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PW: bnaweb22 -----Original Message----- From: "BNA Highlights" <bhighlig@bna.com<@ENRON Sent: Wednesday, October 17, 2001 11:08 PM To: BNA Highlights Subject: Oct. 18 -- BNA, Inc. Daily Labor Report ______________________________ DAILY LABOR REPORT Highlights & Table of Contents October 18, 2001 ______________________________ ISSN 1522-5968 Registered Web subscribers can access the full text of these articles by using the URL link supplied. Information about becoming a subscriber or signing up for a FREE Web trial is available at http://web.bna.com or call BNA Customer Relations at 1-800-372-1033, Mon. - Fri. 8:30 am - 7:00 pm (ET). __________ HIGHLIGHTS __________ NLRB RULES 2-1 STORE ILLEGALLY URGED OWNER TO ASK PICKETERS TO MOVE A Missouri health food store committed an unfair labor practice by telling the owner of a strip shopping center that union representatives were picketing and handbilling in a common area in front of the store, the National Labor Relations Board ruled 2-1 ("Wild Oats Markets Inc., "336 N.L.R.B. No. 14, 9/28/01 [released 10/16/01]). The shopping center owner asked the union representatives to move and, when they refused, called the police. Members Liebman and Truesdale find the store's actions were "an indirect attempt to expel the union representatives and, consequently, constituted interference with employee Section 7 rights" under the National Labor Relations Act. Rejecting Wild Oats Markets Inc.'s explanation that it simply called the owner to ask about the mall's no-solicitation policy, the board finds the store already knew about the policy, which was in the lease agreement, and had never called the owner about solicitation or distribution activities by numerous nonunion organizations in front of the store. Dissenting, Chairman Hurtgen maintains the store did not ask the owner to take any action and therefore was not responsible for what the owner did. . . . Page AA-1 , Text-E-1 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w1m4a1_ http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w1g8r5_ 'MAILBOX RULE' APPLIES TO ERISA, SPLIT NINTH CIRCUIT RULES A retirement plan administrator for Bank of America acted arbitrarily in refusing to apply the common law "mailbox rule" to a participant's claim that she had mailed her lump-sum distribution election form, the Ninth Circuit rules in a 2-1 decision ("Schikore v. BankAmerica Supplemental Retirement Plan, "9th Cir., No. 99-16952, 10/16/01). The function of the mailbox rule in the context of the Employee Retirement Income Security Act "is to provide employees with a guarantee that, if the retirement plan claims not to have received a document that an employee mailed, the document will nevertheless be presumed to have been received by the plan unless the plan can produce probative evidence of non-receipt," the majority says. In denying the participant's request for a lump-sum distribution, the plan administrator found that the common law "mailbox rule," which creates a rebuttable presumption of receipt upon proof of proper mailing, was inapplicable in the context of ERISA. The dissent contends that the plan administrator did not abuse its discretion in declining to follow the mailbox rule because the plan "explicitly states that the election form must be "received," not mailed, in order to be effective." . . . Page A-1 , Text-E-14 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w1m3h0_ http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w1n1y6_ FUGITIVE FROM JUSTICE CAN PROCEED WITH FLSA CASE, EIGHTH CIRCUIT SAYS A former Missouri prisoner who was on the lam from a work release assignment could still proceed with his suit against the YMCA for paying him only $1 an hour in violation of the Fair Labor Standards Act, according to the Eighth Circuit ("Barnett v. Young Men's Christian Ass'n Inc., "8th Cir., No. 01-1211, 10/15/01). After Matthew Barnett walked away from a halfway house in violation of his parole, a federal court in Kansas City dismissed his case under the fugitive from justice rule, concluding that he had disrupted the court's schedule because of his extended absence. Reviving the FLSA claim, the Eighth Circuit holds that although he was a fugitive "there is no substantial connection between Barnett's fugitive status and his current civil action." The lower court's concerns of "inconvenience" are baseless, the appeals court adds. "The district court was in no way inhibited from setting a trial date or ruling on the motions before it at the time of Barnett's escape and subsequent return. His physical presence as a civil litigant was not required at that time." . . . Page A-1 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w1g5z6_ JUDGE ORDERS GARMENT MAKERS TO NOTIFY 25,000 WORKERS OF RIGHT TO SUE A federal district judge in the Commonwealth of the Northern Mariana Islands orders 22 Saipan garment manufacturers to notify up to 25,000 current and former foreign guestworkers that they are entitled to join a class action suit against the employers for allegedly violating federal and local wage and hour laws ("Does I v. Advance Textile Corp., "D. Mar. I., No. CV-99-0002, "motion granted" 10/16/01 ). Judge Munson of the U.S. District Court for the Northern Mariana Islands grants the plaintiffs' motion asking the court to approve the