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From: 	"BNA Highlights" <bhighlig@bna.com>@ENRON [mailto:IMCEANOTES-+22BNA+20Highlights+22+20+3Cbhighlig+40bna+2Ecom+3E+40ENRON@ENRON.com] 
Sent:	Wednesday, July 11, 2001 11:13 PM
To:	BNA Highlights
Subject:	July 12 -- BNA, Inc. Daily Labor Report

______________________________

DAILY LABOR REPORT
Highlights & Table of Contents
July 12, 2001
______________________________

ISSN 1522-5968

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articles by using the URL link supplied.

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__________

HIGHLIGHTS
__________


NLRB ALJ RECOMMENDS AVONDALE REIMBURSE GOVERNMENT FOR LEGAL
FEES

Finding that Avondale Industries conducted a "pervasive
course of unlawful conduct" before and during a union
organizing drive among some 4,000 employees at its New
Orleans shipyard, a National Labor Relations Board
administrative law judge recommends that the company be
required to repay the federal government some $5.4 million
in legal fees it billed the Navy. The ALJ also recommends
that Avondale, which is now owned by Northrup Grumman, be
required to reinstate 22 employees who were illegally
terminated for their union activities ("Avondale Industries
Inc. and New Orleans Metal Trade Council, "N.L.R.B. ALJ, No.
15-CA-12639,7/6/01 [released 7/11/01])

In a 275-page decision, ALJ Philip P. McLeod further
recommends that the company be required to reimburse both
NLRB and the New Orleans Metal Trade Council for their
litigation fees, as well as the NLRB general counsel's
expenses in investigating the ULP cases. . . . Page AA-1

http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4k4g0w6_


HOUSE HEARING EXAMINES OVERLAP IN GENETIC BIAS LEGISLATION

In the first House hearing this year on legislation that
would ban genetic discrimination in employment and health
insurance (H.R. 602), lawmakers question whether a
broad-based bill is necessary given existing federal and
state laws that address the issue.

Rep. Stearns (R-Fla.), who chairs the House Energy and
Commerce Subcommittee on Commerce, Trade, and Consumer
Protections, asks sponsors of the legislation--Reps.
Slaughter (D-N.Y.) and Morella (R-Md.)--whether a new law is
necessary.  He cites the 1996 Health Insurance Portability
and Accountability Act, which prohibits private group health
insurers from setting rates or refusing coverage to
individuals based on their genetic makeup.  Saying only
people who are currently insured are covered by HIPAA,
Slaughter maintains that any congressional effort to ban
genetic discrimination should encompass both employment and
health insurance and should contain "meaningful enforcement
and remedies." . . . Page A-8

http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4k4g1y2_


FORD ANNOUNCES CHANGE IN ANNUAL EVALUATION SYSTEM FOR
MANAGERS

Ford Motor Co. announces it is changing a controversial
annual evaluation system for its approximately 18,000
managers and supervisors that has triggered a spate of age
discrimination suits. In a memorandum explaining the change
to employees, Ford Chief Executive Officer Jacques Nasser
acknowledges that the original program had not been entirely
well received, saying the negative feedback "has centered
around what was viewed as an inflexible system by some, and
as discriminatory by a few others." But he insists the
evaluation program "has "nothing" to do with age or
diversity. It has "everything" to do with inspiring the best
performance of "everyone" on the management team."

A class action lawsuit against Ford for age discrimination
brought by about 60 managers "is proceeding full steam
ahead" despite the company's announcement that it is
changing the evaluation system at issue, class attorney
Michael Pitt says. "There are substantial economic and
noneconomic injuries to these people, ranging from $20,000
to $50,000 each, and Ford has given no indication that it
will correct these injuries," the attorney says. . . . Page
A-1

http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4k3v2y8_


STATE'S IMMUNITY DID NOT BAR ADA SUIT, BUT WORKER COULD NOT
PROVE CASE

Even though the sovereign immunity doctrine did not block a
public employee's Americans with Disabilities Act suit
against the head of the Kansas Department of Corrections,
the plaintiff, who had multiple sclerosis, failed to
establish that he was disabled under the act, the Tenth
Circuit rules ("Frazier v. Simmons,  "10th Cir.,  No.
00-3131,  7/3/01).

A state's Eleventh Amendment sovereign immunity to suits in
federal court that seek money damages for ADA violations
does not apply where a plaintiff seeks prospective equitable
relief from a particular state official, Judge Brorby holds,
finding that Steve E. Frazier properly alleged a claim for
injunctive relief against the secretary of the Department of
Corrections. However, Frazier failed to establish that he
was qualified for his job--a crime scene investigator--at
the time he was terminated because he could not perform
certain essential functions, the court says, affirming
summary judgment for Simmons.  . . . Page A-7,  Text E-1

http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4k4f9v6_

http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4k4a9k2_


CONTRACTOR BACK WAGE PAYMENTS TIED TO GOVERNMENT
REIMBURSEMENT

A government contractor who underpaid its employees due to a
misunderstanding regarding Labor Department wage
classifications need not reimburse those employees until the
contracting agency adjusts the compensation levels to
reflect those classifications, the Federal Circuit rules
("Richlin Security Service Co. v. Immigration and
Naturalization Service,"Fed. Cir., No. 00-1134, 7/2/01).
Richlin Security Service Co. is not liable for the back
wages owed to its security guards for services provided
under contracts with the Immigration and Naturalization
Service until it receives reimbursement from the agency,
according to the court.

