Amicus Curiae Brief — Food and Commercial Workers v. Brown Group, Inc.

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DEC > 1995

States...

Supreme Court uf the |

Supreme Court, U.S.

7

OCTOBER TERM, 1995

UNITED FooD AND COMMERCIAL WORKERS

Union, LocaL 751,

Petitioner,

Vv.

Brown Group, INc., d/b/a BROowN SHOE COMPANY,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Eighth Circuit

AMICI CURIAE BRIEF OF

THE AMERICAN FEDERATION OF

GOVERNMENT EMPLOYEES, THE ASSOCIATION OF

FLIGHT ATTENDANTS, THE FEDERATION

FOR INDUSTRIAL RETENTION AND RENEWAL,

THE INTERNATIONAL UNION OF OPERATING

ENGINEERS, THE INTERNATIONAL UNION, UNITED

AUTOMOBILE, AREOSPACE AND AGRICULTURAL

IMPLEMENT WORKERS OF AMERICA,

(Additional Amici Listed on Inside Cover)

IN SUPPORT OF PETITIONER

RICK MCHUGH Kary L. Moss *

255 E. Liberty Street LAMONT SATCHEL

Suite 277 MAURICE AND JANE SUGAR LAW

Ann Arbor, MI 48104-2120 CENTER FOR ECONOMIC AND

(313) 662-1334 SOCIAL JUSTICE

BENNET ZUROFSKY 2915 Cadillac Tower

REITMAN PARSONNET Detroit, MI 48226

744 Broad Street (313) 962-6540

Suite 1807

Newark, NJ 07102-3867

(201) 622-8347

Attorneys for Amici * Counsel of Record

WILSON - Eres PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

@ Eo oo 0

THE LABORERS’ INTERNATIONAL UNION OF

NORTH AMERICA, THE MAURICE AND JANE SUGAR

LAW CENTER FOR ECONOMIC AND SOCIAL JUSTICE,

THE OIL, CHEMICAL AND ATOMIC WORKERS

INTERNATIONAL UNION, THE SERVICE EMPLOYEES

INTERNATIONAL UNION, THE SHEETMETAL

WORKERS’ INTERNATIONAL ASSOCIATION,

THE UNITED ELECTRICAL, RADIO AND

MACHINE WORKERS OF AMERICA,

THE UNITED MINEWORKERS OF AMERICA,

INTERNATIONAL UNION, THE UNION OF

NEEDLETRADES, INDUSTRIAL AND TEXTILE

EMPLOYEES, AFL-CIO, CLC,

TABLE OF CONTENTS

TABLE OF AUTHORITIES ..0..............-.--cccccccececceseeeeees

STATEMENT OF INTEREST OF AMICI CURIAE..

SUMMARY OF ARGUMENT ..................0-.cc.ccce ccc

UNIONS HAVE STANDING TO REPRESENT

THEIR MEMBERS IN SUITS ENFORCING THE

WORKER ADJUSTMENT AND RETRAINING

NEED CIEE etedhceiseicernsttenneyesntnectencnveaseseesoesses

A. Failure to Provide Advance Notice of Layoffs or

Plant Closings in Compliance with WARN

Harms Unions as Well as Their Members ........

B. Individual Participation of the UFCW Members

Is Not Required by the Rights Asserted nor the

ae

1. WARN Civil Penalties Are Primarily In-

tended to Enforce Compliance with Its

Advance Notice Provisions, Not to Compen-

sate Individuals Deprived of Notice :

2. Union Representation of Its Members in

WARN Actions Does Not Present Concerns

of Judicial Manageability

EE ES

16

16

24

ii

TABLE OF AUTHORITIES

CASES Page

Alabama Power Co. v. Ickes, 302 U.S. 464 (1938) .. 9

Associated Gen. Contractors, Inc. v. California

State Council of Carpenters, 459 U.S. 519

Carpenters Dist. v. Dillard Dept. Stores, 790

F. Supp. 668 (E.D. La. 1992), amended, 7 1.E.R.

Cases 799 (E.D. La. 1992), aff'd in part and

rev'd in part, remanded, 15 F.3d 1275 (5th Cir.

1994), cert. denied, 115 S.Ct. 983 (1995) ............ 21, 23

Chestnut v. Stone Forest Indus., 817 F. Supp. 932

4) 5 a ewe 23

Eastez, Inc. v. NLRB, 487 U.S. 556 (1978) ............. 9

Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974). 21

First Nat’l Maintenance Corp. v. NLRB, 452 U.S.

i. _>———————————E— a 15

Frymire v. Ampex Corp., 61 F.3d 757 (6th Cir.

STP ————— 23

Gladstone, Realtors v. Village of Bellwood, 441

ee EO eA ~

Harris v. McRae, 448 U.S. 297 (1980) ................... 17

Havens Realty Corp. v. Coleman, 455 U.S. 363

______e Se 8,18

Hunt v. Washington State Apple Advertising

Comm'n, 482 U.S. 388 (1977) ...............220.---.--.---- 7,16

International Bhd. of Teamsters, Local 952 v.

American Delivery Serv. Co., 50 F.3d 770 (9th

SQ yay — a 23

International Primate Protection League v. Ad-

ministrators of Tulane Educ. Fund, 500 U.S. 72 :

0 Ee

International Union, UAW v. Brock, 477 U.S. 274

| SS passim

International Union, UAW v. Hoosier Cardinal

Corp., 383 U.S. 696 (1966) _.............--....-.cccceeeeeees 10

Japan Whaling Ass’n v. American Cetacan Soc’y,

ED )———————— 18

Joint Anti-Fascist Refugee Comm. v. McGrath,

QZ Oo OOo —yyx = nisiniuaiadl 12

iii

TABLE OF AUTHORITIES—Continued

Jones v. Kayser-Roth Hosiery, 748 F. Supp. 1276

i

Jurcev v. Central Community Hospital, 7 F.3d 618

(7th Cir. 1993), cert. denied, 114 S. Ct. 1830

Page

23

RRA se al OER A NA Ee al EE SE a 23

NLRB v. Allis-Chalmers Mfg. Co., 388 U.S. 175

RT Raa NE cdl Me ata Ce a 10, 12

Office and Professional Employees International

Union, Local 2 v. FDIC, 962 F.2d 68 (D.C. Cir.

