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User ID: enrondlr PW: bnaweb22 -----Original Message----- From: "BNA Highlights" <bhighlig@bna.com<@ENRON Sent: Sunday, October 21, 2001 11:08 PM To: BNA Highlights Subject: Oct. 22 -- BNA, Inc. Daily Labor Report ______________________________ DAILY LABOR REPORT Highlights & Table of Contents October 22, 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 FIRM MUST APPLY BARGAINING CONTRACT TO TEMPS A gourmet foods distributor in New York committed an unfair labor practice by refusing to apply any provisions of a bargaining contract to temporary warehouse workers supplied by various staffing firms, the National Labor Relations Board rules 2-1 ("Tree of Life Inc. d/b/a Gourmet Award Foods Northeast, "336 N.L.R.B. No. 77, 10/1/01 [released 10/18/01]). Members Truesdale and Liebman find the temporary warehouse workers are included in the contract's broad unit definition of "drivers and warehousemen." The majority concludes Tree of Life Inc. "had a statutory obligation to apply to those employees the contractual terms it had negotiated, to the extent those terms regulate their working conditions under its control." Liebman indicates she would apply the entire contract to the temporary workers. Dissenting, Chairman Hurtgen asserts "the higher standard of accretion must be met" if the board adds employees to a pre-existing unit without a representation vote. Finding the temporary workers do not share an "overwhelming community of interests" with the workers solely employed by Tree of Life, Hurtgen says the temporary workers should not be accreted to the bargaining unit. . . . Page AA-1 , Text-E-1 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w3q0z4_ http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w3j0n0_ COURT REFUSES TO HALT ARBITRATION OF DISPUTE OVER FIRING DECISIONS A metal processing and distribution company's decision to fire three striking workers was subject to the mandatory arbitration provision of a collective bargaining agreement ratified after the firing decision was made, a federal district judge in Philadelphia rules ( "Metals USA Inc. v. Sheet Metal Int'l Assoc. Local Union No. 119, "E.D. Pa., No. 01-4365, 10/15/01). Judge Shapiro of the U.S. District Court for the Eastern District of Pennsylvania denies Metals USA's motion to preliminarily enjoin arbitration of the dispute with Sheet Metal Workers Local 119, finding the company unlikely to prevail on the merits of its case. Even though the union was aware of the firing decision before the agreement was reached, neither the union nor the three fired workers received sufficient notice of the identities of those being fired until after the agreement took effect, the court decides. . . . Page A-1 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w3r7q1_ FORMER HERE BUSINESS AGENT FAILS IN CHALLENGE TO LOCAL TRUSTEESHIP A former union business agent who was removed from his post with a Pittsburgh local after the Hotel Employees and Restaurant Employees International Union came under federal supervision cannot seek monetary damages under the Labor-Management Reporting and Disclosure Act's trusteeship provision, the Third Circuit rules ("Ross v. Hotel Employees and Restaurant Employees Int'l Union, "3d Cir., No. 00-3124, 9/17/01). The trusteeship provision--Title III of the LMRDA-- does not "allow a private cause of action for individual damages flowing from the termination of an appointed employee," the Third Circuit finds in a case of first impression. Relief under that provision "must be sought on behalf of the local union organization and the entire membership must reap the benefits," the court says. "Nothing in the legislative history of Title III suggests that Congress contemplated an individual bringing suit for compensatory damages arising from the loss of an appointed union position under that title," the court determines. "The statutory scheme of the LMRDA strongly suggests that the individual rights" the former agent "seeks to vindicate must be redressed under Title I," which, the court says, was added to the law specifically to address the rights of individual union members. . . . Page A-8 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w3c9u2_ OAS LABOR MINISTERS BACK ENDORSEMENT OF ILO LABOR RIGHTS CONVENTIONS The unanimous support of labor ministers of the Americas for endorsing key International Labor Organization conventions on basic labor rights and child labor represents a significant commitment to taking action on these issues, Canadian Labor Minister Claudette Bradshaw says. That commitment and the inclusion for the first time of employer and worker representatives in developing common labor policy directions are historic steps in adding a social dimension to the processes of globalization and trade liberalization, Bradshaw tells reporters at the conclusion of the 12th Inter-American Conference of Ministers of Labor. "It's a new beginning," she says. The labor ministers' agreement to support ILO standards is an important step, but adoption of the standards is meaningless unless the OAS member countries also put in place effective enforcement to ensure that the standards are actually met, says Canadian Labour Congress Vice President Hassan Yussuff. "It's a tremendous accomplishment if we can adopt them