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Subject:	Aug. 14 -- BNA, Inc. Daily Labor Report

______________________________

DAILY LABOR REPORT
Highlights & Table of Contents
August 14, 2001
______________________________

ISSN 1522-5968

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__________

HIGHLIGHTS
__________


SOLICITOR GENERAL SAYS DBE PROGRAM DISPUTED BY ADARAND IS
CONSTITUTIONAL

In a long-running federal contracting dispute with
implications for workplace affirmative action programs,
Solicitor General Theodore B. Olson files a brief with the
U.S. Supreme Court arguing that the Department of
Transportation's "disadvantaged business enterprise" program
is constitutional ("Adarand Constructors Inc. v. Mineta,
"U.S., No. 00-730, "DOJ brief filed" 8/10/01). Olson,
appointed by President Bush, continues on the path taken by
former Solicitor General Seth P. Waxman, a Clinton
appointee, in a brief filed this past January opposing
Adarand Constructors Inc.'s petition for Supreme Court
review.

Adarand, a white-owned installer of highway guardrails
located in Colorado Springs, Colo., initially filed suit in
1989 after losing a subcontract to install guardrails for
DOT's Federal Highway Administration to a small,
minority-owned, disadvantaged business. In a landmark 1995
ruling, the Supreme Court held federal race-based measures
must meet strict scrutiny. The Tenth Circuit in September
2000 ruled the revised DBE program passed constitutional
muster even under strict scrutiny. Oral argument is
scheduled for Oct. 31. . . . Page AA-1,  Text E-1

http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4p7d0w5_

http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4p6y2k9_


HONEST BELIEF OF JOB ABANDONMENT DEFENSE TO FMLA SUIT, COURT
RULES

A Denver employer can argue that it did not violate the
Family and Medical Leave Act by firing an employee who took
leave after her father had a heart attack because it had a
good faith belief that she abandoned her job, the Tenth
Circuit rules ("Medley v. Polk Co.,  "10th Cir.,  No.
00-1199,  8/9/01 ).

Reversing a $273,194 judgment for Vickie R. Medley and
remanding for a new trial, Judge Owen finds that the lower
court erred in declining Polk Company's requested jury
charge that an employer who honestly believes it is
discharging an employee for misusing FMLA leave is not
liable even if the employer is mistaken. Federal appellate
and district courts unanimously have held "that an employer
who discharges an employee honestly believing that the
employee has abandoned her job and is otherwise not using
FMLA leave ... would not be in violation of FMLA, even if
its conclusion is mistaken, since this would not be a
discriminatory firing," Owen concludes. . . . Page A-1

http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4p7a2e9_


OPERATING ENGINEERS IN CALIFORNIA, NEVADA APPROVE NEW
CONTRACTS

Members of International Union of Operating Engineers Local
12 approve new labor agreements with several contractor
associations that provide wage and benefit increases
totaling $4.65 per hour for approximately 10,000 equipment
operators in the Los Angeles, San Diego, and Las Vegas
metropolitan areas. New in the IUOE agreements is expanded
jurisdiction for union members in a broad range of
construction inspection tasks.

Meanwhile, Laborers' International Union Local 89 in San
Diego approves a three-year, $3.40 per hour contract for
about 600 tradesmen on highway and utility projects. . . .
Page A-2

http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4p6q4j0_


SEIU MEMBERS RATIFY CONTRACT WITH AMERICAN MEDICAL RESPONSE
WEST

American Medical Response West and Service Employees
International Union Local 250 agree they have a "totally
ratified" labor contract and the union withdraws a 10-day
strike notice. The five-year master agreement covers 18
different bargaining units of some 2,200 paramedics,
emergency medical technicians, dispatchers, and other
workers who provide emergency and nonemergency ambulance
service in 20 Northern California counties.