Td rs Re I ae Arne Rea 10, 15

Otis Elevator Co., 269 NLRB 891 (1984), enforced

in part sub nom. United Food and Commercial

Workers Int'l Union, Local 150-A v. NLRB, 1

F.3d 24 (D.C. 1998), cert. dismissed, 114 S.Ct.

ea ri ID Sa A ai na la SS 15

Sierra Club v. Morton, 405 U.S. 727 (1972)... 18

Telecommunications Research and Action Center

v. Allnet Communication Serves., Inc., 806 F.2d

I a i 11

Tennessee Elec. Power Co. v. Tennessee Valley

Auth., 306 U.S. 118 (1989) ee. 9

United Food and Commercial Workers Int’l Union,

Local 751 v. Brown Group, Inc., 50 F.3d 1426

tcc ar A S 6, 11, 17, 20

Warth v. Seldin, 422 U.S. 490 (1975) 8, 9, 17, 20

Washington v. Aircap Indust., 860 F. Supp. 307

ee 23

Whitmore v. Arkansas, 495 U.S. 149 (1990)... 9

Wholesale and Retail Food Distribution Local 63

v. Santa Fe Terminal Servs., Inc., 826 F. Nec

. yi fy ated 23

STATUTES

| ie a 16

19 U.S.C. § 2271(a) (1995) 14

19USC. §ane8 (1905) 14

19 U.S.C. § 2881(b) (1) (1995) 14

19 U.S.C. $§ 2271-2822 (1995). nie 9, 14

ee 9, 10, 24

iv

TABLE OF AUTHORITIES—Continued

Page

Ol E) fll errr 9, 24

Le fT, 9,12

29 U.S.C. § 1512(a) (2) (1995) ~......-.-----eeeees 14

29 U.S.C. § 1582(a) (3) (C) (1995) ................... 14

29 U.S.C. $§ 1651-1662b (1995) ....................... 14

29 U.S.C. § 1661a(b) (1995) ees 14

29 U.S.C. § 1661b(b) (1995) eee 14

29 U.S.C. § 1661c(b) (1995)... 14

29 U.S.C. § 1661f (1995)... ...------ncccecnnenceeeeennnnnnne 14

29 U.S.C. §§ 2101 et seq. (1995) -.......-- eres passim

BD TRG. 6 GIGI CIID nceeecenn cscs cn esccccccccccencsccsccscssesers 12

29 U.S.C. $ 2102 (a) (1995) ......---.----ceccecceccecennereneee 13

29 U.S.C. § 2102(b) (1) (1995) ............- 20

29 U.S.C. § 2102(2) (A) (1995) 0... ee 20

29 U.S.C. § 2104(a) (5) (1995) ........... nebibaieanieiniiiad 7,8

29 U.S.C. $ 2104 (bb) (1995) ........-.---ceeceeccececeeenenceeee 20

Co AS —E 12

OTHER AUTHORITIES

Pub. L. No. 100-418, 102 Stat. 1524 (1988) .......... Sit 14

Pub. L. No. 100-879, 102 Stat. 890 (1988) ................ 13

ke 0 RR 21

EG EEE 21

H.R. Rep. No. 285, 100th Cong., Ist Sess. (1987),

reprinted in House Subcommittee on Labor-

Management Relations, Committee on Education

and Labor, 101st Cong., 2d Sess., Legislative

History of S. 2527 at 583 et seq. (Comm. Print

| EEE 14

H.R. Conf. Rep. No. 576, 100th Cong. 2d Sess.

1045 (1988), reprinted in 1988 U.S. Code Cong.

VU OO yyyyEy>——————————— 12, 18

S. Rep. No. 62, 100th Cong., Ist Sess. 24 (1987),

reprinted in Legislative History of S. 2527........ 19

133 Cong. Rec. 89492-9494 (1987) ........................... 19

134 Cong. Rec. $8541 (1988) ....................--- 18

134 Cong. Rec. $8542 (1988) ...............-.....-.- 19

134 Cong. Rec. S8547 (1988) 2... 19

184 Cong. Rec. $8692 (1968) .......................0..ccs-200+0+0- 18

v

TABLE OF AUTHORITIES—Continued

134 Cong. Rec. H5504-5505 (1988) 0.

134 Cong. Rec. S. 8868-69 (1988) 00 -

134 Cong. Rec. H5519-5520 (1988) 00

U.S. Congress, Office of Technology Assessment,

Plant Closing: Advance Notice and Rapid Re-

ESS TS FE

Presidential Statement on the Worker Adjustment

and Retraining Notification Act, 24 Weekly

Comp. Pres. Doc. 990 (August 2, 1988)...

President’s Veto Message, 24 Weekly Comp. Pres.

Doc. 655-57 (May 24, 1988)... Le ae

GAO, Dislocated Workers: Worker Adjustment

and Retraining Notification Act Not Meeting its

I I

U.S. Department of Labor, Economic Adjustment

and Worker Dislocation In A Competitive Soci-

ety: Report of the Secretary of Labor’s Task

Force on Economic Adjustment and Worker Dis-

el a

Wright, Miller & Cooper, 13 Federal Practice and

Procedure § 3531.9 (West 1984)...

Note, Divided We Fall: Association Standing and

Collective Interest, 87 Mich. L. Rev. 733 (1988) .

a

In THE

Supreme Court of the United States

OCTOBER TERM, 1995

No. 95-340

UNITED FooD AND COMMERCIAL WORKERS

Union, Loca. 751,

Petitioner,

Vv.

Brown Group, INc., d/b/a BRowN SHOE CoMPANY,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Eighth Circuit

AMICI CURIAE BRIEF OF

THE AMERICAN FEDERATION OF

GOVERNMENT EMPLOYEES, THE ASSOCIATION OF

FLIGHT ATTENDANTS, THE FEDERATION

FOR INDUSTRIAL RETENTION AND RENEWAL,

THE INTERNATIONAL UNION OF OPERATING

ENGINEERS, THE INTERNATIONAL UNION, UNITED

AUTOMOBILE, AREOSPACE AND AGRICULTURAL

IMPLEMENT WORKERS OF AMERICA,

THE LABORERS’ INTERNATIONAL UNION OF

NORTH AMERICA, THE MAURICE AND JANE SUGAR

LAW CENTER FOR ECONOMIC AND SOCIAL JUSTICE,

THE OIL, CHEMICAL AND ATOMIC WORKERS

INTERNATIONAL UNION, THE SERVICE EMPLOYEES

INTERNATIONAL UNION, THE SHEETMETAL

WORKERS’ INTERNATIONAL ASSOCIATION,

THE UNITED ELECTRICAL, RADIO AND

MACHINE WORKERS OF AMERICA,

THE UNITED MINEWORKERS OF AMERICA,

INTERNATIONAL UNION, THE UNION OF

NEEDLETRADES, INDUSTRIAL AND TEXTILE

EMPLOYEES, AFL-CIO, CLC,

IN SUPPORT OF PETITIONER

2

STATEMENT OF INTEREST OF AMICI CURIAE

THE AMERICAN FEDERATION OF GOVERN-

MENT EMPLOYEES is the largest federal employee

union representing 700,000 workers nationwide and over-

seas. Workers in virtually all functions of government, at

every federal agency, depend upon AFGE for legal repre-

sentation, legislative advocacy, technical expertise and

informational services.

