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Subject:	Oct. 22 -- BNA, Inc. Daily Labor Report

______________________________

DAILY LABOR REPORT
Highlights & Table of Contents
October 22, 2001
______________________________

ISSN 1522-5968

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__________

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_

   __________
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