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PW: bnaweb22 -----Original Message----- From: "BNA Highlights" <bhighlig@bna.com<@ENRON Sent: Sunday, October 28, 2001 11:10 PM To: BNA Highlights Subject: Oct. 29 -- BNA, Inc. Daily Labor Report ______________________________ DAILY LABOR REPORT Highlights & Table of Contents October 29, 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 __________ WISCONSIN APPEALS COURT REFUSES TO ENFORCE NO-HIRE AGREEMENT A Wisconsin supplier of physical therapists cannot enforce a no-hire agreement with a group of nursing homes, which was entered into without the therapists' knowledge or consent, the Wisconsin Court of Appeals decides, addressing an issue of first impression ("Heyde Cos., d/b/a Greenbriar Rehabilitation v. Dove Healthcare LLC, "Wis. Ct. App., No. 01-0863, 10/23/01). Under agreements between supplier Greenbriar Rehabilitation and 34 nursing homes, including Dove Healthcare, Greenbriar provided physical therapists. The nursing homes were prohibited from hiring Greenbriar therapists without the supplier's consent. If Greenbriar consented, the nursing home had to pay the supplier a steep fee. Dove hired Greenbriar therapists without seeking the supplier's consent or paying the fee. Overturning a $64,314 judgment for Greenbriar, the appeals court decides the no-hire provision is unenforceable because it violates Wisconsin public policy favoring unrestrained competition in the employment market. "We conclude that an employee's individual right and freedom to contract may not be restricted by a contract between two employers unless the employee is aware of and consents to the contract," Judge Peterson says. . . . Page AA-1 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w8f5t9_ NINTH CIRCUIT UPHOLDS $1 MILLION DAMAGES AWARD IN RACE BIAS CASE A company's failure to respond to co-workers' harassment of its only African American employee was negligence and evidence of remedial efforts would not have altered the significant finding against the employer, the Ninth Circuit holds ("Swinton v. Potomac Corp. d/b/a Crescent Cardboard Co. d/b/a Crescent/U.S. Mat, "9th Cir., No. 99-36147, 10/24/01). Ruling on an appeal by manufacturer U.S. Mat, which was found liable for racial harassment in a claim by Troy Swinton, the Ninth Circuit upholds a $1 million punitive damages award. In doing so, the court refuses to create a bright-line rule requiring trial courts to admit evidence of remedial efforts undertaken after the filing of a discrimination complaint. The court also rules that the affirmative defense to employer liability established by the U.S. Supreme Court in "Faragher v. Boca Raton " and "Burlington Industries Inc. v. Ellerth " is not available to employers when the harasser is not the plaintiff's supervisor and the plaintiff is alleging negligence. . . . Page A-1, Text E-1 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w7x2a2_ http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w7w7q6_ UNION SECRETARY'S WRONGFUL DISCHARGE CLAIM PREEMPTED BY LMRDA A local union secretary in Southern California who was fired for her support of Proposition 226--a 1998 anti-labor voter initiative that the union had fought--is barred from bringing a wrongful discharge action against the United Food and Commercial Workers union, a state appeals court holds ("Thunderburk v. UFCW Local 324, "Cal. Ct. App., No. E029765, 10/22/01). Plaintiff Nattie Thunderburk had access to a wide range of confidential union information, which if disclosed "could have thwarted union policies and objectives, " according to the California Court of Appeal for the Fourth Appellate District. "[D]espite limitations normally imposed on employers by California's wrongful termination law," UFCW Local 324, therefore had an "unfettered right to terminate confidential employees" like Thunderburk under the Labor-Management Reporting and Disclosure Act of 1959. . . . Page A-2 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w8f4r7_ COURT OKS $350,000 AWARD FOR WORKER PHOTOGRAPHED IN REST ROOM The California appeals court upholds a $350,000 verdict for an auto body repair shop production manager who sued his employer after co-workers broke into the office rest room, took a photograph of him while he was urinating, and showed the photo to other employees who then subjected him to ribald and humiliating comments ("Fotiades v. Hi-Tech Auto Collision & Painting Servs. Inc., "Cal. Ct. App., No. E029854, "unpublished" 10/17/01). The trial court properly reduced the jury's original $1 million compensatory damages award to $350,000 on Chris Fotiades's invasion of privacy and intentional infliction of emotional distress claims against Hi-Tech Auto Collision & Painting Services Inc., Justice Richli rules in the unpublished opinion. But the appeals court strikes down the trial court's $150,000 punitive damages award, finding insufficient evidence that a director, officer, or managing agent of Hi-Tech either participated in, authorized, or ratified the employees' outrageous conduct. . . . Page A-9 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w8h7b9_ UNILATERAL WORK-POLICY CHANGES FOLLOWING UNION ELECTION VIOLATED NLRA The National Labor Relations Board's determination that numerous unfair labor practices took place at Pepsi Cola Bottling Co.'s Fayetteville, N.C., plant following a successful 1991 union representation election is endorsed by the Fourth Circuit ("NLRB v. Pepsi Cola Bottling Co. of Fayetteville Inc., "4th Cir., No. 00-1969, 10/12/01). In the latest