THE ASSOCIATION OF FLIGHT ATTENDANTS,

AFL-CIO, (AFA) is a labor union which represents over

38,000 flight attendants on 27 airlines around the country.

Since 1978, when Congress deregulated the airline indus-

try, dozens of airlines have gone bankrupt or ceased op-

erations, resulting in the loss of tens of thousands of jobs

due to the economic conditions caused by deregulation.

As a result, AFA’s members, many of whom previously

worked at airlines that are now defunct, are keenly aware

of the importance of ensuring that AFA retains the right

to enforce the WARN Act's protections for the benefit of

its members. AFA therefore joins in the filing of this

brief in support of Petitioner.

THE FEDERATION FOR INDUSTRIAL RETEN-

TION AND RENEWAL was established in 1988 and is

a nationwide network of 32 community-based organiza-

tions challenging deindustrialization by implementing

models for local, state and federal community-responsible

industrial policy. Among its member organizations are:

Cleveland Coalition Against Plant Closings; Midwest

Center for Labor Research of Chicago, Illinois; Seattle

Workers’ Center; Tennessee Industrial Renewal Network

of Knoxville, Tennessee; Coalition for Economic Justice

of Buffalo, New York; Tompkins/Cortland Labor Coali-

tion of Ithaca, New York; CommonWorks of Syracuse,

New York; and the Ohio Valley Industrial Renewal

Project of Wheeling, West Virginia.

THE INTERNATIONAL UNION OF OPERATING

ENGINEERS (TUOE) is a union with 365,000 members,

a ee

3

a substantial portion of whom are skilled maintenance

workers employed in facilities subject to the vagaries of

plant shutdowns and relocations. The IUOE wishes to

preserve the ability of its local unions to pursue WARN

litigation on behalf of these members and therefore joins

in the filing of this brief.

THE INTERNATIONAL UNION, UNITED AUTO-

MOBILE, AEROSPACE AND AGRICULTURAL IM-

PLEMENT WORKERS OF AMERICA (UAW) is a

labor organization of about 900,000 active members and

more than 500,000 retired members. The UAW has been

and continues to represent their members in litigation

pursuant to the WARN Act. Accordingly, the UAW

joins in the filing of this brief in support of Petitioner.

THE LABORERS’ INTERNATIONAL UNION OF

NORTH AMERICA (LIUNA) is one of the largest

unions in North America and represents employees in

construction, manufacturing, food processing, service in-

dustries, environmental remediation, health care, federal,

state and local government and the United States Postal

Service. Tens of thousands of its members are employed

in industries that are plagued by plant closings and lay-

offs. The workers LIUNA represents in low-wage indus-

tries are especially vulnerable. LIUNA maintains a

continuing strong interest in representing its members in

WARN Act litigation. For these reasons it joins in the

filing of this brief.

THE MAURICE AND JANE SUGAR LAW CENTER

FOR ECONOMIC AND SOCIAL JUSTICE (Guild Law

Center) is a national public interest litigation center that

has concentrated its efforts in the area of plant closings

and mass layoffs, particularly on the rights of dislocated

workers through the enforcement of the WARN Act. As

the national clearinghouse for all WARN Act litigation,

the Guild Law Center represents hundreds of workers

directly and thousands indirectly by providing technical

assistance to their attorneys. The Guild Law Center thus

represents the interests of WARN plaintiffs across the

4

country in the outcome of this proceeding, and submits

this amici curiae brief on behalf of Petitioner.

THE OIL, CHEMICAL AND ATOMIC WORKERS

INTERNATIONAL UNION (OCAWIU) is a labor or-

ganization which represents employees throughout the

country. The right of OCAWIU to file WARN claims on

behalf of its members will be directly affected by the out-

come of this proceeding. OCAWIU has been, and con-

tinues to represent their members in WARN Act litigation.

For these reasons, the OCAWIU submits this amici curiae

on behalf of Petitioner.

THE SERVICE EMPLOYEES INTERNATIONAL

UNION (SEIU) represents over one million workers in

the health care, building service, and amusement indus-

tries as well as in a variety of other industries. It also

represents many workers in the public sector. Many of

its members, including those who work in its health care

and allied and industrial division, work for employers

who are subject to WARN. Where an employer who em-

ploys SEIU members closes a plant, SEIU or one of its

affiliated local unions might very well want to file suit

under WARN to protect the interests of its members and

the union.

THE SHEETMETAL WORKERS’ INTERNATIONAL

ASSOCIATION is a building and construction trade

union of roughly 135,000 members. Approximately one-

third of the membership works in production and fabrica-

tion shops where the greatest job loss due to plant closings

occur. The union has lost approximately 2,000 members

due to plant closings from 1993-1995. The union is 100

years old and has 200 locals throughout the country.

THE UNITED ELECTRICAL, RADIO AND MA-

CHINE WORKERS OF AMERICA (UE) is a national,

independent union comprised primarily of approximately

40,000 production and salaried workers in major manu-

facturing chains, and in hundreds of independent _com-

panies in the electrical manufacturing, machine-building

5

and plastics industries. UE also represents city, county

and state public sector employees. The UE and its mem-

bers have a significant interest in the rigorous enforce-

ment of WARN due to the de-industrialization of the

United States as a result of international trade agreements

and other factors, which result in the shutting down of

production facilities which employ UE members. UE has,

and continues to represent, its members in WARN litiga-

tion. For these reasons, the UE submits this brief in sup-

port of Petitioner.

THE UNITED MINEWORKERS OF AMERICA,

INTERNATIONAL UNION (“UMWA”) is a labor or-

ganization headquartered in Washington, D.C. The

UMWA has approximately 175,000 members in the

United States, most of whom are coal miners. The

UMWA and its members, as well as coal dependent com-

munities throughout the country’s coal fields, have a sig-

nificant interest in the rigorous enforcement of the WARN

Act due to the nature of coal as a depletable resource,

thus occasioning the continuous shutdown and relocation

of mining operations. The UMWA has and continues to

represent their members in WARN Act litigation. There-

fore, the UMWA joins in this brief in support of

Petitioner.

THE UNION OF NEEDLETRADES, INDUSTRIAL

AND TEXTILE EMPLOYEES, AFL-CIO, CLC

(UNITE), is a merger of the Amalgamated Clothing and

Textile Workers Union, and the International Ladies Gar-

ment Workers’ Union. UNITE is the largest union in the

United States and Canada representing apparel and cloth-

ing workers. It has about 500,000 members. Garmet and

textile workers are low paid and typically insensitive to

their legal rights. Many are newly arrived immigrants

with poor language skills. Garment and textile workers,

like farm workers, are employed in a highly seasonal in-

dustry, and depend on their union to enforce their rights.

The issues presented in this case have a direct impact

on the rights of the clients and members of the amici

6

herein. The decision in this case will directly affect the

ability of several hundred thousand workers to effectively

enforce their substantive federal rights under WARN.

