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Subject:	Nov. 27 -- BNA, Inc. Daily Labor Report

______________________________

DAILY LABOR REPORT
Highlights & Table of Contents
November 27, 2001
______________________________

ISSN 1522-5968


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HIGHLIGHTS
__________


HIGH COURT CONSIDERS FEDERAL RULE TOLLING STATE LAW
LIMITATION PERIODS

The U.S. Supreme Court hears oral arguments in a case
examining the constitutionality of a Federal Rule of Civil
Procedure that tolls the statute of limitations in a state
law claim while a related action is brought in federal court
("Raygor v. Regents of the Univ. of Minn.,  "U.S.,  No.
00-1514,  "oral argument", 11/26/01 ).

Lance Raygor and James Goodchild, former employees of the
University of Minnesota, ask the justices to overturn the
Minnesota Supreme Court's January 2001 ruling finding
unconstitutional a state appeals court's decision that the
lower court's application of 28 U.S.C. Section  1367(d),
part of the federal supplemental jurisdiction statute, was
barred by sovereign immunity under the 11th Amendment to the
U.S. Constitution because it impermissibly prolonged the
state's exposure to liability.  The university, however,
urges the justices to affirm, arguing that Section 1367(d)
is unconstitutional. . . . Page AA-1

http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y9p5m6_


SUPREME COURT DECLINES TO REVIEW APPEALS COURT RULING ON
SUBCONTRACTING

The U.S. Supreme Court declines to review an appeals court
decision that a ready-mix concrete company violated the
National Labor Relations Act by selling its trucks and
hiring independent contractors to perform delivery work
without first bargaining to impasse over the issue
("Naperville Ready Mix Inc. v. NLRB, "U.S., No. 01-280,
"cert. denied" 11/26/01). The owner of Naperville Ready Mix
Inc. and two related companies announced during contract
negotiations with International Brotherhood of Teamsters
Local 673 that he wanted to sell the delivery trucks to
owner-operators. The owner supplied the financing, did not
require any down payment, required buyers to give first
priority to Naperville's hauling needs, restricted
purchasers from working for competitors, sold subsidized
fuel, provided truck repair services, and allowed free truck
storage on site.

The Seventh Circuit in March 2001 upheld the National Labor
Relations Board's ruling that the plan to shift delivery
work from employee drivers to subcontractors was a mandatory
subject of bargaining. The change to using subcontract
haulers was motivated by a desire to save on labor costs and
was not a core entrepreneurial decision beyond the scope of
the companies' obligation to bargain with the union, the
appeals court decided. . . . Page AA-4,  Text E-1

http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y9n7x4_

http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y9g6q0_


ELEVENTH CIRCUIT SAYS EX-EMPLOYEES MAY SUE UNDER ADA

Former employees may sue under the Americans with
Disabilities Act to challenge limits on post-employment
benefits, a divided Eleventh Circuit rules, reversing its
position in an earlier case that ex-employees are not
covered. In an issue of first impression in the Eleventh
Circuit, Judge Pollak remands to a federal district court in
Florida a case brought by a former Kmart employee forced to
resign because of emotional illness ("Johnson v. Kmart
Corp., "11th Cir., No. 99-14563, 11/21/01). In reversing the
circuit's position in "Gonzales v. Garner Food Servs. Inc.",
Judge Pollak cites an intervening Supreme Court decision
that ex-employees may sue under Title VII of the 1964 Civil
Rights Act, the law from which the ADA's definition of
employee is drawn.

The court says a narrow reading of ADA Section 12112(a) to
exclude coverage of former employees "would not only bar a
whole class of plaintiffs from access to remedies regarding
the administration of post-employment benefits," but also
would nullify sections of ADA Title I that protect against
discriminatory discharge and authorize courts to order
reinstatement. Judge Carnes dissents, arguing that because
the Supreme Court did not expressly overrule " Gonzales",
the case is still good law. . . . Page A-1,  Text E-10

http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y9m1e5_

http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y9n6w3_


RESEARCH BUREAU SAYS RECESSION BEGAN IN MARCH

The National Bureau of Economic Research says the U.S.
economy fell into recession in March, ending a 10-year
expansion that was longer than all others in the nation's
history. Widely anticipated by private forecasters, NBER's
pronouncements are regarded as the official word on business
cycle turning points.

