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From: 	"BNA Highlights" <bhighlig@bna.com>@ENRON [mailto:IMCEANOTES-+22BNA+20Highlights+22+20+3Cbhighlig+40bna+2Ecom+3E+40ENRON@ENRON.com] 
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To:	BNA Highlights
Subject:	Aug. 20 -- BNA, Inc. Daily Labor Report

______________________________

DAILY LABOR REPORT
Highlights & Table of Contents
August 20, 2001
______________________________

ISSN 1522-5968

Registered Web subscribers can access the full text of these
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__________

HIGHLIGHTS
__________


REPORTER'S TYPING, WRITING RESTRICTIONS NOT LIMITING UNDER
ADA

A newspaper reporter who was fired because a repetitive
stress disorder made her unable to type or write for
extended periods of time is not limited in a major life
activity under the Americans with Disabilities Act, the
Ninth Circuit rules in a 2-1 decision ("Thornton v.
McClatchy Newspapers Inc., "9th Cir., No. 99-15857,
8/15/01).

Finding that "Fresno Bee" features reporter Jacalyn Thornton
was not limited in the major life activity of performing
"manual tasks" despite impairments that significantly
limited her ability to type or write, the court holds that
"manual tasks" included a broad range of activities and that
she could perform those tasks, and thus other jobs. "That
Thornton could perform certain manual tasks for only a
limited amount of time does not present a triable issue that
she was 'substantially limited' in a broad range of manual
tasks," Judge Hawkins says. Hawkins points out that Thornton
could grocery shop, drive, make beds, do laundry, and dress
herself, all manual tasks that demonstrated she was not
significantly limited under the ADA.

 Judge Berzon dissents, saying the majority's finding
ignores the increasing reliance on computers in today's
society. "The sum of the matter is that the ability to use
one's arms and hands to operate a computer and handwrite is,
in the modern world, a skill that is essential both in
getting an education and in earning a living, and is useful
in carrying out many activities of daily living," Berzon
writes. . . . Page AA-1,  Text E-7

http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4q1a1t7_

http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4q1a9a0_


MINNESOTA COURT AGREES TEAMSTERS LIABLE TO OVERNITE FOR
STRIKE DAMAGE

Teamsters Local 120 is liable for damage to an Overnite
Transportation Co. facility in Blaine, Minn., caused by
striking employees who were not union members and for
two-thirds of the company's increased security costs, the
Minnesota Court of Appeals rules ("Overnite Transp. Co. v.
Teamsters Local 120, "Minn. Ct. App., No. C3-01-153,
"unpublished opinion" 8/14/01 ). Although the union was
certified to represent employees at the Blaine facility in
1995, most or all of the workers are not union members
because the union promised not to charge initiation fees or
union dues until it reached a collective bargaining
agreement with the company, which still has not occurred.

Affirming a district court decision, the appeals court finds
the union had an agency relationship with the picketers and
therefore was vicariously liable for the damage caused by
the picketers' misconduct during the strike that began in
October 1999. "[T]he evidence indicates that while the union
was aware of the picketers' repeated acts of misconduct, it
was either 'unwilling or unable to take the necessary steps
to control its pickets,' " Judge Foley says. . . . Page A-8

http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4q1b3z2_


NEW EXECUTIVE ORDER PRECLUDES MAINTENANCE WORKERS' JOB
COMPLAINT

Maintenance workers who were denied the right of first
refusal to continue working in a federal building when a new
service contract was awarded are precluded by a recent
executive order from appealing the job denial to the Labor
Department ("Eddis v. LB&B Associates, "DOL ARB,No. 01-086,
8/8/01). President Bush's executive order withdrawing
certain hiring restrictions that previously had been imposed
when government agencies changed service contracts did not
include any language "suggesting that cases pending at the
time the order was issued could be litigated further," the
Labor Department's Administrative Review Board rules.

Bush's executive order rescinded a 1994 executive order that
required that contractors who took over custodial and other
services in federal buildings from another contractor give
that contractors' employees the right of first refusal on
jobs for which they were qualified. In considering a 1999
complaint alleging a violation of that order, the review
board says the Bush executive order did not include a
"savings clause" preserving its jurisdiction over cases
pending under the old order. Nor did the Labor Department's
move to rescind the regulations implementing that order
include such language, the board says. . . . Page A-2

http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4q0p4d7_


COURT REJECTS BID FOR EXEMPTION FROM FAA'S AGE-60 RULE

The Seventh Circuit rejects the bid of a group of older
commercial airline pilots who sought exemptions from the
Federal Aviation Agency's longstanding rule prohibiting
flying after the age of 60 ("Yetman v. Garvey, "7th Cir.,
No. 99-2821, 8/14/01).

