Halkias v. General Dynamics Corp.

excusing further efforts to exhaust ex- order excused from the federal to be entitled remedies, thereupon and should enter- state requirement. haustion pending petition for habeas tain Farmer’s remedy suggested, the thus implement To § 2254. corpus relief under 28 U.S.C. general procedure the fol- adopt in we will procedure, implementing the above 5.In in v. Eleventh Circuit Cook the lowed court will exercise its discretion the district Comm’n., 749 Probation Florida Parole and determining respective parties’ compli- Cir.1985). (11th F.2d 678 conditions, including appro- ance with its the district court dismiss- judgment of priateness any procedures pro- alternative § 2254 petition under 28 U.S.C. ing Farmer’s conducting post-convic- posed by Farmer for vacated, and the exhaust will be for failure to proceedings. tion proceedings further for case remanded so ordered:5 follows: suitable, By means it deems 1. whatever parties court will inform

the district may, if Farmer so specified time

within right formally writing her

disposed, waive Maryland appear personally under law HALKIAS, Plaintiffs, al., et John any post-conviction for relief proceedings Barry Jackson, John Halkias and Maryland, and that if she does courts of Plaintiffs-Appellants, waive, writing all must also indicate in so she involving person- not her procedure modes v. acceptable appearance that are to her for al CORPORATION, GENERAL DYNAMICS petition post-conviction for re- processing her Defendant-Appellee. lief.4 Anthony CUREINGTON, John Similarly, the court will inform the 2. Plaintiff-Appellant, specified if time parties that within v. right her properly does waive Farmer procedures, identify acceptable the state CORPORATION, GENERAL DYNAMICS specified time indicate whether must within a Defendant-Appellee. petition agrees to entertain Farmer’s STAUDT, Alvin on behalf of himself identify procedure[s] for its conduct to similarly situated, and all others agrees. which it Plaintiff-Appellant, specified time 3. If within the waiver identify properly not waive or Farmer does GLASTRON, INC., Defendant-Appellee. procedures, appropriate alternative the dis- may petition court dismiss her Nos. and 93-8204. trict then 93-1680 state failure to exhaust remedies. Appeals, United States Court of If, following proper waiver and iden- Fifth Circuit. appropriate proce- tification of alternative Aug. Farmer, the state fails within the dures Rehearing En Banc Ordered agree specified time to to entertain Farmer’s Sept. proposed petition under alterna- or, procedures, having agreed, fails tive proceed promptly

thereafter to to entertain petition, the district court enter an that, law, pursuant see 5. The state has raised for first time on this 4. We assume procedural appeal the de- 645A(f)(1993), alternative defenses of art. 27 and to the Md.Ann.Code fault and successiveness of as bases for writs Farmer, representation to J.A. state's see affirming the district court's dismissal of Farm- public entitled to state assis- Farmer is defender petition. properly er's defenses are not Those preparing necessary papers to indi- tance in point, having raised at this been raised in the identify appropriate cate waiver and to alterna- They may district court. of course be raised procedures. tive again when the district court considers petition. Farmer's federal habeas Worth, TX, Brender, appellants Ft. for

Art in Nos. 93-1680. Moss, Dir., Detroit, MI,

Kary L. Exec. for AFL-CIO, in Nos. 93- amicus—Texas et al. 1664, 93-1680. Inman, Gibson, Crutcher, D. Dunn &

Paul Dallas, TX, appellee in No. 93-1664. for Nelson, Gibson, Inman, Paul David Karl G. Crutcher, Dallas, TX, appellee in Dunn & for No. 93-1680. Braunfels, TX, Gray, New

Randal C. appellant No. 93-8204. Moss, Dir.,

Kary L. Exec. Barbara Har- MI, NLG, Detroit, vey, for amicus—Texas AFL-CIO & Atomic Workers. McLaughlin, Sey- Ellen E. Lee P. Schafer Geraldson, farth Fairweather & Chica- Shaw IL, go, appellee in No. 93-8204. WISDOM, BARKSDALE, Before and GARZA, Judges. EMILIO M. Circuit BARKSDALE, RHESA HAWKINS Judge: Circuit appeals present an These issue of first impression pe- in our circuit: the limitations Adjust- riod for under Worker action Retraining ment Notification Act (WARN), §§ 2101-2109. Both dis- U.S.C. period pro- applied trict courts the six-month 10(b) §by vided of the National Labor Rela- 160(b). (NLRA), tions Act We U.S.C. AFFIRM.

I. (Halkias’ Cureing- Two of the actions ton’s) Dynamics Corpo- against are General (Staudt’s), Glastron, it, Dynamics, prompting day later, ration; against Inc. one one layoff’ receiving timely in institute a “mass They notice its facilities concern Texas, Oklahoma, WARN, contrary layoff, re- Missouri.2 Halkias advance of employees was one of the by many “plant closing” as a law. affected at the ferred to (June 1988) Worth, Texas, facility. Fort Cong. Almost E.g., 134 Rec. S8546 two (June (Senator later, years Grassley); id. S8665 November he and 1988) (Senator Dynamics Specter).1 other General at the (Tulsa) Fort and Oklahoma Worth facilities employs requires business court, filed a class action in claiming district provide at more than 100 workers to least they laid off in were violation of days’ “plant closing” written notice before form, WARN.3 In its final the action was on 2101-02; §§ layoff”. 29 or a “mass U.S.C. 2,000 approximately behalf of former sala- 2101(a)(3)-(4) (defining “plant § see also id. ried, Dynamics employees non-union General closing” layoff’). pro- Failure to and “mass at the two facilities.4 notice results in the business’ liabil- vide such Dynamics judgment General moved for ity “employment suffered an to those who pleadings, asserting that the six-month day pay and benefits for each loss” for back period applicable to unfair labor 2104(a)(1); §Id. see also id. of the violation. 10(b) NLRA, practice § claims under of the 2101(a)(6) (defining “employment § loss” as 160(b), borrowed, § 29 U.S.C. should be months, termination, layoff exceeding six or so, Halkias’ action was time-barred. The reduction of hours of work more than 50 agreed. months). district court provides percent for six for a federal action to recover these dam- 2. 2104(a)(5), not ages, 29 U.S.C. but does period. include a limitations Cureington’s arises out of the same appeal

facts; indeed, parties agreed to his action adjudicat- to transfer it to the district court A. Halkias’, ing because the claim was identical 1. to, by, and embraced Halkias’ class action.5 January Department Although Cureington’s On action was never for- Halkias’, mally a contract Defense cancelled with General consolidated with the district Although "plant dispute Dynamics' WARN is referred to as a General statement. Halkias law, closing” solely it is not addressed instituted his action five months after the denial First, permanent closing plants. it addresses intervene in his motion to the Missouri action 2101(a)(2), temporary closings. 2102(a). §§ See 29 U.S.C. (which year was filed more than one after the Second, important, and more it ad- layoff). layoffs” dresses "mass that result from less far 2101(a)(3), plant §§ than See 29 U.S.C. closure. 4. The district court certified the class as: 2102(a); Nevertheless, infra, note 2. see also governed only plant (i) treats WARN as if it person employee dissent Each who has been an closings, who, (ii) and this treatment drives its conclu- Corporation Dynamics General at the infra, sions. See note 18. employ- time of the termination of his her Dynamics Corporation, ment for General was generally layoff” 2. WARN defines a "mass as a union, who, (iii) represented by not at that plant reduction in force that is not the result of a Worth, employed time was at either the Fort closing employment and results in either an loss Texas, Tulsa, Oklahoma, plant plant or the single percent at a employees (provided site for at least 33 of the (iv) Dynamics Corporation, General whose em- that least 50 ployment involuntarily was terminated be- loss), employment employees. suffer an or 500 7, 1991, January dates tween the and March 2101(a)(3). See 29 U.S.C. (v) who did not receive written employment notice of his or her termination of According Dynamics, to General different (60) sixty days prior least such termi- plaintiffs commenced a WARN action in the nation. days Eastern District of Missouri within 10 of the 8, 1991, layoff. Januaty attempted Halkias 4, 1992; Januaty Cureington filed suit in state court on May intervene er, that action on howev- 4, 1993, nearly July, two months after Halkias filed his motion to denied intervene was Dynamics untimely. Although his. General removed the case to dis- neither the motion nor record, part the order is not trict court. Halkias does circuits, and hold complaint company with our sister Cureington’s sua

court dismissed applied. the NLRA should within the he failed to file sponte, because period. six-month

