Petition for Writ of Certiorari — Lewis v. Textron Automotive Interiors

Supreme Court, U.S.

Bem &:.

9 7161 3 MAR j 6 1998

OFFICE OF THE CLERK

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1998

ALLAN LEWIS’ PETITIONER

V.

TEXTRON AUTOMOTIVE INTERIORS, AND JAMES D.

HOUSTON

APPEAL FROM THE UNITED STATES COURT OF

APPEALS

FOR THE FIRST CIRCUIT

PETITION FOR WRIT OF CERTIORARI

ALLAN LEWIS

86 CHESTNUT HILL R.D.

ROCHESTER N.H. 03867

603 335-6368

APPELLANTS QUESTIONS FOR REVIEW

1.Can a District Court Judge alter or amend a Congressional

Enactment (29 USC 2101 and The Dept. of Labor's 20 :

C.F.R. 639 Final rule).

2. Can a Judge allow the defendant Textron to use business

reasons that were known 90-days prior to plant closure

announcement, to circumvent there responsibility for layoffs

after a announced Plant Closing when it affects 50 or more

employees within a 30-day period.

3. Can a Judge force a Appellant to go beyond the provisions

of the statute of the Law in question.( 29 USC 2101 and The

Dept. of Labor's 20 C.F.R. 639 Final rule).

4. Can a Judge refuse to take under consideration the

Appellants sworn statement in District Court reciting The

Dept. of Labor's 20 C.F.R. 639.3 (b) (Plant Closing)

specifically that WARN Acct is triggered whenever a

company announces a Plant Closing, then layoff 50 or more

employees within a 30-day period.

5. Can the court denied the Appellant's request to certify to

the Attorney General a question of constitutionality of

WARN. 28 U.S.C. 2403 and former 28 U.S.C. 401 (1946)

was designed to specifically provide the United States with

the right to participate in cases which might otherwise, at the

hands of private litigants, render act of Congress

unenforceable without adequate protection of the public

interest.

LIST OF PARTIES TO THE PROCEEDINGS BELOW

The parties to the appeal in the Untied States Court of

Appeals for the First Circuit, whose judgment petitioners

request be reviewed, included petitioner ALLAN LEWIS

and all similariy situated employees from the Defendants

New Hampshire Operations (Dover and Farmington)

TABLE OF CONTENTS PAGE

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CONSTITUTIONAL AND STATUTORY PROVISIONS

i i XiV

PRIA MUPOIREE COP ERETS CAGE. onic sccnceseicccaceoneccesssves. I

A. On December 7, 1994 Textron announced the

consolidation of there Dover and Farmington N.H.

operations as Textron's N.H. Automotive Operations under

control Vice President N.H. Operations James

Houston. (facts not in question)(single site of employment

639.3 (i) ).

B. The Public Announcement To The City of Dover

N.H. on 2 June 1995 that the Dover N.H. operations will

close and consolidate with the Farmington operations.

C. The Plain Language of WARN (29 U.S.C. 2101) and

The Dept. of Labor's 20 C.F.R. 639 (WARN) Workers

Adjustment and Retraining Notification Final Rule.

iV

D. The Affidavid from Sandy Green Human Resource

Manager, that in March of 1995 they knew the DN-5 Taurus

and Sable operating unit would close in May or June of

1995, and the projected employment loss of 85 employees.

E. The Public Announcement to the Employees of

Textron's N.H. Operations on 2 June 1995. From President

Mike Weston, announcing the Closing of the Dover N.H.

operations. (The expected loss of 75 salaried employees)

F. The listed 75 employees who experienced an

employment loss after the 2 June 1995 announcement of

Plant Closing vo trigger WARN notification.

#1 RIES RIP US RE

REASON FOR GRANTING THE WRIT

1. Writ of certiorari should be granted based on (1) The

fact that the State court of last resort court of last resort or of

a United States court of Appeals"(2) the lower court has

departed so far from the accepted course of judicial

proceedings, as to call for this The Supreme Court of The

United States to exercise it's supervisory power.The Lower

court's decision conflicts with the relevant decision of this

the Supreme Court of the United States of

PTT siasescassnasisens 17

2. The issues raised by this petitioner are identical to the

issues of Certiorari To The United States Court of Appeals

For The Eight Circuit with respect to United Food and

Commercial Workers v. Brown Shoe Company except we

don't have a union. Supreme Court Justice Souter reversed

and remanded the lower courts decision, and we request the

NY i icisctianienies ensicuitininniienesbalbacoinabtinnedaaeitin i4

3. The issues reised by this petitioner are identical to the

Issues reised on Writ of Certiorari to The United States Court

Of Appeals For The Third Circuit (Nos. 94-834 and 94-835).

North Star Steel Comp. -v- Charles A. Thomas and Crown

Cork& Seal Co -v- United Steelworkers of Amreica, AFL-

CIO-CLC.... With some exceptions and conditions, (29

U.S.C. 2103 Sec.4. Exemptions.) WARN forbids an

employer of 100 or more employees to " order a plant

closing or mass layoff untill the end of a 60-day period after

the employer serves written notice of such an order". 29

U.S.C. 2102(a). Supreme Court Justice Souter delivered the

opinion of the Court, in which Rehnquist, C.J. and Stevens,

O'Connor, Kennedy, Thomas, Ginsburg, and Breyer, JJ.,

joined. Scalia, J., filed an opinion concurring in the

Judgment.............c.0200. 14

4. The Supreme Court has cautioned that where a statute

expressly provides a particular remedy or remedied, the

lower court must be chary of reading others into it. Trans-

American Mortgage Advisors, Inc -v- Lewis 444 U.S.

11,20,100 S. Ct 242,247,62 L.Ed.2d 146 (1979) 29 U.S.C.

2107 demands the use of 20 C.F.R. 639 to direct the WARN

5. Citing - John A. Pavao -v- Brown & Sharpe

Manufacturing Company Civ. A. No.CA-91-0292P United

States District Court D. Rhode Island, dated Feb. 18, 1994.

844 F. Supp 890. The court ruled that Plant Closing

occurring within the 30-day time period defined by 29

U.S.C. 2101(a)(2), PLANT CLOSING "CAUSATION" IS

NOT RELEVANT. The "separate and distinct action and

causes" analysis applies only to 90-day plant closing

proscribed by 29 U.S.C. 2102(d), not to termination's of 50

or more employees occurring within one 30-day period.