and enforce them," he says. . . . Page A-2 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w3q3g7_ MASSACHUSETTS AGENCY ALLOWS COMPLAINTS BY TRANSGENDERED EMPLOYEES In two separate rulings, the Massachusetts Commission Against Discrimination endorses bringing complaints of discrimination against transgendered employees under state bias laws aimed at both sex and disability bias, but not under a law outlawing sexual orientation discrimination ("Jette v. Honey Farms Mini Market, "Mass. Comm'n Against Discrimination, No. 95 SEM 0421, 10/11/01; "Millett v. Lutco Inc., "Mass. Comm'n Against Discrimination, No. 98 BEM 3695, 10/11/01). The commission rules in separate cases brought by male-to-female transsexuals that investigators can consider claims based on sex and disability discrimination because the statutory language does not specifically exclude such claims. A claim based on sexual orientation, however, is not possible, the commission says, because the statute specifically lists orientations, and transgenderism is not one of the listed possibilities. The commission says federal and state courts have expanded the concept of sex and gender discrimination and that the "continual evolution and expansion" of the law has gone beyond questions of anatomy and into the realms of gender and appearance. . . . Page A-3 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w3h1h8_ ________________ ALSO IN THE NEWS ________________ CONSUMER PRICES: A rise in gasoline prices in September pushed consumer prices up by 0.4 percent, the Labor Department's Bureau of Labor Statistics reports. The consumer price index for all urban consumers rose to 178.3 in September, following a 0.1 percent increase in August. The so-called "core rate," excluding food and energy prices, increased 0.2 percent in September. . . . Page D-1 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w3f9p5_ REAL EARNINGS: The inflation-adjusted weekly earnings of U.S. workers were unchanged in September after small gains in wages and hours worked were offset by a larger increase in consumer prices, the Labor Department's Bureau of Labor Statistics reports. . . . Page D-14 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w3p1b6_ STATE LAWS: California Gov. Davis (D) signs a new law requiring warehouse-type retail operations to protect customers and workers from the hazard of falling merchandise. The measure will go into effect Jan. 1, 2002. . . . Page A-7 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w3q2x3_ ____ TEXT ____ UNFAIR LABOR PRACTICES: NLRB decision in "Tree of Life Inc. d/b/a Gourmet Award Foods Northeast. ". . . Page E-1 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w3j0n0_ NLRB: NLRB's weekly summary of cases, Oct. 19, 2001.. . . Page E-11 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w3k7h7_ _________________ TABLE OF CONTENTS _________________ LEADING THE NEWS UNFAIR LABOR PRACTICES Gourmet foods distributor in New York committed unfair labor practice by refusing to apply any provisions of bargaining contract to temporary warehouse workers supplied by various staffing firms, NLRB rules 2-1 . . . Page AA-1, Text E-1 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w3q0z4_ http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w3j0n0_ ____ NEWS ____ AGE DISCRIMINATION Age discrimination settlement release bars former Prudential Insurance Co. agent from asserting that former employer took "discriminatory actions" by defrauding him of his pension rights that accrued before signing of release, federal district court in Minnesota rules . . . Page A-3 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w0j6m2_ ARBITRATION Metal processing and distribution company's decision to fire three striking workers was subject to mandatory arbitration provision of collective bargaining agreement ratified after firing decision was made, federal district judge rules . . . Page A-1 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w3r7q1_ DAVIS-BACON ACT Agency contracting officers will be required to incorporate current Davis-Bacon Act prevailing wage rates at end of each option period in federal construction contracts under final rule amending Federal Acquisition Regulation . . . Page A-9 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w3t2a2_ EMPLOYMENT Bush administration appears to change direction as it seeks funding sources for worker assistance package it proposed following terrorist attacks . . . Page A-9 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w3t3k9_ West Virginia Gov. Wise (D) is developing "economic SWAT team" composed of government, business, and labor representatives to find ways to preserve existing jobs in state . . . Page A-2 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w3p4j8_ ERISA Jointly trusteed Carpenters union retirement fund violated ERISA when it conditioned its former deputy director of administration's receipt of enhanced early retirement pension benefits on director's execution of severance agreement, federal district court in New York rules . . . Page A-4 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w2d3a3_ HEALTH CARE EMPLOYEES California Nurses Association's first foray outside state is unsuccessful when registered nurses at St. Joseph's Hospital in Phoenix reject union representation . . . Page A-8 