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User ID: enrondlr PW: bnaweb22 -----Original Message----- From: "BNA Highlights" <bhighlig@bna.com<@ENRON Sent: Tuesday, October 23, 2001 11:12 PM To: BNA Highlights Subject: Oct. 24 -- BNA, Inc. Daily Labor Report ______________________________ DAILY LABOR REPORT Highlights & Table of Contents October 24, 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 __________ RYAN'S STEAK HOUSES' ARBITRATION PACT UNENFORCEABLE, APPEALS COURT FINDS The Seventh Circuit finds unenforceable an agreement employees hired by Ryan's Family Steak House in Indiana were required to sign with an arbitration service. The obligations of Employment Dispute Services Inc. are so vague and general that the agreement is unenforceable, the court rules ("Penn v. Ryan's Family Steak Houses Inc., "7th Cir., No. 00-2355, 10/17/01). Judge Diane P. Wood finds the contract between Ryan's food server Craig Penn and EDS was "hopelessly vague and uncertain as to the obligation EDS has undertaken" and that EDS "could fulfill its promise by providing Penn and Ryan's with a coin toss." Finding the contract unenforceable, the court affirms a district court's denial of Ryan's motion to compel arbitration of Penn's claims of disability harassment and retaliation. Penn worked as a food server at a Ryan's in Fort Wayne, Ind., from 1996 until 1998 when he was fired. He filed a suit under the Americans with Disabilities Act charging that Ryan's maintained a hostile work environment and that he was fired for complaining about harassment. When Penn was initially hired by Ryan's, he was required to sign a contract with EDS to have EDS provide an arbitration forum for all employment-related disputes with Ryan's. Relying on Indiana law, the court says the contract between EDS and Penn lacked mutuality of obligation and contained only an "unascertainable, illusory promise" by EDS while placing significant obligations on the employee. . . . Page AA-1, Text E-10 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w3p3w5_ http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w5k1m5_ COURT LIMITS SEX BIAS CLASS ACTION AGAINST BOEING TO SEATTLE AREA A federal judge in Washington state certifies a class of some 30,000 female Boeing Co. employees who allege they were discriminated against in job assignments, promotions, training, retention, and bonuses ("Beck v. Boeing Co., "W.D. Wash., No. C00-301P, 10/19/01). The class of hourly employees--represented by the International Association of Machinists--and nonexecutive, salaried employees are employed at facilities in the Puget Sound area of Washington. The plaintiffs had originally sought to represent 42,000 workers nationwide, including employees in St. Louis, Wichita, Kan., and Long Beach, Calif., but Judge Pechman of the U.S. District Court for the Western District of Washington limits the class to improve manageability, calling the sweep of the proposed class "immense." Boeing has been the subject of two other class actions alleging bias by African American and Asian American employees. In 1999, a court awarded $14.2 million to the black plaintiffs, and the second suit is still pending. . . . Page A-2 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w5h9t2_ NLRB RULES 2-1 ILLEGAL CONFIDENTIALITY RULE REQUIRES NEW ELECTION Freund Baking Co.'s maintenance of a personnel handbook provision illegally barring employees from discussing wages, hours, and other terms and conditions of employment requires setting aside a representation election, National Labor Relations Board rules 2-1 ("Freund Baking Co., "336 N.L.R.B. No. 75, 10/1/01 [released 10/22/01]). Ordering that a third election be held in the longrunning case, Members Truesdale and Walsh agree with a hearing officer that employees could reasonably interpret the confidentiality provision "as prohibiting them from discussing their wages and working conditions with a union, as well as with others outside of the company." Going one step farther than the hearing officer, the board finds the provision could reasonably be construed as prohibiting workers from discussing terms and conditions of employment with other employees. Chairman Hurtgen agrees the handbook rule is illegal. However, Hurtgen, finding no evidence that the rule was used to punish employees' protected activities, asserts that maintenance of the rule did not merit setting aside the election. Local 119 of the Bakery, Confectionery, and Tobacco Workers lost the second election by a 30-3 vote. . . . Page A-1 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w5h2j7_ SIXTH CIRCUIT FINDS TVA NUCLEAR SECURITY WORKERS NOT EXEMPT FROM FLSA The Tennessee Valley Authority willfully violated the Fair Labor Standards Act by denying overtime pay to 20 former nuclear power security employees, the Sixth Circuit rules ("Ale v. TVA, "6th Cir., No. 99-6642, 10/17/01). Despite having some supervisory duties, the workers could not be fairly characterized as bona fide executive and administrative employees exempt from the overtime requirements of FLSA, the court decides. The 20 former employees, who alleged TVA had eliminated their right to overtime compensation, had worked in site security offices at TVA's Watts Bar and Sequoyah nuclear power plants. Regardless of TVA's position descriptions and