Message-ID: <12907278.1075855359904.JavaMail.evans@thyme> Date: Tue, 27 Nov 2001 07:10:24 -0800 (PST) From: sylvia.hu@enron.com To: felecia.acevedo@enron.com, cole.brown@enron.com, michelle.cash@enron.com, bonne.castellano@enron.com, rick.johnson@enron.com, lizzette.palmer@enron.com, gilda.parker@enron.com, kriste.sullivan@enron.com, scott.walker@enron.com, bonnie.white@enron.com Subject: FW: Nov. 27 -- BNA, Inc. Daily Labor Report Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit X-From: Hu, Sylvia X-To: Acevedo, Felecia , Brown, Cole , Cash, Michelle , Castellano, Bonne , Johnson, Rick , Palmer, Lizzette , Parker, Gilda , Sullivan, Kriste , Walker, Simone Scott , White, Bonnie X-cc: X-bcc: X-Folder: \Michelle_Cash_Jan2002\Cash, Michelle\Inbox X-Origin: Cash-M X-FileName: mcash (Non-Privileged).pst User iD: enrondlr PW: bnaweb22 -----Original Message----- From: "BNA Highlights" @ENRON Sent: Monday, November 26, 2001 11:17 PM To: BNA Highlights Subject: Nov. 27 -- BNA, Inc. Daily Labor Report ______________________________ DAILY LABOR REPORT Highlights & Table of Contents November 27, 2001 ______________________________ ISSN 1522-5968 __________ 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_ ____ 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_ ___________________________________________________________ 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. 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