Workers voted last month on a tentative agreement that was
reached June 30. When the ballots were tallied Aug. 1,
employees in three bargaining units had rejected the pact
and the union issued a strike notice for facilities in three
counties. The company took the position that there could not
be a strike because a majority of the employees had accepted
the master agreement. The union's attorney also later took
that position. . . . Page A-2

http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4p6y5y2_


AIDS IN THE WORKPLACE: SOME OLD PROBLEMS PERSIST, NEW ISSUES
ARISE

Recent medical advances in the treatment of AIDS and HIV
mean individuals with the disease can lead much longer,
healthier lives, and be at work and productive for a longer
time. "We're at a very dangerous stage in the epidemic, and
that's the stage of complacency,"  warns Peter Petesch,
co-chair of the Atlanta-based Centers for Disease Control
and Prevention's Business Responds to AIDS program.
Workplace training and education about HIV/AIDS has slipped
down the employer priority list as the disease has gotten
less and less publicity, says Petesch. People have come to
view AIDS as an illness that can be ignored, he adds.

Nancy Breuer, an HIV/AIDS workplace training specialist,
says employers make a mistake with regard to HIV-positive
employees when they "focus on their diagnosis instead of
focusing on their productivity." Victor Barnes, director of
the CDC's Business Responds to AIDS and Labor Responds to
AIDS programs, asserts that workplace HIV/AIDS policies are
crucial in addressing the main issues surrounding the
disease, including workplace accommodations,
confidentiality, benefits, discrimination and the Americans
with Disabilities Act, and co-worker concerns. "It's
critical that workplace policies are in place," he says. . .
. Page C-1

http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4p5y2d9_


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TODAY'S EVENTS
______________

SAFETY & HEALTH: Report on national census of fatal
occupational injuries for 2000 released, 10 a.m., Labor
Department.

________________

ALSO IN THE NEWS
________________


ENTERTAINMENT: Members of the Screen Actors Guild and the
American Federation of Television and Radio Artists approve
a three-year contract with the Alliance of Motion Picture
and Television Producers, with 96.7 percent of those
returning ballots voting to ratify. . . . Page A-8

http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4p7d4v4_

EEOC: The Equal Employment Opportunity Commission announces
that former Chairwoman Castro has resigned from the agency,
leaving a second vacancy for President Bush to fill. . . .
Page A-9

http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4p7d4r4_

PREVAILING WAGES: A federal judge grants a preliminary
injunction to the AFL-CIO's Building and Construction Trades
Department. barring enforcement of Executive Order 13202 on
the Wilson Bridge project. . . . Page A-9

http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4p7e1g4_

RACE DISCRIMINATION: A federal judge refuses to certify two
race bias class actions against Lockheed Martin Corp.,
finding that the evidence did not support the allegations of
widespread discrimination. . . . Page A-5

http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4p6z7q5_


____

TEXT
____

AFFIRMATIVE ACTION: Solicitor General's Brief in "Adarand
Constructors Inc. v. Mineta.". . . Page E-1

http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4p6y2k9_


_________________

TABLE OF CONTENTS
_________________

LEADING THE NEWS

AFFIRMATIVE ACTION
   In a long-running federal contracting dispute with
   implications for workplace affirmative action programs,
   Solicitor General Olson files a brief with the U.S.
   Supreme Court arguing that the Department of
   Transportation's "disadvantaged business enterprise"
   program is constitutional  . . . Page AA-1,  Text E-1
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4p7d0w5_

   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4p6y2k9_


____

NEWS
____

CONSTRUCTION
   Members of IUOE Local 12 ratify new labor agreements with
   several contractor associations that provide wage and
   benefit increases totaling $4.65 per hour for
   approximately 10,000 equipment operators in the Los
   Angeles, San Diego, and Las Vegas metropolitan areas . .
   . Page A-2
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4p6q4j0_

EEOC
   EEOC announces that former Chairwoman Castro has resigned
   from the agency, leaving a second vacancy for President
   Bush to fill . . . Page A-9
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4p7d4r4_