The 69 pilots, all of whom were either approaching or had
reached the age of 60, argued that more flexibility was
warranted in light of recent advances in medical technology.
FAA has never granted such an exemption in the 42 years that
the policy has been in effect.

"The FAA has the discretionary power to establish a rigid
policy, whereby no exemptions are granted, until it is
satisfied that medical standards can demonstrate an absence
of risk factors in an individual sufficient to warrant a
more liberal exemption policy from the age-60 rule," Judge
Flaum writes for the appeals court. "Until the FAA
determines that such standards exist, it may adhere
inflexibly to a rule whose validity has been upheld by the
courts and reevaluated by Congress, so long as it continues
to consider, as we are satisfied it has done here, new
advances in medical technology." . . . Page A-1

http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4q0y3a8_


FIFTH CIRCUIT FINDS INDEPENDENT CONTRACTOR QUALIFIES AS
ERISA BENEFICIARY

Overturning a jury award of $100,000 against Provident Life
and Accident Insurance Co., the Fifth Circuit finds an
independent contractor qualifies as a beneficiary under the
Employee Retirement Income Security Act ("Hollis v.
Provident Life and Accident Ins. Co., "5th Cir., No.
99-60877, 8/8/01).

In a case of first impression in the circuit, the Fifth
Circuit joins other appeals courts to decide the question
and rejects J.L. Hollis's claim that as an independent
contractor, he was not an ERISA beneficiary.  "Hollis's
independent contractor status does not preclude him from
being a beneficiary," the Fifth Circuit says. "Because
Hollis is an ERISA beneficiary, his claims directly affect
the relationship between traditional ERISA entities.
Therefore, ERISA preempts Hollis's state law claims against
Provident for bad-faith denial of disability benefits."  . .
. Page A-5

http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4q0q1e7_


________________

ALSO IN THE NEWS
________________

TRADE BALANCE: The U.S. trade deficit in goods and services
widened by $900 million or 3.2 percent in June as both
imports and exports declined, the Commerce Department's
Bureau of Economic Analysis says. . . . Page D-1

http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4q1d3m4_

EMPLOYMENT: Some 47 states experienced manufacturing job
losses in July, but the other sectors continued to expand
payrolls modestly across all regions, according to the
Bureau of Labor Statistics. . . . Page D-8

http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4q1a9u2_

FOOD PROCESSING: Workers at the Nebraska Beef processing
plant in Omaha, Neb., turn down representation by the United
Food and Commercial Workers by a 452-345 vote. The union
says it is planning to file objections to the election. . .
. Page A-10

http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4q1c0t3_

WORKFORCE REDUCTIONS: Ford Motor Co. will eliminate 4,000 to
5,000 salaried positions in North America by the end of the
year, the company says. Ford it plans to make the cuts
primarily through a voluntary early retirement program. . .
. Page A-3

http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4q0r0d9_


____

TEXT
____

NLRB: NLRB's weekly summary of cases, Aug. 17, 2001. . . .
Page E-1

http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4q0n6q7_

DISABILITIES: Ninth Circuit decision in "Thornton v.
McClatchy Newspapers Inc. ". . . Page E-7

http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4q1a9a0_


_________________

TABLE OF CONTENTS
_________________

LEADING THE NEWS

DISABILITIES
   Newspaper reporter who was fired because a repetitive
   stress disorder made her unable to type or write for
   extended periods of time is not limited in a major life
   activity, the Ninth Circuit holds . . . Page AA-1,  Text
   E-7
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4q1a1t7_

   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4q1a9a0_


____

NEWS
____

AGE DISCRIMINATION
   Elementary school teacher, fired for "unprofessional and
   insubordinate behavior," failed to establish a prima
   facie case of age discrimination or retaliation, the
   Seventh Circuit rules . . . Page A-5
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4q0v9r9_

   Seventh Circuit rejects the bid of a group of older
   commercial airline pilots who sought exemptions from the
   Federal Aviation Agency's longstanding rule prohibiting
   flying after the age of 60 . . . Page A-1
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4q0y3a8_

AIRLINES
   Unions representing some US Airways employees say they
   are wary of the carrier's new strategic plan to restore
   the company to financial health now that the proposed
   merger with United Airlines has been abandoned . . . Page
   A-12
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4q1d3k0_

BUILDING SERVICES
   Maintenance workers who were denied the right of first
   refusal to continue working in a federal building when a
   new service contract was awarded are precluded by a
   recent executive order from challenging the job denial,
   the Labor Department's Administrative Review Board rules
   . . . Page A-2
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4q0p4d7_

DISABILITIES
   Wine distributor that fired a salesman after he had heart
   bypass surgery was not entitled to summary judgment on
   the former employee's claim that the company regarded him
   as disabled, a federal magistrate in Maine finds . . .
   Page A-4
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4p9j4y4_