development in a longstanding labor dispute, the Fourth Circuit agrees to enforce an NLRB bargaining order based on the board's showing that Pepsi violated the National Labor Relations Act by unilaterally changing various employment policies following the election. The court rejects Pepsi's contention that the United Food and Commercial Workers waived its right to bargain over the unilateral policy changes, which included new compensation procedures, altered work schedules, and stricter disciplinary procedures. Given a UFCW representative's testimony that she received notice of the proposed changes after they were announced to employees, the court concludes the union did not waive its right to bargain over the changes by failing to request bargaining. It also finds that the changes amounted to "material alterations of the terms and conditions of employment" and that Pepsi violated the NLRA by unilaterally imposing them. . . . Page A-3 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w7h1w7_ ________________ ALSO IN THE NEWS ________________ NLRB: National Labor Relations Board General Counsel Arthur F. Rosenfeld circulates a 13-page memorandum to agency personnel providing an overview of various issues raised by the board's recent "Levitz" decision on employer withdrawals of union recognition. . . . Page A-10 Text E-25 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w8j1h9_ http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w8h2v5_ MARITIME: Some 1,250 employees at a shipyard in Pascagoula, Miss., are temporarily laid off when Northrop Grumman Corp. suspends work on a cruise ship it was building for American Classic Voyages Co. after guaranteed government funding for the project was halted. . . . Page A-7 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w8h2r1_ LAYOFFS: Mass layoffs reported by employers in September were the highest for any September since the government began recording the data in 1995, according to the Bureau of Labor Statistics. . . . Page D-1 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w8a0c9_ ____ TEXT ____ RACIAL HARASSMENT: Ninth Circuit decision in "Swinton v. Potomac Corp., d/b/a Crescent Cardboard Co. ". . . Page E-1 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w7w7q6_ NLRB: National Labor Relations Board's weekly summary of cases, dated Oct. 26, 2001. . . . Page E-14 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w8f7j9_ NLRB: National Labor Relations Board General Counsel Rosenfeld's memorandum on guidelines on "Levitz". . . . Page E-25 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w8h2v5_ _________________ TABLE OF CONTENTS _________________ LEADING THE NEWS NONCOMPETITION AGREEMENTS Wisconsin supplier of physical therapists cannot enforce no-hire agreement with group of nursing homes that was entered into without therapists' knowledge or consent, Wisconsin Court of Appeals decides in issue of first impression . . . Page AA-1 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w8f5t9_ ____ NEWS ____ AFL-CIO Delegates to Maryland-D.C. AFL-CIO convention elect Fred Mason president and Donna Edwards secretary-treasurer . . . Page A-11 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w7x4h0_ AIRLINES Three airlines say that more than 15,000 furloughs may be avoided if employees opt for voluntary leave and early retirement programs . . . Page A-6 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w8f6z4_ ECONOMIC OUTLOOK Conference Board finds that larger share of U.S. households plans big-ticket purchases than did so in late September . . . Page A-3 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w8f2h6_ EMPLOYMENT CONTRACTS Physician's oral employment contract that includes salary, vacation time, and length of employment may not be inclusive enough to be considered binding, Fifth Circuit rules . . . Page A-4 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w6y1w0_ ERISA IBEW Local 98's pension fund cannot compel participant to undergo physical exam to settle dispute over his claim for disability pension benefits, federal district court rules . . . Page A-6 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w7z9p0_ LABOR DEPARTMENT Senate Health, Education, Labor, and Pensions Committee Chairman Kennedy (D-Mass.) and Sen. Dodd (D-Conn.) circulate letter to Senate Democrats asking them to oppose Eugene Scalia as labor solicitor . . . Page A-11 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w8a3p1_ LABOR LAW Local union secretary in Southern California who was fired for her support of anti-labor voter initiative Proposition 226 is barred from bringing wrongful discharge action against UFCW, state appellate court rules . . . Page A-2 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w8f4r7_ MARITIME Possible permanent layoffs face some 1,250 shipyard employees in Mississippi temporarily laid off by Northrop Grumman Corp. . . . Page A-7 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w8h2r1_ MINIMUM WAGE Santa Monica City Council passes anti-retaliation ordinance and moves toward "preferential recall" measure covering laid-off hotel workers . . . Page A-4 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w6w3p0_ NLRB NLRB General Counsel Rosenfeld circulates memorandum providing overview of issues raised by board's recent "Levitz" decision on employer withdrawals of union recognition . . . Page A-10, Text E-25 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w8j1h9_ http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w8h2v5_ PENSIONS Labor Secretary Chao announces