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PW: bnaweb22 -----Original Message----- From: "BNA Highlights" <bhighlig@bna.com<@ENRON Sent: Tuesday, November 13, 2001 11:16 PM To: BNA Highlights Subject: Nov. 14 -- BNA, Inc. Daily Labor Report ______________________________ DAILY LABOR REPORT Highlights & Table of Contents November 14, 2001 ______________________________ ISSN 1522-5968 __________ HIGHLIGHTS __________ PAST DISCIPLINE CAN BE CONSIDERED IN REVIEW OF POSTAL FIRING, JUSTICES SAY In reviewing the reasonableness of a U.S. Postal Service worker's termination for cumulative misconduct, the Merit Systems Protection Board may consider past discipline of the employee even if those actions are being grieved, the U.S. Supreme Court rules, reversing a Federal Circuit decision ("USPS v. Gregory, "U.S., No. 00-758, 11/13/01). Writing for the court, Justice O'Connor acknowledges that a federal employee may be faced with a board decision that reaches a different result than the grievance arbitrator ultimately might reach, or never have his or her grievance resolved because a collective bargaining agreement requires union withdrawal of a grievance when the board issues a final decision. There is nothing unfair in those results, however, the court says, because a union-represented federal employee who elects to pursue a board appeal does in fact receive an independent review of the reasonableness of the agency's discipline. Nevertheless, the court remands the case involving Postal Service employee Maria A. Gregory--who was accused in September 1997 of deliberately inflating an overtime request--because one of the three minor disciplinary actions relied on by MSPB in its ruling was decided in Gregory's favor by an arbitrator prior to the its decision. . . . Page AA-1, Text E-5 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y1j0w1_ http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y1b9u3_ SUPREME COURT LETS STAND RULING THAT UNION'S TORT CLAIMS NOT PREEMPTED The U.S. Supreme Court lets stand an appeals court ruling that the National Labor Relations Act does not preempt state law tort claims by union representatives who were detained by a nonunion contractor for trespassing on its jobsite ("Rainbow Constr. Co. v. Radcliffe, "U.S., No. 01-424, "cert. denied" 11/13/01). Rainbow Construction Co. sought review of a June decision by the Ninth Circuit that allowed four representatives of the Bay Counties District Council of Carpenters to proceed with claims of false arrest, false imprisonment, and malicious prosecution. The union representatives inspected various publicly financed construction projects in Mendocino County, Calif., to investigate allegations that contractors were not complying with prevailing wage and health and safety rules. On three occasions, Rainbow made citizen's arrests of three of the union representatives, who were then taken into police custody. The county district attorney prosecuted all four officials for criminal trespass. California trespass law does not allow property owners to exclude persons engaged in lawful union activity. The Ninth Circuit decided California's interests in protecting its citizens were sufficient to avoid preemption. . . . Page AA-2, Text E-1 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y1r7z4_ http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y1b9u3_ IOWA MAYTAG WORKERS END STRIKE AFTER ACCEPTING THREE-YEAR CONTRACT Workers return to Maytag's Middle Amana, Iowa, manufacturing plant after voting to accept a new contract, effective immediately and running until September 2004. The vote ends a seven-week strike by some 1,800 employees represented by the Machinists at the refrigerator and microwave oven manufacturing plant. The new contract addresses three issues that prompted the strike: mandatory overtime; a two-tiered wage system; and health insurance premium increases. Ed Miller, business representative for IAM Local 1526, says although union members are not entirely satisfied with the changes, they approved the contract in the belief it was the best that could be achieved this year. The union recommended approval of the pact. According to Miller, the contract calls for an hourly pay increase of $1.47 over term, with a 60-cent raise this year, 46 cents next year, and 41 cents in late 2003. Average pay at the plant is currently $14.40 per hour. New hires will receive 80 percent of the previous minimum pay and will not reach the top of the pay scale as quickly as under the previous contract. Maytag proposed increasing mandatory overtime to 12 hours per week per worker, but the union was able to keep it to eight hours per week per employee, Miller says. Union negotiators were less successful in addressing their concerns with health insurance, and the new contract includes both higher premiums in the last year of the contract and reduced benefits. A Maytag spokesman says the company is pleased with the contract agreement. . . . Page A-2 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y1q0c8_ HIGH COURT REFUSES TO CONSIDER VICARIOUS LIABILITY FOR SEXUAL HARASSMENT The U.S. Supreme Court refuses to review an appeals court's decision upholding a jury's verdict that a mine owner was vicariously liable for sexual harassment because the company failed to exercise reasonable care to prevent the harassment of a female miner by her male boss ("Eddy Potash Inc. v. Harrison, "U.S., No. 01-383, "cert. denied," 11/13/01). Eddy Potash Inc., which operated an underground potash mine near Carlsbad, N.M., asked the justices to overturn the Tenth Circuit's decision to affirm a jury's finding for Jeanne Harrison. In this case's second trip to the Supreme Court, Eddy Potash urged the court to revisit its