowed to ask questions?  How is asking questions perceived by HR?

Non-competes are shrouded in mystery to many.  I won't debate the merits or enforceability of non-competes with this post, but I will shed some light to the uninitiated on how asking questions regarding a non-compete you've been presented with is perceived in the HR community.

Like all things in life, how asking questions about a non-compete is perceived depends on who's asking... and who's listening.  The reaction to your questions is based on a sliding scale of how talented you are, and how the HR Pro fielding your questions views the world:

1. The more talented you are, the more it's expected that you'll have questions.  Early career or commodity talent usually doesn't have a lot of questions about non-completes, and that's because they're not thinking too much about their next step.  Conversely, the more talented an individual is in their field, the more they've thought about their next step, including possibilities outside their company.  Smart companies and managers understand this, so the more talented or highly regarded you are in your field, the more questions are expected.

2. The quality of the HR Pro fielding your question also matters when attempting to work through non-compete issues.  If you're dealing with an HR Pro who views the world as a pure administrator, it's likely he or she will simply be trying to check the box (got all the non-competes signed) and nothing more.  However, if you're dealing with an HR Pro who views the world from a talent perspective (actively recruits, interested in things like performance management, succession planning, etc.), they expect a talented person is going to have questions.

The sliding scale described above is alive and well in organizations when you're presented with a non-compete.  If your company presents you with a non-compete, it's likely you need to sign it to remain employed, but the more talented you are, the more it's expected that you'll ask questions.  If you're talented (and you need to look inward on that one), and if you run into a HR Pro who doesn't really seem interested in discussing the specifics, the advice is pretty simple:

Escalate it to your line manager for discussion.  Odds are your manager will understand your questions where the administrative personnel FTE did not.


REQUIRED READING: One of the Most Public Harassment Lawsuits You'll Ever See...

OK - you deal with a lot of stuff as a talent pro, and one of the things you have to deal with every now and then is a harassment charge.  That's why I'm pointing you to this case breakdown page at Business Insider, which details an entire case out of Silicon Valley at a high level of a venture firm.

Check out this page for the full rundown - I'm giving you two of the 12 breakdowns of the primaries involved below.  What the case shows isn't whether it's true or not (who knows, right?) - it's showing just how complex these things become when someone decides that it's time to go public with the harassment charge.

Lots of complexity in this one - you need to read it, no questions.  

 Pao1

  Pao2

 


WINNER TAKES ALL: Supreme Court to Determine if Pharma Reps Should Be Classified as "Exempt"...

They call it the Supreme Court for a reason, right?  It's supreme.  It's the "decider".

And the Supreme Court has one coming up that all of you should be interested in.  It's deciding whether Love-and-Other-Drugs pharma reps - those well dressed, good looking professionals who come in the doctor's office peddling their wares when you are there looking haggered, sick and generally untouchable - should be classified as exempt, or whether they in fact deserve overtime pay.

More on what's being decided in the case from the US Supreme Courts' blog (they've got a pretty good one):

"On April 16, the Court will hear arguments in Christopher v. SmithKline Beecham Corp. The Justices will decide, once and for all, whether pharmaceutical sales representatives (PSRs) are “outside salesmen” and thus exempted from overtime-pay requirements of the Fair Labor Standards Act of 1938 (FLSA) The decision will also settle a circuit split between the Second and Ninth Circuits:  the former held that PSRs are not outside salesmen and thus are not exempted from the FLSA’s requirement that they be paid overtime wages, while the Ninth Circuit (in this case) unanimously reached the contrary conclusion. This will be an interesting case with wide-ranging ramifications for the pharmaceutical industry and the ninety thousand people nationwide employed as PSRs."

More on the work duties and who the pharma reps are selling to:

"To understand the typical duties of a PSR, it is necessary to understand the concept of an “ultimate user” in pharmaceutical lingo. An “ultimate user” is the patient who actually takes the prescribed medicine. Under the Controlled Substances Act of 1970, no one, including drug manufacturers, can dispense prescription medicine without a physician’s authorization. Because the drug manufacturers cannot sell their prescription medications directly to the public, they sell the medications to distributors or retail pharmacies, who then dispense the medications to an “ultimate user” who presents a proper physician’s authorization.