Judge Boudewyns expressed this very clearly: "All that

WARN requires is the shutdown of an operating unit or

facility that "results in " an employment loss; Whether or not

other factors are associated with the decision to layoff is

besides the point."...........:....006. 6

6. Citing - James A. Washington -v- Aircap Industries

Corporation Civ.A. No.2:91-3153-18. United States District

Court South Carolina 831 Fed Supp. If the intent of Congress

is clear, that is the end of the matter: for the court....must

give effect to the unambiguously expressed intent of

congress... Regulations that are substantive and promulgated

by an agency pursuant to statutory authority have the force of

law. "The WARN Act specifically directed the Department

of Labor (DOL) to prescribe such regulations as may be

necessary to carry out this Act 29 U.S.C. 2107................... 7

Vii

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TABLE OF AUTHORITIES

CASES CITED PAGES

Atlantic Stages, 78 NLRB 553 (1948)..........cccccsscssssseseceeee l

SAXION V. TITAN-C-MANUFACTURING, INC 86 F.3D 553

ITED eta aa TON AN OE ONDA RCRA ER 2

Olsen -v- Lake Country Inc., 955 F.2d 203,206 (4th

(BS. + aa IES SMES Mea aves Renee CAR SNE NE A AOR RE IER PERRI 4

ELOY MARQUES -V- TELLES RANCH INC. 867

Fame ATT csniassiieciilasteib iin ctealeatitanicshesiniguiitie adeiiinanasaleaibaidi 5

JOHN A. PAVAO -V- BROWN & SHARPE MANUFACTURING CO.

fg ERIE RESET Maclin naireae bale oN SRO CONNER? 6

O1L CHEMICAL AND ATOMIC WORKERS -V- AMERICAN HOME

gs Le ef ERAGE toe ane 7

Vill

JAMES A. WASHINGTON -V- AIRCAP INDUSTRIES

CORPORATION SSE FUR Fei sncscncscninsscinccsastecletionssnnvene 7

LOCAL UNION 7107 -v- CLINCHFIELD COAL COMPANY 124

Fee Wie nasnssssinecaitenasscnendentahsbuiiinenpeiiedeacdatabiadibiliniaateiimaans 8

DENNIS LOEHRER -V- MCDONNELL DOUGLAS 821 F.SuPP

Eads Fis, <cshsudacanntenaiicedeivnetieteildcniigla dice ncpeickainphiieauunendnebendinnts whan 9

WALLACH -V- LIBERMAN 366 F,2D 254.........ccscccseseeseeeeees 16

MERRILL -V- ADDISON 763 F.2D 80............sccsccssssseseesseees .16

HINES -V- KERNER EE Seens DEP iiensieensacnashassesenecereneiavesse 17

UNITED STATES CONSTITUTION;

ZWEIBON -V- MITCHELL 516 F.2D 594 CONSTITUTIONAL

LAW KEyY-45-

ROSEN -V- LOUISIANA STATE BD.MEDICAL EXAMINERS 380

F.Supp 875 CONSTITUTIONAL GUARANTEEG..........0ceccccceeeeee 16

DUE PROCESS CLAUSE, U.S. CONST. AMAND.V,XIV.......... XIV

Ex Post FACTO CLUSES, U.S. CONST. ART.I, ................0000+ ]

ix

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UNITED STATES STATUTES

29 U.S.C. Sec 2101(1)(2)

29 ULS.C. Sec 2102 (a)(1)(2)and (d)

29 U.S.C. Sec 2104 (a)(b)

29 U.S.C. Sec 2104 (5)(6)and (7)

F.R.A.P. RULE 44

28 U.S.C. 2403

FEDERAL PRACTICE DIGEST (STATUTES)

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POG Tes: RUUNT clbsatsanssisinidiiniciahasoakandacle tiie 12

SUPREME COURT DECISION

TRANS- AMERICA MORTGAGE ADVISIORS -V- LEwis 444

Ss gee tainctevhrntilaniinioniniatiinnatanneidapadinimabloimippuidins 13

UNITED FOOD AND COMMERCIAL WORKERS -V- BROWN SHOE

CR FE Pei aaseccbncsnnstvemensinaienilnabinnibandianniiminusine 14

NORTH STAR STEEL Co -V- CHARLES A. THOMAS AND

CROWN CorK & SEAL Co -vV- UNITED STEELWORKERS OF

AMERICA AFL-CIO-CLC.(Nos. 94-834 and 94-

MEYER -V- RIEGEL PRODUCTS Corp. 720 F.2D

«ARERR TT OT RETR Fie Ee DOT RTR 17

AYALA SERRANO -V-LEBRON GONZALEZ 904 F2D

nn SE SO Re IDET EE CON CeTT 17

SMITH -V- PITTSBURGH GAGE & SuppLy Co. 464 F.2D

IG A I i 17

NEW HAMPSHIRE STATUTES;

New Hampshire Labor & Employment in N.H. Issue 0

(1992) Employer Liability for Employees

Re csivistatssicidianiitianiansaiaias 2

Atlantic Stages, 78 NLRB 553 (1948)..............eceeeeeeeeeees l

\

xl .

Community for Creative Non-Violence v. Reid 490 U.S.

730, 751-752

ee ee chitatndlasktbnandtbiccachadsliae diab gla ached note

REGULATIONS

The Dept. of Labor's 20 C.F.R.639.3 Sec (b)(i)(j)

xii

PETITION FOR A WRIT OF CERTIORARI

Petitioner Allan Lewis and all similarly situated

employees from the Defendants N.H. operations respectfully

petition that a Wnit of Certiorari issue to review the February

5, 1998 decision of the United States Court of Appeals for

the First Circuit.

OPINIONS BELOW

The court of appeals decision dated February 5, 1998

has not yet been reported.

JURISDICTION

The court of appeals decision of which review is

sought was rendered in an opinion filed on February

5, 1998. This Court has jurisdiction to review the

judgment of the court of appeals by writ of certiorari

pursuant to 28 U.S.C. 1254(1).

xiii

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Fourteenth Amendment of the United States

Constitution provides in pertinent part

gives Congress the power to make laws. These laws

are made under the authority of the United States, and

shall be the Supreme Laws of the land.

29 U.S.C. 2101 Workers Adjustment And Retraining

Notification Act. is reproduced in partl in Appendix.

The Dept. of Labor's Regulation 20 C.F.R. 693 Final

Rule.(Workers Adjustment And Retrainin

Notification a

Act. is reproduced in part in Appendix.