A. B. Congress’ provide a limita failure “is often the case tions for WARN al- against action Glastron class Staudt’s v. Interna federal civil law”. DelCostello employees at “laid off’ over 250 leged that it Teamsters, tional Bhd. of Braunfels, Texas, facility between its New (1983). 2281, 2287, 76 L.Ed.2d 476 31, 1990; but December 31 and October. case, In such a until December did not file suit Staudt ordinarily assume that we do years later.6 approximately two Glas- limit on there be no time intended dismiss, on the basis that the motion to tron’s all; rather, our is to “bor- actions at task barred action was statute or other row” the most suitable NLRA, from the that should be borrowed of timeliness from some other source. rule .granted. was generally concluded that Con- We have gress apply the courts intended closely analogous statute of limita- most II. tions under state law. noted, address an issue of first we As omitted). (footnote task of borrow Id. The our court: the WARN limita impression for ing appropriate period limitations has addressing it courts period.7 tions District accurately characterized as “a matter of been courts in these are divided: like the district square peg round to stuff in a hole.” which cases, Co., six- applied have the NLRA’s some Mfg. v. Belleville Shoe 908 F.2d Short concurring), (7th Cir.1990) 1385, (Posner, J., others, perio 1393 period;8 state limitations month denied, 1250, 111 rt. 501 U.S. S.Ct. Circuits, and Third ds.9 The Second ce 2887, (1991). 115 L.Ed.2d 1052 Due have addressed other circuits to are many competing for.borrowing vari reasons issue, rejected period and the NLRA exception. In periods, this ease is no ous ap limitations was held that a state deed, example. it is a classic Am. v. propriate. United Steelworkers of (3d Co., 32 F.3d 53 Crown Cork & Seal Complicating our task is the need to Cir.1994); v. Paperworkers Local United 340 consider whether a federal limitations Inc., 51, Specialty Paperboard, 999 F.2d 57 provides superior vehicle for en WARN’s Cir.1993). 162, (2d reluctantly, part Most we forcement. See Co., (E.D.N.Y.1992); Thomas v. North Star Steel 6. Staudt states in his brief that the non-union, 970, (M.D.Pa.1993), and advances this as one of the F.Supp. were 838 972-75 rev'd adopting period. the NLRA reasons for not record, however, sub nom. United Steelworkers Am. v. Crown is silent on this non-union Co., (3d Cir.1994). Cork & Seal 32 F.3d 53 claim, dispute does not it. As dis- but Glastron infra, give weight status cussed we fixing no to union 9. E.g., United Steelworkers Am. v. Crown Cork appropriate limitations vel non for Co., 467, (E.D.Pa.1993), F.Supp. & Seal 833 467-70 period. 53; 'd, 32 F.3d Automobile Mechanics' aff briefs, places Serv., Inc., in his Halkias seems to 7. At various No. 701 v. Santa Fe Terminal Local propriety utilizing Fed.R.Civ.P. 432, (N.D.Ill.1993); F.Supp. Whole 830 435-37 12(c) (allowing entry "judgment of a on the 63 v. Santa Fe sale & Retail Food Distrib. Local dismissing pleadings”) com- as a vehicle his Serv., Inc., 326, F.Supp. 329-31 Terminal 826 however, plaint; explicitly he never contends (C.D.Cal.1993) (applying California limitations 12(c) inappro- under Rule was that a dismissal n . determining that defendants waived after Therefore, priate. we this issue do not consider NLRA); pursuant Frymire limitations defense been raised. to have 651, Corp., F.Supp. Ampex 653-55 v. (D.Colo.1993); Corp., Coke Wallace v. Detroit E.g., Newspaper v. & Mail Deliverers’ Union 185, 192, (E.D.Mich.1993). Co., F.Supp. F.Supp. Magazine 188-92 194-97 United (“state statutes of limita- Consistent with the trend at 2289 towards utiliza 103 S.Ct. unsatisfactory vehicles for the periods, can be tion tions of federal discussed law”). sure, of federal To be 11, enforcement supra, in note our court has borrowed the that “resort to continues to caution the Court NLRA’s a number of the norm for state law remains See, e.g., Landry cases since DelCostello. v. 171, 103 periods.” Id. at Ass’n, Air Line Pilots 901 F.2d 410-14 Pleva, 2294; Lipkind, Prupis accord (5th Cir.) (applying period to claim for Gilbertson, Petigrow & duty representation breach of of fair under (1991) 2773, 2778, 115 L.Ed.2d 321 111 S.Ct. Act), denied, Railway Labor cert. (“It (plurality) is the usual rule that when (1990); 112 L.Ed.2d 203 provide a statute of has failed Atchison, Trial v. T. Ry., & S.F. 896 F.2d action, limitations for a federal cause of (5th Cir.1990) (same); 124-26 Alumi or ‘absorbs’ the local time court ‘borrows’ num, Brick & Glassworkers Int’l Union Local most to the case at limitation Inc., Refractories, 6 v. A.P. Green omitted).10 hand.”) (citations But, ap- under (5th Cir.1990) (applying F.2d 1054-55 conditions, propriate look to federal “pure” § 301 actions under Labor period.11 law to borrow the Act); Management Coyle Relations v. Broth has stated that: Court Airline, Clerks, Ry., erhood & S.S. from elsewhere in federal law when a rule (5th Cir.1988) F.2d (applying 1405-06 clearly provides analogy a closer than against to breach of contract claim statutes, available state and when the fed- Act). Railway union 2 of under Labor practicalities policies eral at stake and the litigation significantly that rule a federal, make apply The decision to rather appropriate vehicle for interstitial state, period than a is a “delicate” one. See lawmaking, we have not hesitated to turn 356, Lampf, 501 U.S. at 111 at S.Ct. 2778 away from state law. DelCostello, (plurality). In the Court select- DelCostello, 172, giv- ed the NLRA’s limitations after 462 U.S. at 103 S.Ct. at 356, 2294; ing Lampf, accord 501 at 111 due consideration to whether the state U.S. (plurality). period might at 2778 policy S.Ct. hinder the federal at genesis practice 'borrowing' the Rules 10. This usual rule has its in traditional the statute 1652, Act, originally analogous 28 enact- Decision U.S.C. limitations of the forum state’s most 1789, provides: adoption ed in cause of action and moved towards the Court, Supreme of uniform national rules.” The states, except several The laws of the where the Cases, 177, Leading 1990 105 Harv.L.Rev. Term — Constitution or treaties of the United States or (1991). many respects, 400 In this erosion re require provide, Acts of otherwise or only flects the endorsement of a view held once regarded shall be as rules of decision in civil Cardinal, in dissent. See Hoosier 383 U.S. at States, courts of the United in actions in the 709-14, (White, J„ 86 S.Ct. at 1115-17 dissent they apply. cases where reasons, ing). For obvious this movement to 355-56, U.S. at 111 S.Ct. at 2778 501 uniform, periods wards national limitations for (discussing (plurality) borrowing source of state federal causes of action has much to recommend DelCostello, principle); see also 462 U.S. at 159 Cases, ("The Leading supra, poli it. See at 409 13, n. 103 S.Ct. at 2288 n. 13: by adopting cies advanced uniform limitations recognized As we Workers [Auto v.] Hoosier periods certainty, predictability, and minimiza — [696,] Corp.], [Cardinal [86 701 S.Ct. litigation. promoted by be uniform tion —would 1107, 1110-11, (1966)], 16 L.Ed.2d 192 periods age all federal statutes. In an a choice of a limitations federal largely regulated by activity multistate question cause of action is itself a of federal law, borrowing than the state rule rather (based law. If the answer to that on anachronism.”). may be an policies requirements underlying and action) Leading cause of is that a timeliness rule drawn The dissent contends that the Cases ap actuality supports [its] from elsewhere in federal law should be note "in conclusion”. plied, inappli page then the Rules of Decision Act is Dissent at 248 n. 48. If its conclusion is borrowing rule is still the usual cable its own terms. that the state rule, hand, agree. then we On the other if it borrowing supports the dissent's con- 11. The “norm” of state limitations believes that the note away periods subject steady has been erosion. Dis- clusion that the existence of a "trend from conjecture”, cussing Lampf, pure noted that "the the state rule is one commentator decade-long away disagree. a drift we Court furthered from then hierarchy commanded 162-69, Although Lampf DelCostello, issue, at U.S. 2289-93, noting “family re- structure is consistent plurality,12 a its at S.Ct. eight the federal statute at approach of members between with the earlier semblance” 170-71, 103 Id. at Holding. and the NLRA. Agency issue On the of the Court Holding Corp. Agency In at 2293-94. hand, S.Ct. has borrowed a federal other the Court 143, Assoc., Inc., 483 U.S. Malley-Duff & ascertaining explicitly period without first (1987), 2759, 97 L.Ed.2d DelCostello, S.Ct. uniformity. See the need for a uniform whether considered Court fact, 165-71, 103 at 2291-94. In at S.Ct. U.S. 148-49, desirable, at at 107 S.Ct. id. is Agency Holding of the de the discussion provided a “far a federal statute and whether sirability a uniform for RICO ... than state law alter- analogy closer component of may be embraced as a claims native”, paying particular attention “litigation prac dictate that DelCostello’s be- purpose and structure” “similarities policy implications be consid ticalities” federal statutes. Id. the two tween Agency Holding, 483 at 149- ered. See 2765. It also focused S.Ct. (“a at 2764 uniform statute of 107 S.Ct. particularly the litigation practicalities, required is to avoid intolerable shopping generated for forum potential time-consuming litigation”) uncertainty and periods. Id. at of diverse state application (internal omitted); quotations citation at 2765-66. 172, 103 at 2294 S.Ct. attempt- Lampf, plurality of the Court (identifying “litigation practicalities” and the a three-tier “hierarchical promulgate ed policy as factors in choos effects on federal appropriate limi- ascertaining the inquiry for According ing period). a federal Lampf, 501 U.S. at period”. tations outline, general ly, follow DelCostello’s Following (plurality). at 2778-79 S.Ct. subsequent recognizing that cases have elab a uni- one first decides “whether approach, orated on that theme. selected”, of limitations is to be form statute that uniform is regardless of whether particular species periods of state B. 357-58, 111 single, federal one. Id. at first examine whether We uniformity If is desir- (plurality). at 2779 NLRA limitations able, species of next chooses either a one periods. than available state See periods period, a or federal state DelCostello, 172, 103 at at 2294 462 U.S. geograph- to “the

paying particular attention period provide a (requiring that the federal shop- forum ic character of the claim” and analogy than state stat “closer available (plurality). Finally, even ping concerns. Id. utes”). examination, To undertake this we in considerations counsel favor of such describe the similarities between the first that the period, federal one must still decide WARN, compare and and then and NLRA truly affords a ‘closer fit’ with “federal source those similarities the available any contrast of action at issue than does the cause period(s).13 (plurality). state available state-law source.” Id. justice express charges language other wrote to a similar view. “[t]he dissent in no

