FW: Aug. 20 -- BNA, Inc. Daily Labor Report User ID:  enrondlr PW:        bnaweb22  -----Original Message----- From: 	"BNA Highlights"  Sent:	Sunday, August 19, 2001 11:04 PM 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 articles by using the URL link supplied. Information about becoming a subscriber or signing up for a FREE Web trial is available at http://web.bna.com or call BNA Customer Relations at 1-800-372-1033, Mon. - Fri. 8:30 am - 7:00 pm (ET). __________ 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_    __________    Daily Labor Report (ISSN 1522-5968) Highlights are    published daily by The Bureau of National Affairs, Inc.,    1231 25th St., NW, Washington, DC 20037.    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