decisions in ""Faragher v. Boca Raton"" and "Burlington Indus. Inc. v. Ellerth" because, it argued, those decisions did not address whether an employer should be held vicariously liable for sexual harassment by a supervisor where both the employer and the employee have acted reasonably. . . . Page AA-3, Text E-1 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y1v3d1_ http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y1b9u3_ WORK CHANGES AFTER HARASSMENT CHARGE JUSTIFY TRIAL ON RETALIATION CLAIM A Philadelphia Housing Authority worker can proceed to trial with her claim of illegal retaliation under Title VII of the 1964 Civil Rights Act, based on her allegations that she was given additional work and shift changes after participating in the sexual harassment complaint of a co-worker ("Jenkins v. Philadelphia Housing Authority, "E.D. Pa., No. 00-CV-609, 10/24/01). Monique Jenkins established "sufficient evidence of a possible causal link" between her claim of the job changes and her protected activity under the federal civil rights law to warrant a trial, Judge Buckwalter of the U.S. District Court for the Eastern District of Pennsylvania holds. Although dismissing Jenkins' other claims against her employer, the court finds that comments from some of her supervisors, who referred to her as a "snitch" and "not a team player," support her allegation of retaliation. . . . Page A-1 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y1r8j1_ ______________ TODAY'S EVENTS ______________ COMPENSATION: Bureau of Labor Statistics to release, "Occupational Employment and Wages in 2000" report, 10 a.m., Labor Department. RETAIL SALES: Retail sales figures for October released, 8:30 a.m., Commerce Department. ________________ ALSO IN THE NEWS ________________ EMPLOYEE BENEFITS: The Internal Revenue Service issues proposed regulations that would require the payment of Social Security and unemployment insurance taxes upon the exercise of statutory stock options. The proposed regulation is scheduled for publication in the Nov. 14 "Federal Register". . . . Page A-5 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y1v9g9_ INTERNATIONAL LABOR: One year after Myanmar (Burma) agreed to outlaw forced labor, the practice is still widespread, according to a report by the International Labor Organization. . . . Page A-2 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y1p3u9_ FEDERAL EMPLOYEES: Federal employees will get a 4.6 percent average pay increase in 2002 under terms included in the Treasury-Postal appropriations bill signed into law by President Bush. The fiscal year 2002 Treasury, Postal Service, and General Government appropriations statute (Pub. L. 107-67) also includes a provision that will allow agencies to create permanent child-care tuition subsidy programs for their lower-income employees. . . . Page A-1 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y1r5y3_ ____ TEXT ____ SUPREME COURT: Summaries of labor and employment law cases in which Supreme Court denied review Nov. 13, 2001. . . . Page E-1 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y1b9u3_ FEDERAL EMPLOYEES: U.S. Supreme Court decision in "USPS v. Gregory." . . . Page E-5 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y1b9u3_ _________________ TABLE OF CONTENTS _________________ LEADING THE NEWS FEDERAL EMPLOYEES Merit Systems Protection Board may consider past discipline of Postal Service worker fired for cumulative misconduct even if those actions are being grieved, U.S. Supreme Court rules . . . Page AA-1, Text E-5 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y1j0w1_ http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a0g2m7a2_ LABOR LAW High court lets stand appeals court ruling that National Labor Relations Act does not preempt state law tort claims by union representatives detained by nonunion contractor for trespassing on its job site . . . Page AA-2, Text E-1 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y1r7z4_ http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y1b9u3_ PENSIONS Justices decline to review separate appeals filed by employer and retirees challenging appeals court's ruling on applicability of ERISA's "fraud and concealment" provision to claims that employer breached its fiduciary duties in terminating retiree health insurance . . . Page AA-4, Text E-1 E-1 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y1m7h8_ http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y1b9u3_ http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y1b9u3_ SEXUAL HARASSMENT U.S. Supreme Court refuses to consider appeals court's endorsement of jury verdict that mine owner was vicariously liable for sexual harassment . . . Page AA-3, Text E-1 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y1v3d1_ http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y1b9u3_ ____ NEWS ____ ECONOMIC OUTLOOK Three of four key economic indicators point to recession, with only personal income continuing to rise, National Bureau of Economic Research says . . . Page A-5 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y1v2a6_ ERISA Southwestern Bell's calculation of retired sales representative's pension benefits was "legally correct," Fifth Circuit holds . . . Page A-4 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y1m7e4_ FEDERAL EMPLOYEES Federal employees will get 4.6 percent average pay increase in 2002 under terms of Treasury-Postal appropriations bill signed by President Bush . . . Page A-1 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y1r5y3_ INTERNATIONAL LABOR ILO report says one year after Myanmar (Burma) agreed to outlaw forced labor, practice is still widespread . . . Page A-2 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y1p3u9_ MANUFACTURING Workers return to Maytag's Middle Amana, Iowa, manufacturing plant after ratifying new three-year contract . . . Page A-2 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y1q0c8_ NAFTA With January deadline approaching to allow Mexican trucks to travel freely throughout United States, Senate appropriators move toward administration position, offering "compromise" provisions on balancing safety and free trade . . . Page A-7 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y1w5q4_ PENSIONS Third Circuit finds that IBEW pension fund acted properly when it refused to bridge service credits of former plan trustee . . . Page A-3 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y1m7f8_ RETALIATION Philadelphia Housing Authority worker can proceed to trial with her claim of illegal retaliation under Title VII of 1964 Civil Rights Act . . . Page A-1 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y1r8j1_ TAXES IRS issues proposed regulations (REG-142686-01) to require payment of Social Security and unemployment taxes upon exercise of statutory stock options . . . Page A-5 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y1v9g9_ TRADE House Majority Leader Armey (R-Texas) signals that it is unlikely that House will consider trade promotion authority this week . . . Page A-4 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y1v2q4_ Increasingly bitter battle between developed and developing country members of WTO over agenda for new round of global trade talks leaves prospects for launch of round in delicate state . . . Page A-8 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y1w9t7_ National Association of Manufacturers disagrees with results of recent analysis by Economic Policy Institute that more than 3 million U.S. jobs have been lost since 1994 because of NAFTA . . . Page A-9 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y1t9c3_ UNEMPLOYMENT As Senate begins debating Democrat-sponsored economic stimulus measure (H.R. 3090), Republican leaders indicate willingness to compromise on extending unemployment benefits to states . . . Page A-6 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y1w5k4_ ____ TEXT ____ SUPREME COURT Summaries of labor and employment law cases in which U.S. Supreme Court denied review . . . Page E-1 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y1b9u3_ FEDERAL EMPLOYEES U.S. Supreme Court decision in "USPS v. Gregory" . . . Page E-5 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y1b9u3_ ______________ TABLE OF CASES ______________ Bernofsky v. Administrators of Tulane Educ. Fund (U.S.) . . . Page E-1 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y1f7z4_ Bew v. Chicago (U.S.) . . . Page E-2 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y1f8a9_ Corrigan v. Imaginetics Inc. (U.S.) . . . Page E-2 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y1f8a4_ Dachman v. Thompson (U.S.) . . . Page E-4 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y1f8e4_ Eddy Potash Inc. v. Harrison (U.S.) . . . Page AA-3, Text E-1 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y1v3d1_ http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y1b9u3_ Foley v. International Bhd. of Elec. Workers Local Union 98 Pension Fund (3d Cir.) . . . Page A-3 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y1m7f8_ Gosselink v. American Tel. & Tel. Inc. (5th Cir.) . . . Page A-4 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y1m7e4_ Jenkins v. Philadelphia Hous. Auth. (E.D. Pa.) . . . Page A-1 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y1r8j1_ Lindamood v. Office of State Attorney, Ninth Judicial Cir. of Fla. (U.S.) . . . Page E-3 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y1f8c4_ Liner v. Dontron Inc. (U.S.) . . . Page E-3 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y1f8c9_ Otto v. SEC (U.S.) . . . Page E-3 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y1f8d4_ Rainbow Constr. Co. v. Radcliffe (U.S.) . . . Page AA-2, Text E-2 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y1r7z4_ http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y1b9u3_ Tonnies v. Unisys Corp. (U.S.) . . . Page AA-4, Text E-1 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y1m7h8_ http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y1b9u3_ Transocean Terminal Operators Inc. v. Taylor (U.S.) . . . Page E-2 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y1f8b9_ Unisys Corp. v. Tonnies (U.S.) . . . Page AA-4, Text E-3 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y1m7h8_ http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y1f8e0_ USPS v. Gregory (U.S.) . . . Page AA-1, Text E-5 http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y1j0w1_ http://pubs.bna.com/ip/BNA/dlr.nsf/id/a0a4y1b9u3_ __________ Daily Labor Report (ISSN 1522-5968) Highlights are published daily by The Bureau of National Affairs, Inc., 1231 25th St., NW, Washington, DC 20037. Registered Web subscribers can access the full text of these articles by using the URL link supplied. To register for a FREE Web trial, go to http://web.bna.com. For subscription information and other inquiries, call BNA Customer Relations at 1-800-372-1033, Mon. - Fri. 8:30 am - 7:00 pm (ET), excluding most federal holidays. To request retransmission or to order a copy of the summarized article, contact 1-800-452-7773 or e-mail bnaplus@bna.com. For copyright guidelines, go to http://www.bna.com/corp/copyright. Copyright © 2001 by The Bureau of National Affairs, Inc. Washington, D.C. 20037. Use of this service is subject to the terms and conditions of the license agreement with BNA. Unauthorized access or distribution is prohibited.
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