12. The event, infra, borrowing any approach Lampf pronouncing In we our the state rule discussed reading inquiry through tello, 'only plurali- a harmonious of DelCos- well did not command a alive and prece- Lampf, Supreme majority Dynamics and other Court ty', would as the and General (footnote page dent. Dissent at have us believe.” omitted). charge predicated a That on mis- construction; Lampf merely vigorous exception we state that "the 13. The dissent takes only plurality”. believing Lampf hierarchy presentation, a At no commanded order of our “only plurality” point suggest a the state do we mandates that address limita- first borrowing any- period. page rule is Dissent at 242. As to Court believes that state tions however, rule; teachings, thing part Lampf's we are unable to distill the IIA of but the "usual” was, fact, joined by only meaning that the Lampf opinion same from the Court's words in And, Lampf justices. only justices does. Nowhere does state that those four ex- dissent four courts, sugges- agreed inquiry” with the pressly when confronted with the "hierarchical determining part tion that a federal limitations is more IIA for whether distilled borrowed; period, appropriate must first ad- than federal limitations should 8(a) § proscribes of the NLRA “unfair labor practices” by employers. U.S.C. Clay Holding, which held that the Agency 158(a). § applicable to Act’s limitations was ton claims, noted that those acts shared RICO Unquestionably, WARN and the NLRA purpose “similarities and structure”. structures; family share similar “the resem 152, 107 Holding, Agency 483 U.S. S.Ct. at undeniable, blance is and indeed there is a The same can be said of the NLRA overlap” substantial between them. See Del and WARN. Costello, 103 S.Ct. at 2293 “requires employers gener some (not WARN). — fact, discussing Depart In closing ally curtailing or those who are extensively ment of Labor15 borrowed from provide sixty days notice to operation —to promulgating regulations the NLRA in laid off or employees those who will be whose 639.3(d) (1993) (de § WARN. See 20 C.F.R. substantially reduced.” hours will be Car fining “representative” purposes for WARN Stores, Dep’t penters Dist. Council v. Dillard 9(a) 8(b) by explicit §§ reference to (5th Cir.1994).14 Inc., It 15 F.3d 639.3(a)(l)(ii) (1993) NLRA); § 20 C.F.R. requirement provide employ imposes this recall”); (defining expectation “reasonable jobs opportunity to look for other ees an 639.3(a)(2) (1993) § (defining 20 C.F.R. “in 639.1(a) § retraining. seek See 20 C.F.R. dependent contractors and subsidiaries” (1993). i.e., rules”, “existing legal reference to case NLRA); protect interpreting ... enacted to law “[T]he [was] NLRA see also 54 (1989) 16,045 join together Fed.Reg. ... right (explicitly looking of workers to collectively bargain guidance promulgating for the terms and condi NLRA for 639.3(a)(2) employment.” Paperwork § “indepen tions of United C.F.R. definition of ers, 54; subsidiaries”); 999 F.2d at see also 29 U.S.C. 151. dent contractors and 54 Fed. (1989) NLRA, 16,044-45 provide protection, Reg. (discussing promul To such among things, gation expectation “conferr[ed] other certain af of “reasonable of recall” 639.3(a)(l)(i) rights [placed] language firmative 20 C.F.R. re law). ferring certain enumerated restrictions on the activi to NLRA case After WARN’s enactment, employers.” Ship Bldg. ties American Co. the NLRB’s General Counsel NLRB, 955, “predicted interplay substantial between the (1965). (WARN) example, ] 13 L.Ed.2d 855 For new law ... and the nation’s [ Instead, fact, (footnote omitted). period. page dress the relevant state Dissent at comparison: quoting Supreme AgencyHolding invites a feder- Court in addressed Clayton al is "to be made when a rule the similarities between RICO and the clearly provides from elsewhere in federal law prior discussing Act “the lack of satisfac- ..., analogy policies closer and when the federal analogue tory rejecting state law to RICO” and practicalities litigation at stake and the of make application state "catchall” limitations significantly appropriate that rule a vehicle period. AgencyHolding, 483 U.S. at See lawmaking.” Lampf, for interstitial 107 S.Ct. at 2762-65. 356, (plurality) (emphasis 111 S.Ct. at 2778 add- ed; quotation citations and internal marks omit- Carpenters, disagreed 14. In our court with the ted). Obviously, comparison involves ascer- aspect damages of WARN's Third Circuit on an taining proposed the closeness of both the federal provision. (disagreeing Id. at 1282-86 issue, periods and state to the cause of action in holding that remedial Third Circuit's WARN’s comparing and then their fit. Whether one first provision requires pay” "back for each calendar period, looks to the state or to the federal violation; only day calculating damages based interest, resulting inquiry is still the same. Of days period). on work within violation opinion Lampf itself did not even consider alternatives, state law because it found "an ex- significant Department It is that the of Labor press for correlative remedies holding that a claim administers WARN. In [federal] within the same enactment.” Ld. at 362, Employee Program (foot- Protection of the under the (majority opinion) 111 S.Ct. at 2782 subject omitted). Deregulation Airline Act should be note We do not read this to mean that that, period, Circuit noted "as "Lampf suggests NLRA's the Third that the time a court can NLRA, Department go straight with the of Labor has to federal law is ‘where has administering Haggerty provided express the EPP”. an for correl- had a role in ” USAir,Inc., 781, (3d 1992). 787 Cir. ative remedies within the same enactment.’ v. 952 F.2d 232 8(a)(5) NLRA, 8(a)(1) 29 §§ of the by the NLRB.” law administered

basic labor 158(a)(1),(5), interpreted have been Overlap U.S.C. Counsel Outlines NLRB General notify employer an to a union of Closing require Law and to Between Plant Tafi-Hart- (BNA), plant. to close a Lab.Rep. Nov. its decision Daily ley, 226 1988, A-3.16 obligation In to meet its to bar- order of a gain over the effects overlap between linguistic Given close, employer to an must con- decision NLRA, surprising it is not WARN and meaningful bargaining duct in a manner Labor, that, Department like the meaningful A and at a time. concomitant law in to NLRA case have turned courts bargaining timely meaningful element example, in Dam For interpreting WARN. close, union of the decision to notice to the F.Supp. Mining Corp., 739 Fork ron v. Rob bargaining good faith does (6th so (E.D.Ky.1990), aff'd, 945 F.2d impossible. futile or become Cir.1991), required to court was the district persons laid off to which resolve “the extent NLRB, 706 F.2d Papers, Inc. V. Penntech of ‘em in the calculation to be included are (1st Cir.) (citations quotations and internal Act.” purposes of the WARN ployees’ for omitted), denied, 892, 104 cert. 464 U.S. S.Ct. fol issue Id. at 342. Its resolution (1983); L.Ed.2d 228 see also Metro Department of Labor lowed the lead Corp., politan 279 N.L.R.B. Teletronics to the NLRA: and looked (1986) (finding NLRA 958-59 & n. analysis Act re- specific 8(a)(5) The company’s WARN fail violation because of an em- of whether quires a determination notify union of to close and ure to decision “reasonably experience an (2d ployee would enforced, plant), relocate 819 F.2d case Cir.1987). loss”. Rather than await employment sense, In a amends the WARN phrase, development of this the Secre- law by setting specific time NLRA substantially adopted a tary [of Labor] notice, expanding coverage addition analysis formulated under the Na- similar regardless employees, all of union status. byAct the National tional Labor Relations Furthermore, noted, bargain- collective [NLRB] Board’s use of Labor Relations ing agreements frequently require notice of expectation of recall” test. the “reasonable shutdowns, layoffs, and the like. See First interpretation of that The NLRB case law NLRB, Corp. Maintenance Nat’l term, determining eligibility used in voter 2573, 2583-84, 69 L.Ed.2d elections, could then be representation (1981) (describing provisions that such Fed.Reg. Act. 54 utilized for the WARN Dubuque Packing “prevalent”); see also are 16,044. (1991) Co., 386, 394 n. 23 303 N.L.R.B. parties appear agree with this bargaining agreement (recognizing collective it, Secretary like- suggestion required given “6 months’ notice be wise, equally court to appears to this prior closing”). perspec- from this Viewed phrase determining those applicable tive, merely frequent prac- codifies a pur- Act persons to be counted for WARN fact, facilitated NLRA. tice poses. provide: regulations implementing WARN affirmed, Id. at 344. The Sixth Circuit once supersede provisions do not analogy”. again employing “the NLRB bargaining agree- or collective laws Damron, 945 F.2d at 124-25. provide that for additional notice or ments rights If just analogous to additional and remedies. such The NLRA is more than fact, longer WARN; thought agreement provides for a may in be of law or WARN NLRA, period, notice notice shall run con- outgrowth of the because WARN as other, impact Although by the and because of the the NLRB General one from comments far-ranging, following bargaining existing the is illus- Counsel were and future collective relationships requires trative: that this statute ... it is be a fair amount of inevitable that there will by are intended Con- I think the two statutes interplay essentially separately, [two laws]. between the gress operate but I original). (ellipses borrowing concepts, and brackets in of the of Id. think because noted, disagree. peri- As A strict notice currently that additional with may bargaining agreements identity purposes requisite od. Collective of is not for amplify the terms and clarify or used to a limitations from one fed WARN, may not reduce but conditions of in To eral statute for use another. the con rights. WARN trary, a federal statute’s limitations (1993). Thus, De- 689.1(g) the 20 C.F.R. if, among things, other it to be borrowed injects regulation partment of Labor’s analogy “provides a closer than available agree- bargaining into collective WARN DelCostello, 462 at 171- state statutes”. U.S. ments, by the providing both added); (emphasis at 2294 ac S.Ct. pro- automatically increases notice cord S.Ct. at by allowing by agreement, and the vided (“affords (plurality) a ‘closer fit’ conditions” to be clari- “terms and WARN’s the cause of action at issue than does by agreement. the amplified or fied source”); Agency available state-law Hold notwithstanding, similarities These (rely ing, 483 U.S. at 107 S.Ct. at 2765 “the NLRA is not held that Second Circuit part, purpose in ing, in on “similarities sufficiently analogous to override the tradi structure”). identity purposes If an were pe a state limitations assumption that tional required, that the would it would seem Court Paperwork applied.” should be United riod Clayton Act’s limita not have borrowed ers, acts’ comparing 999 F.2d at 55. establishing in a uniform tions purposes, stated: Holding, Agency RICO. See WARN, unlike that purpose The 156, 107 at 2767. NLRA, peace labor but to is not ensure job associated with alleviate the distress purposes of the NLRA are similar to commu- the workers and the loss for both regulate those of Both labor-man- WARN. nity they in live. This is demon- WARN, by requiring no- agement relations: by provision the statute strated terminations; layoffs impending tice of governments as of action for local causes NLRA, by facilitating concerted action and unions. as for individual workers well governing by employees and collective bar- action, brings an it thus a union When procedures. do so to achieve gaining Both representative of the serves objectives. purpose broad similar WARN’s harmed. that has been class contrast, “workers, NLRA, protect protect does not their families and is to job avoiding community loss. interests by providing notice so that communities” may Steelworkers, be terminated seek workers who will 54; also Id. at see United (Third jobs retraining. statement 20 C.F.R. 639.- at 58-59 Circuit other or F.3d very goals (1993). 1(a) serves broad societal purpose, ‘WARN The NLRA’s stated —to workers, families and their com- protect their broader, objectives though embraces similar potentially in the wake of harmful munities “encouraging practice procedure decisions.”). rejection employment Its purposes bargaining ... for the of collective hinged on one es- NLRA negotiating the terms and conditions of perceived difference between WARN sential mutual aid employment or other [workers’] reg- “specifically and the NLRA: the NLRA § 151. As dis- protection.” 29 U.S.C. bargaining the collective relation- ulate[s] achieved, in supra, purpose is cussed peripheral to ship”, “remain[s] while WARN proscription of “unfair labor part, Paperworkers, 999 that concern.” United purpose by employers. WARN’s practices” “WARN, therefore, F.2d at 55. It found NLRA’s: a subset of the be seen as discourages’ ‘encourages nor collec- neither protection for provides specific bargaining, differing purpose tive thus employers by requiring that render workers Id.; also from the NLRA.” see United lay- or mass advance notice terminations (Third Steelworkers, 32 F.3d at 58-59 Circuit offs, generally defines and NLRA while the best, “tangential” stating, at WARN has a employers relationship between regulates the bargaining). effect on collective statute). (four-year peaceful 16.051 residual Con- promote labor re- and and spicuously suggestions lations.17 absent from these are why any persuasive discussions of of these sum, and the NLRA share simi- In WARN appropriate peri- contain statutes limitations undoubtedly they overlap. language; lar ods for WARN. Halkias contends similar, addition, though by they share no applicable is clear that “[i]t state statute identical, purposes. The “fit” is rea- means of limitation should be either” from the tort sonably close.18 Likewise,