Within this framework, Glaxo employs PSRs to make calls on physicians. At a call, the PSRs will typically present information and samples to the physician and attempt to convince the physician to prescribe their employer’s pharmaceuticals instead of the competition’s.

PSRs work almost entirely outside of Glaxo’s offices. Most of a PSR’s time is spent traveling to physicians’ offices within a specified geographic region. A PSR will ordinarily make eight to ten physician calls per day, usually between 8:30 a.m. and 5:00 p.m.  When not making physician calls, PSRs will study Glaxo products and relevant disease states. They will prepare new presentation modules, respond to phone calls and e-mails, generate reports, and attend evening and weekend seminars. These tasks are typically performed outside of customary business hours.

Of critical importance to this case is the fact that PSRs cannot sell samples, take orders for any medications, or negotiate drug prices or contracts with physicians or users. Instead, they can only try to convince physicians to prescribe Glaxo products instead of its competitors’ products."

Now, what the court is trying to decide:

"There are two issues before the Court.  The first is whether it owes deference to the Department of Labor’s interpretation of its regulations. The second is whether PSRs are outside salesmen when they cannot legally sell prescription drugs, but instead can only encourage physicians to prescribe their employer’s drugs.

In both the Second Circuit and this case, the Secretary of Labor filed an amicusbrief in support of the PSRs. However, the courts in each of those cases split on whether the Secretary’s interpretation of the Department’s regulations warranted deference:  the Second Circuit held that it did, while the Ninth Circuit held that it did not."

Interesting stuff.  Here's how they are currently comped according to the details on the USSC blog:

"For their services, PSRs receive two types of payment: salary and incentive-based compensation. Glaxo aims to have its PSRs receive seventy-five percent of their payment as salary and twenty-five percent as incentive-based compensation. However, the amount of incentive-based compensation a PSR can receive is unlimited. In general, a PSR’s incentive-based compensation is calculated by measuring the increase of Glaxo’s market share for a particular drug within the PSR’s territory."

For a deeper dive on what pharma reps make, see this breakdown over at Recruitingblogs.com. Basically, pharma rep comp differs by company (makes sense - what primary product lines are they selling), but a good rule of thumb is salary of 60-70K and total comp of 90-110K.

Sound like an hourly job to you?   I'm also wondering aloud if the objection is that they aren't true outside sales professionals, they're still marketing professionals who have discretion about when/where/how they do their jobs, right?  The world has gone insane.  Pharma reps who make 100K are now before the Supreme Court with a 50/50 shot at getting overtime.

If that's the case and the court decides in favor of the reps, then if I'm a comp professional, I'm turning the model upside down.  Incentive pay goes away (and along with it, the ability to double your base) and I'm paying an hourly rate that factors in OT and reduces total comp to 85-90% of what I'm currently paying.

You know - just good enough to keep the talent in the job - but there's no way if the pharma industry loses the case that they're simply going to increase their talent comp structure by 15-20%.

And that, my friends, is what people who file and drive these cases don't understand.  The attorneys win again, and 90,000 pharma reps end up with a decreased ability to earn.  Nice.


Don't Think Googling Candidates is Fair? A Cautionary Tale...

I know, I know.  I should be concerned about Googling candidates.  After all, as many of you have pointed out to me, there are privacy issues, and dammit, what a person does elsewhere in their life shouldn't matter if they can do the job.

So, I Google anyway, and many of you disagree.  I'm a pig - I'll own it. There's just this little thing that I can't get over.  YOU'RE RESPONSIBLE FOR KNOWING EVERYTHING YOU CAN KNOW ABOUT PEOPLE YOU BRING INTO THE COMPANY.  And if you don't know things you should, you'll suffer the consequences.  Consider this cautionary tale via a conversation I had with an executive friend at another company:

KD: Rob, what's up?

Rob: KD, you'll never believe what just happened.

KD: Educate me, brother.

Rob: We had a Controller candidate in today.  I was the last guy up to interview him, and I had a resume, but I had a couple of minutes before the interview and no time to start anything else.  So I Googled the guy...

KD: <Bracing for contact> And?...