other paperwork, the employees' actual duties did not support the exempt classification, the appeals court says. "The words 'in charge' are not a magical incantation that render an employee a bona fide executive regardless of his actual duties," the appeals court adds. . . . Page A-3 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w5h2t3_ DRIVER TAKING ANTI-SEIZURE MEDICINE NOT 'QUALIFIED' UNDER ADA, COURT SAYS A commercial truck driver who was terminated after his employer discovered he was taking anti-seizure medication and had a history of "seizures, fits, convulsions or fainting" has no claim under the Americans with Disabilities Act because he was not "qualified" for the job, the Tenth Circuit decides ("Tate v. Farmland Industries Inc.", 10th Cir., No. 99-6329, 10/10/01). The court says even if Charles Tate could show he had a disability under the ADA, he could not meet a Farmland Industries Inc. job requirement of compliance with Department of Transportation certification criteria. "We hesitate to second-guess a legitimate business judgment on the part of DOT and its covered employers as to the necessary qualifications of CMV operators," Judge Baldock writes. In dissent, Judge Briscoe argues Farmland admitted in pretrial discovery that Tate was "qualified" as a truck driver, and the company should not be allowed to argue the contrary without withdrawing its earlier admission. Tate should be able to pursue his claim because Farmland regarded him as disabled and violated the ADA by firing him based on that perception, Brisco adds. . . . Page A-4 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w4v9w7_ ________________ ALSO IN THE NEWS ________________ EMPLOYMENT: As the labor market weakened nationally during September, several states registered unemployment rates above the national average of 4.9 percent, the Bureau of Labor Statistics reports. Three states and the District of Columbia showed jobless rates of 6 percent or higher. . . . Page D-1 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w5e8n6_ FMLA: A worker wrongfully fired and reinstated with back pay by an arbitrator, then fired again two days later after taking a day off to visit his sick father, did not qualify for FMLA leave because he had not worked for at least 1,250 hours in the preceding 12 months, a magistrate judge rules. . . . Page A-8, Text E-1 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w5k7q8_ http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w5g5w4_ TELECOMMUTING: One in five U.S. employees participates in some form of teleworking arrangement, and the vast majority of these teleworkers are more satisfied with their jobs, more productive, and more loyal to their employers than are office workers, according the International Telework Association and Council. . . . Page A-9 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w5k0j1_ ____ TEXT ____ FMLA: U.S. District Court for the District of Maine's decision in "Plumley v. Southern Container Inc". . . . Page E-1 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w5g5w4_ ARBITRATION: Seventh Circuit decision in" Penn v. Ryan's Family Steak Houses Inc. ". . . Page E-10 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w5k1m5_ _________________ TABLE OF CONTENTS _________________ LEADING THE NEWS ARBITRATION Seventh Circuit finds unenforceable an agreement employees hired by Ryan's Family Steak House in Indiana were required to sign with arbitration service . . . Page AA-1, Text E-10 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w3p3w5_ http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w5k1m5_ ____ NEWS ____ DISABILITIES Commercial truck driver terminated after employer discovered his use of anti-seizure medication and his seizure history has no ADA claim because he was not "qualified" for job, Tenth Circuit decides . . . Page A-4 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w4v9w7_ DISCRIMINATION Federal judge in Washington state certifies class of 30,000 female Boeing Co. employees who allege job discrimination . . . Page A-2 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w5h9t2_ ECONOMIC OUTLOOK Demand across broad spectrum of goods and services fell for first time since 1990-1991 recession during third quarter of 2001, according to National Association for Business Economics . . . Page A-11 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w5m7d8_ EMPLOYMENT House plans vote on broad economic stimulus bill (H.R. 3090) that includes provisions allowing states to expand unemployment insurance benefits and provide health care coverage for unemployed individuals . . . Page A-10 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w5m4a5_ ERISA Illinois Department of Labor is barred by ERISA from investigating wage claims filed by former Hamilton Sundstrand Corp. employees seeking severance pay under ERISA-governed plan, federal district court rules . . . Page A-8 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w5e0u8_ FARM WORKERS Labor Department extends review period for proposed rule to modify fee structure for H-2A labor certification applications . . . Page A-14 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w5f9q3_ FLSA Tennessee Valley Authority willfully violated Fair Labor Standards Act by denying overtime pay to 20 former nuclear