or contract statute. asserts Staudt brief) (in his that either the tort or contract 2. period applied, although limitations should be remains, however, whether a former, evidencing preference a for the period provides as close or closer “fit” give the basis that the failure to a WARN than does NLRA. Several taking notice a “constitute[s] conversion periods19 sug- limitations have been Texas employee’s right employ- to continued gested by appellants and amici curiae20 as And, the amici avoid ment.”21 issue analogies proper to WARN: Tex.Civ.Prac. & altogether, suggesting statute), periods that all three (two-year §§ 16.003 tort Rem.Code statute), candidates, (four-year requesting 16.004 breach of contract are suitable but a re- comparison purposes promptness asserting in 17. The dissent finds this claims becomes even intense, Fourth, page "weak”. Dissent at 245 n. 32. We think more as is later. discussed discussion, along points with the other period apply made six-month NLRA does unfair (several in this section of which the dissent does practice might claim under the NLRA which address), convincing to be far “more than the notice; not plant closing a arise from without Con- passed by Congress.” fact that both were Dis- gress special period did not create a page at 32. This all the sent n. becomes practices plant for unfair labor connected with a considers, discussed, apparent when one as closing. proscribes that the NLRA conduct almost identi- proscribed by cal WARN. Although Halkias' action includes Oklahoma plaintiffs Dynamics' facility, from General Tulsa relationship 18. The dissent dismisses the be- party suggests borrowing peri- no an Oklahoma WARN, tween the NLRA and essentially and does so for concern, od. This lends credence to our dis- disagreement one reason: its with our infra, cussed that in a choice of law situation “shaky premise policy favoring rapid that the involving borrowing period, a state limitations a disputes (presumably of labor resolution so that district court will look to that of the forum state. business) eveiyone get applies can back to to a company plant situation where the has closed a appellants by 20. A brief was filed on behalf (and business).” there will be no more Dissent AFL-CIO, following amici curiae: Texas Oil page point 243. The dissent returns to this Workers, Chemical and Atomic United Mine- again again; particularly reprise a colorful America, workers of Automobile Mechanics' Lo- plant a follows: "Once has closed ... there can 701, NLG/Sugar cal No. Law Center for Eco- dispute. plant be no resolution of a labor is Justice, nomic and Social and the UAW. gone, jobs, community are without workers is reeling.” pages left Dissent at 247-48. But, argument, oral when asked which why policies are There several reasons period applied, Texas should be Staudt's counsel by application WARN would be better served replied you going that he was "afraid were to ask period, the NLRA's six-month limitations Although urged period that”. Staudt the tort infra, part are these reasons now, discussed II.C. For brief, by argument, evidently his oral he had First, noted, points four will suffice. mind, changed stating preference his a for the law; merely plant closing WARN is not it also residuary period, expressly disavowing Second, governs layoffs”. "mass to the extent (the preference for the contracts (in layoffs itself with concerns Circuit). selected the Second Given the diffi- ongoing possibility there anis business and the culty identifying single Texas employee may re-employed), that the affected analogous, that is most we concur with a the NLRA's six-month limitations is con- expressed by sentiment the Third Circuit its preference rapidity sistent with federal law's apply decision to the NLRA's limitations resolving disputes- having labor those —even Employee to actions under the nothing Protection Pro- bargaining at all to do with the collective gram Deregulation infra, of the Airline relationship. (discussing Age "[I]t Act: note 34 easy Employment to find a state Discrimination in Act and that is an Title VII claims). Third, appropriate analogy." Haggerty, to the extent that WARN does 952 F.2d at plant closings, concern itself with the need for period is not favored. of a “catchall” See district court to seleet for the mand Agency Holding, 483 U.S. at closest one.22 Garcia, 2765; S.Ct. at Wilson v. 261, 278, 105 85 L.Ed.2d 254 a. (1985). specifically, hardly More it can be disagree period, we As for the tort 16.051, applies § to a tremen said claim that a WARN assertion with Staudt’s claims, diversity of see Tex.Civ.Prac. dous & a claim for “conver closely resembles 16.051, § And, bring in frequently overlap with WARN.26 broad choice fora which to their say, none causes of needless to embraces claims or that in doubt will arise as to language action that share common with triggering which state events occurred. Therefore, WARN.27 geographic considerations do application not counsel for the of a uniform C. federal limitations Act Borrowing sup NLRA is claims. ported by litigation practicalities policy and Paperworkers, (citing United 999 F.2d at 56 DelCostello, 462 at considerations. See U.S. court); quoting and district see also United (counseling 103 S.Ct. at 2294 use of Steelworkers, (Third 32 F.3d at 60-61 Circuit more federal relying upon Paperworkers the above United policies at and “when the federal stake concerns). quote shopping to dismiss forum litigation practicalities make that rule a endorsing plaintiffs After the assertion that significantly appropriate more for in vehicle would not have “a broad choice fora” —a lawmaking”). terstitial odds, seems,

