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 -----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
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BNA Customer Relations at 1-800-372-1033, Mon. - Fri. 8:30
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__________

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_

   __________
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