New Hampshire Labor & Employment Employer

Liability for Employees Act is reproduced in part in

Appendix

XiV

STATEMENT OF THE CASE

Appellant filed suit against the defendant Textron for

violation of 29 U.S.C. 2101 (WARN). (See App.K) The

Appellee Textron announced to the employees in March of

1995 that the DN-5 Taurus and Sable contracts were not

renewed, and these production lines will close. As defined by

20 C.F.R. 639 .3 (j) The DN-5 Taurus and Sable operations

was an organizationally and operationally entity which

produced a distinct product, and work function. On 2 June

1995 Textron announced to the City of Dover N.H., that they

were closing their Dover N.H. operations and consolidating

them into their Farmington N.H. location.(See App.E) On

that same date of 2 June 1995 an all employees meeting was

held at the Farmington N.H. location to announce the

closing of the Dover Facility.(See App F,G,H) The closing

announcement was presented by Mr. Michael Weston,

President of the Textron's Interior's Division from Troy

Michigan. This announcement was an official public

notification of the Plant Closing, citing ATLANTIC

COS RE poe

ON RAN RI: ST

STAGES, 78 NLRB 553 (1948) " Employers are held

responsible for statements of supervisors" (See App. M)

After 2 June 1995 Textron laid off 75 employees

within a 30-day period making the layoffs subject to WARN

Notification,(See App.J App.K App. L Sec(2)(2) ) as

defined by 29 U.S.C. 2101 and 20 C.F.R. 639.3 Plant

Closing. Citing SAXION v. TITAN-C-

MANUFACTURING, INC. 86 F. 3d 553 (6th Cir. 1996).

"That on March 2, 1990 plant superintendent John

Sutton held a meeting to announce that the facility would

be closing permanently". The court found the plant

superintendent has the authority to announce a Plant

Closing (See App. M).

An important function of the Supreme Court is to

resolve disagreements among lower courts about specific

legal questions. Another consideration is the importance to

the public of the issue. The Supreme Court of The United

States has jurisdiction in this matter under Rule # 10(b) "a

state court of last resort has decided an important federal

question in a way that conflicts with the decision of another

state court of last resort or of a United States court of

appeals". The lower court has departed so far from the

accepted course of judicial proceedings, as to call for this

The Supreme Court of The United States to exercise it's

supervisory power.

The imperative public importance in this case is the

protection of the American Worker from being terminated

without notice. The Worker Adjustment and Retraining

Notification Act (WARN) provides protection to workers,

their families and communities by requiring employers to

provide notification 60 calendar days in advance of plant

closing. Advance notice provides American workers and

their families some transition time to adjust to the

prospective loss of employment, to seek and obtain

alternative jobs and, if necessary, to enter skill training or

retraining that will allow workers to successfully compete in

the job market.

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THE ARGUMENT.

The conflict in question is the decision rendered by

The New Hampshire District Court Granting Summary

Judgment to the Defendant (Textron) under WARN statutes,

(See App. C,D. Affirmed A,B). Against ALL other lower

courts decision on the same federal issue, 29 U.S.C. 2101

and the Dept. of Labor's 20 C.F.R. 639.3 (Plant Closing. ).

In all listed cases the defendant's announced the closing of a

facility or operating unit as defined by (20 C.F.R. 639.3)

(See App. L). Only The New Hampshire District court

allowed the defendant to submit business reasons for the

layoffs after a announced plant closing, which affected 50 or

more employees within a 30-day period. This is the issue

being raised before this Honorable Court. (See App. C.

affirmed App.A).

In framing this issue, this court must bear in mind

that exception from remedial acts are to be construed

narrowly, Olsen -v- Lake Country Inc., 955 F.2d 203,206

(4th Cir.1991).

Citing- Eloy Marques -v- Telles Ranch Inc No.C 93-20187

JW United States District Court, California. The first

issue to be addressed is whether there was a "shutdown"

"An employment action that results in the effective

cessation of production of the work performed by a unit,

even if a few employees remain, is a shutdown" 20 C.F.R.

639.3(b). Il. LEGAL STANDARDS--To preclude the

entry of summary judgment, the non-moving party must

bring forth "facts that might affect the outcome of the

suit under the governing law.... Appellant brought forth

a list of 75 employees who suffered an employment loss,

within a 30-day period after a announced plant closing,

from a single site of employment. 6) ee Ape. J),

Citing- CAROLYN FRYMIRE 858 F. Supp. 1081

(D.Colo. 1994 Labor Relations 7.1 In order to qualify for

WARN Act protection, plaintiffs must meet each of three

elements of threshold requirements: (1) 50 or more

employees: (2) suffered employment loss: (3) at single site

of employment. WARN Act 2 et seq.,29 USCA 2101 et

seq." Also citing United Mine Workers Intern.-v-

Harman Mining Co. 780 F.Supp. 375,377 (W.D.Va.1991).

Citing - John A. Pavao -v- Brown & Sharpe

Manufacturing Company Civ. A. No.CA-91-0292P

United States District Court D. Rhode Island, dated Feb.

18, 1994. 844 F. Supp 890. The court ruled that Plant

Closing occurring within the 30-day time period defined

by 29 U.S.C. 2101(a)(2), PLANT CLOSING

"CAUSATION" IS NOT RELEVANT. The "separate

and distinct action and causes" analysis applies only to

90-day plant closing proscribed by 29 U.S.C. 2102(d), not

to termination's of 50 or more employees occurring

within one 30-day period. Judge Boudewyns expressed

this very clearly: "All that WARN requires is the

shutdown of an operating unit or facility that "results in

" an employment loss; Whether or not other factors are

associated with the decision to layoff is besides the

point."

Citing - Oil Chemical And Atomic Workers -v- American

Home Products Corp. No. $91-50M. United States

District Court N.D. Indiana 790 F.Supp 1441 N.D. Ind

1992 Because the November layoffs were implemented

after the approval and announcement of the closure plan,

the court agrees with OCAW that a reasonable trier of

facts could infer that the November layoffs were part of

the plan and hence part of the plant closing.

Citing - James A. Washington -v- Aircap Industries

Corporation Civ.A. No.2:91-3153-18. United States

District Court South Carolina 831 Fed Supp. If the intent

of Congress is clear, that is the end of the matter: for the

court....must give effect to the unambiguously expressed

intent of congress... Regulations that are substantive and

promulgated by an agency pursuant to statutory

authority have the force of law. "The WARN Act

specifically directed the Department of Labor (DOL) to

prescribe such regulations as may be necessary to carry

out this Act 29 U.S.C, 2107.

Citing - Local Union 7107 -v- \linchfield Coal Company

No. 96-1731. United States Court of Appeals Forth

Circuit.-Labor Relations 7.1- Employer relying on

exception to WARN Act's ordinary requirement of sixty

day advance notice of plant closing or mass layoffs bears

the burden of persuasion. 29 U.S.C. 2101-2109: 20 C.F.R.

639.9. WARN Act is remedial legislation and thus, its

exceptions are construed narrowly.

Citing - Dennis Loehrer -v- McDonnell Douglas No.95-

3964. United States Court of Appeals, Eight Circuit

"Additionally, because unforseeable business

circumstances operate as an affirmative defense to

WARN liability, the employer bears the burden of

proving the existence of conditions giving rise to the

exception. General Dynamics, 821 F.Supp at 1311, 20

C.F.R. 639.9 (1996).