conclusion somewhat at it judieially-notieeable many fact that busi- employees28 nesses with 100 or more “trans- litigation practicality The first we consider act business” more than one state —the shopping. is forum quoted Second Circuit then another district (plurality); Agency S.Ct. at 2779 proposition court for the Holding, 107 S.Ct. at 2766 (“the present use of state statutes would likely point choice of law rules would danger shopping”). Raising of forum this borrowing the law of the site since that concern is the breadth of WARN’s venue place injury, prob- would be the and provision, permits an action to be ably place of the unlawful action as brought “any district in which the Therefore, unlikely well. it is that a occurred”, alleged violation is to have but plaintiff would be able to forum also, employer district “in which the shop for a locale with the most advanta- 2104(a)(5) § transacts business ”. 29 U.S.C. limitations; geous state of law the added). (emphasis and Second Third layoff likely site of the would be chosen no by not as Circuits were troubled as we happened matter where the suit to be filed. generous provision, venue and the concomi possibility party manipulate tant that a could Paperworkers, United 999 F.2d n. 9 through shopping. it forum The Second Cir (citation added). omitted; emphasis Choice began analysis by quot cuit its of this issue however, appear, pose greater of law rules ing Paperworkers the United district court: problems than this. “plant closing” The term as defined is, course, A WARN action a fed single employ- Act is limited to sites ment, question eral case. The choice of laws issue is venue limited to the district presented alleged would be to a forum that does where the violation is to have oc- not include employer curred or where the the site of the WARN violation does busi- ness; single plant unless a would be which state’s site straddles boundary states, borrowed, between two it should be and the outcome of that (fis unlikely prospective plaintiffs inquiry will have a seems no means certain. A Steelworkers, NLRA. United 32 F.3d at 61 & n. sion be more similar to WARN than those amici; however, by appellants offered provide analogy does not as close an as does the compensate past NLRA. WARN does not Recall, supra, as discussed that the NLRA has services rendered. interpreted require been WARN-like notice. only applies employers 28. WARN with “100 or Dynamics suggests 27. General aif Texas employees, excluding part-time employees” apply, is to it should be the six-month aggregate or "100 or more who in the 4,000 Pay under the Texas Statute. per See Tex. work at least hours week”. 29 U.S.C. 5155, 5(a). 2101(a)(l)(A-B). provi- Rev.Civ.CodeAnn. art. This of limita regarding flict which state’s statute principles of law choice trict court’s for an ERISA from feder tions should be borrowed case are derived claim, law, general Third to “follow the court decides as the Second common al Corporacion period applica recognized. rule and borrow a limitations have Circuits v. Sales most de Fomento Vintero to the state claim ble Venezolana forum (“This (2d Cir.1980) ”) 786, added); (emphasis ... Corp., F.2d 795 claim 629 ERISA appro ... and it is question Corp. Paper case v. Champion a federal Intern. United (6th Cir.1985) workers, 328, common law apply that we a federal priate 332-33 779 F.2d denied, ”), 449 ... cert. of law rule (refusing apply borrowing choice forum state’s to 804 66 L.Ed.2d statute; applying forum state’s Corp., F.2d (1981); Unisys action). v. 960 see Gluck period to federal cause of Cir.1992) (“A (3d state court 1179 n. 8 Augmenting dangers shop- that forum necessarily seek to legislature does occur, ping may highlighting the com- it consider federal laws when further or even plexity of a court’s decision as to A fed provisions. choice of law develops its borrowed, period should be which limitations address those choice of law rule would eral involve several different WARN claims could concerns.”). If court follows the district by of the maintenance of a class states virtue principles as a of law forum state’s choice instance, the district court certi- action. For law, statutes surrogate for federal common action, allowing him class fied Halkias’ many jurisdictions by limitations are viewed claims from facilities both press WARN thus a forum will follow “procedural”; and Moreover, as dis- Texas and Oklahoma. period that regardless of the period, its own supra, potential another cussed there was the cause of apply in the state which would forum, possibility Missouri.31 Given Eugene generally F. arose. See action litigation, the issue of multistate WARN Hay, of Laws & Peter Conflict Scoles con- should which state’s (2d 1992).29 3.9(b), 3.10, ed. §§ 3.11 at 58-64 might an issue of time-consum- trol become course, result, completely This would And, goes saying, ing litigation. it without by suggested the Second different from that not have time to waste. courts do Circuit.30 Moreover, Considering, collectively, the likelihood borrowing eases in- examining possibility for multi- shopping, and the limitation forum volving a conflict over which state’s actions, class find a consistent state WARN apply, should we courts even address Should federal borrowing the forum state’s. arises:- preference for question of which Lab., to the vexatious Kagan, F.2d themselves Wang Inc. v. 990 claim, Cir.1993) (“In (9th case, govern a WARN state’s should an ERISA 1128 period? provides a uniform the NLRA state’s statute when ordinarily borrow the forum else, limitations....”) Gluck, added); nothing If valuable time think not. (emphasis We liti- (after not be consumed and resources should reviewing a con- F.2d at 1179-80 conclusion, port dissent relies on generally describe statutes of Texas courts apply opinion procedural their own. in Automobile Mechanics’. limitations as See, district court But, e.g., Capon, S.W.2d of authori- opinion Hollander no citation contains ("The (Tex.Ct.App.1993) of limita- statute ty sweeping that "choice of law statement for its procedural action is issue. If the tions is likely point the law would rules of limitations of the forum barred the statute Mechanics’, F.Supp. the site”. Automobile pending, no action which the lawsuit is court in at 436. if the action is not be maintained even of action in the state where the cause barred issue, deciding because it is not 31.Without arose.”). us, different a class action for several before sites, "single WARN's which satisfies each of rigorous analysis attempt 30. The dissent does not appropriate requirement, appears to be site” of law rules would of what the effect of choice each site was simulta- to close when the decision be; merely of forum it states that the "threat exigency. See arose out of the same neous and shopping rules ... is stemmed (hat choice law 2101(a)(2) require- ("single site” 29 U.S.C. ment); layoff dictate the law of the site of 23(a-b) (class action Fed.R.Civ.P. see also matter where the suit ... would be chosen no requirements). sup- pages To Dissent at 247-48. was filed.” Short, Hofmeister, gating issues. See 908 F.2d at cial Workers Local 100A v. such (7th Cir.1991). Appellants F.2d (discussing pre-Lampf peri- urge inapplicable this rationale is actions).32 According- od for fraud securities WARN, contending although prompt uniform, ly, single limita- we conclude that a unique ness is of concern to the collective claims, tions is desirable for WARN bargaining process, applicable is not militating applying conclusion favor of requirement. notice WARN’s NLRA’s. disagree. We As the Seventh Circuit ex plained rejecting argument a similar against application of the NLRA’s This is buttressed resort to conclusion “ ‘pure’ to section 301 actions”:33 “The six- policies, an examination of and the WARN’s 10(b) month in limitations section was likely policies applying of effect on those adopted in litigation past order to ‘bar over diverse, quite long, peri- and limitations often destroyed, events “after records have been 172, ods. See 462 103 elsewhere, gone witnesses have and recollec (urging S.Ct. at 2294-95 use of more analo- tion of the events have become gous federal “when the Graphic dim and confused.”’” Johnson v. policies at stake ... make that rule a 303, Communications Int’l Union Local 930 (7th Cir.) 1178, alia, significantly appropriate vehicle in- (citing, for F.2d 1182 inter NLRB, Lodge Local No. v. lawmaking”). terstitial 822, 828, 80 S.Ct. 4 L.Ed.2d 832 First, recognize poli we that federal labor — (1960)), denied, U.S. -, cert. cy long rapid has favored the settlement of 184, (1991).34 116 L.Ed.2d 145 This concern disputes employer an between em claim; present indeed, is no less in a WARN ployee. applying In the NLRA’s given triggered plant that WARN is often Management § 301 of the Labor Relations relocations, closings prompt or the need for Act, (1988), § U.S.C. the Seventh litigation greater. Allowing party is even Circuit reasoned that limita “[t]he six-month years bring several in which to a WARN encourage tion prompt will resolution claim problems could create untold concern disputes.” ing availability labor United Food & Commer of evidence.35 moreover, agree; many 32. Short's discussion plaintiffs merits reiteration: have brought their claims within six months after the perspective practitioners litigating From the See, e.g., accrual of their cause of action. Local originating many (especially cases states Employees Hotel & Restaurant Union v. actions), nightmare. class the situation is a MHM, Inc., (2d 1992) 976 F.2d Cir. Lawyers and courts alike devote untold hours (within approximately closing five months of identifying proper analogies apply- by employer); hotel Local Int’l Union cumulative) ing multiple (conflicting tolling or Electronic, Electrical, Salaried Mach. & Furniture uncertainty doctrines. "This and lack of uni- Fasteners, Inc., F.Supp. Workersv. Midwest formity promote shopping by plaintiffs forum (D.N.J.1990) (within 80-81 three months of wholly unjustified disparities and result in Indeed, plant closing). Dynamics General states rights parties litigating of different identi- days that the Missouri action was filed within 10 plaintiffs cal claims in different states. Neither layoffs facility. supra, at that note 3. rights nor defendants can determine their with any certainty. judicial Vast amounts of time Likewise, reject suggestion that utiliza attorneys' fees are wasted.” incompatible tion of a six-month Short, (citation omitted). 908 F.2d at 1389 requirement WARN's that a workload reduction temporaiy layoff or last more than six months Referring § Labor-Management 33. to 301 becoming before actionable. See 29 U.S.C. § Act of 29 U.S.C. 2101(a)(6) § (defining "employment loss” as ter mination, months, layoff exceeding six or reduc fact, preference rapidity federal law's months). exceeding tion in hours of work six dispute explicitly labor resolution extends to ar- parties’ pleadings are less than clear on nothing eas that have to do with the collective exactly “employment they what sort of loss” suf bargaining 626(d)(1) process. § See 29 U.S.C. termination, predicated fered. If their claims (180-day filing period before EEOC for claims termination, upon accrued see Automobile Me Act); Age Employment under Discrimination in chanics’, 434; F.Supp. 29 U.S.C. 2000e-5(e)(l) (180-day filing period 42 U.S.C. 2101(a)(6)(A), peri and a six-month limitations claims). with EEOC for Title VII incompatible od is not with such a situation. us, Appellants protest that WARN claims are too Because the issue is not before we leave for prepare accrues, day difficult to par- within six months. We dis- another when a WARN claim adjust ... some transition time to Moreover, supra, failure to ers as discussed prospective employment, loss of to seek and may create a con- notice often give WARN and, jobs necessary, obtain alternative the NLRA. When under current claim training retraining_”). enter skill Ob- is also an federal statute under one claim viously, providing funds to workers several NLRA, practice under “unfair labor years after their termination does serve to borrow the appropriate particularly seems objective. Lloyd Department Cf. period.” Hofmeister, 950 NLRA (9th Cir.1980) Labor, 637 F.2d F.2d at 1348. (“In pur- order to serve the Act’s [Trade] application of important, Finally, and most retraining, adjustment, and poses of reloca- periods would disserve expansive tion, important it was that workers claim and objective: provi- specific most promptly discharge. WARN’s after receive benefits advantages a cushion of time sion of There were also other —such and, job if neces- opportunities freshness of records and other evidence —to explore other (citations gained by promptness.”) § 639.- omit- retraining. See 20 C.F.R. sary, seek ted).36 (1993) (“Advance 1(a) work- provides notice lengthy layoff justification a a limita- or rather than ticularly diminished workload in the deciding, Assuming, period. that a without tions situation. layoff persist must for six emphasizes plaintiffs or reduced workload that the The dissent actionable, becoming unions, the limita- months before represented by these cases are not begin period to run until after would not tions representa- deprived legal are of "union thus Mechanics', expired. period See Automobile that employee bringing supra, an tion". As discussed (noting F.Supp. differences in time at 434 against hybrid § 301 actions his union for predicated or is on termination accrual if claim (and duty representation breach of the of fair and, clear from layoff; while accrual issue not against employer collective his for breach of the timely finding wheth- pleadings, action would be is, DelCostello, bargaining agreement) after re- termination). layoff from er claim arose bring quired the NLRA's six- to his claim within event, lay- appellants a suffered whether And, discussed, period. he month limitations as termination, untimely, their claims are off or a by great at least as those faced faces obstacles light we the six-month limitations simple seeking WARNclaim. Yet one to assert a presents, adopt. question that Halkias he, too, legal representation. will lack union accrue?”, layoff action is one "When does the similarly opines we "hold[] The dissent length regardless of the limita- exists They they plaintiffs a deal did not make: to period. tions requirement but benefit suffer the six-month suggestion reject that a six-month We also corresponding protection of their no from NLRA, because, unlike the is unworkable omitted). (footnote rights.” page Dissent at “complex provide administra- does not a course, specific rights on Of WARN confers pursuit of claims. See United tive structure” workers, provides for their viola- remedies Supreme at

Paperworkers, 999 F.2d after the enactment It is not as if workers tion. applied has the NLRA limitations Court application a six- with the of WARN—even brought by employee against his em- actions from no cor- month limitations bargaining ployer of the collective for breach —"benefit rights." responding protection of their (under against § agreement his union 301 of anyone prompts question: a Can The dissent Act) Management Relations for breach the Labor that, imagine of workers” in DelCostello, with "thousands representation, duty see of the of fair layoff without 154-55, 170-72, a termination or "distress" after S.Ct. at 462 U.S. at 2293-94; 244, 245, notice, (dis- pages see dissent at Coyle, also 838 F.2d at 1405 see (or DelCostello; lawyers) describing lawyer will not he far behind? This cussing DelCos- action in 301”), provi- probable given especially § WARN's "hybrid action ... under seems tello as a parties. requires bring attorneys' prevailing some effort to fees for cause of action that sion of 2104(a)(6). employee unsophisti- § will often be because “the 29 U.S.C. collective-bargaining matters.... He is cated in period, upon, the limitations course, called within necessarily prompt filing does not 36. Of representa- adequacy of the union’s evaluate the depend prompt will resolution. That mean counsel, tion, investigate substantial to retain factors, discoveiy including and the numerous ..., suit". and to frame his But, matters obviously, the court's caseload. district contrast, By U.S. at filed, the resolution suit is the sooner sooner only plaintiff need know that he was a WARN employment loss. from the date notice; provided without terminated or laid off application aof six- asserts that the The dissent requisites comports situation his objec- “stymie Indeed, WARN's true WARN, would month the absence of a he can sue. prof- page reason 248. The tive". Dissent "complex be em- administrative structure" claim, "companies can for this assertion is simplicity fered of a WARN blematic of by purpose, discouraging prompt D. resolu- reasons, tion of WARN claims. For these urge and the amici that if HalMas borrowing principles traditional do not favor apply period, a federal it application of 1658 to WARN claims. four-year peri residual should be the But, terms, od, by § 1658. its 28 U.S.C. E. only arising action applies to “a civil under Congress an Act of enacted after the date of Halkias’ last contention that Con this section”. Id. the enactment of Section gress violated the Fifth Amendment fail enacted on December well 1658 was ing prescribe “to a limitation for a Compare after enactment. Pub.L. WARN’s violation”, thereby requiring WARN Act (1990) 101-650, 104 5114-15 “ No. Stat. plaintiff ‘guess’ at which fed statute the (§ enactment) with Pub.L. No. eral courts will ‘borrow’”.38 assume Hal- We (1988) (WARN enacted on Au Stat. itself, kias does not wish to invalidate WARN 1988).37 gust provides inasmuch as that statute the basis Rather, requested for his relief. we assume Despite plain language, § 1658’s amici excepted appli that he wants to be from the it, urge that we borrow we are to borrow period. cation of an unforeseen limitations Specifically, they federal law. contend that exception. no need We see for such an legislative history 1658’s indicates that give refused to it retroactive effect Generally, Fifth Amendment due doing so because would undermine the process is not affected the traditional parties expectations settled in those in- practice borrowing periods. limitations already stances where the courts have settled 157-65, Agency Holding, 483 at Cf. Reasoning the limitations issue. that (Scalia, J., concurring S.Ct. at 2767-72 WARN’s limitations has not been so judgment) (tracing history “borrowing” settled, they contend that we should borrow Indeed, periods). borrowing limitations the despite plain language § 1658 its to the con- periods component of limitations ais normal trary. statutory interpretation, see reject 158-62, 103 plain language. 2287-89;

