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From: 	"BNA Highlights" <bhighlig@bna.com>@ENRON [mailto:IMCEANOTES-+22BNA+20Highlights+22+20+3Cbhighlig+40bna+2Ecom+3E+40ENRON@ENRON.com] 
Sent:	Wednesday, August 15, 2001 11:04 PM
To:	BNA Highlights
Subject:	Aug. 16 -- BNA, Inc. Daily Labor Report

______________________________

DAILY LABOR REPORT
Highlights & Table of Contents
August 16, 2001
______________________________

ISSN 1522-5968

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__________

HIGHLIGHTS
__________


COURT SEES NO DUTY TO BARGAIN FOR SUBSIDIARIES OPERATING
"NEW YORK POST"

Two companies that successively operated the "New York Post
" were not required to recognize and bargain with the
Newspaper Guild of New York, the Second Circuit rules
("Newspaper Guild of N.Y. v. NLRB,  "2d Cir.,  No. 00-4222,
8/10/01).

Affirming the National Labor Relations Board's ruling in
favor of NYP Acquisition Corp. and NYP Holdings Inc., Judge
Jacobs holds that the board was reasonable in finding that
NYP Acquisition--launched in 1993 to manage the
then-bankrupt newspaper--and NYP Holdings--later launched to
buy the paper--were not alter egos because they played
different transactional roles and had different financial
and strategic purposes. Nor were the two subsidiaries of
Rupert Murdoch's News American Publishing Inc. a single
employer, the court holds, because they did not operate
concurrently. . . . Page AA-1,  Text E-21

http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4p9c8c1_

http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4p8z6w4_


TEXAS COURT UPSETS $5.8 MILLION VERDICT FOR FORMER AMERICAN
EAGLE PILOT

The Texas Court of Appeals overturns a more than $5.8
million judgment for a former American Eagle pilot who
claimed he was fired for refusing to fly in an ice storm
("Simmons Airlines d/b/a American Eagle v. Lagrotte, "Tex.
Ct. App., No. 05-00-00656-CV, 8/3/01). The appeals court
decides the trial court should not have allowed Michael
Lagrotte to bring a wrongful discharge tort claim when he
was covered by a collective bargaining contract that
specified he could only be fired for "just cause," and he
had access to grievance/arbitration procedures to challenge
his discharge. Lagrotte filed a grievance but withdrew it,
opting instead to go to court.

A jury in the Dallas County District Court found American
Eagle acted with malice in terminating Lagrotte for the sole
reason that he refused to perform an illegal act. The jury
awarded $2,354,504 in actual damages and $7 million in
exemplary damages, but the trial judge reduced the exemplary
damages to $3,459,008. The trial judge denied the company's
motions for judgment notwithstanding the verdict and for a
new trial. . . . Page A-1

http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4p8y8a8_


FIRM NOT LIABLE FOR OVERTIME DESPITE POLICY OF CUTTING PAY
FOR SICK LEAVE

An office manager and bookkeeper fails to convince the Tenth
Circuit that because of her employer's policy of reducing
pay for sick leave under certain circumstances she was
eligible for overtime under the Fair Labor Standards Act
("Gagnon v. Resource Tech. Inc., "10th Cir., No. 00-2410,
8/13/01). The court rejects Gloria Gagnon's contention that
she did not meet the conditions of the salary test used to
determine if she was employed in an administrative capacity
and therefore exempt from the overtime requirements of the
FLSA.

 The employer's sick leave policy did not defeat the salary
test because Gagnon failed to show that a "reduction in pay
for less than one day of sick leave would have been applied"
to employees such as herself, the court says. The Supreme
Court has held that the salary test denies exempt status
when employees are covered by a policy that permits
deductions in pay for certain reasons, such as use of sick
leave for absences of less than one day. However, Gagnon
"does not allege that any deductions were made" or that her
employer "had a policy or practice of deductions, nor does
the record suggest any reason to infer such a policy," the
court says. . . . Page A-7

http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4p9c7t1_


JUDGE RULES DIAL CASE CAN PROCEED AS PATTERN-OR-PRACTICE
CLAIM

A federal judge rules that the Equal Employment Opportunity
Commission may proceed to trial with charges of sexual
harassment at Dial Corp.'s  Aurora, Ill., soap production
plant and denies most of the company's petition for summary
judgment ("EEOC v. Dial Corp., "N.D. Ill., No. 99 C 3356,
8/9/01).