ENTERTAINMENT
   SAG and AFTRA members overwhelmingly vote to approve the
   three-year contract with the Alliance of Motion Picture
   and Television Producers . . . Page A-8
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4p7d4v4_

FMLA
   Denver employer can argue it did not violate the Family
   and Medical Leave Act by firing an employee who took
   leave after her father had a heart attack because it had
   a good faith belief that she abandoned her job, the Tenth
   Circuit rules . . . Page A-1
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4p7a2e9_

HEALTH CARE EMPLOYEES
   American Medical Response West and SEIU Local 250 agree
   that they have a "totally ratified" labor contract and
   the union withdraws a 10-day strike notice . . . Page A-2
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4p6y5y2_

   Direct health care workers, who earn on average less than
   $8 an hour, are underpaid and often lack their own health
   insurance, according to a report released by AFSCME . . .
   Page A-8
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4p6z3t3_

PREVAILING WAGES
   Federal judge in Washington, D.C., grants a preliminary
   injunction to the AFL-CIO's Building and Construction
   Trades Department barring enforcement of Executive Order
   13202 on the Wilson Bridge reconstruction project . . .
   Page A-9
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4p7e1g4_

RACE DISCRIMINATION
   Despite the plaintiffs dropping claims for monetary and
   punitive damages, a federal trial judge in Alabama
   refuses to certify a class of African American employees
   of Circuit City who allegedly were denied promotion
   opportunities in violation of 42 U.S.C. Section 1981 . .
   . Page A-7
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4p6v4c5_

   Federal trial judge in Atlanta refuses to certify two
   race discrimination class actions against Lockheed Martin
   Corp., finding that the statistical and anecdotal
   evidence did not support the allegations of widespread
   discrimination and that the decisionmaking was too
   decentralized to find systemic responsibility . . . Page
   A-5
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4p6z7q5_

SEXUAL HARASSMENT
   School district was not entitled to an affirmative
   defense to a custodian's hostile environment sexual
   harassment claim because "the employer simply did not
   act" in response to the worker's complaints, the Seventh
   Circuit rules, reversing summary judgment to the employer
   on the harassment claim, but affirming on a
   discrimination claim . . . Page A-4
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4p5b9g7_

TRADE
   Chilean courts agree to hear a lawsuit filed by Chilean
   environmental and labor organizations charging that the
   government agency in charge of negotiating a bilateral
   free trade agreement with the United States is refusing
   to release to the public requested information about
   those talks . . . Page A-4
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4p6u0j1_


______________

SPECIAL REPORT
______________

AIDS
   Twenty years after AIDS appeared on the national stage,
   observers examine the disease's effect on the workplace .
   . . Page C-1
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4p5y2d9_


____

TEXT
____

AFFIRMATIVE ACTION
   Solicitor general's brief in "Adarand Constructors Inc.
   v. Mineta" . . . Page E-1
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4p6y2k9_


______________

TABLE OF CASES
______________

Adarand Constructors Inc. v. Mineta (U.S.) . . . Page AA-1,
Text E-1
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4p7d0w5_

   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4p6y2k9_

Building and Constr. Trades Dep't, AFL-CIO v. Allbaugh
(D.D.C.) . . . Page A-9
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4p7e1g4_

Haugerud v. Amery School Dist. (7th Cir.) . . . Page A-4
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4p5b9g7_

Medley v. Polk Co. (10th Cir.) . . . Page A-1
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4p7a2e9_

Reid v. Lockheed Martin Aeronautics Co. (N.D. Ga.) . . .
Page A-5
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4p6z7q5_

Wright v. Circuit City Inc. (N.D. Ala.) . . . Page A-7
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4p6v4c5_

Yarbrough v. Lockheed Martin Aeronautics Co. (N.D. Ga.) . .
. Page A-5
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4p6z7q5_

   __________
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