We refuse to that 462 U.S. at S.Ct. Moreover, we cannot see how the federal a borrowed federal has presents analogy residual applied by Supreme statute a closer to been the Court to the a claim than litigants Lampf, does the NLRA’s six- before it. See 501 U.S. at Aso, period. 363-64, 2782; application month Lampf, S.Ct. at see also (O’Con- § 1658 would undermine WARN’s central they may a supra relax bit and rest assured that 'make ment See Act. note 34. Current events suggest many otherwise. legally unsophisticated redundant' and un- addition, a dissent invites false choice. suspecting period, workers” with a six-month borrowing periods While the of state limitations longer period while a would deter violations of (so long periods in several states result in Obviously, presupposes WARN. the rationale long application plant closing that their to a or employer comply that an chooses not to layoff inappropriate), mass seems a state limita- coldly rationally. quite ques- It is NLRA's, e.g., tions could be as short as the company intentionally tionable that would vio- statute, pay the six-month of the Texas see possibility late WARN in reliance on the that a supra page note dissent at 246 n. or fact, just worker would not sue. In one work- perhaps even shorter. approaches lawyer, possibility er then the of a by 37. The enactment of 1658 reflected concern very class action becomes real. In these circum- Congress Study both and the Federal Courts stances, a to decision violate WARN on the basis process Committee that the limita- illogical. assumed the dissent would be was, periods tions say for federal causes of action to Moreover, premise if this of the dissent has mer- least, problematic. H.R.Rep. No. it, suspect employers ''just one would that would (1990), Cong., reprinted 101st 2d Sess. of, regarding relax a bit” the sexual harassment pp. 1990 U.S.C.C.A.N. age against, "legally discrimination their un- sophisticated unsuspecting workers” be- Congress 38. He also contends that likewise vio- periods attaching Amendment, cause which, of the short limitations lated the Fourteenth its terms, Age Employ- applies only to Title VII or the Discrimination in to the States. I that applies to WARN.4 believe (objecting ap- J., dissenting) to Court’s nor, got right. peri- sister circuits it limitation our newly-announced plication very in which announced case to “the od majority agree I with the this case rule”). new presents example” a “classic of “which round sympa- say do not that we This is not square All peg to stuff in a hole”. three concern; underlying we Halkias’ thize with appeals consolidated focus the same task: Indeed, this contention rationale of do. by Congress, must fill in a blank left We limita- necessity a uniform illustrates the namely, applies what statute of claims, we a result for WARN tions brought under the Whenever cases WARN? NLRA’s six-month by adopting the herald nature, they are left to a task of this courts period. sleuth, part part improvisor. The become is, Congress do not know what truth III. and, so, preferred have are left with would reasons, judgments foregoing For the closely guess our as to what would most best are courts of the district it had an approach congressional intent —if subject. intent on the AFFIRMED.

WISDOM, dissenting. Judge, Circuit II. minds case. Reasonable This is a difficult present my starting point resolving To proper outcome. disagree on the can mind, however, Supreme Supreme States recent Court decision United issue Pleva, stric- provided Lipkind, Prupis Petigrow a framework whose has & Court case, I find the result. Because tures dictate the In that the Court held v. Gilbertson.5 attempt escape majority’s diligent that, cause Congress when creates respectfully unconvincing, I dissent. outcome does not include a statute of of action but

limitations, presume the courts are I. for the intended apply.6 limitations to The Su statute of correctly framed presented, issue The general this rule as preme summarized Court court majority, is whether the district by the follows: of applying the six-month statute erred in 10(b) La of the National limitations from Congress has rule that when It is the usual (NLRA)1 plaintiffs’ the Act Relations bor of limitations for provide failed to a statute Adjustment and claims under the Worker action, court “borrows” cause of a a federal (WARN).2 This Act Retraining Notification limitation most the local time or “absorbs” in impression of first only not is at hand.... analogous to the case Circuit, Appeals of we are the Court this the Rules of Decision This rule is founded on the NLRA’s statute applying consider longevity enjoyed “has sufficient Act which plaint non-unionized WARN limitations to that, enacting reme- that we assume reluctantly ways majority parts The iffs.3 ordinarily intends legislation, Congress dial Third on this the Circuits with Second state law.”7 that we borrow its silence that the NLRA six-month question and holds 160(b). Crown Cork & Seal Am. v. United Steelworkers 1. 29 U.S.C. (3d Cir.1994). Co., 32 F.3d 53 §§ 2101-2109. 2. 29 U.S.C. 2773, 321, 350, 115 L.Ed.2d 111 S.Ct. 5. 501 27, -, denied, reh’g 112 S.Ct. 115 501 U.S. represented by John Halkias certified class 3. The (1991). L.Ed.2d 1109 Barry two thou- Jackson consists of about employees of General non-unionized former sand 2778, at S.Ct. at 115 L.Ed.2d operations. 6. Id. at Dynamics’s Fort Worth and Tulsa omitted). (citations Specialty Paperworkers 340 v. Local 4. See United Cir.1993); Inc., (2d 7. Id. Paperboard, 999 F.2d subject joined general opposite. part rule is to a limited Four

This Justices opinion exception. If a state statute of limitations II.A of the Court’s from which the purpose opera- quoted remaining with the or rule comes. The Justices would be “at odds law”, positions the courts took tion of federal substantive even more hostile to General Dynamics’s ignore position state limitations than Justice should Blackmun’s analogous plurality actually the most federal The Court was instead borrow opinion.13 however, exception, Lampf expressing This unanimous in limitations the view period.8 that; closely generally “a that state limitation remains is circumscribed statutes of state, exception” general govern Congress rule that no to the attaches federal, periods apply when to a federal cause of action. Con- specify gress fails to a limitations a federal cause action.9 III. Moreover, important it is to underscore Lampf and DelCostello create a flow chart exception applies only when the inquiry. always We look to the state statute state statute of limitations would “frustrate” analogous of limitations first to if an see state policies approach of WARN.10 This majority’s explanation law exists.14 for, exception makes sense as the Del- “hierarchy,” however, Lampf places explained, “inap- Costello Court it would be choice between a federal and state statute on propriate to conclude that would another, par subject with one both adopt choose to state rules at odds with the provides criteria of which the best fit in the

purpose operation of federal substantive light shopping of forum concerns and the Unfortunately, majority’s deci- law”.11 geographic character of the claim. dramatically sion deviates from this estab- lished framework. Lampf’s That teaching. is not The hierar- language Lampf pronouncing vertical; chy Lampf is clear that state rule, rule alive and well did not statutes of are federal “only plurality”, majority command as the exception. rules the Courts do not make a Dynamics simple and General would have us be- choice between the federal and state fact, simple proves head count rules. If an state statute of limita- lieve.12 Teamsters, added). concurring) (emphasis 8. DelCostello v. International Bd. Justices Stevens 151, 161, and Souter dissented. Justice Stevens's dissent (1983). L.Ed.2d 476 explicitly disagrees rejection "[t]he Court’s applying of the traditional rule a state limita- 111 S.Ct. at tions when the statute is silent ...” (quoting L.Ed.2d at 331-32 Reed v. United Trans Id. 111 S.Ct. at L.Ed.2d Union, 319, 324, portation 488 U.S. 109 (Stevens, J., added). dissenting) (emphasis Fi- (1989)). also, 102 L.Ed.2d 665 nally, Kennedy Justices O’Connor dissented ("[The] Paperworkers, United 999 F.2d at 53 Su the Court’s refusal to make its decision .from preme Court has set forth limited circumstances however, prospective only. they agreed, Even might preferable under which it be to borrow a plaintiffs’ with the view that the “claims were period"). federal limitations governed by the state statute of limitations for the analogous most state cause of action". Id. at 356, 2778, Lampf, 10. at 501 U.S. 111 S.Ct. at 115 369, 2785, 111 S.Ct. at 115 L.Ed.2d at 340 L.Ed.2d at 331. J., (O'Connor, dissenting) (emphasis original). in 161, 11. 462 U.S. at 103 S.Ct. at argument panel 2289. 14.At oral a member of the Dynamics asked counsel for General if it was Maj. op. 12. at 230. first, true that the Court had to look to state law considering before federal law. Counsel con- join part 13. Justice Scalia did not II.A of Justice point. following exchange ceded the The took plurality opinion. concurring Blackmun's opinion, In his place. view, my Justice Scalia said: "In absent this, Judge: congressionally go a created "When we write we have limitations state periods govern, they through get or if the are inconsistent with state statutes first before we act, purposes the of the federal to the federal no limitations statutes”. 364, Lampf, agree completely exists". 111 Counsel: "I with that. That 2783, (Scalia, J., proper analysis, S.Ct. at 115 L.Ed.2d at 337 is the there is no doubt.”