Rob: Turns out the guy was embroiled in a Sarbanes Oxley cluster scandal at his last company. First Google entry returned when I pressed "search".  WTF?  So I march down to the guy who's running the search, and say, btw, did you bother Googling Finklestein?  The guy tells me no, and since it's a retained search, the big search firm is responsble for fully vetting, etc.  I tell my guy that he might want to Google Finklestein.  He declined, but I insisted.  So he did and within 15 seconds let out a noise like he had just been kicked in the groin by a pointy-toed country western boot.

KD: Wow.  What happened then?

Rob: The candidate was intereviewing with the CEO.  My guy calls down to see where it's at and is informed that the CEO requested another hour because it's going so well.

KD: Ouch.

Rob: The lesson my Capitalist friend?  Always Google before you buy that plane ticket for the candidate.

If I was defending the right to Google candidates in a court of law and told that story, I'd drop my microphone for dramatic effect after sharing that knowledge, like Randy Watson of the band Sexual Chocolate, leaving the stage in Coming to America.

Just Google people.  Decide how you bring it up later.


NLRB Case Against Boeing Puts Obama on Defensive, Proves Power of Appointed Seats...

You probably missed this last April - first, some details of legal action against Boeing from the NLRB earlier this year:

"In what may be the strongest signal yet of the new pro-labor orientation of the National Labor Relations Board under President Obama, the agency filed a complaint Wednesday seeking to forceBoeing to bring an airplane production line back to its unionized facilities in Washington State instead of moving the work to a nonunion plant in South Carolina.

In its complaint, the labor board said that Boeing’s decision to transfer a second production line for its new 787 Dreamliner passenger plane to South Carolina was motivated by an unlawful desire to retaliate against union workers for their past strikes in Washington and to discourage future strikes. The agency’s Boeing acting general counsel, Lafe Solomon, said it was illegal for companies to take actions in retaliation against workers for exercising the right to strike."

Of course, Boeing wasn't shutting down its facility in Washington.  It was moving production capacity to South Carolina, as a hedge to being held hostage by future strikes:

"The labor board said that in 2007, Boeing announced plans to create a second production line that would make three 787 Dreamliner planes a month in the Puget Sound area to address a growing backlog of orders. That was to be in addition to a line already making seven Dreamliners a month there. In October 2009, Boeing said it would locate its second line at a new, nonunion plant in South Carolina.

The N.L.R.B. asserted that on numerous occasions Boeing officials had communicated an unlawful motive for transferring the production line, including an interview with The Seattle Times in which a Boeing executive said, “The overriding factor was not the business climate. And it was not the wages we’re paying today. It was that we cannot afford to have a work stoppage, you know, every three years.

Boeing criticized the timing of the N.L.R.B.’s complaint, saying it came when construction of the factory in North Charleston, S.C., was nearly complete and after 1,000 employees had already been hired there.

Boeing said on Wednesday that none of the production jobs in South Carolina had come at the expense of jobs in Washington. It noted that its unionized employment in the Puget Sound area had increased by 2,000 since it announced its decision to expand in South Carolina.”

That's right kids - two existing production shops.  One union, one not.  The company decides to move some production to a non-union plant and in the time the company announces its intent, employment at the union plant grows by 2,000 jobs.  And the NLRB files this suit - after construction is almost complete.

What's wrong with spreading production of a product out across two plants, one union and one not, so you don't run the risk of not being able to deliver product if a stirke comes?  President Obama started ducking and weaving on the issue last week:

“As a general proposition, companies need to have the freedom to relocate -- they have to follow the law, but that's part of our system,” Obama said. “What I think defies common sense would be a notion that we would be shutting down a plant or laying off workers because labor and management can't come to a sensible agreement.

“And obviously, the air -- airplane industry is an area where we still have a huge advantage.  I want to make sure that we keep it,” the president added.

That's some official fence-sitting gibberish.  What's it all mean?"  My wife was a prosectutor for over a decade, and anytime I'm lukewarm about voting, she pushes me to remember that those elected have a lot of power to appoint Federal judges - who are the source of a lot of policy power.

The NLRB case against Boeing is a good example.  You can beat back the Employee Free Choice Act, but never forget - the people appointed by your elected officials control a lot of the power related to policy.

Be interesting to watch this one unfold in South Carolina...