distribution of notices to the workers eligible to join the suit. Munson orders the defendants to turn over the names and addresses of the current and former nonresident workers and to post in the factories notices informing potential plaintiffs--those who have worked in the factories since January 1995--that they can join the lawsuit. According to the order, plaintiffs' counsel will mail the notices to workers no longer employed at the factories. . . . Page A-8 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w1r0g6_ NEWLY BARGAINED WAGES IN MANUFACTURING UP 3.1 PERCENT, BNA DATA SHOW Data compiled by BNA in the first 42 weeks of 2001 show that the weighted average first-year wage increase in newly negotiated contracts in the manufacturing industry was 3.1 percent, compared with 3.2 percent in the same period of 2000. Nonmanufacturing contracts, excluding construction agreements, showed a weighted average gain of 3.9 percent, compared with 4 percent in 2000, and a median of 3.8 percent, compared with 3.5 percent a year ago. Among new settlements reported in the latest biweekly report are a three-year contract between Nabisco Inc. and the Bakery, Confectionery, Tobacco Workers and Grain Millers, which raises pay for more than 4,000 workers by 45 cents per hour in the first year, and an agreement with the Communications Workers of America, covering some 56,000 employees of BellSouth Corp., that provides wage increase totaling more than 12 percent over a three-year contract term. . . . Page D-1 , D-2 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4v5j8e0_ http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4v5j8g9_ ______________ TODAY'S EVENTS ______________ UNEMPLOYMENT: Weekly data on initial claims for unemployment insurance released, 8:30 a.m., Labor Department. ________________ ALSO IN THE NEWS ________________ IMMIGRATION: Witnesses tell the House Judiciary Immigration and Claims Subcommittee that chronic problems at the Immigration and Naturalization Service can be solved only with a sweeping transformation of the agency. Delays in INS processing negatively affect foreign nationals trying to legally work in the United States, while letting illegal aliens and foreign criminals slip through the system, witnesses say. . . . Page A-4 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w1g3p6_ HEALTH CARE: More than 80 percent of employers are considering raising employee premiums for health benefits, or have done so, according to a survey by the National Business Coalition on Health. . . . Page A-9 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w1r9b5_ PRODUCTIVITY: A study of the sources of U.S. productivity gains during the last half of the 1990s, conducted by McKinsey & Co., provides encouraging projections for continued increases once the economy pulls out of its presumed recession. . . . Page A-9 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w1r5r4_ ____ TEXT ____ UNFAIR LABOR PRACTICES: NLRB decision in "Wild Oats Markets Inc.". . . Page E-1 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w1g8r5_ ERISA: Ninth Circuit's decision in "Schikore v. BankAmerica Supplemental Plan. ". . . Page E-14 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w1n1y6_ _________________ TABLE OF CONTENTS _________________ LEADING THE NEWS UNFAIR LABOR PRACTICES Missouri health food store committed unfair labor practice by telling owner of strip shopping center that union representatives were picketing and handbilling in common area in front of store, NLRB rules 2-1 . . . Page AA-1, Text E-1 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w1m4a1_ http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w1g8r5_ ____ NEWS ____ AIRLINES House Republicans introduce White House-crafted aviation security bill that would transfer airline security screening from airlines to federal government, but would not federalize all baggage screeners . . . Page A-10 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w1u0r7_ DISCRIMINATION Former employee who offered no explanation for failing to pick up her mail for 49 days could not claim that she had not received timely certified letter from EEOC, Seventh Circuit rules . . . Page A-2 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w1f9x3_ EMPLOYMENT AFL-CIO unveils economic stimulus proposal to expand and extend unemployment insurance benefits and provide full health benefits for laid-off workers for one year . . . Page A-6 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w1q4v1_ Anthrax testing in House office buildings forces delay of scheduled vote on economic stimulus package (H.R. 3090) that contains $9 billion in federal funds for unemployment . . . Page A-6 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w1n5d4_ ERISA Individual who signed release in exchange for early retirement benefits is barred from bringing action against former employer alleging ERISA violations, federal court in Boston rules . . . Page A-3 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w0j6q9_ Retirement plan administrator for Bank of America acted arbitrarily in refusing to apply common law "mailbox rule" to participant's claim that she had mailed her lump-sum distribution election form, Ninth Circuit rules . . . Page A-1, Text E-14 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w1m3h0_ http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w1n1y6_ Trustees of National Electrical Benefit Fund must reimburse fund more than $4.9 million to settle Labor Department charges that they breached ERISA fiduciary duties by investing in Florida real estate limited partnership . . . Page A-7 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w1n4p8_ FEDERAL EMPLOYEES Rep. Davis (R-Va.) will introduce legislation to help federal government attract and retain expert information technology and acquisition workers . . . Page A-5 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w1f2k5_ FLSA Former Missouri prisoner escaped from work release assignment still could proceed with lawsuit against YMCA for paying him only $1 an hour in violation of Fair Labor Standards Act, Eighth Circuit rules . . . Page A-1 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w1g5z6_ GARMENT INDUSTRY Federal district judge in Northern Mariana Islands orders 22 Saipan garment manufacturers to notify up to 25,000 foreign guestworkers that they are entitled to join class action against employers for allegedly violating federal and local wage and hour laws . . . Page A-8 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w1r0g6_ HEALTH CARE Employers will continue in 2002 to require employees to share burden of rising health care costs, Watson Wyatt report says . . . Page A-2 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w1f0x4_ Employers' group survey finds more than 80 percent of employers are considering raising employee premiums for health benefits, or have done so . . . Page A-9 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w1r9b5_ IMMIGRATION Witnesses tell House Judiciary Immigration and Claims Subcommittee that chronic problems at INS can be solved only with sweeping transformation of agency . . . Page A-4 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w1g3p6_ PENSIONS CORRECTION: IRS Announcement 2001-93, described in report at 198 DLR A-4, 10/16/01, is related to reporting of "catch-up" contributions to defined contribution plans, not defined benefit plans . . . Page A-11 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w1g9m1_ PRODUCTIVITY Study of sources of U.S. productivity gains during late 1990s provides encouraging projections for continued increases once economy pulls out of its presumed recession . . . Page A-9 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w1r5r4_ WORK & FAMILY Census Bureau reports more women are staying home with their infant children . . . Page A-3 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w1q3j0_ WORKFORCE REDUCTIONS Sprint says it will eliminate 6,000 jobs as well as high speed network . . . Page A-10 http://pubs.bna.com/ip/BNA/dlr.nsf/id/A0A4W1Q8K9_ Toledo, Ohio-based Dana Corp. will eliminate 11,000 jobs . . . Page A-5 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w1m7z0_ _____________ ECONOMIC NEWS _____________ COLLECTIVE BARGAINING Data compiled by BNA in first 42 weeks of 2001 show that weighted average first-year wage increase in newly negotiated contracts in manufacturing industry was 3.1 percent, compared with 3.2 percent in same period of 2000 . . . Page D-1, D-2 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4v5j8e0_ http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4v5j8g9_ ____ TEXT ____ ERISA Ninth Circuit decision in "Schikore v. BankAmerica Supplemental Retirement Plan" . . . Page E-14 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w1n1y6_ UNFAIR LABOR PRACTICES NLRB decision in "Wild Oats Markets Inc." . . . Page E-1 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w1g8r5_ ______________ TABLE OF CASES ______________ Barnett v. Young Men's Christian Ass'n, Inc. (8th Cir.) . . . Page A-1 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w1g5z6_ Bobbitt v. Freeman Cos. (7th Cir.) . . . Page A-2 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w1f9x3_ Chao v. Moore (D. Md.) . . . Page A-7 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w1n4p8_ Does I v. Advance Textile Corp. (D. Mar. I.) . . . Page A-8 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w1r0g6_ Hogan v. Eastern Enterprises/Boston Gas (D. Mass.) . . . Page A-3 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w0j6q9_ Schikore v. BankAmerica Supplemental Retirement Plan (9th Cir.) . . . Page A-1, Text E-14 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w1m3h0_ http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w1n1y6_ Wild Oats Markets Inc., d/b/a Wild Oats Community Markets (N.L.R.B.) . . . Page AA-1, Text E-1 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w1m4a1_ http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w1g8r5_ __________ Daily Labor Report (ISSN 1522-5968) Highlights are published daily by The Bureau of National Affairs, Inc., 1231 25th St., NW, Washington, DC 20037. For account information and changes, contact 1-800-372-1033 (M-F, 8:30 am-7:00 pm ET) To request retransmission or to order a copy of the summarized article, contact 1-800-452-7773 or e-mail bnaplus@bna.com. For copyright guidelines, go to http://www.bna.com/corp/copyright. Copyright © 2001 by The Bureau of National Affairs, Inc. Washington, D.C. 20037. Use of this service is subject to the terms and conditions of the license agreement with BNA. Unauthorized access or distribution is prohibited.
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