243 used, IV. found, provided it should tions is substantive the federal at odds with is not terms, however, on its own the Even taken “pre- the approach embodies This law.15 majority’s stand. The district opinion cannot fact, sumption of state borrowing”.16 impression that courts relied on the mistaken a court the time Lampf suggests that analogous causes of action are WARN law is “where straight to federal go can and, brought under the NLRA ac- lawsuits express limitations provided has exception in cordingly, within the laid down within the correlative remedies period for majority that reiterates as- DelCostello. precisely that was enactment”.17 While same by painting the NLRA sertion nothing to do with in it has the case purposes similar and struc- statutes with the case at hand. disagree. I tures. approach is evi- majority’s inverted length down to the of time This case boils by starting point: “We first exam- its denced plaintiff may in file suit. The main period is ine whether the NLRA by the district courts policy reason advanced than available analogous to WARN limit was the for the restrictive six-month proper first That is not the state quick national interest the resolution periods”.18 proper dangerously misplaces NLRA, the step and labor Unlike the howev- disputes.20 Instead, Lampf requires that we emphasis. er, nothing in action created the cause of most state requires first select the or counsels in favor of an with the explanation, it is at odds and determine whether resolution. Without accelerated Hence, majori- majority adopts shaky premise law. the substantive the favoring rapid it will “describe the resolution of ty’s policy next statement WARN, everyone disputes (presumably the NLRA and so similarities between labor business) applies to a situa- get those similar- can compare and contrast back and then company plant is a has closed period(s)” tion where ities with the available (and there will be no more improperly task business).21 undertaken.19 'fit' to WARN than does Lampf DelCostello close or closer cited both the 15. The Court Again, majority Malley-Duff has the Holding Corp. NLRA.” Id. at 234. Agency v. & case and 143, 2759, Associates, Inc., running wrong We in the direction. flow chart 107 S.Ct. and, (1987) it fits and is not at majority look to state law which the first L.Ed.2d — both statute, we use it. extensively support position with the federal of its odds cites —for may supply proposition law that federal operation a state “when the suitable Judge McBiyde's opinion quoted the follow- policies would frustrate Judge ing passage Garcia's: from (here, enactment" embraced the federal 2778, with the conclusion that 355-56, court concurs WARN). [T]he at Id. at 111 S.Ct. warranting rapid policy resolution "the federal at L.Ed.2d disputes employment] favors the [labor period; and that shorter limitations NLRA's 111 S.Ct. at 115 L.Ed.2d 16. Id. at promote would standardized uniformity enforcing act.” the WARN Corp., F.Supp. Dynamics Halkias v. General S.Ct. at 17. See Id. at (N.D.Tex.1993). Ser See also United Parcel L.Ed.2d 335-36. Mitchell, 68 n. vice failing (1981) my majority criticizes dissent 21. The 67 L.Ed.2d n. 1567 n. only plant (state governs (Stewart J., appreciate concurring) that WARN rule is temporary layoffs clos- congression closings, and applied but mass appropriate when to a The ings. maj. op. 227 n. 234 n. 18. opposed ally to an cause of action as created relationship employment one). severance of the implied the repercussions that follow are the same for the layoff loses his as for one who victim of a mass Maj. op. at 230. if, closing. even job through plant That is true reuniting layoff, possibility through- the repeated case of a is the 19. Id. at 230. This mistake employer employee exists. and the majority's opinion. example, the fired For out the after Hence, purposes of my of the different purpose discussion detailing perceived its similarities in NLRA, applies equal force the NLRA the WARNand WARN and the structure between remains, contemplated job scenarios all of the loss majority then states: "The however, provisions. provides as WARN's a state whether majority’s job This is the statement that dated with loss for both the workers and where community they the live”.22 No “family resemblance” the statutes bear beyond expedite reason to those claims what cursory analysis down. Even a re- breaks prescribes the the most purposes veals the of these statutes impor- It state limitations exists. is markedly prefer- The reason for different. tant to understand that this alleviation of ordinary ring rapid of an labor resolution distress comes from the advance notice of the resolved, dispute dispute is that when the plant closing, backpay not from the award work, go production employees will back to company comply that comes when a fails to will, resume, employer’s in- the sales will Moreover, provisions.23 with WARN’s crease, positive effects of the busi- and the plaintiff paid must remember that a is not economy ness on the overall will return. Be- day If he files suit. he wins at trial and disrupt quo cause strikes the status and hurt upon appeal, backpay his award could be years away. majority’s economy, important to minimize the decision will it is compound dissipate distress that damage company economic and the —not —the experience annually. thousands of workers community by ending swiftly. them Under- standably, comparatively aspect majority’s the NLRA sets a The most severe of the (six months) holding subject is its decision to the non- short as a employees in unionized this case to the stric- achieving goals. means of these NLRA, governing tures of the the act collec- considerations, unfortunately, Those have bargaining.24 Returning tive to the round place no in a scenario where comes peg, square metaphor, truly hole baffles play. into dispute When a WARN is re- geometry. protects the laws of The NLRA solved, plant stays Employees closed. right bargain collectively but exacts as stay fired en masse fired. Production does price protection for that disputed economy Yet, not resume. The does not return to cases be filed within six months. in this case, majority plaintiffs holds the to a quo closings the status ante. Plant hurt the they They deal did not make: suffer the six- occurs, economy, closing but once the requirement month but benefit from no cor- damage any resulting is done. Resolution of responding protection rights.25 of their remedy WARN Act claims will not Supreme impor- Court has drawn an sum, require harm. In there is no reason to tant distinction between statutes that involve they be rushed to resolution within six bargaining process collective and those months or not at all. example, that do not.26 For recognized The Second Circuit this funda- Supreme Court stated that it would bor- WARN, purpose mental distinction: “The row a federal limitations because of NLRA, unlike that of the is not to ensure the national bargaining concern for “stable peace labor relationships but to alleviate the finality private distress asso- settle- also, Seal, 10(b) Exchange 22. See Crown Cork & 32 F.3d at 58 to Rule of the Securities Act of (WARN's ers, purpose” 78j(b), "protect "broader 15 U.S.C. is to work- and Securities and Ex- 10(b)(5). change their Commission Rule The Court families and their communities in the contemporaneously potentially looked to the dial enacted reme- employment wake of harmful deci- sions”.). provisions supply peri- that did a limitations od. See 2780, 111 S.Ct. at response I make this distinction in to General Hence, 115 L.Ed.2d 333-34. the Court Dynamics's rapid assertion that the resolution had the benefit of the balance struck disputes job will better alleviate the distress of limiting provisions similar by ensuring loss that the statute's Unfortunately, presented remedies are same act. we are not promptly pursued. presumably The statute was with those circumstances. passed proper with the belief that advance notice appreciated 26. The Second Circuit this distinc given, rendering provi- would be the remedial criticizing tion. the district court's Staudt unnecessary sions in those cases. us, decision now before the court in United Pa perworkers stated: emphasizing plaintiffs It bears that the in both courts, Those period which have deemed the NLRA represented by cases are not labor unions. applicable most to WARN actions have way, present drastically 25. In this the case is grasp failed to statutes which this crucial distinction between Lampf. different from the statute at issue in In specifically regulate the collec- Lampf, the Court held that a federal statute of bargaining relationship tive remain and those which applied brought pursuant peripheral limitations to actions to that concern. preoccupied going with plaintiffs are NLRA equally illustra- Reed case is The ments”.27 company; jobs with their back to their did not at issue there The statute tive. plaintiffs preoccupied are with find- WARN bargaining con- collective directly touch on they just job replace one ing a to the new applied the Supreme Court the and so cerns in- they are under will be lost. The strain This distinc- limitations state usual period.28 they competing with the will be tense well-founded, closing law plant for a is tion similarly situat- perhaps thousands of others union and to individual protection “provides opportunities. any employment ed for scarce alike, and thus neither workers non-union scenario, the deci- spite In of this all-too-real discourages the collective encourages nor requires they that file today sion of the Court subject of are the processes that bargaining get backpay the to six months to suit within the NLRA”.29 entitled, knowing they that the are the NLRA’s applying of unfairness The away they be far ultimate win will award workers period to non-unionized present help to with their and ineffective that by practical obstacles magnified is needs. plaintiffs plaintiffs face. Unionized WARN plain, Athough equities seem to me pro- enjoy of union the benefit presumably goes beyond this distinction representa- and, legal probably, union tection fairness, analysis. of our For it is the core in the The union .will be well-versed tion. is at odds purpose of the NLRA when for claims of limitations statute applicable WARN, way is no purpose there with advised plaintiffs will be and the that sort a “closer fit” provide the NLRA can words, unionized accordingly. other statute of limitations. than an assured that plaintiffs can rest WARN identity pur- only is strict Not there no handle it”. “will union majority us is unneces- poses as the reminds on the plaintiffs, WARN Non-unionized fundamentally stat- sary, are different these hand, unlikely sufficient to have are other reasons, utes, different very cre- enacted for bring six able to suit within to be information The ating very of action.32 different causes readily are able unions Whereas give employees ad- purpose of is months.30 WARN number whether a sufficient to determine plant closings and a cause of vance notice of jobs their have lost invoke members their comply. employer fails to action when the remedies, employees non-union WARN’s of limi- imposition of NLRA statute layoff scope of a learn about the must purpose in that it odds tations is at compil- gradually talking co-workers and plaintiffs unduly potential WARN burdens This be a those affected. will ing a list of making pursue those actions within them time-consuming laborious very tight time frame. undertaking.31 hardly to direct to the securities Comparing will be able these statutes But workers La/mpf, the Court did necessary to that where energy law at issue and attention period, is adopt a uniform federal hunting for work. they will be out task — practical prob- majority’s response to the 31. The Paperworkers, at 55. 999 F.2d United will lems that six-month "many plaintiffs 103 S.Ct. at 2294 462 U.S. at cause is a statement that omitted); (citation brought claims within six Paperworkers, 999 F.2d have months_” their United telling, Maj. op. at 238 n. 35. It is at 53. however, majority cites for that the cases proposition had unions evidence of that 666; Reed, 394, 109 S.Ct. at Unit the ad- plaintiffs. majority never addresses Paperworkers, 999 at 53-54. ed F.2d potential that non-unionized ditional burdens plaintiffs face. Co., Packing Coyne, 482 Inc. 29. Fort Halifax 1, 20-21, L.Ed.2d comparison majority's of the stat- 32. The weak omitted) (1987) (internal (evaluating quotations purposes implicitly this. WARN’s concedes utes’ law). closing plant Maine purpose protect and their families is to workers 639.1(a) (1993), notice, § by requiring 20 C.F.R. layoff” sufficient WARN defines "mass purpose to facilitate the is whereas the NLRA’s process in work force its terms as a reduction invoke bargaining. of collective U.S.C. (exclud- (1) employees percent they at least majority's are statement 151. The (2) employees) ing any part-time at least 50 labor-management "regulate in that both similar relations,” (excluding part-time employees); slightly employees maj. op. passed (excluding any part- were convincing that both than the fact or at least 500 2101(a)(3)(B). by Congress. employees). 29 U.S.C. time 246 I, Lampf In the Court able

instructive. was and DelCostello.34 like those period courts, limitations from borrow the federal believe that WARN cause of ac “[a] passed by provisions the remedial the same tion does not fit the limited circumstances Hence, Congress purpose. for the same under which a federal statute of limitation was, many ways, Court’s task easier. applied”.35 should be 10(b) Both the borrowed and Rule protect against manipu- were “to investors V. prices through regulation lation of stock of step The next is to decide which state upon exchanges....” transactions securities period ought to be borrowed. Al- Lampf In the Court’s borrowed had a though sug- several Texas statutes have been 10(b); near-identity purpose of with Rule gested, my feeling it is that the Texas statute do not. provides of limitations for contract claims majority opinion convincing The no more analogy.36 best Under Tex.Civ.Prac. & Rem. majority as to structure. The incants the 16.004, then, §Ann. plaintiffs Code WARN regulations Department that of years four would have which to institute NLRA, Labor borrowed from the but fails to their actions. explain significance comparison. of that agree, As all seem to the fit will never be borrowing concepts The of is understandable: perfect; why that is it ais of which operate larger laws both within the context peg square round to stuff in a hole. The employer-employee relations. The De- Texas limitations for contract claims partment oversight of Labor is the natural works in is the most state agency applicable for both and the case law statute.37 I view an action under WARN as interpretation likely of one will essentially damages an action for caused Still, construing useful in the other. alleged employer’s breach of an obli- they were born into the same extended fami- gation closely - Such an action resem- ly they does not family mean that bear a cogni- bles an action for breach of contract

resemblance.33 zable common law.38 conclusion, join I would the other Paperworkers The Second Circuit in United Appeals Courts of to have considered agreed applied six-year Vermont’s resid- Paper- issue—the Second Circuit United ual limitations for all contract claims.39 workers and the Third Circuit Crown Cork acknowledging Even & Seal —and hold that that Texas is an em- WARN lawsuits governed by ployment-at-will state, peri- should be backpay provi- ods, suggested by reading harmonious damages sions of WARN resemble for a Seal, (“the indicated, majority Crown Cork & correctly § 32 F.3d at 57 1658 its terms Cf. upon applies only mere fact arising that a statute touches actionfs] issues of under an “civil Act labor law does not mean enacted the date that the Court must the enact- after ment this section.” Because resort to the WARN was en- statute of limitations contained in 1658, § § 10(b) NLRA”). directly acted before § 1658 does not of the control in WARN cases. Several district Paperworkers, 34. United 999 F.2d at 53-54. recognized supersedes § courts have 1658 Supreme analysis Lampf Court's for causes of Id. at 54. effect, action filed after 1658 took but because 1658, preceded § Supreme Court's good 36. The other candidates are: Lampf analysis governs this case. (1) two-year The Texas limitations 171, personal 37. See 462 injury, wrongful discharge, U.S. 103 S.Ct. at and em- ("[A]s discovered, claims, the courts have often ployment discrimination Tex.Civ. always there is not 16.003; an obvious state-law choice Prac. & Rem.Code Ann. action; application given to a (2) federal cause of four-year Texas residual statute limi- yet resort to state law remains the tations, 16.051; norm for §Id. periods.”). of limitations (3) The six-month limitations Statute, Pay Texas Tex.Rev.Civ.Stat.Ann. art. 38. Auto Corp., Workers v. Hoosier Cardinal 5155; and 696, 705 n. n. (4) four-year federal residual statute of also, Frymire Ampex Corp., L.Ed.2d 192. See Congress recently enacted for all (D.Colo.1993) F.Supp. (applying federal causes of action that do not include state contract statute of limitations to WARN period, their own limitations 28 U.S.C. claim); Corp., Wallace v. Detroit Coke § 1658. (E.D.Mich.1993) (same). F.Supp. (4) glance, appears At first number to cover exactly Unfortunately, Paperworkers, the instant case. as the 39. United 999 F.2d at