In a 46-page decision, Judge Urbom rejects the bulk of
Dial's arguments for disposal of the EEOC's lawsuit alleging
that Dial Corp. tolerated a pattern or practice of sexual
harassment and sex discrimination at the Aurora facility
dating back to July 1988. The decision paves the way for a
trial in a sexual harassment case that an EEOC official
predicts could be EEOC's biggest since its landmark
litigation against Mitsubishi Motors Manufacturing of
America Inc. . . . Page A-2,  Text E-1

http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4p8z5r2_

http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4p8t5n5_


COURT ALLOWS CLAIMS THAT UNITED HEALTHCARE USED FAULTY
UCR-CHARGE DATA

The U.S. District Court for the Southern District of New
York rules that claims can proceed alleging that United
Healthcare breached its Employee Retirement Income Security
Act fiduciary duties by knowingly relying on inaccurate data
for establishing usual, customary, and reasonable charges in
determining benefits ("American Med. Ass'n v. United
Healthcare Corp., "S.D.N.Y., No. 00 Civ. 2800 (LMM),
7/31/01).

The suit was brought against United Healthcare and its
affiliates by health plan participants, including
participants in American Airlines' employee health plan, the
American Medical Association, the Medical Society of the
State of New York, the Missouri State Medical Association,
and two medical care providers who treated plan participants
as "out-of-network providers."

The suit alleged that although United Healthcare is
obligated to collect and maintain "usual, customary, and
reasonable" data to support its decision to reimburse
out-of-network physicians, it "does not in fact possess UCR
data to substantiate its claims that certain fees are
greater than the usual and customary charge for such
treatment and cannot justify reimbursement at the lower
rates that United Healthcare had been reimbursing
out-of-network physicians." The court finds the allegations
sufficient to state a claim for breach of fiduciary duty.
However, it dismisses a claim for relief and says the
plaintiffs cannot seek the recalculation of their benefits.
. . . Page A-3

http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4p8z4z4_


______________

TODAY'S EVENTS
______________

CONSUMER PRICES:Consumer price data for July released by
Bureau of Labor Statistics, 8:30 a.m., Labor Department.

REAL EARNINGS: Real earnings figures for July released by
Bureau of Labor Statistics, 8:30 a.m., Labor Department.

UNEMPLOYMENT: Weekly data on initial claims for unemployment
benefits released, 8:30 a.m., Labor Department.

________________

ALSO IN THE NEWS
________________


STATE LAWS: California Gov. Davis (D) signs a bill that
allows employees who work for racetrack and horse-racing
businesses to organize for collective bargaining purposes.
A.B. 471 calls on the California Horse Racing Board to
establish an organizing procedure for employees of horse
trainers or handlers at racetracks, fairs, and training
facilities. . . . Page A-2

http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4p8g9y0_

INDUSTRIAL PRODUCTION: The U.S. industrial
sector--comprising manufacturing, mining, and
utilities--showed a scant 0.1 percent decline in total
production during July, marking the 10th consecutive monthly
decrease, according to figures released by the Federal
Reserve. . . . Page D-1

http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4p9c1t3_

EEOC: Ida Castro, the former chairwoman of the Equal
Employment Opportunity Commission, is named a senior adviser
and director of the women's vote center at the Democratic
National Committee. . . . Page A-4

http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4p9c0g6_


____

TEXT
____

LABOR LAW: Decision of Second Circuit in "Newspaper Guild of
New York v. NLRB". . . . Page E-21

http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4p8z6w4_

SEXUAL HARASSMENT: Decision of U.S. District Court for
Northern District of Illinois in "EEOC v. Dial Corp. ". . .
Page E-1

http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4p8t5n5_


_________________

TABLE OF CONTENTS
_________________

LEADING THE NEWS

NLRA
   Two companies that successively operated the "New York
   Post" were not required to recognize and bargain with
   Newspaper Guild of New York, the Second Circuit rules . .
   . Page AA-1,  Text E-21
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4p9c8c1_