Citing - Jones -v- Kayser-Roth Hosiery, Inc No.Civ 3-89-

545 United States District Court E.D. Tennessee 748 F.

Supp 1276

Ill. BUSINESS CIRCUMSTANCE

EXCEPTION

The defendant contends that the closing of the

Harriman plant was caused by the irrevocable loss of the

JCP account, the plant's largest and most profitable

customer; that the loss of this business was not

reasonably foreseeable on April 26, 1989, the date that

notice would have been required; that, instead, the loss of

the JCP business was sudden, dramatic, and unexpected;

that KR provided plaintiffs with as much notice as was

practicable; and that it did not violate the notice

requirements of the WARN Statute.

29 U.S.C. 2102(b)(2)(A) provides that an employer

may order a plant closing or mass layoff before the

conclusion of the 60-day period if the closing or mass

layoff is caused by business circumstances that were not

reasonable foreseeable as of the time that notice would

have been required.

29 C.F.R. 639.9(b)(1) and (2) explain that an

important indicator of a business circumstance that is not

reasonably foreseeable is that the circumstance is caused

by some sudden, dramatic, and unexpected action or

condition outside the employer's control. A principal

client's sudden and unexpected termination of a major

contract with the employer, ... might ... be considered a

business circumstance that is not reasonably

foreseeable...

The test for determining when business

circumstances are not reasonably foreseeable focuses on

an employer's business judgment. The employer must

exercise such commercially reasonable business judgment

as would a similarly situated employer in predicting the

demands of its particular market.

The decisions rendered by the United States District

Court for the District of New Hampshire conflict with

decisions rendered by other Federal Courts on the

same Federal issue as cited from the Federal Practice

Digest.

Statute (key 239) Exemptions from remedial statutes are to

be narrowly construed. Markowitz -v- Northeast Land Co.,

906 F.2d 100.

D.D.C.1989. Remedial statutes is to be construed in

favor of those whom it was intended to protect. Wagner

Seed Co -v- Bush, 709 F.Supp. 249 affirmed 946 F.2d

918,292 U.S. App.D.C.44.

D.S.C. 1990 While remedial legislation should be

construed broadly to effectuate the purpose of the legislature,

this canon of statutory construction does not authorize court

10

to ignore the plain wording of the statute. Hines -v- United

Parcel Service Inc. 736 F.Supp 675.

Statute (key 219) C.A.10 1991. Considerable weight

must be given to agency's construction of statutory sections it

is entrusted to administer . Davis -v- Director, Office of

Worker's Compensation Programs, U.S. Dept. of Labor,

936 F.2d 1111

C.A. 10 1990. An administrative agency's interpretation

of a statute which the agency is entrusted to administer is

entitled to considerable deference by a reviewing court.

Bernstin -v- Sullivan, 914 F.2d 1359. Also Abramson -v-

Georgetown Consulting Group Inc 765 F. Supp 255,

affirmed 952 F.2d 1391.

C.A. 11 (Ala.) 1990 Court will accord great weight to

responsible agency's interpretation of a statute as manifested

in regulations. Alacare Home Health Service, Inc -v-

Sullivan, 891 F.2d 850. Also Omni Packing Inc. -v- U.S.

LN.S. 733 F.Supp 500.

11

C.A.5 (Tex.) 1989. Under the Administrative Procedures

Act, court may set aside agency action only if it is arbitrary,

Capricious, or an abuse of discretion: court is not to substitute

its judgment for that of the agency, and is to be extremely

deferential to agency's interpretation of its governing

legislation, 5 U.S.C.A. 7069(2)(A). Weisbrod -v- Sullivan,

875 F.2d 526.

N.D.N.Y. 1987 Court must upheld agency's reasonable

interpretation of statute that it is charged with administering.

Bersani -v- U.S. E.P.A. 674 F.Supp 405. affirmed 850

F.2d 36.

12

The decisions rendered by the United States District Court

for the District of New Hampshire conflict with decisions

rendered by the Supreme Court of the United States.

The Supreme Court has cautioned that where a

statute expressly provides a particular remedy or remedied,

the lower court must be chary of reading others into it.

Trans-America Mortgage Advisors, Inc v Lewis 444 U.S.

11,20,100 S.Ct 242,247,62 L. Ed.2d 146 (1979) 29 U.S.C.

2107 demands the use of 20 C.F.R. 639 to direct the WARN

notification.

The issues raised by the petitioner are identical to the

issues of Certiorari To The United States Court of Appeals

For The Eight Circuit with respect to United Food and

Commercial Workers v. Brown Shoe Company (No 95-

340) except we don't have a union. Supreme Court Justice

Souter reversed and remanded the lower courts decision.

The issues raised by this petitioner are identical to the

Issues raised on Writ of Certiorari to The United States Court

Of Appeals For the Third Circuit (Nos. 94-834 and 94-835).

13

North Star Steel Comp -v- Charles A. Thomas and

Crown Cork & Seal Co -v- United Steelworkers of

America, AFL-CIO-CLC

With some exceptions and conditions, (29 U.S.C.

2103 Sec.4. Exemptions.) WARN forbids an employer

of 100 or more employees to “order a plant closing or

mass layoff until the end of a 60-day period after the

employer serves written notice of such an order". 29

U.S.C. 2102(a). Supreme Court Justice Souter delivered

the opinion of the Court, in which Rehnquist, C.J.and

Stevens, O'Connor, Kennedy, Thomas, Ginsburg, and

Breyer, JJ., joined. Scalia, J., filed an opinion concurring

in the judgment.

Petitioner also requested The United States Court of Appeals

certify to the Attorney General Appellant's constitutional

question under F.R.A.P. rule 44, and was DENIED.

Appellant Allan Lewis requested that the court certify the

fact to the Attorney General that the Appellant is questioning

the judges failure to enforce a Congressional Enactment 29

U.S.C. 2101 and the Dept. of Labor's 20 C.F.R. 639.3 Final

rule. Under this rule the Clerk of Court thereupon must

certify such fact to the Attorney General. The 28 U.S.C.

2403 statute was designed to specifically provide the United

14

States with the right to participate in cases which might

otherwise, at the hands of private litigants, render acts of

Congress unenforceable without adequate protection of the

public interest. The history of this statue makes it clear that it

is the Attorney General who should decide whether, under all

the circumstances, intervention is advisable. Under 28 U.S.C.

2403, it is required that a District or Appeals Court, even

though it finds that a constitutional question is frivolous, give

notice to the Attorney General, leaving to him the decision

whether to intervene. Wallach v. Lieberman (1966, CA2

NY) 366 F2d 254, 10 FR Serv2d 747, 2 ALR Fed 969.

Certification under 28 U.S.C.S. 2403 (b) is the duty of the

court that should not be ignored, even if claim is obviously

frivolous or may be disposed of on other grounds. on

(Merrill v. Addison 985, CA2 NY) 763 F2d 80.

SUMMARY OF ARGUMENT.