second National Summit on Retirement Savings will be held next February in Washington, D.C. . . . Page A-11 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w8b6b5_ PRIVACY RIGHTS California appeals court upholds $350,000 verdict for auto body repair shop production manager whose co-workers photographed him urinating . . . Page A-9 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w8h7b9_ RACE DISCRIMINATION Factory worker who failed to inform his attorney for nearly seven months of receipt of right-to-sue notice could not pursue time-barred racial discrimination claims on grounds that lawyer did not receive copy, Seventh Circuit rules . . . Page A-5 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w6z3q4_ RACIAL HARASSMENT Company's failure to respond to harassment of its only African American employee by co-workers was negligence and evidence of remedial efforts would not have altered significant evidence against employer, Ninth Circuit holds . . . Page A-1, Text E-1 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w7x2a2_ http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w7w7q6_ RAILROADS Federal court approves consent agreement between Brotherhood of Locomotive Engineers and three dissident BLE members, calling for new membership vote on possible merger with United Transportation Union . . . Page A-12 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w8e8e2_ SAFETY & HEALTH CDC update says intensive surveillance activities and environmental and case investigations are in progress to identify and treat U.S. Postal Service workers and others at potential risk for anthrax . . . Page A-8 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w8h7f8_ Former OSH Review Commissioner Visscher expected to be named deputy assistant secretary for occupational safety and health . . . Page A-7 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w8g4m2_ SOCIAL SECURITY National Center for Policy Analysis report warns of generational conflict over retirement resources as baby boomers start receiving Social Security and Medicare benefits . . . Page A-11 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w7z6e9_ TAXES New York state's unemployment insurance taxes are expected to increase by estimated 0.4 percentage point Jan. 1 because of slowdown in state's economy . . . Page A-12 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w8e2p8_ Treasury Department and IRS say that business taxpayers can redesignate estimated income tax overpayments for current taxable year as employment tax deposits . . . Page A-7 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w8c2y1_ TRADE U.S. and EU business leaders will urge respective governments to agree next month to launch new round of "ambitious" multilateral trade negotiations . . . Page A-10 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w8j2r6_ UNFAIR LABOR PRACTICES Fourth Circuit endorses NLRB's determination that numerous unfair labor practices took place at Pepsi Cola Bottling Co.'s Fayetteville, N.C., plant following successful 1991 union representation election . . . Page A-3 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w7h1w7_ WORKFORCE REDUCTIONS Kraft Foods Inc. will offer enhanced retirement benefits among salaried employees in United States as way to eliminate approximately 1,000 of its 117,000 positions . . . Page A-12 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w8f5x6_ _____________ ECONOMIC NEWS _____________ LAYOFFS Mass layoffs reported by employers in September were the highest for any September since government began recording data in 1995, Labor Department's Bureau of Labor Statistics says . . . Page D-1 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w8a0c9_ ____ TEXT ____ RACIAL HARASSMENT Ninth Circuit decision in "Swinton v. Potomac Corp., d/b/a Crescent Cardboard Co." . . . Page E-1 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w7w7q6_ NLRB NLRB's weekly summary of cases, dated Oct. 26, 2001 . . . Page E-14 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w8f7j9_ NLRB NLRB General Counsel Rosenfeld's guideline memorandum . . . Page E-25 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w8h2v5_ ______________ TABLE OF CASES ______________ Carney v. International Bhd. of Electrical Workers Local Union 98 Pension Fund (E.D. Pa.) . . . Page A-6 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w7z9p0_ Conner v. Lavaca Hosp. Dist. (5th Cir.) . . . Page A-4 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w6y1w0_ Fotiades v. Hi-Tech Auto Collision & Painting Servs. Inc. (Cal. Ct. App.) . . . Page A-9 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w8h7b9_ Heyde Cos., d/b/a Greenbriar Rehabilitation v. Dove Healthcare LLC (Wis. Ct. App.) . . . Page AA-1 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w8f5t9_ NLRB v. Pepsi Cola Bottling Co. of Fayetteville Inc. (4th Cir.) . . . Page A-3 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w7h1w7_ Swinton v. Potomac Corp. d/b/a Crescent Cardboard Co. d/b/a Crescent/U.S. Mat (9th Cir.) . . . Page A-1, Text E-1 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w7x2a2_ http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w7w7q6_ Threadgill v. Moore U.S.A. Inc. (7th Cir.) . . . Page A-5 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w6z3q4_ Thunderburk v. UFCW Local 324 (Cal. Ct. App.) . . . Page A-2 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4w8f4r7_ __________ 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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