power security employees, Sixth Circuit rules . . . Page A-3 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w5h2t3_ FMLA Worker wrongfully fired and reinstated by arbitrator, then fired again two days later after taking time off to visit his sick father, did not work requisite number of hours to qualify for Family and Medical Leave Act coverage, federal district judge says . . . Page A-8, Text E-1 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w5k7q8_ http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w5g5w4_ INTERNATIONAL LABOR European Parliament deputies approve legislation establishing European Union-wide employee rights to information and consultation . . . Page A-5 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w5d7c0_ MANUFACTURING Negotiators for General Dynamics Land Systems and UAW reach tentative agreement for new four-year contract . . . Page A-13 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w5c0r4_ Workers at Maytag's Middle Amana, Iowa, plant reject new contract offer and continue strike against household appliance maker . . . Page A-7 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w4t0t7_ NATIONAL ORIGIN Federal judge in Maine preliminarily certifies settlement class of Hispanic farm workers at DeCoster egg processing company, paving way for distribution of $6 million settlement of discrimination and fraud claims . . . Page A-6 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w4w6w6_ PENSIONS Survey finds 80 percent of eligible employees have balances in tax code Section 401(k) plan . . . Page A-6 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w4k8r3_ REPRESENTATION ELECTIONS Freund Baking Co.'s maintenance of personnel handbook provision illegally barring employees from discussing wages, hours, and other terms and conditions of employment requires setting aside representation election, NLRB rules 2-1 . . . Page A-1 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w5h2j7_ STEEL U.S. Trade Representative Zoellick signals that his support for import relief for U.S. steel industry hinges on whether industry takes steps to restructure . . . Page A-10 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w5k7h5_ TELECOMMUTING Survey says one in five U.S. employees participates in some form of teleworking arrangement . . . Page A-9 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w5k0j1_ TRADE World Trade Organization Director-General Moore says fourth ministerial conference scheduled for Doha, Qatar, will go ahead as planned barring major adverse developments in region . . . Page A-13 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w5f5w5_ TRANSPORTATION Citing job losses in aviation industry, transportation union leaders urge Congress to move promptly on legislation to extend worker relief programs . . . Page A-12 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w5n8m1_ WORKFORCE REDUCTIONS Copper producer Phelps Dodge Corp. will lay off 1,500 U.S. employees . . . Page A-13 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w5f9n7_ CWA says it has been notified by AT&T Corp. of plans to lay off 2,400 union-represented workers . . . Page A-13 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w5h3h7_ New York-based insurance firm MetLife Inc. will cut just under 1,900 U.S. jobs in ongoing effort to reduce costs . . . Page A-13 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w5b9y4_ _____________ ECONOMIC NEWS _____________ EMPLOYMENT As labor market weakened nationally during September, several states registered unemployment rates above national average of 4.9 percent, according to Labor Department's Bureau of Labor Statistics . . . Page D-1 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w5e8n6_ ____ TEXT ____ ARBITRATION Seventh Circuit decision in "Penn v. Ryan's Family Steak Houses Inc." . . . Page E-10 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w5k1m5_ FMLA U.S. District Court for the District of Maine's decision in "Plumley v. Southern Container Inc." . . . Page E-1 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w5g5w4_ ______________ TABLE OF CASES ______________ Ale v. TVA (6th Cir.) . . . Page A-3 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w5h2t3_ Beck v. Boeing Co. (W.D. Wash.) . . . Page A-2 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w5h9t2_ Freund Baking Co. (N.L.R.B.) . . . Page A-1 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w5h2j7_ Hamilton Sundstrand Corp. v. Healey (N.D. Ill.) . . . Page A-8 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w5e0u8_ Penn v. Ryan's Family Steak Houses Inc. (7th Cir.) . . . Page AA-1, Text E-10 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w3p3w5_ http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w5k1m5_ Plumley v. Southern Container Inc. (D. Me.) . . . Page A-8, Text E-1 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w5k7q8_ http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w5g5w4_ Ramirez v. DeCoster d/b/a DeCoster Egg Farm (D. Me.) . . . Page A-6 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w4w6w6_ Tate v. Farmland Indus. Inc. (10th Cir.) . . . Page A-4 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w4v9w7_ __________ 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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