Petitioner contends that the New Hampshire District

Court ruling is unconstitutional because it is in conflict with

Congress’ clear language and intent of the WARN Statute.

(29 U.S.C. 2101). Citing - Zweibon -v- Mitchell 516 F.2d

15

594 Constitutional Law-45- An unconstitutional practice,

no matter how inveterate, cannot be condoned by the

judiciary. (per Wright, Circuit Judge, with three

additional Judges concurring in the judgment). The

Supreme Court is final arbiter of constitutional

guarantees. Rosen -v- Louisiana State Bd. of Medical

Examiners, 380 F.Supp. 875, affirmed 95 S.Ct. 767, 419

U.S. 1098, 42 L.Ed.2d 795.

The Supreme Court has stated- that Pro se papers are

to be held to a “less stringent standard, Hines -v- Kerner

404 U.S. 519, 520 (1972)(per curium), than those drafted by

attorneys, e.g. Ayala Serrano -v- Lebron Gonzalez, 909

F.2d 8, 15 (1st Cir.1990) Pro Se pleading are to be liberally

construed in favor of the Pro Se party. The court must

resolve all reasonable doubt in favor of the non moving party

prior to awarding Summary judgment. Meyer -v- Riegal

Products Corp. 720 F.2d 303,307 n. 2 (3d

cir.1983),cert.dismd., 465 U.S. 1091, 104 S.Ct. 2144,79

L.Ed.2.d 910 (1984): Smith -v- Pittsburgh Gage &

Supply Co., 464 F.2d 870,874 (3d Cir.1972).

16

CONCLUSION

Based on the clear language and intent of Congress in

writing this legislation, WARN) 29 U.S.C. 2101 and the

regulations of the Dept.of Labor's 20 C.F.R. 639 covering

this Act, the Supreme Court of the United States must

exersise its supervisory powers to resolve the conflict

between two lower courts on the same Federal issue.

Petition for a writ of Certiorari should be Granted.

RESPECTFULLY

ALLAN LEWIS PROSE

I hereby certify that on this day of March 19,1998 a copy of

the foregoing was hand delivered to Attorney on file John

Alexander at One Capitol St Concord NH. and two others

sent by First Class mail to Attorney on file of Banta, Cox &

Hennessy 55 West Monroe Street, Suite 3500, Chicago IL

60603.

17

ee

Sa hi Fah SS! a

APPENDIX A

(NOT FOR PUBLICATION)

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

No. 97-1751

ALLAN LEWIS,

Plaintiff, Appellant

v.

TEXTRON AUTOMOTIVE INTERIORS AND JAMES D.

HOUSTON, Defendant, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE DISTRICT OF NEW HAMPSHIRE.

(Hon. James R. Muirhead, U.S. District Judge)

Before

Lynch, Circuit Judge,

Aldrich and Campbell, Senior Circuit Judge.

Allan Lewis on brief pro se. Don A.Banta, Ann L.Crane and

Banta,Cox & Hennessy on brief for appellees.

December 15,1997

A-1

Per Curiam. We have carefully reviewed the briefs

and record on appeal and affirm the judgment below. The

only issue the appellant argues in his brief, thus the only

matter before us, | is Whether there was a genuine issue that

a plant closing caused layoffs triggering the Worker

Adjustment and Retraining Notification Act. 29 U.S.C.

2101-2109. When the appellee presented evidence that a

plant closing did not cause the layoffs of which the appellant

complained, it was incumbent upon the appellant to adduce

contrary evidence. Celotex Corporation v. Catrett, 477 U.S.

317, 323 (1989). He did not do 80.

Affirmed. Loc. r.27.1.

1 See United States v. Zannino, 895 F.2d 1,17 (1st Cir.

1990).

‘ Accordingly, appellant's motion for attorney's fees and

pre-argument conference are also denied

A-2

RIND na aaa” SN Wh A URNS nce

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

No. 97-1751

ALLAN LEWIS,

Plaintiff, Appellant

v.

TEXTRON AUTOMOTIVE INTERIORS AND JAMES D.

HOUSTON, Defendant, Appellees.

Before

Lynch, Circuit Judge,

Aldrich and Campbell, Senior Circuit Judge.

ORDER OF COURT

Entered February 5, 1998

After due consideration, the appellant's petition for

reconsideration is DENIED. We previously considered all

relevant points raised. Accordingly, appellant's pending

motion for relief from judicial abuse, an investigation of the

constitutionality of the Worker Adjustment and Retraining

Notification Act and a stay pending investigation are also

DENIED.

By the Court

PHOEBE MORSE

CLERK.

B-1

APPENDIX C

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Allan Lewis

Vv. Civil No. 96-185-JM

Davidson Rubber Co Inc et al

ORDER

As matters now stand, this action involves pro se

plaintiff Allan Lewis's allegation that defendant Textron

Automotive Company violated the Workers Adjustment and

Retraining Notification ("WARN") Act, 29 U.S.C. 2101 et

seq., when it failed to provide written notice to certain

employees (including plaintiff) who were let go in and

around June 1995. A number of motions, including the

parties, cross-motion for summary judgment, are presently

pending.

Because plaintiff's pleading were not entirely clear as

to the exact layoffs on which his claim is premised, and

because discovery had not yet closed, the court felt

somewhat ill-equipped to decide the summary judgment

C-]

a

le ie ee ee ee

on, aaa ID ath SO LLDPE OTE EL SEES.

BME Coie

ee Eee

motions as they were initially presented. Accordingly, the

court issued as order (dated April 16,1997) directing (1)

plaintiff to file a submission specifying the layoffs

underlying this lawsuit, and (2) defendant to file a responsive

submission explaining the reason for each and every layoff

specified by plaintiff. Pursuant to this order, plaintiff filed

under seal a list of 75 layoffs--all made in June 1995-- on

which his pleaded claim is based. But see infra at note 2.

Defendant them filed a responsive statement averring under

oath that (1) each of these 75 employees was laid off for

business reasons “unrelated to the plan to consolidate the

Dover and Farmington production operations", and (2)

delineating the business reason for each layoff. Thereafter,

on May14,1997, the court held a hearing on the pending

motions and the recent submissions.

At the hearing, the parties first stipulated that

discovery is closed and that the pending motions are ripe for

resolution. Next, defendant orally agreed to withdraw its

motion for leave to file a counterclaim in the event that its

summary judgment motion is granted. The court then asked

plaintiff whether he had any evidence to counter defendant's

C-2

sworn assertion that the layoffs at issue were made for

various reasons unrelated to the plant closing. Plaintiff

responded that he had no such evidence. ! Instead, plaintiff

made clear that he reads the Act's requirements as being

activated whenever a company decides to close a plant and

thereafter lays off from that plant 50 or more employees

within any 30-day period. See 29 U.S.C. 2101 (a) (2).