ERISA
   Independent contractor qualifies as a "beneficiary" of an
   Employee Retirement Income Security Act disability
   benefit plan, the Fifth Circuit rules, finding the
   independent contractor's state law claims for benefits
   preempted by ERISA . . . Page A-5
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4q0q1e7_

FLSA
   Owner of a Hibbing, Minn., temporary agency cannot be
   held liable for failing to pay overtime to workers at an
   iron ore mining and processing facility because she was
   not an "employer" or a "joint employer" under the Fair
   Labor Standards Act, a federal district court in
   Minnesota rules . . . Page A-11
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4q1c3r5_

FOOD PROCESSING
   Delmarva Poultry Justice Alliance expects to have a final
   settlement with Tyson Foods Inc. by October on the $2.1
   million overtime suit filed last year by the alliance on
   behalf of some 75 chicken catchers . . . Page A-2
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4p9y4r8_

   Workers at the Nebraska Beef processing plant in Omaha,
   Neb., turn down representation by UFCW . . . Page A-10
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4q1c0t3_

LABOR LAW
   IBT Local 120 is liable for damage to an Overnite
   Transportation Co. facility in Blaine, Minn., caused by
   striking employees who were not union members and for
   two-thirds of the company's increased security costs, a
   Minnesota appellate court rules . . . Page A-8
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4q1b3z2_

NLRB
   In light of a recent U.S. Supreme Court decision, NLRB
   has asked eight nursing homes and their certified unions
   to file briefs by Aug. 24 addressing the supervisory
   status of nurses at the facilities . . . Page A-7
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4q0z8j4_

PENSIONS
   Unisys Corp. did not violate a collective bargaining
   agreement by amending its pension plan to freeze the
   assets of employees' individual accounts following the
   takeover by state regulators of the company that provided
   the underlying investments, a federal district court in
   Pennsylvania rules . . . Page A-3
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4q0p4z4_

SAFETY & HEALTH
   OSHA says it has revised the "policy framework" for a
   consultation program that is designed to assist employers
   in identifying and correcting serious hazards in the
   workplace . . . Page A-10
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4q1a8h8_

SOCIAL SECURITY
   President's Commission to Strengthen Social Security in
   its interim report says the current program does nothing
   to promote individual savings or investment and is
   financially unsustainable . . . Page A-6
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4q0z4c0_

TRUCKING
   Nearly six years after Overnite Transportation and IBT
   began contract talks, the union files unfair labor
   practice charges accusing Overnite of unlawful surface
   and bad faith bargaining . . . Page A-9
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4q0z6k4_

WORKFORCE REDUCTIONS
   Ford Motor Co. announces that it will eliminate 4,000 to
   5,000 salaried positions in North America by the end of
   the year . . . Page A-3
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4q0r0d9_


_____________

ECONOMIC NEWS
_____________

EMPLOYMENT
   Some 47 states experienced manufacturing job losses in
   July, but the other sectors continued to expand payrolls
   modestly across all regions, according to figures
   released by the Labor Department's Bureau of Labor
   Statistics . . . Page D-8
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4q1a9u2_

TRADE BALANCE
   U.S. trade deficit on goods and services widened by $0.9
   billion or 3.2 percent in June as both imports and
   exports declined, the Commerce Department's Bureau of
   Economic Analysis says . . . Page D-1
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4q1d3m4_


____

TEXT
____

NLRB
   NLRB's weekly summary of cases, dated Aug. 17, 2001 . . .
   Page E-1
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4q0n6q7_

DISABILITIES
   Ninth Circuit decision in "Thornton v. McClatchy
   Newspapers Inc." . . . Page E-7
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4q1a9a0_


______________

TABLE OF CASES
______________

Catani v. Chiodi (D. Minn.) . . . Page A-11
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4q1c3r5_

Eddis v. LB&B Assocs. (DOL ARB) . . . Page A-2
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4q0p4d7_

Hollis v. Provident Life and Accident Ins. Co. (5th Cir.) .
. . Page A-5
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4q0q1e7_

Horwitz v. Board of Educ., Avoca Sch. Dist. (7th Cir.) . . .
Page A-5
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4q0v9r9_

Overnite Transp. Co. v. Teamsters Local 120 (Minn. Ct. App.)
. . . Page A-8
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4q1b3z2_

Thornton v. McClatchy Newspapers Inc. (9th Cir.) . . . Page
AA-1,  Text E-7
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4q1a1t7_

   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4q1a9a0_

Unisys Savings Plan Litigation (E.D. Pa.) . . . Page A-3
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4q0p4z4_

Wilcock v. National Distrib. Inc. (D. Me.) . . . Page A-4
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4p9j4y4_

Yetman v. Garvey (7th Cir.) . . . Page A-1
   http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4q0y3a8_

   __________
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