GRAPHIC COMMUNICATIONS INTERNATIONAL UNION, LOCAL 31-N; Graphic Communications International Union, Local 582-M, Plaintiffs-Appellants, v. QUEBECOR PRINTING (USA) CORPORATION, d/b/a Quebecor Printing Glen Burnie, Defendant-Appellee.
No. 00-2032.
United States Court of Appeals, Fourth Circuit.
Argued: Feb. 26, 2001. Decided: June 4, 2001.
252 F.3d 296
Before WILKINS, NIEMEYER, and LUTTIG, Circuit Judges.
Reversed and remanded by published opinion. Judge LUTTIG wrote the opinion, in which Judge WILKINS and Judge NIEMEYER joined.
OPINION
LUTTIG, Circuit Judge:
Graphic Communications International Union, Local 31-N and Graphic Communications International Union, Local 582-M appeal the district court‘s judgment that Quebecor Printing (USA) Corporation did not violate the Worker Adjustment and Retraining Notification Act (“WARN Act“),
ARGUED: Peter Joshua Leff, O‘Donnell, Schwartz & Anderson, P.C., Washington, DC, for Appellants. Russell Franklin Morris, Jr., Bass, Berry & Sims, P.L.C., Nashville, TN, for Appellee.
I.
Quebecor Printing (USA) Corporation (“Quebecor“) operates eight gravure printing plants in its Retail Group, which produces newspaper advertising circulars and commercial retail inserts. At the end of 1995, Quebecor designated its Glen Burnie, Maryland and Providence, Rhode Island facilities as “overflow plants,” which would perform any work that its other gravure plants could not handle. With no regular customers, the Glen Burnie plant became especially susceptible to fluctuations in demand for gravure printing services and, in
[t]his layoff is presently expected to be temporary. However, because the length of the layoff is dependent on many factors over which the company has no control, the layoff may last longer than six months.
J.A. 261, 268 (emphasis added). Subsequent to the temporary layoffs in December of 1996 and 1997, the Glen Burnie plant received work unexpectedly and recalled employees beginning in March; the remaining employees were recalled later in each year.
On September 18, 1998, Quebecor issued a slightly different WARN Act notice. First, it provided notice of a mass layoff and temporary plant shutdown. Second, it informed employees that “the layoff is expected to last longer than six (6) months.” J.A. 278. Pursuant to this notice, the Glen Burnie plant was temporarily shut down, and all employees were laid off on December 11, 1998.
On December 15, 1998, officials from Quebecor‘s Retail Group determined that customer orders and production capacity elsewhere in the Retail Group meant that there would be no work for the Glen Burnie plant in the first half of 1999. Therefore, officials decided to permanently close the plant. By letter dated December 16, 1998, Quebecor informed the Unions of its decision, explaining that the nature of the September 18, 1998 WARN Act notification “has been changed from a mass layoff and temporary shutdown to a permanent plant closure.” J.A. 282.
The Glen Burnie plant was in fact permanently closed on December 16, 1998 and, as a result, Union members lost a number of employee benefits, including dental and life insurance benefits and seniority recall rights. See J.A. 144. Claiming that Quebecor‘s failure to provide 60 days notice of the permanent plant closing violated the WARN Act, the Unions requested that Quebecor compensate its members. When Quebecor refused, the Unions filed suit in federal district court. The district court granted Quebecor‘s cross-motion for summary judgment, and this appeal followed.
II.
The district court held that Quebecor was not required to provide notice of the December 16 permanent closing of the Glen Burnie plant because Union members had been laid off on December 11 pursuant to a proper notice of mass layoff and temporary shutdown, and therefore did not suffer an “employment loss” as a result of the permanent plant closing. Reviewing the district court‘s interpretation of the WARN Act de novo, see Providence Square Assocs., L.L.C. v. G.D.F., Inc., 211 F.3d 846, 850 (4th Cir.2000), we conclude that Quebecor employees did experience an “employment loss” when the Glen Burnie plant was permanently closed and they were terminated.
A.
The WARN Act provides that specified employers must provide 60 days notice of a plant closing or mass layoff to “affected employees,”
Quebecor employees suffered an “employment termination,” i.e., they were terminated, on December 16, when the Glen Burnie plant was permanently closed. See 54 Fed. Reg. 16,047 (1987) (defining “termination” as “a permanent cessation of the employment relationship“). Under the plain terms of
The district court held that the Quebecor employees were not entitled to notice for the December 16 permanent plant closure, concluding that the employees did not suffer an “employment loss” as a result of this closure because the employees had already suffered an “employment loss” on December 11, as a result of a “mass layoff” and “plant closing.” The district court reasoned, therefore, that the employees had at most an expectation of recall when the plant closed permanently, the loss of which did not constitute an “employment loss” for which notice is required.