 Overturning a decision by the Department of Transportation
Board of Contract Appeals, the court upholds an agreement
between the company and the Labor Department stipulating
that the employees would be paid the back wages owed
following reimbursement by the INS. "In view of the
DOL-Richlin agreement which assures Richlin will receive no
benefit from these payments, it was unnecessary to require
Richlin to pay the employees before INS supplied the funds
to which it was obligated," the court holds. . . . Page A-2

http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4k3w7w0_


ELEVENTH CIRCUIT RULES ADEA PLAINTIFFS MAY NOT PLEAD
DISPARATE IMPACT

In a case of first impression, the Eleventh Circuit rules
that disparate impact claims may not be brought under the
Age Discrimination in Employment Act ("Adams v. Florida
Power Corp., " 11th Cir.,  No. 99-15306,  7/5/01). "The text
of the ADEA is sufficiently different from Title VII [of the
1964 Civil Rights Act] to raise doubts about extending the
disparate impact theory of liability to ADEA cases," Judge
Birch writes. In addition, "the history of the ADEA differs
from the legislative history of Title VII."

The Second, Eighth, and Ninth circuits allow disparate
impact claims under the ADEA, while the First, Third, Sixth,
Seventh, and Tenth do not, the court says. Finding the
reasoning of the First and Tenth Circuits persuasive, the
Eleventh Circuit affirms a ruling by the U.S. District Court
for the Middle District of Florida decertifying a class of
former Florida Power Corp. employees who alleged they were
discharged in violation of the ADEA. . . . Page A-2

http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4k2q0e5_


______________

TODAY'S EVENTS
______________

UNEMPLOYMENT: Weekly data on initial claims for unemployment
benefits released, 8:30 a.m., Labor Department.

________________

ALSO IN THE NEWS
________________


MENTAL HEALTH: Calling mental health parity "one of the most
important civil rights issues facing the nation," Senate
Health, Education, Labor, and Pensions Committee Chairman
Kennedy (D-Mass.) pledges to mark up legislation (S. 543)
that would prevent health plans from imposing limitations on
care for mental illnesses that do not apply to treatments
for physical illnesses. . . . Page A-12

http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4k4h1x1_

SEX DISCRIMINATION: Citing flaws in jury instructions, a
unanimous Massachusetts Supreme Judicial Court vacates a
$500,000 gender discrimination award to a physician formerly
employed by Raytheon Co. and orders a new trial. The
"plaintiff had the burden of proving the elements of
discriminatory animus," the court rules. . . . Page A-4

http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4k3f7u4_

COLLECTIVE BARGAINING: Data compiled by BNA in the first 28
weeks of 2001 show that the weighted average first-year wage
increase in newly negotiated contracts was 4.4 percent,
compared with 3.9 percent in 2000. The median first-year
increase for these settlements was 3.7 percent.. . . Page
D-1

http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4k2h2b5_


____

TEXT
____

DISABILITIES: Tenth Circuit's opinion in "Frazier v.
Simmons".. . . Page  E-1

http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4k4a9k2_


_________________

TABLE OF CONTENTS
_________________

LEADING THE NEWS

LABOR LAW
   NLRB administrative law judge finds Avondale Industries
   engaged in "pervasive course of unlawful conduct" before
   and during union organizing drive among employees at New
   Orleans shipyard, and recommends company repay federal
   government some $5.4 million in legal fees billed Navy .
   . . Page AA-1
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4k4g0w6_


____

NEWS
____

AGE DISCRIMINATION
   Eleventh Circuit finds as a matter of law that disparate
   impact claims may not be brought under ADEA . . . Page
   A-2
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4k2q0e5_

DISABILITIES
   Fifth Circuit rules job qualification is prima facie
   element for claims under ERISA and retaliation claims
   under ADEA . . . Page A-6
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4k4a2w5_

   Tenth Circuit rules sovereign immunity did not block
   public employee's ADA suit against head of Kansas
   Department of Corrections, but finds plaintiff failed to
   establish multiple sclerosis was disability under act . .
   . Page A-7,  Text E-1
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4k4f9v6_

   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4k4a9k2_

DISCRIMINATION
   In first hearing this year on legislation to ban genetic
   discrimination in employment and health insurance (H.R.
   602), House lawmakers question necessity of broad-based
   bill, given existing federal and state laws addressing
   issue . . . Page A-8
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4k4g1y2_

   Legislation (H.R. 7) that would allow religious
   organizations to compete for federal funds clears House
   Ways and Means Committee on straight party-line vote as
   leaders say measure could come to floor as early as week
   of July 16 . . . Page A-13
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4k4h9w5_