SUMMARY OF ARGUMENT

This case will decide whether a labor union has stand-

ing to enforce the Worker Adjustment and Retraining

Notification (WARN) Act, 29 U.S.C. §§ 2101-09,

against an employer who had failed to provide advance

notice of layoffs to either the union or the workers repre-

sented by that union. In denying standing to Local 751

of the United Food and Commercial Workers Union

(UFCW), despite its conclusion that the union had al-

leged an injury to itself, the court below erroneously

determined that “[a]n award of monetary damages to any

aggrieved employees would do nothing to remedy the

alleged failure of notice to the UFCW.” United Food

and Commercial Workers Int'l Union, Local 751 vy.

Brown Group, Inc., 50 F.3d 1426, 1430 (8th Cir. 1995).

This determination reflected a flawed conception of the

purposes of WARN, a faulty understanding of the role

which monetary relief plays in furthering WARN’s pur-

poses, and the imposition of an extremely restricted view

of the role that unions serve as a representative of their

members’ interests.

Acting upon its erroneous reading of WARN’s purpose

and remedies, the Eighth Circuit panel failed to give

proper recognition to the Congressionally-established in-

tegral role of labor unions as integral in effectuating the

purposes of WARN. Amici submit that the Eighth Cir-

cuit panel’s constricted application of standing principles

will not withstand scrutiny in the light of the structure,

legislative history, and substantive legal rights of WARN.

Properly considered, labor union standing to enforce

WARN falls well-within this Court’s Article III] standing

jurisprudence, even in the absence of express Congres-

sional authorization to unions to sue to enforce WARN.

7

See International Union, UAW vy. Brock, 477 U.S. 274

(1986). Amici submit that the Eighth Circuit panel

erred by ignoring Congress’ mandate that unions, as “rep-

resentatives”, may sue on behalf of their members.' How-

ever, assuming that Congress had not included such a

provision, Amici argue that the UFCW sstill satisfied

Article III's core requirements, and the test articulated

in Hunt v. Washington State Apple Advertising Comm'n,

432 U.S. 333 (1977). Amici therefore fully support the

arguments set forth in the UFCW'’s brief, but focus

herein primarily upon this mistaken assumption.

At the most fundamental level, unions clearly suffer

cognizable injuries to their interests when advance notice

of layoffs is not provided. The Eighth Circuit panel failed

to recognize that union enforcement of WARN’s civil

penalties acts both as punishment for the statutory viola-

tion and as a deterrent to ensure future compliance with

WARN’s advance notice requirements. This failure re-

sulted in the erroneous conclusion that the union’s injuries

are not redressable through a suit for monetary relief on

behalf of affected workers. Indeed, pursuant to WARN,

that is the only possible redress. Further, this failure re-

sulted in the erroneous conclusion that union enforcement

of WARN to collect civil penalties is analogous to ac-

tions for compensatory damages, and therefore that the

individual participation of union members was required.

These errors led to a misapplication of standing doctrine

as it has been developed by this Court.

For these reasons, amici join with petitioner UFCW in

urging this Court to reverse the judgment dismissing this

case for lack of standing.

‘Congress provided in WARN that: “A person seeking to

enforce such liability, including a representative of employees or

a unit of local government aggrieved under paragraph (1) or (3),

may sue either for such person or for other persons similarly

situated, or both, in any district court of the United States for

any district in which the violation is alleged to have occurred, or

in which the employer transacts business.” 29 U.S.C. § 2104(a) (5).

8

ARGUMENT

UNIONS HAVE STANDING TO REPRESENT THEIR

MEMBERS IN SUITS ENFORCING THE WORKER

ADJUSTMENT AND RETRAINING NOTIFICATION

ACT.

A. Failure to Provide Advance Notice of Layoffs or Plant

Closing in Compliance with WARN Harms Unions as

Well as Their Members.

a. The Eighth Circuit panel erroneously assumed that

in the absence of the statutory provision allowing a union

to sue as the “representative” of dislocated workers, 29

U.S.C. § 2104(a)(5), that the UFCW could not satisfy

Article III association standing principles. In fact, the

opposite is true: A lawfully recognized union may assert

its bargaining unit members’ WARN claims so long as

the Article III “case or controversy” requirement is met.

The touchstone here is that the injury is direct, and its

nature precise. Significantly, this case satisfies the heart

of Article III; namely, the requirement that the associa-

tion’s members suffer a “distinct and palpable injury.”

Warth v. Seldin, 422 U.S. 490, 500-01 (1975); Havens

Realty Corp. v. Coleman, 455 U.S. 363, 372 (1982).

Further, the union’s interests are protected by WARN,

making the UFCW a “litigant entitled to have the court

decide the merits of the dispute.” Warth, 422 US. at

498. Indeed, the lower court’s approach is contrary to

this Court’s charge that “standing is gauged by the spe-

cific common-law, statutory, or constitutional claims that

a party presents.” IJnternational Primate Protection

League v. Administrators of Tulane Educ. Fund, 500

U.S. 72, 77 (1991). See Gladstone, Realtors v. Village

of Bellwood, 441 U.S. 91, 99 (1979); Havens Realty

Corp. v. Coleman, 455 U.S. 363 (1982).

The sine qua non of standing jurisprudence is that

the entity seeking standing first possess a legally enforce-

able right. Associated Gen. Contractors, Inc. v. Cali-

9

fornia State Council of Carpenters, 459 U.S. 519, 540

(1983) (“[iJn each case [a union's] injury must be

analyzed to determine whether it is of the type that the

| ] statute was intended to forestall.”); Tennessee Elec.

Power Co. v. Tennessee Valley Auth., 306 U.S. 118,

137-8 (1939); Alabama Power Co. v. Ickes, 302 U.S.

464, 480 (1938). This Court has also looked at the

directness or indirectness of the asserted injury. Asso-

ciated Gen., 459 U.S. at 540.

Where a statute is silent as to whom an appropriate

litigant should be, this Court has permitted representation

in accordance with standards established under common

law or statutes of general application. Whitmore v.

Arkansas, 495 U.S. 149, 163 (1990) (third party repre-

sentation permissible where the standards under the com-

mon law are satisfied); 13 C. Wright, A. Miller, Federal

Practice and Procedure § 3531.9 at 627 (West 1984)

(formal representative such as trustees, guardians and

personal representatives may protect the interests of those

they represent).

b. “The actual or threatened injury required by Ar-

ticle IIl may exist solely by virtue of ‘statutes creating

legal rights, the invasion of which creates standing. .. . ”

Warth, 422 U.S. at 500. The right possessed here, is at

its heart, one which lies in the federal statutorily estab-

lished role of unions as the exclusive representative of

workers under the National Labor Relations Act. 29

U.S.C. § 151 (1995); See also 29 U.S.C. §§ 157 and

159 (1995); Eastex, Inc. v. NLRB, 437 U.S. 556, 564

(1978).° When a union sues to redress a violation of

WARN, it acts as the representative of the employees’

own choosing for the “purpose of . . . other mutual aid

and protection.” 29 U.S.C. §§ 151 and 157 (1995).