247 law,” uniformity is national I calls for uniform Simply put, contract. implied breach not in- does important because WARN less contract that the Texas no evidence perceive volve is at odds limitations claim substantive

WARN’s processes that federal la- those consensual provisions.40 chiefly designed promote— law is bor

VI. agreement of the collective the formation disputes un- private settlement of and the framework, we look Following proper the der it.45 practicalities litigation whether last to the use make bar- decidedly considerations not about collective policy is WARN significantly “a happens when what gaining. NLRA It is about law- for interstitial employer-employee appropriate vehicle more there be no will specter raising the majority, and, thus, bargain nothing The left to relationship making”.41 among shopping WARN forum of endless for. out they do. I come that litigants, concludes majority’s policy other considerations The way. other the common by experience and undercut are majority that example, the states concerns sense. For start, shopping forum To the disputes mili- of labor prompt resolution raised in the could be majority the raised peri- of a six-month limitations which tates favor law for to almost reference closed, however, plant has limi- od. Once borrowing a state considering we were not, given or there has been dimin- whether notice anything, If WARN period. tations dispute. The Any no resolution of a labor can be forum the threat of ishes shopping.42 jobs, the are without plant gone, is workers from shopping that results forum threat of Although ma- reeling. the community is left employer the right to file suit wherever with the appropriately jority is concerned by choice of law is does business stemmed down and evidence availability of witnesses of the site of the law dictate that rules which violation) legislatures measure state (and, thus, injury layoff road,46 policy against public other those concerns the suit matter where chosen no would be statutes they enact their when considerations was filed.43 of limitations. policy considerations We also examine expan- that an majority also asserts The par for a calls to determine whether disserve me, they would do sive uniformity. To degree of ticular cush- providing a time objective of v. WARN’s in Auto Supreme Court not. The Workers op- employment to seek other ion in which Corp.44instructed that Hoosier Cardinal providing majority states tions. greater under uniformity is far value does not years later several funds to bargaining workers non-collective under NLRA than majority has con- sub serve that that the if we concede Even statutes. objective.47 time cushions. fused “peculiarly one is ject matter of WARN 627; filed will be 327, employment Reed, actions S.Ct. at at 109 488 U.S. 40. See employer however, does note, injury place took or the where the I Frymire, F.Supp. at 655. 821 business). a remand order I would have assented state find which district court to Fe Term. appropriate. 701 Santa Local period was most 43. Auto Mechanics 432, (N.D.Ill.1993). Serv., F.Supp. 436 DelCostello, at at 103 S.Ct. 41. S.Ct. 44. 383 U.S. a dead Though wish to beat I not 2294. do (1966). L.Ed.2d horse, litigation studying reiterate that I policy is our considerations practicalities and (internal quota- at 1111 only we have 45. Id. at found task—we last reach omitted); operation with the tions is at odds statute that at 2289. the case here. That is WARN. not Maj. op. at 238. (fo- Paperworkers, F.2d at 56 42. See United great shopping are because concerns rum op. Maj. single site "plant closing" limited to a review,

The time in which to Congress, file suit is not the not to a law for evidence Congress sought give time cushion work- of its decline.48 ers; the time cushion is the advance notice jobs. losing that the workers would be their VIII. prepare The workers could then for the com- plaintiffs, others, among countless ing changes collecting pay- while still their indignity losing have suffered the of their Congress hoped checks. that notice would (the cushion) employment given time without notice —in and that these violation of causes of action would never accrue. seeking Once law.49 In the redress to accrued, however, they have the restrictive entitled, Congress has made them six-month limitations serves to take gate Court has closed the on them one last away any remedial cushion that workers time, legal principle on a so tenuous in foun- might get compensation injury. for their appears dation it as but an academic exer-

Worse, Unfortunately Halkias, cise. the six-month time frame will actu- for John John ally stymie objective Cureington, serve WARN’s true and Alvin Straudt and thousands giving of workers and communities advance situated, similarly any- other workers it is impending By severely notice of hard times. thing but that. limiting the potential time frame in which I Because believe that the Court’s decision plaintiffs suit, companies file can today promotes expediency uniformity relax a bit and they may rest assured that expense rights workers, of the I dis- many “make legally unsophisti- redundant” sent. unsuspecting cated particular- workers — POLITZ, KING, Before Judge, Chief ly non-unionized suffering workers —without GARWOOD, JOLLY, HIGGINBOTHAM, community backlash that will follow an and, better, DAVIS, JONES, SMITH, DUHÉ, announcement without the threat litigation. WIENER, of future An BARKSDALE, extended limitations EMILIO M. hand, period, on the other GARZA, would function as DeMOSS, BENAVIDES, and, thus, a deterrent an enforcement mech- PARKER, STEWART and Judges. Circuit anism. Sept.

VII. BY THE COURT: majority gives explication a detailed majority service, A Judges in active away borrowing trend from state statutes motion, on the Court’s own having deter- favor of uniform national banc, mined to have these cases reheard en rules. Even if that trend does I exist —and IT IS ORDERED that these causes shall do not concede that Lampf explicitly it does — be reheard the Court borrowing instructs that en banc with oral pe- state limitations argument riod is still the I on a date law. do not hereafter to be doubt that fixed. uniform federal periods might specify The Clerk will briefing schedule for promote certainty, predictability, and mini- filing supplemental briefs. mization, but is well aware of those (as case) yet frequently values and in this ignore

chooses to ques- them and leave the Hence, open.

tion borrowing the state rule truly becoming anachronism, I will look overkill, 48. At the risk policies I note that the Harvard "signifi- at stake make the federal rule a upon majority Law Review note as which the relies cantly appropriate vehicle” than the state support actuality supports my for this trend in reliance, then, Any perceived rule. Id. on some "Writing plurality, conclusion: for a Justice away borrowing pure trend from the state rule is acknowledged continuing Blackmun of the Court, validity conjecture, particularly in the face of the clean Supreme rule.” The Lampf. rule announced in Cases, Leading 105 Harv. Term — (1991). L.Rev. The article details that and, so, cruelty provision 49. WARN exception has no accepted Glas- just to this rule is as I have stated: tron fired three “clearly when the federal hundred on Christmas provides analogy” a closer and when federal Eve. Rem.Code Ann. Notes Decisions right to continued em employee’s of an sion (Vernon 1986), analogous, or is as more anal it an action under the ployment” than does ogous, than to WARN the NLRA is. See will employment an Texas is NLRA. (finding Haggerty, also 952 F.2d at 786 that a Corp., 980 E.g., Pease v. Pakhoed State. state’s “offers no residual Cir.1993). (5th But, even F.2d analogy cause of action at [to the federal Texas, a tort it assuming that this is issue], simply position”). it is a fallback claim. poor analogy to a WARN presents a nothing right to do with a has WARN ad employment; concerns continued c. Re “employment of an loss”. vance notice Finally, the breach of contract given, notice is the em gardless of whether 16.004, period, provide § fails to as likewise lay terminate or off the ployer is free to analogy to as does the close an his or her hours of work. employee, or reduce noted, employment resemblance, NLRA.24 As Texas is Likewise, any, if WARN’s all, discussed, nowhere at will State. After as no any traditional tort claim is other to the right employment obvious as its resemblance near as contractual to continued NLRA.23 implicated WARN. sum, possible pe- canvassing Texas b. analogous to as riods reveals none as None seeks to accommodate the NLRA.25 apply Texas’ re request that we similar, same, very interests 16.051, statute, quickly § dis sidual WARN, matter, govern borrowing much less an action will general missed. As a Paperwork freely, charge” claims in Vermont. United do We review 22. We decline to so. ers, however, this; Texas, on, legal at 57. In a work such as there is no 999 F.2d rule issues compensation must be submitted to to district courts that have ers' claim reason to remand Compensation presents Commission already that the NLRA a closer Texas Workers' held any period. analogy year. to WARN than Texas Tex.Lab.Code Ann. 409.003 within one (West 1994). traditional cause of action Texas’ asserting wrongful discharge for a workers’ compensate an individual 23. Tort claims exist to subject two-year compensation was claim injury proximately caused the defen- for an period. v. United tort limitations Almazan But, if a terminated worker in a dant. even Ass’n, 840 S.W.2d 779-80 Services Auto. day gets higher paying job WARNsituation 1992) (Tex. (discussing wrongful Ct.App. dis termination, arguably and therefore has after his charge art. action under Tex.Rev.Civ.Stat.Ann. provide "injury”, for two WARNstill seems to no 1991)), 8307(c) (West 1994) (repealed error de requisite given. pay notice was not months if the Thus, (March 1993). following the Sec nied 2104(a)(l-2), (7). See 29 U.S.C. reasoning may produce very dif ond Circuit’s Vermont, than it did in ferent result in Texas period may contract come clos- 24. The breach of uniformity provided underscoring the need for And, nothing any period. other Texas er than by borrowing from a feder the limitations else, utilizing create semblance of it would some al statute. uniformity, given the Second Circuit's But, period. the ra- contract limitations a state recognized that state law Circuit 25. The Third choosing by the Second Circuit in tionale utilized But, "perfect analogy”. provided than a less necessarily dictate the same does not timely under actions were because the supplies period. law result when Texas periods, potential it left unanswered four reasoned that the contract Second Circuit four, ranging years from two to six which of the govern because it is the work- should years, to WARN than the "wrongful is more compensation dis- claims and ers'

Case Details

Case Name: Halkias v. General Dynamics Corp.

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Aug 24, 1994

Citation: 31 F.3d 224

Docket Number: 93-01664

Court Abbreviation: 5th Cir.