The NBER's finding that the recession began in March means
the downturn is already nearly nine months old. Recent jumps
in unemployment, as well as other indicators of the weak
economy, were cited by the bureau as evidence that the
downturn merits being termed a recession. . . . Page A-6,
Text E-5

http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y9t2h8_

http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y9e7q6_


JUSTICES DECLINE TO REVIEW COURT'S DISMISSAL OF NAFTA
CHALLENGE

The U.S. Supreme Court lets stand an appeals court ruling
that courts have no jurisdiction to determine whether the
president and Congress had the constitutional authority to
enact the North American Free Trade Agreement ("United
Steelworkers of Am. v. United States, "U.S., No. 01-5,
"cert. denied" 11/26/01). The United Steelworkers and the
Made in the USA Foundation sought review of a March decision
by the Eleventh Circuit finding that the suit raised a
political question over which the court had no jurisdiction.

The leaders of the United States, Canada, and Mexico signed
the NAFTA agreement in December 1992, and Congress approved
and implemented the agreement one year later on a majority
vote. The plaintiffs alleged that NAFTA's approval
circumvented the Constitution's Treaty Clause which requires
two-thirds approval by the Senate. . . . Page AA-2,  Text
E-1

http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y9q0c0_

http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y9g6q0_


________________

ALSO IN THE NEWS
________________

INTERNATIONAL LABOR: Cooperative efforts should be
undertaken to promote safer and improved working conditions
for construction workers around the world, particularly in
developing countries, the International Labor Organization
says in a report to be presented at the Tripartite Meeting
on the Construction Industry in the 21st Century, which will
be held in Geneva Dec. 10-14. . . . Page A-4

http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y8t9p5_

DISABILITIES: An aluminum company had a legitimate,
nondiscriminatory reason for firing a forklift operator who
was responsible for more than a dozen accidents in three
years, even though he claimed he was disabled by
post-traumatic stress disorder, a federal district court in
New York rules. . . . Page A-2

http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y8p1f7_


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TEXT
____

SUPREME COURT: Summaries of labor and employment law cases
in which the U. S. Supreme Court denied review on Nov. 26,
2001. . . . Page E-1

http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y9g6q0_

ECONOMIC OUTLOOK: Statement by National Bureau of Economic
Research declaring beginning of recession in March 2001,
released Nov. 26. . . . Page E-5

http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y9e7q6_

DISABILITIES: Eleventh Circuit's decision in "Johnson v.
Kmart Corp. ". . . Page E-10

http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y9n6w3_


_________________

TABLE OF CONTENTS
_________________

LEADING THE NEWS

AGE DISCRIMINATION
   U.S. Supreme Court hears oral arguments in case examining
   constitutionality of Federal Rule of Civil Procedure that
   tolls statute of limitations in state law claim while
   related action is brought in federal court . . . Page
   AA-1
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y9p5m6_

DISABILITIES
   U.S. Supreme Court rejects bid by railroad employee to
   review appeals court decision which found that mandatory
   arbitration provision of Railway Labor Act barred him
   from litigating claim under Americans with Disabilities
   Act . . . Page AA-6,  Text E-1
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y9m2f3_

   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y9g6q0_

NAFTA
   U.S. Supreme Court lets stand appeals court ruling that
   courts have no jurisdiction to determine whether
   president and Congress had constitutional authority to
   enact NAFTA . . . Page AA-2,  Text E-1
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y9q0c0_

   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y9g6q0_

UNFAIR LABOR PRACTICES
   U.S. Supreme Court declines to review appeals court
   decision that ready-mix concrete company violated
   National Labor Relations Act by selling its trucks and
   hiring independent contractors to perform delivery work
   without first bargaining to impasse with union over issue
   . . . Page AA-4,  Text E-1
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y9n7x4_

   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y9g6q0_

WAGE & HOUR
   U.S. Supreme Court lets stand California appeals court
   ruling involving overtime pay for insurance adjusters,
   leaving intact $90 million jury award . . . Page AA-5,
   Text E-1
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y9n7r4_

   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y9g6q0_


____

NEWS
____

CONSTRUCTION
   NLRB says composite crews represented by LIUNA and IUOE,
   rather than IBEW, should be assigned backhoe operation
   and excavation of duct banks and manholes for underground
   electrical conduit installation in metropolitan Chicago .
   . . Page A-5
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y9k3y0_