Indeed, protection and enforcement of employees’ rights

is a union's raison d'etre.

* This fact distinguishes unions as appropriate litigants under

WARN from other associations. See Warth, 422 U.S. 490.

10

A union's advocecy for and enforcement of workplace

rights is at the core of national policy. As this Court has

stated:

National labor policy has been built on the premise

that by pooling their economic strength and acting

through a labor organization free'y chosen by the

majority, the employees of an appre priate unit have

the most effective means of bargaining for improve-

ments in wage, hours, and working conditions .

“Congress has seen fit to clothe the bargaining rep-

resentative with powers comparable to those pos-

sessed by a legislative body to create and restrict the

rights of those whom it represents.” Steele v. Louis-

ville & N.R. Co., 323 U.S. 192, 202.

NLRB y. Allis-Chalmers Mfg. Co., 388 U.S. 175, 180

(1967); See 29 U.S.C. § 151 (1995); See also Office

and Professional Employees Int'l Union, Local 2 v. FDIC,

962 F.2d 63, 67 (D.C. Cir. 1992) (R.B. Ginsburg, J.)

(“The Union is no mere volunteer whose representation

of others must be checked for adequacy. The labor union

has already been certified by a neutral government agency

as the “exclusive representative” of the bargaining unit

employees.” )

In enacting WARN, Congress created workplace rights

and a means for enforcement of those rights that are akin

to those sought or obtained in collective bargaining. It

therefore harmonized its statutory role for union repre-

sentation as the key means for enforcing WARN rights

of the employees in bargaining units in which a union

has been recognized with those rights employees have

pursuant to the National Labor Relations Act. Other

than the fact that WARN rights arise from statute, rather

than from a collective bargaining negotiation, they are

virtually identical in kind to a lay-off notice, or severance

agreement, that might be negotiated or enforced in the

ordinary course by a union.* Suing to obtain monetary

*In this regard, the lower courts’ attempt to distinguish this

Court’s holding in /nternational Union, UAW v. Hoosier Cardinal

mentally collective in nature.” See Brock, 477 U.S. at

290;° see Note, Divided We Fall: Associational Stand-

ing and Collective Interest, 87 Mich. L Rev. 733 (1988).

Corp., 383 U.S. 696 (1966) is telling. The Eighth Circuit opinion

as in this case. 50 F.3d at 1430 n.5. Yet the cognizable legal in-

juries arising from an employer's violation of a collective bargain-

ing agreement, the type of proof needed, and the type of remedy

typically sought, are indistinguishable from the same issues aris-

ing from a statutory violation.

* See Telecommunications Research and Action Center v. Allnet

Communication Serv., Inc., 806 F.2d 1093 (D.C. Cir. 1986) (“Here

the union and its members are in every practical sense identical;

the union “is but the medium through which individual members

seek to make more effective the expression of their own views.”)

Id. at 1096.

* This is evident in WARN’s threshold requirements which estab-

lish that a violation occurs only where an employer has more than

100 employees and chooses to layoff more than a third of them in

a single facility with more than 50 employees. 29 U.S.C. § 2101

(1995). It is thus only when the collective rights of a fairly

large group are affected that WARN applies. These numerical

requirements are consistent with the genesis of WARN as part of

a larger statutory scheme which included worker adjustment pro-

visions. See pp. 12-14.

* This Court stated: “{T)he doctrine of associational standing

recognizes that the primary reason people join an organization is

often to create an effective vehicle for vindicating interests that

they share with others. ‘The only practical judicial policy when

people pool their capital, their interests, or their activities under

12

Virtually all terms and conditions of employment are

a product of collective negotiation, and the union is not

only the authorized representative of bargaining unit em-

ployees in dealing with their employer, it is the exclusive

representative. 29 U.S.C. § 159. Where a union has

been recognized it alone has the “power to order the

relations of employees with their employer... .” Alllis-

Chalmers, 388 U.S. at 181. When the employer fails to

meet its obligations the union is damaged along with the

individuals in its bargaining unit, and that damage can

only be remedied by providing the bargaining unit mem-

bers with the remedy to which they are entitled.

d. This unity of interests between the union and the

bargaining unit employees is underscored by the legisla-

tive history of WARN. Even though the paramount pur-

pose of WARN is to provide advance notice of employ-

ment losses to unions, workers, and their state and local

governments, 29 U.S.C. $2102 (1995), 20 C.F.R.

§$ 639.1 (1995), the Eighth Circuit panel evidently

viewed WARN as an individual notice statute, and ig-

nored the union's place within the worker adjustment

statutory scheme which Congress has fashioned.

WARN had its genesis in the Omnibus Trade and Com-

petitiveness Act of 1988, which included both advance

notice and worker adjustment provisions. H.R. Conf.

Rep. No. 576, 100th Cong. 2d Sess. 1045 (1988), re-

printed in 1988 U.S. Code Cong. & Admin. News 1547,

2078. While dividing the worker adjustment provisions

from those concerning advance notice in the pending trade

bill, the “Conferees reaffirm[ed] that advance notice is

an essential component of a successful worker readjust-

a name and form that wil! identify collective interests, often is to

permit the association or corporation in a single case to vindicate

the interests of all.’"” Brock, 477 U.S. at 290 (quoting Joint Anti-

Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 187 (1951)).

13

ment program, and [that] they regard[ed] the two sub-

titles as closely interrelated.” Jd."

Given its central role in worker readjustment, it is then

clear why Section 3 of the statute provided:

[a]n employer shall not order a plant closing or mass

see Sone Sno Soe 2 Sey paves anes Ge ae

ployer serves written notice of such an order . :

Sok caienetean 0 Ga iilieied Gates. er,

if there is no such representative . . to each affected

; and... to the State dislocated worker unit

_ and chief elected official of the unit of local gov-

ernment within which such closing or layoff is to

occur.

29 U.S.C. § 2102(a). Thus, WARN required employers

to provide advance notice of economic dislocations to

unions, not to individual employees. It is only where

individual workers are not represented by unions that

notice is given directly to them. Appropriate state and

local government officials are notified as well.

The principal rationale for WARN’s advance notice

requirement was to provide time for the affected govern-

ment units and unions to assist workers with readjustment

assistance and reemployment. The main vehicle by which

T™TWARN became freestanding legislation when the trade legis-

lation was vetoed, largely because of Presidential objections to the

inclusion of advance notice requirements in the legislation. See

President’s Veto Message, 24 Weekly Comp. Pres. Doc. 655-57

(May 24, 1988). WARN was reintroduced as S. 2527 and passed

both houses of the Congress with margins sufficient to survive a

veto. 134 Cong. Rec. S. 8868-69 (1988); 134 Cong. Rec. H5519-

5520 (1988). WARN was then allowed to become law without the

President's signature. Pub. L. No. 100-379, 102 Stat. 890 (1988) ;

Presidential Statement on the Worker Adjustment and Retraining

Notification Act, 24 Weekly Comp. Pres. Doc. 990 (August 2,

1988). The sponsors of S. 2527 explicitly noted the relevance of

the conference report on H.R. 3 in interpreting WARN. See 134

Cong. Rec. 88692 (1988) (statements of Sen. Durenberg and Sen.