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w3r6x4_ INTERNATIONAL LABOR Unanimous support of labor ministers of Americas for endorsing key ILO conventions on basic labor rights and child labor represents significant commitment to taking action, according to Canadian Labor Minister Bradshaw . . . Page A-2 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w3q3g7_ LABOR DEPARTMENT Labor Secretary Chao names Lois Orr of Bureau of Labor Statistics as acting BLS commissioner following departure of Katharine Abraham . . . Page A-10 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w3r9p7_ LABOR LAW Former HERE business agent removed from post after union came under federal supervision cannot seek monetary damages under the Landrum-Griffin Act's trusteeship provision, Third Circuit rules . . . Page A-8 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w3c9u2_ PREGNANCY DISCRIMINATION Hospital business manager who went on maternity leave as supervisor and returned as receptionist overcomes hospital's summary judgment motion in Pregnancy Discrimination Act case, federal district court in New York rules . . . Page A-5 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w2r9y8_ SEX DISCRIMINATION Massachusetts Commission Against Discrimination says complaints of discrimination against transgendered employees could be brought under state bias laws aimed at both sex and disability bias, but not under law outlawing discrimination on basis of sexual orientation . . . Page A-3 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w3h1h8_ SOCIAL SECURITY Monthly Social Security and Supplemental Security Income (SSI) benefits to more than 50 million Americans will increase 2.6 percent in January 2002 . . . Page A-4 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w3h7b4_ STATE LAWS California Gov. Davis (D) signs law requiring warehouse-type retail operations to protect customers and workers from hazard of falling merchandise . . . Page A-7 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w3q2x3_ TEAMSTERS IBT's continued trusteeship of Philadelphia local following internal union hearing accorded with federal labor law and IBT constitution, federal district judge determines . . . Page A-7 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w3q3m1_ UNEMPLOYMENT INSURANCE Legislative proposal that would free up $9.3 billion in federal unemployment account for states would require little more from Labor Department than revising account balance projections, DOL officials say . . . Page A-6 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w3n1g3_ _____________ ECONOMIC NEWS _____________ CONSUMER PRICES Rise in gasoline prices pushed up consumer prices in September by 0.4 percent, Labor Department's Bureau of Labor Statistics reports . . . Page D-1 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w3f9p5_ REAL EARNINGS Inflation-adjusted weekly earnings of most U.S. workers were unchanged in September after small gains in wages and hours worked were offset by larger increase in consumer prices, Labor Department's Bureau of Labor Statistics reports . . . Page D-14 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w3p1b6_ TRADE BALANCE Reflecting economy's slowdown before terrorist attacks, U.S. trade deficit in goods and services narrowed in August to $27.1 billion, according to Commerce Department's Census Bureau and Bureau of Economic Analysis . . . Page D-18 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w3p9g0_ ____ TEXT ____ UNFAIR LABOR PRACTICES NLRB decision in "Tree of Life Inc. d/b/a Gourmet Award Foods Northeast" . . . Page E-1 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w3j0n0_ NLRB NLRB's weekly summary of cases, dated Oct. 19, 2001 . . . Page E-11 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w3k7h7_ ______________ TABLE OF CASES ______________ Jette v. Honey Farms Mini Market (Mass. Comm'n Against Discrimination) . . . Page A-3 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w3h1h8_ Leichter v. St. Vincent's Hospital (S.D.N.Y.) . . . Page A-5 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w2r9y8_ Metals USA, Inc. v. Sheet Metal Int'l Ass'n Local Union No. 19 (E.D. Pa.) . . . Page A-1 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w3r7q1_ Millett v. Lutco Inc. (Mass. Comm'n Against Discrimination) . . . Page A-3 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w3h1h8_ Morris v. Hoffa (E.D. Pa.) . . . Page A-7 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w3q3m1_ Patterson v. Retirement and Pension Plan for Officers and Employees of the New York Dist. Council of Carpenters and Related Orgs. (S.D.N.Y.) . . . Page A-4 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w2d3a3_ Ross v. Hotel Employees and Restaurant Employees Int'l Union (3d Cir.) . . . Page A-8 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w3c9u2_ Tree of Life Inc. d/b/a Gourmet Award Foods Northeast (336 N.L.R.B. No. 77) . . . Page AA-1, Text E-1 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w3q0z4_ http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w3j0n0_ Willenbring v. Prudential Ins. Co. (D. Minn.) . . . Page A-3 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w0j6m2_ __________ 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. 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