Whether the Quebecor employees suffered an “employment loss” on December 11 is immaterial to whether the employees were entitled to notice of the permanent plant closing on December 16. Even if the Quebecor employees had suffered an “employment loss” on December 11, as the district court concluded, they still would have been entitled to WARN Act notice prior to the permanent plant closing. The WARN Act clearly contemplates that an employee may suffer multiple employment losses, necessitating separate notices. As recited supra, “employment loss” is statutorily defined as “(A) an employment termination other than a discharge for cause, voluntary departure, or retirement, (B) a layoff exceeding six months, or (C) a reduction in hours of work of more than 50 percent during each month of any six-month period.”
B.
While it is irrelevant whether the Quebecor employees suffered an “employment loss” on December 11 (or at some time before December 16), the district court actually erred in its conclusion that the employees did suffer an “employment loss” as a result of the December 11 layoff. Quebecor employees did not suffer an “employment loss” on December 11 (or any time before December 16), as that term is defined within the WARN Act. The December 11 layoff created an expectation of employment loss sufficient to require notice to Union members as “affected employees,” because the layoff was expected to last “in excess of six months.” See
Indeed, also contrary to the district court‘s conclusion, the December 11 layoff was not even a “mass layoff” or “plant closing” for purposes of the notice requirement of the WARN Act. Not every reduction in force or plant shutdown is a “mass layoff” or “plant closing.” Rather, only those reductions in force and plant shutdowns that result in an “employment loss” are “mass layoffs” and “plant closings.” See
Accordingly, notwithstanding that the Quebecor employees had been laid off pursuant to the temporary plant shutdown on December 11, they were entitled, pursuant to
III.
Quebecor argues that even if notice of the December 16 plant closing was required, the December 16 notice was sufficient because the Quebecor employees did not suffer any employment loss until more than 60 days after December 16. Alternatively, Quebecor contends that the September 18, 1998 notice of the temporary plant closing was sufficient notice for the permanent plant closing. Neither argument is persuasive.
A.
Quebecor argues that the December 16 notice was timely because the Quebecor employees did not suffer any employment loss until that time when they could reasonably have expected to be recalled to work from the December 11 temporary layoff, which was in either March (when workers had been recalled from layoff in past years) or in May (six months after the layoff began).
It is true that the Quebecor employees were laid off prior to December 16 and did not expect to return to work for some extended period of time. However, whether one is an “affected employee” to whom 60 days “notice” must be given is, under the Act, a function solely of whether he has suffered, or reasonably may expect to suffer, an “employment loss.” The Quebecor employees allege that they suffered an “employment loss” as a consequence of their permanent termination on December 16. The only question, therefore, is whether, under the terms of the WARN Act, they did in fact suffer an “employ-
B.
We are similarly unpersuaded by Quebecor‘s argument, which was accepted by the district court, that the notice provided on September 18, 1998—which clearly satisfied any WARN Act obligation with respect to the December 11, 1998 shutdown of the Glen Burnie plant—satisfied the notice required for the December 16 permanent plant closing because that earlier notice provided the Unions with the best information available at the time the notice was served.
The information provided in the notice shall be based on the best information available to the employer at the time the notice is served. It is not the intent of the regulations, that errors in the information provided in a notice that occurred because events subsequently change or that are minor, inadvertent errors are to be the basis for finding a violation of WARN.
In addition, the regulations provide that “[n]otice to each representative of the affected employees is to contain:... A statement as to whether the planned action is expected to be permanent or temporary and, if the entire plant is to be closed, a statement to that effect.”
To be sure, a WARN Act notice will not be deemed insufficient solely because a detail in the notice is incorrect. However, the regulation does not—and could not consistently with the statute—excuse the failure to provide any WARN Act notice with respect to a permanent plant closing reasonably expected to result in an employment loss.
We therefore reject the district court‘s conclusion that the notice provided in September 1998 was sufficient to satisfy the WARN Act with respect to the permanent shutdown and plant closing on December 16 because it “satisfied the purpose of WARN by alerting the Glen Burnie employees that the plant was expected to be closed in excess of six months.” J.A. 141. The question for purposes of liability is whether the Quebecor employees received the notice they were due with respect to the particular employment loss they experienced on December 16. This they did not receive.
IV.
Because the Quebecor employees suffered an “employment loss” as a result of the December 16, 1998 permanent closing of the Glen Burnie plant, for which Quebecor failed to provide 60 days notice as required by the WARN Act, the employees are “aggrieved employees” within the meaning of the Act.
In making this determination, the district court must decide whether Quebecor acted in good faith and had reasonable grounds to believe that the September 11, 1998 notice satisfied its WARN Act obligations. If so, the district court may, in its discretion, reduce the amount of the liability or penalty.
Whether Quebecor‘s December 16, 1998 notice, in conjunction with its September 11, 1998 notice, was an honest, albeit faulty, effort to comply with the WARN Act and give its employees the best and most timely information regarding their employment prospects, or whether it was motivated by a desire to avoid paying whatever benefits would otherwise be due employees over that 60 day period, is a matter for the district court in the first instance.
CONCLUSION
The judgment of the district court is reversed and the case is remanded with instructions to determine what damages, if any, are due appellants.
REVERSED AND REMANDED.