Although plaintiff's position has intuitive appeal, it

overlooks the fact that the WARN Act protects only

employees "affected" by a plant closing, see 29 U.S.C. 2102

(a) (1), and defines the term "affected employees" as an

employee "who may reasonably be expected to experience an

employment loss as a consequence of a proposed plant

closing," 29 U.S.C. 2101 (a) (5) (emphasis supplied). In

other words, the Act protects only those who lose their

employment because of the plant closing: it does not protect

those who lose their employment for ~ sons unrelated to the

plant closing.

l , ee

The court assumes that, in so responding, plaintiff

meant that he had no such evidence other than the press

clippings, attached to his motion for summary judgment,

C-3

ee ee ee

PBR ARR OPE ls Do

rer a an

which (if deemed to be admissible evidence) tend to show

that defendant had decided to close its Dover facility prior to

the time the layoffs at issue in this case were made.

See Oil Chemical and Atomic Workers Int’ Union v.

American Home Prods. Corp., 790 F.Supp. 1441,1445-47

(N.D. Ind. 1992), cf.Alter v. SCM Office Supplies,Inc., 906

F.Supp. 1243, 1250-51 (N.D. Ind. 1995).

Here, defendant has introduced credible and

admissible evidence that the 75 layoffs of which plaintiff

complains (including plaintiff's own layoff) were made for

reasons unrelated to the closing of the Dover plant. In so

doing, it has met its Rule 56 burden of adducing evidence

that there is no genuine issue of material fact as to whether

its failure to give statutory notice to the employees affected

by these layoffs violated the WARN Act. See Fed.P Civ.

P.56(b), (c), and (e). Plaintiff therefore was obliged to go

beyond the mere making of contrary allegations and to set

forth specific facts showing that there is a genuine issue for

trial. Fed. R.Civ.P. (f). Plaintiff did not do so. Accordingly,

the court awards defendant summary judgment See ia?

C-4

‘ The court is aware that plaintiff has recently moved for

leave to file a supplemental pleading so as to expand the list

of layoffs affected by the plant closing to include those

For the reasons stated, the court grants defendant's

motion for summary judgment (document no.35) and denies

plaintiff's motion for summary judgment (document no.44)

and for leave to file a supplemental pleading (document no

74). Defendant's motion for leave to file a counterclaim

(document no.53) is denied in accordance with defendant's

representation at the May 14, 1997 hearing. Finally,

plaintiff's motion for punitive damages (document no. 56 is

denied.

The Clerk is directed to close this case.

SO ORDERED.

James R. Muirhead

United States Magistrate Judge.

Date: May 20,1997

cc: Allan Lewis, pro se

John T. Alexander, Esq.

Don A. Banta, Esq.

C-5

Farmington employees who were "bumped" by senior Dover

employees transferred io Farmington. Because, for the reason

stated above, plaintiff has not and will not be able to

establish that he himself was laid off as part of a plant

closing, he dose not have standing to assert the claims of any

other Textron employee under the WARN Act. The court

therefore denies plaintiff's motion on grounds of futility. See

Foman v. Davis, 371 U.S. 178,182 (1962).

C-6

APPENDIX D

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Allan Lewis

v. Civil No. 96-185-JM

Textron Automotive Interiors

ORDER

The argument plaintiff appears to make in his motion

for reconsideration-- that the balancing out of the Taurus and

Sable armrest and console product manufacturing operations

constituted the closing of a separate “operating unit" within

the meaning of the WARN Act, see 29 U.S.C. 2101 (a) (2)--

is untimely. And even if it were timely, the record evidence

is insufficient to support a finding that said balancing out

constituted the closure of "an organizationally or

operationally distinct product, operation or specific work

function within or across facilities at the (Dover) site.” 20

C.F.R. 639.3(j) (defining "operating unit"). Accordingly, I

deny the motion (document no.77).

SO ORDERED James R. Muirhead

United States Magistrate Judge

Date June 2,1997 .

D-1

rn. +

APPENDIX E

DOVER ECONOMIC DEVELOPMENT CORP.

MEMO

To: DEDC Board Members

From: Beth Thompson

Date: June 2,1995

Re: Textron Consolidation

Renny Perry, Steve Stancel, Mike Joyal and I met with 3

officials front Textron: Denny Houston, Vice President of

Operations; Joe Paul, Vice President of Human Resources

from Detroit; and Randy Lund, Human Resources Manager.

We were informed that within the next 18-26 months,

Textron will be consolidating its Dover manufacturing

facility to its Farmington location.

The Farmington facility is newer and better able to handle

the needs of the newer manufacturing processes. The

injection molding process requires higher ceiling which are

not available in Dover. Additionally, Textron owns enough

land in Farmington to expand if there is ever the need.

With both facilities operating at less that 50% capacity, they

feel they can't maintain the overhead of two underutilized

building.

Nine hundred people currently work at the manufacturing

facility. Except for 75 salaried employees, between 800 and

850 people will continue to have jobs. Textron is hoping to

accomplish the layoffs through natural attrition. They feel

that between the senior employees and those that chose not to

E-]

commute to Farmington this reduction can be accomplished

without layoffs.

For any layoffs that do result from the consolidation, Textron

has committed to helping the employees find alternative

employment (although not retraining) and would take any

help from us that we have to give.

The ATC Technical Center and the Tooling Center which

both employ approximately 90 employees each will remain

in Dover.

Regarding the facility itself, Textron does not yet know what

it will be doing building which is approximately 300,000 sf.

They will have a better idea later as the move progresses.

They anticipate using some of the building for storage as

they begin the move.

Asked if the City could help market this building, Textron

said they would be willing to entertain some ideas when the

time is right. However, the decisions would come from

corporate but they were sure they would take any help they

could get. The feel building could be subdivided and has

some very good office areas.

Public Transportation to and from the Farmington facility

was brought up. Textron would be interested in having

COAST run some routes between Dover and Farmington and

would likely subsidize it for their employees for a couple of

years. Apparently, there are businesses in Farmington and

Dover which have expressed interest in the same thing in the

past. We will set up a meeting with COAST to explore this

issue.

The current layoffs at the plant are part of the cyclical

automotive market. This is something that has been going on

E-2

peat ARTO ren = val oe aiaaatianains

over the years. In the past couple of weeks 64 people have

already been let go with about 60 or 70 more layoffs

anticipated. Because of the cyclical nature of these layoffs,

Textron does not consider this a permanent reduction.

We also discussed the Elan Service Packaging Company

from Georgia. Textron feel that they may not be able to

make the figures work for this guy but that he was creative

enough to do some good business in this area. They have not

ended discussion with him but urged us to continue working

with him because of the good things he could offer in this

area.

I will be sure to keep you updated on events in this regard as

we hear more from Textron.

