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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

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__________

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_

   __________
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