Metzenbaum); 134 Cong. Rec. H5504-5505 (1988) (statements

of Rep. Jeffords and Rep. Clay).

14

this was to be accomplished was through the previously-

linked Economic Dislocation and Worker Adjustment

Assistance (EDWAA) Act, 29 U.S.C. §§ 1651-1662b,

which passed the Congress as part of the omnibus trade

legislation. Pub. L. No. 100-418, 102 Stat. 1524

(1988). EDWAA provided adjustment services to dis-

located workers by linking state dislocated worker units,

local governments, and unions and employers, and Con-

gress designated unions as central to effectuate the full

panoply of adjustment activities for their members."

* EDWAA provided for local coordination of dislocated worker

assistance primarily through substate grantees, 29 U.S.C.

§ 1661a(b), working in conjunction with a state job training coor-

dinating council, 29 U.S.C. § 1661f, and state dislocated worker

units with rapid response capability, 29 U.S.C. §§1661b(b) and

1661c(b). Labor unions were ensured a role in the local coordina-

tion of job training and adjustment services through membership

on each local Private Industry Council, 29 U.S.C. § 1512(a) (2), as

well as membership on the state job training coordinating coun-

cil, 29 U.S.C. § 1582(a)(8)(C). See H.R. Rep. No. 285, 100th

Cong., lst Sess. (1987), reprinted in House Subcommittee on

Labor-Management Relations, Committee on Education and Labor,

10lst Cong., 2d Sess., Legislative History of S. 2527 at 583 et seq.

(Comm. Print 1990). See also, U.S. Department of Labor, Eco-

nomic Adjustment and Worker Dislocation In A Competitive So-

ciety: Report of the Secretary of Labor’s Task Force on Economic

Adjustment and Worker Dislocation 22-23 (1986) and U.S. Con-

gress, Office of Technology Assessment, Plant Closing: Advance

Notice and Rapid Response 5 (1986).

In addition to adjustment assistance under EDWAA, during the

interim between the provision of advance notice and the loss of

employment, there is an opportunity for employees to seek new

employment, or retraining and income support through either the

Trade Adjustment Assistance program, 19 U.S.C. §§ 2271-2322, or

the NAFTA Transitional Adjustment Assistance program, 19

U.S.C. § 2331. Congress guaranteed labor unions a role under both

laws: Labor unions may file petitions for certifications of eligibil-

ity on b.half of represented workers under the Trade Adjustment

Assistance program. 19 U.S.C. §2271(a). Unions likewise have

a statutory role as petitioners under the NAFTA Transitional Ad-

justment Assistance program. 19 U.S.C. § 2331(b) (1).

15

e. Against this backdrop, it is evident that WARN

is simply not an individual notice statute and that unions

themselves are damaged when they do not receive notice.

First and foremost, advance notice permits unions to

more effectively exercise their right to represent their

members through collective bargaining about the plant

closing decision and its effects. See First National Main-

tenance Corp. v. NLRB, 452 U.S. 666, 681-2 (1981);

Otis Elevator Co., 269 NLRB 891 (1984), enforced in

part sub nom. United Food and Commercial Workers

Int'l Union, Local 150-A v. NLRB, 1 F.3d 24 (D.C.

1993), cert. dismissed, 114 S.Ct. 2157 (1994).

Next, advance notice to the union permits the union to

assist its members in seeking new employment, replace-

ment income, and adjustment services. This assistance to

members enables the union to fulfill its responsibilities to

advance its members economic interests, and, in turn,

creates goodwill on the part of the union’s members di-

rected toward the assisting union. This goodwill translates

to improved future organizing opportunities with those

members in their new workplaces as well as enhanced

community standing for the union. When a union fails

to assist its members, the union’s capacity to act as an

effective advocate for its members is weakened. See

OPEIU, Local 2 v. FDIC, 962 F.2d 63 (D.C. Cir.

1992).

Finally, advance notice may permit the union, the ijocal

community, or the employees to arrange for new owner-

ship or an employee buy-out of the facility providing

notice, an opportunity which is foreclosed when the

closing or mass layoff is a fait accompli at the time the

announcement is made. First Nat’l Maintenance, 452 U.S.

680, 681 (“{BJargaining over the effects of a decision

{to close a particular facility] must be conducted in a

meaningful manner and at a meaningful time.”). Con-

tinuing the business enterprise necessarily assists the union

itself, as well as the employees and their community.

Further, local or district unions may reside within a geo-

16

graphical area that includes opportunities for employment

so that a union, when given advance notice, can assist

workers soon to lose their jobs to find new work at an-

other plant.

In short, the pursuit of a WARN lawsuit advances

cognizable interests of both a union and its members by

advancing the members’ interest in “mutual aid or protec-

tion.” Thus, the question of whether UFCW members

would themselves have standing to redress the same injury

relied on in their behalf, which is the first prerequisite

under Hunt, 432 U.S. at 343, is inseparable from the

UFCW’s own interests, and should be answered in the

affirmative. For this reason, the alleged lack of proper

Statutory notice in this case clearly injured the UFCW

as well as its members, and satisfied Article III's core

requirements.°

B. Individual Participation of the UFCW Members Is

Not Required by the Rights Asserted nor the Relief

Requested.

1. WARN Civil Penalties Are Primarily Intended to

Enforce Compliance with Its Advance Notice Provi-

sions, Not to Compensate Individuals Deprived of

Notice.

a. Even had Congress not authorized unions to sue,

the UFCW still satisfied the third prong of the standing

test promulgated in Hunt; namely, “neither che claim as-

serted nor the relief requested requires the participation

of individual members in the lawsuit.” 432 U.S. at 343.

* This fact distinguishes this case from Associated General Con-

tractors, wherein this Court would not allow a union to pursue

treble damages in an action brought under the Clayton Act. 15

U.S.C. § 15. In Associated General, this Court noted that the union

failed to allege any direct injury, such as the termination of the

collective bargaining agreement, a diminishing share of the con-

tracting market controlled by union firms, or declining member-

ship or revenues. 459 U.S. at 542. In the case of a plant clos-

ing, a union suffers all of these direct injuries.

17

This requirement is not a prerequisite to satisfaction of

the Article III “case or controversy” requirement, as op-

posed to “other limits on the class of persons who may

invoke the courts’ decisional and remedial powers.”