APPENDIX F

EMPLOYMENT

SECURITY

32 South Main Street Concord N.H.

03301-4857

March 20, 1996

Al Lewis

86 Chestnut Hill R.d.

Rochester N.H. 03867

Dear Mr. Lewis

The following information comes from a spreadsheet

prepared by the NH Job Training Council. Until July of

1995, that agency was responsible for the Rapid Response

program.

The spreadsheet shows that NHJTC was notified of

upcoming layoffs at Textron on April 7 1995. At that time,

the total number of employees is listed as 1100. The number

of employees laid off during the period of 5/ 95 to 7/ 95 is

listed as 150.

I am enclosing a copy of the Guide to Advance Notice of

Closing and Layoffs, for your information

Sincerely

Donald P. Kelley

Programs Technician.

F-]

APPENDIX G

NEW HAMPSHIRE JOB TRAINING COUNCIL

April 12, 1996

Mr. Allan Lewis

86 Chestnut Hill R.d.

Rochester, N.H. 03867

Dear Mr. Lewis,

I as writing this letter in response to our phone conversation

on April 11th. A Rapid Response Orientation from the New

Hampshire Dislocated Worker Unit was held on May

19,1995 for the workers at Textron Automotive Interiors in

Dover, New Hampshire. The company was targeted, and all

of the services were provided by our staff at New Hampshire

Job Training Council.

I hope this information is adequate to meet your needs. If I

can be of any further assistance, please call me.

Sincerely

Robert A. Stephen, Director

Workforce Development

RAS/do

cc. Ray O. Worden, Executive Director.

APPENDIX H

STATE OF NEW HAMPSHIRE

DEPARTMENT OF RESOURCES AND ECONOMIC

DEVELOPMENT, OFFICE OF BUSINESS AND

INDUSTRIAL DEVELOPMENT CONCORD N.H.03301

September 26, 1996

Allan Lewis

86 Chestnut Hill R.d.

Rochester, N.H. 03867

Dear Mr. Lewis

I as responding to your phone inquiry about what my

understanding was relative to the closing of the Dover

facility of Textron

You specifically asked me if it.was my impression that the

Dover operation would eventually be closed and the

workforce consolidated into the Farmington plant.

My response to you was that in-as-much as that was the

course of action outlined by the company in their press

statements, it was my understanding that this was what was

going to occur.

Sincerely

Willam E. Pillsbury, Jr.

Director

H-1

Pee i

ARR FON A eee ee Peet Re

APPENDIX I

NEW HAMPSHIRE BUSINESS REVIEW

N.H. 'S ONLY STATE WIDE NEWSPAPER

Dated June 9-22, 1995

SPACE APLENTY

Textron's move from Dover leaves 277,200 square feet

available to businesses looking for room

Textron is closing a massive (277,200 square feet) plant in

Dover, but the city may soon prosper in the space business.

No, not with astronauts from Houston or Cape Canaveral.

The city may be able to attract another business or businesses

to the space, said state Business and Development Director

Willam Pillsbury, in an effort to fine a silver lining in

Textron move.

The company is not going far. The move is a consolidation

with its operations in nearby Farmington, while its research

and development branch in Dover will stay put. Still, that

much empty space will mean at least a temporary decline in

the tax base for Dover and an estimated 75 salaried

employees will lose their jobs. Textron laid off 64 employees

two weeks earlier.

Companies are looking for available space and are having

trouble finding it, Pillsbury told the Union Leader. " We'll be

ready to work with Textron on helping them identify

potential tenants for that facility, if they are so inclined"

Textron officials have said they're not sure what the company

will do with the building.

I-1

APPENDIX J

UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Allan Lewis Plaintiff

Vv

Civil Action N0.96-185-JM

Textron Automotive Interiors Defendant

PLAINTIFF 'S STATEMENT IDENTIFYING THE

SPECIFIC LAYOFFSTHAT WERE MADE IN

VIOLATION OF THE WARN ACT.

PUBLIC LAW 100-379-AUG.4, 1988 29 USCS 2101

(WARN) SEC.5. ADMINISTRATION AND

ENFORCEMENT OF REQUIREMENTS.

(a) CIVIL ACTION AGAINST EMPLOYERS.- (1)

Any employer who orders a plant closing or mass layoff in

violation of section 3 of this Act shall be liable to each

aggrieved employee who suffers am EMPLOYMENT LOSS

as a result of such closing or layoff.

SEC 2 DEFINITIONS; EXCLUSION FROM DEFINITION

OF LOSS OF EMPLOYMENT

(6) subject to subsection (b), the term ‘employment

loss' means (A) an employment termination, other than a

J-1

eva ee ee

Te ee te ee, ee ae

discharge for cause, voluntary departure , or retirement, (B) a

layoff exceeding 6 months, or (C) a reduction in hours of

work of more that 50 percent during each month of any 6-

month period.

The following individuals experienced an employment loss

as a result of the employer not complying with Section 3 of

WARN. Anemployment loss at a site of employment

during any 30 day period following a closure announcement,

affecting 50 or more employees, excluding part time

employees, triggers the 60 day notification mandated by

WARN.