   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4p8z6w4_


____

NEWS
____

AGE DISCRIMINATION
   Benefits specialist failed to show that the 300-day limit
   for filing her age discrimination case should be
   equitably tolled, the Tenth Circuit holds, finding that
   Quark Inc. did not lull her into inaction by actively
   deceiving her . . . Page A-5
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4p8w6n1_

EEOC
   Former EEOC Chairwoman Castro is named a senior adviser
   and director of the women's vote center at the Democratic
   National Committee . . . Page A-4
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4p9c0g6_

ERISA
   Federal district court in New York rules claims can
   proceed alleging that United Healthcare breached its
   Employee Retirement Income Security Act fiduciary duties
   by knowingly relying on inaccurate data for establishing
   usual, customary, and reasonable charges in determining
   benefits . . . Page A-3
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4p8z4z4_

FLSA
   Office manager and bookkeeper fail to convince the Tenth
   Circuit that because of her employer's policy of reducing
   pay for sick leave under certain circumstances she was
   eligible for overtime under the Fair Labor Standards Act
   . . . Page A-7
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4p9c7t1_

HEALTH CARE
   Report says employers likely will continue to scale back
   retiree health benefits, spurred by changes in federal
   accounting rules, age discrimination rulings by federal
   courts, medical inflation, and potential federal
   legislation . . . Page A-6
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4p9c4z1_

PENSIONS
   PBGC announces it is seeking written comments on the
   extension of existing information collection related to
   the payment of premiums and annual financial and
   actuarial information reporting . . . Page A-6
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4p8u5n1_

RAILROADS
   UTU and BLE members are voting on the proposed merger of
   the organizations, which would create the largest rail
   union in North America . . . Page A-8
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4p9c9a3_

SEXUAL HARASSMENT
   Federal district court allows EEOC to proceed with its
   suit against Dial Corp., alleging sexual harassment at
   the company's Aurora, Ill., soap production plant . . .
   Page A-2,  Text E-1
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4p8z5r2_

   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4p8t5n5_

STATE LAWS
   California Gov. Davis (D) signs a bill that allows
   employees who work for racetrack and horse-racing
   businesses to organize for collective bargaining purposes
   . . . Page A-2
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4p8g9y0_

UNIONS
   Delegates to the Iron Workers's convention elect Joseph
   J. Hunt general president of the 135,000-member union . .
   . Page A-8
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4p9b8n2_

WORKFORCE REDUCTIONS
   Motorola Inc. says it plans to phase out two wafer
   fabrication lines at its Mesa, Ariz., facility over the
   next two and one-half years . . . Page A-4
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4p8v5q2_

WRONGFUL DISCHARGE
   Texas appellate court overturns a more than $5.8 million
   judgment for a former American Eagle pilot who claimed he
   was fired for refusing to fly in an ice storm . . . Page
   A-1
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4p8y8a8_


_____________

ECONOMIC NEWS
_____________

INDUSTRIAL PRODUCTION
   U.S. industrial sector--comprising manufacturing, mining,
   and utilities--showed a scant 0.1 percent decline in
   total production during July, marking the 10th
   consecutive monthly decrease, Federal Reserve data show .
   . . Page D-1
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4p9c1t3_


____

TEXT
____

SEXUAL HARASSMENT
   Decision of the U.S. District Court for Northern District
   of Illinois in "EEOC v. Dial Corp." . . . Page E-1
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4p8t5n5_

LABOR LAW
   Second Circuit's decision in "Newspaper Guild of New York
   v. NLRB" . . . Page E-21
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4p8z6w4_


______________

TABLE OF CASES
______________

American Med. Ass'n v. United Healthcare Corp. (S.D.N.Y.) .
. . Page A-3
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4p8z4z4_

Bennett v. Quark Inc. (10th Cir.) . . . Page A-5
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4p8w6n1_

EEOC v. Dial Corp. (N.D. Ill.) . . . Page A-2,  Text E-1
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4p8z5r2_

   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4p8t5n5_

Gagnon v. Resource Technology, Inc. (10th Cir.) . . . Page
A-7
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4p9c7t1_

Newspaper Guild of N.Y. v. NLRB (2d Cir.) . . . Page AA-1,
Text E-21
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4p9c8c1_

   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4p8z6w4_

Simmons Airlines d/b/a American Eagle v. Lagrotte (Tex. Ct.
App.) . . . Page A-1
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4p8y8a8_

   __________
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