Warth, 422 U.S. at 499. The Eighth Circuit panel, how-

ever, expanded the “required participation” requirement

well beyond the sort of considerations which this Court

has utilized.

These have included concerns that the claim is funda-

mentally of an individual nature, see Harris v. McRae,

448 U.S. 297, 321 (1980) (“the participation of individ-

ual members . . . is essential to a proper understanding

and resolution of their free exercise claims”), or that it

raises concerns for judicial manageability, Warth, 422

U.S. at 515 (recognizing that a damages award would

be proper if “common to the entire membership” ).

b. Since all UFCW bargaining unit members who ex-

perienced dislocation or termination without proper notice

shared the experience in common, with variance only

with respect to the actual date of separation, there is no

concern similar to that present in Harris. A court could

easily grasp the issues and facts involved without individ-

ual participation. The Eighth Circuit’s principal concern,

then must have turned on the question of judicial man-

ageability. A fundamental confusion on the part of the

Eighth Circuit panel arose primarily from its faulty

understanding of the purpose of WARN’s civil penalty

provisions and the role of individual affected workers in

obtaining the monetary relief provided by those penalties.

Again, the lower court acted in apparent ignorance of

WARN’s enforcement scheme, treating WARN’s civil

penalties as solely equivalent to individual damage awards

designed only to compensate individual workers deprived

of prior notice of dislocation. This is made clear in foot-

note 7 of the opinion and its accompanying text, where

the court views WARN’s civil penalties as necessarily

linked to either the members’ monetary claims or the

UFCW’s own monetary loss. 50 F.3d at 1431. WARN

18

monetary relief, however, is not tied to specific actual

monetary losses of an employee, but rather to the length

of the employer’s statutory violation. Further, this Court's

standing cases have never limited cognizable injuries to

interests protected by damages measured in strictly mone-

tary terms. Japan Whaling Ass'n v. American Cetacean

Soc’y, 478 U.S. 221, 230-31 n.4 (1986); Havens Realty

Corp. v. Coleman, 455 U.S. 363, 379 & n.20 (1982);

Sierra Club v. Morton, 405 U.S. 727, 734 (1972).

In fact, Congress intended that WARN’s penalty provi-

sions deter employers from failing to provide advance

notice of employment losses in order to further com-

pliance with the overall worker adjustment goals of

WARN and its related legislation. Rather than compen-

satory damages measured exclusively in terms of lost

wages, WARN’s monetary relief provisions most closely

resemble civil penalties intended to ensure compliance

with WARN, without respect to any monetary loss on the

part of the affected workers.”

Contrary to the approach taken by the court below,

the structure of WARN’s civil penalties and its legislative

history make it clear that WARN was intended to provide

advance notice to workers prior to mass layoffs and plant

closings, not as a severance pay scheme providing dam-

age awards for individual workers. The developments in

WARN’s history demonstrate that Congress’ purpose in

adopting WARN’s penalty provisions went well beyond

compensation of workers for lost wages:

First, during the Senate debates on S. 2527 an amend-

ment was offered to permit employers to make severance

payments in lieu of advance notice.” The principal Sen-

% For example, if an employer unlawfully closed a workplace

without any prior notice, and all affected employees obtained new

work at higher pay the next day, WARN would still provide a

monetary remedy.

11 The so-called Quayle amendment offered employers the options

of providing “severance pay in lieu of notice.” 134 Cong. Rec.

$8541 (1988).

19

ate sponsor of WARN opposed the amendment, and

stated:

The fact is we do provide that if the notice is not

given then there is an obligation to make up the

salary, but we do not want anybody to think that this

bill is a way of providing additional financial obliga-

tions on the part of employers. This is not the object

of this bill. The object of this bill is to give em-

ployees notice so that they can be involved in re-

training and readjustment.

134 Cong. Rec. $8542 (1988) (remarks of Sen. Metzen-

baum). Congress rejected the proposed amendment,”

which evidenced an intent to accomplish more through

WARN than simply providing affected workers deprived

of advance notice with penalties providing up to sixty

days’ back pay.

Second, the language of WARN’s penalty provisions

arose in its predecessor bill, $.538, which was later added

as an amendment to the trade legislation by the Senate.”

The Senate committee summarized the bill’s penalty pro-

visions and their intent:

For violations of the notice provisions, damages are

to be measured by the wages and fringe benefits (in-

cluding reimbursement for medical expenses) the em-

ployee would have received had the plant remained

open or the layoff been deferred until the conclusions

of the notice period, less any wages or fringe bene-

fits received from the violating employer during that

period. This is in effect a liquidated damages provi-

sions (sic), designed to penalize the wrongdoing em-

ployer, deter future violations, and facilitate simpli-

fied damages proceedings.

S. Rep. No. 62, 100th Cong., Ist Sess. 24 (1987), re-

printed in Legislative History of S. 2527, supra n.3 at

742.

12 184 Cong. Rec. $8547 (1988).

18 133 Cong. Rec. $9492-9494 (1987).

20

This legislative history, as well as the overall structure

of WARN’s penalty provisions, manifests the error of

treating WARN’s civil penalties as equivalent to individual

damage awards to affected workers. While Congress

adopted a private enforcement scheme as a means to

enforce WARN, it did so with its advance notice ends in

mind, not in an effort to provide damage awards to in-

dividual affected workers. For this reason, the essential

feature of WARN’s civil penalties was compliance and

deterrence, not compensation.

b. The distinction between compliance and compensa-

tion is by no means trivial. First of all, the lower court’s

restrictive understanding of the role played by monetary

relief in WARN enforcement undergirds its determina-

tion that monetary relief for affected workers would not

redress the injuries inflicted upon the UFCW by the lack

of advance notice. 50 F.3d at 1430. Instead, an anoma-

lous result of the decision below is to effectively prohibit

unions from obtaining redress for themselves or its mem-

bers as a result of an employer’s failure to comply with

the notice requirements. As the Eighth Circuit panel

itself admitted, it would have denied a request for injunc-

tive relief because the statute precludes federal courts

from enjoining a plant closing or mass layoff. 29 U.S.C.

§$ 2104(b) 1995 (“[I]}t is doubtful that injunctive relief

would have been forthcoming even if it had been sought.” ).

50 F.3d at 1431 n.6. Yet nothing in the legislative his-

tory suggests that Congress intended to grant a right of

notice to unions but then deny unions any method of

redress. Indeed, as discussed above, such a conclusion is

completely contrary to the purpose of the statute.

Second, this restrictive understanding divorced WARN

from its central role in Congress’ worker adjustment

scheme, and undergirds its determination that the individ-

ual participation of UFCW members was required.

Viewed in proper context, WARN’s civil penalties were

intended to encourage employer compliance with the stat-

ute’s advance notice requirements—including its role for

unions in adjustment assistance and retraining.