EMPLOYMENT POLICIES
   Ford Motor Co. to change controversial annual evaluation
   system for managers and supervisors that triggered spate
   of age discrimination suits . . . Page A-1
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4k3v2y8_

ERISA
   Federal judge in Maryland allows Labor Department to
   proceed with suit alleging trustees of National
   Electrical Benefit Fund breached ERISA fiduciary duties
   by investing in Florida real estate limited partnership .
   . . Page A-3
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4k4d9h6_

   Federal judge in New Jersey rules trustees of
   multiemployer pension plan did not breach ERISA fiduciary
   duties to seven plan participants by increasing maximum
   number of years of creditable service under plan shortly
   after participants retired . . . Page A-4
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4k4f2h4_

HEALTH CARE
   Senate Health, Education, Labor, and Pensions Committee
   Chairman Kennedy (D-Mass.) pledges to mark up legislation
   (S. 543) that would prevent health plans from imposing
   limitations on care for mental illnesses that do not
   apply to treatments for physical illnesses . . . Page
   A-12
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4k4h1x1_

HOTELS
   Second hotel in Santa Monica, Calif., waterfront area
   targeted by living wage ordinance signs contract with
   HERE Local 814 . . . Page A-5
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4k3f2a0_

PENSIONS
   Report by American Academy of Actuaries' Pension Practice
   Council finds current, inordinately low 30-year interest
   rates distort contribution requirements for defined
   benefit plan funding, create liabilities in lump sum
   distributions, and increase PBGC premiums for adequately
   funded retirement plans . . . Page A-9
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4k4h0u8_

POLITICS
   FEC votes unanimously to place back on public record
   thousands of pages of documents regarding its
   investigation of AFL-CIO dealings with Democratic Party .
   . . Page A-11
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4k4h1j7_

SAFETY & HEALTH
   House appropriations subcommittee increases funding for
   Chemical Safety and Hazard Investigation Board by
   $500,000, bringing budget to $8 million for next fiscal
   year . . . Page A-7
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4k4e4z1_

SERVICE CONTRACT ACT
   Federal Circuit rules government contractor who underpaid
   employees due to misunderstanding regarding Labor
   Department wage classifications need not reimburse
   employees until contracting agency adjusts compensation
   levels to reflect classifications . . . Page A-2
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4k3w7w0_

SEX DISCRIMINATION
   Massachusetts Supreme Judicial Court vacates $500,000
   gender discrimination award to physician formerly
   employed by Raytheon Co. after finding jury instructions
   were flawed . . . Page A-4
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4k3f7u4_

STEEL
   United Steelworkers members reject tentative agreement
   covering some 1,500 workers at Geneva Steel's mill in
   Vineyard, Utah . . . Page A-14
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4k3u2f9_

UNIONS
   AFT executive council approves partnership agreement with
   National Education Association providing for additional
   cooperation between teachers' unions . . . Page A-10
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4k4g8j3_

WAGE & HOUR
   Northern California jury awards some 2,400 current and
   former Farmers Insurance Exchange adjusters more than $90
   million on claims they were denied overtime pay . . .
   Page A-12
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4k4h8j8_

WORKFORCE REDUCTIONS
   Compaq Computer Corp. to reduce workforce by additional
   1,500 employees this year . . . Page A-14
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4k4f4h6_


_____________

ECONOMIC NEWS
_____________

COLLECTIVE BARGAINING
   Data compiled by BNA in first 28 weeks of 2001 for all
   settlements shows weighted average first-year wage
   increase in newly negotiated contracts of 4.4 percent,
   compared with 3.9 percent in first 28 weeks of 2000 . . .
   Page D-1
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4k2h2b5_


____

TEXT
____

DISABILITIES
   Tenth Circuit's opinion in "Frazier v. Simmons" . . .
   Page E-1
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4k4a9k2_


______________

TABLE OF CASES
______________

Adams v. Florida Power Corp. (11th Cir.) . . . Page A-2
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4k2q0e5_

Avondale Indus. Inc. and New Orleans Metal Trade Council
(NLRB) . . . Page AA-1
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4k4g0w6_

Bell v. Farmers Ins. Exch. (Cal. Super. Ct.) . . . Page A-12
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4k4h8j8_

Chao v. Moore (D. Md.) . . . Page A-3
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4k4d9h6_

Frazier v. Simmons (10th Cir.) . . . Page A-7,  text E-1
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4k4f9v6_

   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4k4a9k2_

Holtzclaw v. DSC Communications Corp. (5th Cir.) . . . Page
A-6
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4k4a2w5_

Lipchitz v. Raytheon (Mass.) . . . Page A-4
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4k3f7u4_

Mushalla v. Teamsters Local No. 863 Pension Fund (D.N.J.) .
. . Page A-4
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4k4f2h4_

Richlin Sec. Serv. Co. v. INS (Fed. Cir.) . . . Page A-2
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4k3w7w0_

   __________
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