DISABILITIES
   Aluminum company had legitimate, nondiscriminatory reason
   for firing forklift operator responsible for more than
   twelve accidents in three years, even though he claimed
   he was disabled by post-traumatic stress disorder, a
   federal district court in New York rules . . . Page A-2
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y8p1f7_

   Former employees may sue under Americans with
   Disabilities Act, divided Eleventh Circuit rules,
   reversing its position in an earlier case . . . Page A-1,
   Text E-10
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y9m1e5_

   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y9n6w3_

ECONOMIC OUTLOOK
   National Bureau of Economic Research says U.S. economy
   fell into recession in March, ending 10-year expansion
   that was longer than all others in nation's history . . .
   Page A-6,  Text E-5
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y9t2h8_

   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y9e7q6_

ERISA
   At plaintiffs' request, lawsuit accusing directors of two
   carpenter union pension plans of self-dealing and other
   ERISA violations is dismissed at no cost to union plans .
   . . Page A-7
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y9p8z9_

INTERNATIONAL LABOR
   ILO says cooperative efforts should be undertaken to
   promote safer working conditions for construction
   workers, particularly in developing countries . . . Page
   A-4
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y8t9p5_

RACE DISCRIMINATION
   Federal judge in Kansas rules that Boeing Co.'s
   attendance and discipline policies were applied too
   inconsistently to warrant summary judgment on race bias
   claims brought by Hispanic applicant for job promotion .
   . . Page A-3
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y9k4d5_


____

TEXT
____

DISABILITIES
   Eleventh Circuit's decision in "Johnson v. Kmart Corp." .
   . . Page E-10
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y9n6w3_

ECONOMIC OUTLOOK
   Statement by National Bureau of Economic Research
   declaring beginning of recession in March 2001 . . . Page
   E-5
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y9e7q6_

SUPREME COURT
   Summaries of labor and employment law cases in which U.S.
   Supreme Court denied review Nov. 26, 2001 . . . Page E-1
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y9g6q0_


______________

TABLE OF CASES
______________

Barnett v. Boeing Co. (D. Kan.) . . . Page A-3
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y9k4d5_

Brown v. Illinois Cent. R.R. Co. (U.S.) . . . Page AA-6,
Text E-2
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y9g6q0_

   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y9g6q0_

Construction & General Laborers Dist. Council of Chicago and
Henkels & McCoy Inc. and IBEW Local 196 (N.L.R.B.) . . .
Page A-5
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y9k3y0_

Cooper v. Board of Educ. of Murphysboro (U.S.) . . . Page
E-3
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y9g6u0_

Dallas Area Rapid Transit v. Williams (U.S.) . . . Page E-3
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y9g6t5_

Ezell v. Direct Labor Inc. (U.S.) . . . Page E-3
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y9g6t0_

Farmers Ins. Exch. v. Bell (U.S.) . . . Page AA-5,  Text E-2
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y9n7r4_

   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y9g6q0_

Grana v. Tutor (C.D. Cal.) . . . Page A-7
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y9p8z9_

Hansen v. Caldwell Diving Co. (U.S.) . . . Page E-2
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y9g6q5_

Harnish v. American Airlines Inc. (U.S.) . . . Page E-2
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y9g6p0_

Hewitt v. Alcan Aluminum Corp. (N.D.N.Y.) . . . Page A-2
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y8p1f7_

Hoechst Celanese Corp. v. California Franchise Tax Board
(U.S.) . . . Page E-1
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y9g6n0_

Johnson v. Kmart Corp. (11th Cir.) . . . Page A-1,  Text
E-10
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y9m1e5_

   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y9n6w3_

Mosher v. Dollar Tree Stores Inc. (U.S.) . . . Page E-3
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y9g6r0_

Naperville Ready Mix Inc. v. NLRB (U.S.) . . . Page AA-4,
Text E-1
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y9g6n5_

   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y9g6q0_

Raygor v. Regents of Univ. of Minn. (U.S.) . . . Page AA-1
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y9p5m6_

Razvi v. Guarantee Life Ins. Co. (U.S.) . . . Page E-3
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y9g6r5_

United Steelworkers of Am. v. United  States (U.S.) . . .
Page AA-2,  Text E-1
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y9g6m5_

   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y9g6q0_

   ___________________________________________________________
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