21

Accordingly, any monetary relief obtained by unions

for affected members promotes the advance notice goals

of WARN and its attendant advantages to unions since

it penalizes the particular employer who violates the ad-

vance notice requirement, and encourages that employer

and others to comply with WARN in the future. For this

reason, individual participation of union members is not

necessary, and monetary relief to affected members in a

suit prosecuted by the union clearly redresses the injury

suffered by the union and its members.

2. Union Representation of Its Members in WARN

Actions Does Not Present Concerns of Judicial

Manageability.

a. Another confusion on the part of the Eighth Circuit

panel arose from its faulty understanding of the practicali-

ties of determining the amount of monetary relief in any

one case. Individual participation is not essential to give

effect to the monetary calculation because the calculation,

contrary to the lower court’s characterization, is simple,

requiring only the date of each employee’s separation, the

rate of pay, and the amount of any offsets available to

the employer. These matters are known to the employer,

and the union, and no individual member testimony is

required or relevant to that determination."* There is no

need to inquire, as in cases involving severance pay,

whether severance occurred by way of firing for cause,

furlough, reduction in force, or termination. Thus, like

Brock, questions regarding the monetary calculation for

each individual do not require judicial inquiry. 477 U.S.

at 286. See Carpenters Dist. Council v. Dillard Dep't.

A parallel distinction is made under Rule 23 of the Federal

Rules of Civil Procedure. There, of course, a Rule 23(b) (2) class

may be utilized to obtain equitable relief, including back pay,

without prior written notice to class members. In contrast, cases

seeking damage awards must proceed under Rule 23(b) (3), with

individualized notice to class members and an opportunity to opt

out of the class. See Eisen v. Carlisle & Jacquelin, 417 U.S. 156

(1974).

22

Stores, 790 F. Supp. 663 (E.D. La. 1992), amended,

7 LE.R. Cases 799 (E.D. La. 1992), aff'd in part and

rev'd in part, remanded, 15 F.3d 1275 (Sth Cir. 1994),

cert. denied, 115 S.Ct. 933 (1995). Further, the civil

penalties are not speculative or large, as in a case like

Associated General Contractors, 459 U.S. at 542-546.

Indeed, the common issues involved in litigating a

WARN case far outweigh those with individualized ele-

ments. In addition to employer liability, the maximum

duration of the penalty period involved, the type and

value of fringe benefits included in the calculation of back

pay, and the offsets, if any, available to the employer are

common to all claims. Each of these matters is likewise

feasibly determined without individual member participa-

tion, and these determinations present no unusual case

management challenges.

The relative simplicity of the damage computations en-

sures that the UFCW “can litigate this case without the

participation of those individual claimants and still ensure

that ‘the remedy, if granted will inure to tie benefit of

those members of the association actually injured.’ ”

Warth, 422 US. at 515.

b. The second of the considerations with respect to the

relative ease of case manageability is that litigation of this

case by the union as plaintiff does not differ greatly from

litigation of the case as a class action brought by individ-

ually affected workers. Anomalously, under the Eighth

Circuit’s holding, such a lawsuit could proceed on behalf

of similarly situated workers while a virtually identical

lawsuit by the union on behalf of its members would be

dismissed for lack of standing.

However, in terms of judicial economy, the use of

union plaintiffs offers distinct advantages, whether com-

pared to a class action by individuals, or a number of

separate lawsuits filed to remedy the same WARN viola-

tion. See Brock, 477 U.S. at 289 (1986) (“While a class

action creates an ad hoc union of injured plaintiffs .. .

23

{a union] suing to vindicate the rights of its members can

draw upon a preexisting reservoir of expertise and capi-

tal.”). Unions usually have greater familiarity with the

employer, the collective bargaining agreement, and the

history and background of the workplace than individual

workers or plaintiff attorneys. Union staff are available

to assess a variety of relevant questions, including possible

defenses under the unforeseen business circumstances and

faltering company exceptions to WARN liability, 29

U.S.C. $§ 2102(b)(1) and (2)(A), and the good faith

defense, all of which can become quite complex." More-

over, unions possess an institutional interest in specific

geographical areas which means that they may be better

suited to act as plaintiffs than individuals who may be

forced to move away in search of employment. Not in-

significantly, from the perspective of the aggrieved em-

ployees, a union plaintiff offers numerous advantages,

including free legal representation and assistance with the

costs of litigation. See Brock, 477 U.S. at 289.

For these and similar reasons, a union plaintiff will

often be in a position to prosecute a WARN suit more

expeditiously than parties or attorneys less familiar with

the situation. Indeed there has been relatively little litiga-

tion under this law, as the General Accounting Office

found, due in part to the difficulty in finding experienced

attorneys. GAO, Dislocated Workers: Worker Adjust-

ment and Retraining Notification Act Not Meeting its

Goals, 23-24 (1993). Further, if each worker who is

15 See International Bhd. of Teamsters, Local 952 v. American

Delivery Serv. Co., 50 F.3d 770 (9th Cir. 1995); Carpenters Dist.

Council v. Dillard Dep't Stores, 778 F. Supp. 297 (E.D. La. 1991),

aff'd, 15 F.8d 1275 (5th Cir. 1994), cert. denied, 115 8.Ct. 983

(1995); Jurcev v. Central Community Hospital, 7 F.8d 618 (7th

Cir. 1998), cert. denied, 114 8. Ct. 1830 (1994) ; Chestnut v. Stone

Forest Indus., 817 F. Supp. 982 (N.D. Fla. 1993); Frymire v.

Ampex Corp., 61 F.3d 757 (6th Cir. 1995); Jones v. Kayser-Roth

Hosiery, 748 F. Supp. 1276 (E.D. Tenn. 1990); Washington v.

Aircap Indust., 860 F. Supp. 307 (D.S.C. 1994); Wholesale and

Retail Food Distribution Local 63 v. Santa Fe Terminal Servs.,

826 F. Supp. 326 (C.D. Cal. 19938).

membership. See 29 U.S.C. §§ 151, 157 (1995).

CONCLUSION

The decision below rested upon a fundamental miscon-

ception of the role of labor unions in this country, creat-

ing an artificial gap between the interests of workers and

unions, and one which stands in contrast to national labor

policy as codified in our federal laws. WARN is, in the

final analysis a statute designed to protect collective inter-

ests. Violations of that law are redressable through the

civil penalties created by Congress.

Respectfully submitted,

RICK MCHUGH Kary L. Moss *

255 E. Liberty Street LAMONT SATCHEL

Suite 277 MAURICE AND JANE SUGAR LAW

Ann Arbor, MI 48104-2120 CENTER FOR ECONOMIC AND

BENNET ZUROFSKY 2915 Cadillac Tower

REITMAN PARSONNET Detroit, MI 48226

744 Broad Street (313) 962-6540

Suite 1807

Newark, NJ 07102-3867

(201) 622-8347

Attorneys for Amici * Counsel of Record