EMPLOYEE DATE OF| DATE

HIRE | TERMINA

TED

MICHAUD, APRIL L 4/3/94 6/1/95

JACKSON, WENDELL L 12/20/93 6/1/95

LASTER, WILLAMS O 3/26/95 6/23/95

GARLAND, VALERIE M 12/2/93 6/9/95

AHIER, LOUISE M 7/14/93 6/9/95

KIM , NANNA 6/26/94 6/1/95

POLIQUIN, DANNY S 6/26/94 6/1/95

GAUDETTE, TERRRY R 11/22/93 6/1/95

PARE, TONYA A 9/22/93 6/1/95

) WEATHERSPOON, MELVIN | 7/24/94 6/1/95

) C

| BOUNPHAKHOM, 9/1/93 6/1/95

) KHINTHA VONE

COLE, TRACY L 12/20/93 6/1/95

HANCOCK, MICHAEL E 1/10 94 6/2/95

LAUZE, KEVIN P 5/31/93 6/3/95

SOUCY, DINA M 2/22/94 6/3/95

J-2

BERUBE, DAVID J 7/26/93 6/4/95

SAWYER, KEITH W 9/22/93 6/4/95

YORK, HAROLD M 12/20/93 6/4/95

BERG, EDWARD D 12/20 93 6/4/95

CHOI, MICHAEL P 2/27/94 6/4/95

LANDRY JR, REO J 6/13/94 6/4/95

PETTIS, BETTY J 6/13/94 6/4/95

JACKSON, MARC R 6/13/94 6/4/95

DONALD, KENNETH F 2/6/94 6/4/95

LEMAY, LISA A 7/10/94 6/4/95

MILLER, WILMA L 7/31/94 6/4/95

KIMBALL, ROBERT N 12/6/93 6/9/95

BROCHU, ROY D 1/10/94 6/9/95

TERZOL, LAURENCE A 2/13/94 6/10/95

HILL, NICOLE E 3/1/93 6/21/95

MCGRARRY JR,HAROLD 8/7/94 6/16/95

PERRY, SEAN P 12/13/93 6/1/95

ROSE, ERIKA L 8/28/93 6/2/95

GARVIN, ERIC J 6/19/94 6/1/95

GUPTA, SANTOSH K 10/18/93 6/1/95

WALTERS, RICHARD C 8/12/93 6/2/95

HEMANDEZ, HECTOR 8/30/93 6/21/95

HUSSEY, KEITH J 8/25/93 6/30/95

MORGAN, JAMIE A 8/30/93 6/30/95

MONAHAN, THOMAS J 8/16/93 6/15/95

COUTURE, FAYLENE C 10/10/93 6/1/95

NEWHALL, HEATHER D 11/27/94 6/1/95

TWOMBLY JR, ROBERT E 3/13/94 6/2/95

HERSEY, BLAIR P 12/6/93 6/2/95

STICKLES, RITA M 8/21/94 6/4/95

JACOBS, GERTRUDE F 12/18/94 6/4/95

WETZEL.CHARLES L 12/11/94 6/4/95

J-3

seta ths

e.

ROSS, KEITH A 11/20/94 6/4/95

COYNER, MARK T 8/23/93 6/9/95

BARLOW, GEORGE W 9/7/93 6/9/95

POND, DIANA L 1/24/94 6/10/95

JUDD, ALEXANDER J 12/20/93 6/12/95

VONGSA, LAONG D 7/6/93 6/12/95

SARAVONG, TITI 10/26/92 6/16/95

MORSE, DAVID A 8/16/93 6/16/95

CHORMAN, WILLAM P 8/30/95 6/16/95

ORDWAY, KEITH D 10/11/93 6/16 95

GERVAIS, TROY M 10/18/93 6/16/95

SULLIVAN, TIMOTHY J 9/20/93 6/16/95

GAEDTKE, LARRY J 6/7/93 6/22/95

VANNASENG, LYLY 8/2/93 6/23/95

LEWIS, ERIC W 8/3/93 6/23/95

KNIGHT, BRENDA M 10/4/93 6/23/95

DENNIS, WHIT C 11/20/94 6/23/95

KOPASKY, KENNETH J 11/27/94 6/23/95

BLACK, MATHEW J 1/31/94 6/8/95

HOWARD, DAVID B 2/6/94 6/9/95

CUNNINGHAM, LUCILLE 8/16/93 6/16/95

A

MARSHALL, KIMBERLY J 12/18/94 6/4/95

ELLIOT, ALLEN R 8/16/93 6/14/95

HOUGHTON, CHARLES T 2/6/94 6/16/95

GARNETT, CHRISTINE 8/23/93 6/16/95

DESROSIERS, CLAIRE A 9/21/88 6/23/95

JANIS, JOAN M 11/14/88 6/30/95

LEWIS, ALLAN W 8/23/93 6/30/95

APPENDIX K

PUBLIC LAW 100-379-AUG,4 1988

Workers Adjustment and Retraining Notification Act

Business and industry. Employment and unemployment 29

U.S.C. 2101.

29 U.S.C. 2101 Sec. 2 DEFINITIONS; EXCLUSIONS

FROM DEFINITION OF LOSS OF EMPLOYMENT.

(a) Definitions.- As used in this Act-

(2) the term "plant closing" means the permanent or

temporary shutdown of a single site of employment, or one

or more facilities or operating units within a single site of

employment, if the shutdown results in an employment loss

at the single site of employment during any 30-day period for

50 or more employees excluding ant part-time employees;

(6) Subject to subsection (b) the term "employment

loss" means any employment termination other than a

discharge for cause,voluntary departure or retirement, (B) a

layoff exceeding 6 months or (C) a reduction in hours of

work of more than 50 percent during each month of any 6

month period:

(7) the term "unit of local government” means any

general purpose political subdivision of a State which has the

power to levy taxes and spend funds, as well as general

corporate and police powers.

Sec.3. NOTICE REQUIRED BEFORE PLANT CLOSING

AND MASS LAYOFFS. 29 U.S.C. 2102.

(A) Notice to Employees, State Dislocated Workers

Units and Local Governments,-- An employer shall not order

a plant closing or Mass layoff until the end of a 60-day

K-1

period after the employer serves written notice of such an

order-

(1) to each representative of the affected employees as of the

time of the notice or, if there is no such representative at that

time, to each affected employee; and

(2) to the State dislocated workers unit (designated or created

under title 111 of the Job Training Partnership Act) and the

chief elected official of the unit of local government within

which such closing or layoff is to occur.

Sec.4. EXEMPTIONS. 29 U.S.C. 2103

This Act shall not apply to a plant closing or mass

layoff if--

(1) the closing is of a temporary facility or the closing

or layoff is the result of the completion of a particular project

or undertaking, and the affected employees were hired with

the understanding that their employment was limited to the

duration of the facility or the project or undertaking; or

(2) the closing or layoff constitutes a strike or

constitutes a lockout not intended to evade the requirements

of this Act. Nothing in this Act shall require an employer to

serve written notice pursuant to section 3(a) of this Act when

permanently replacing a person who is deemed to be an

economic striker under the National Labor Relations Act:

Provided, That nothing in this Act shall be deemed to

validate or invalidate any judicial or administrative ruling

relating to the hiring of permanent replacements for

economic strikers under the National Labor Relations Act.

Sec.5 ADMINISTRATION AND ENFORCEMENT OF

REQUIREMENTS. 29 U.S.C. 2104

(A) Civil Actions Aginst Employers.--(1) Any

employer who orders a plant closing or Mass layoff in

violation of section 3 of this Act shall be liable to each

K-2

aggrieved employee who suffers an employment loss as a

result of such closing or layoff

(5) A person seeking to enforce such libility,

including a representative of employees or a unit of local

government aggrived 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.

(6) In any such suit, the court in its discretion, may

allow the prevailing party a reasonable attorney's fee as part

of the cost.

(7) For purpose of this subsection, the term,

"aggrieved employee" means an employee who has worked

for the employer ordering the plant closing or mass layoff

and who, as a result of the failure by the employer to comply

with section 3, did not receive timely notice either directly or

through his or her representative as required by section 3.

(b) Exclusivity of Remedies.--The remedies provided

for in this section shall be the exclusive remedies for any

violation of this Act. Under this Act, a Federal court shall not

have authority to enjoin a plant closing or mass layoff.

Sec.8. AUTHORITY TO PRESCRIBE REGULATIONS.

(a) The Secretary of Labor shall prescribe such

regulations as may be necessary to carry out this Act. Such

regulations shall, at a minimum, include interpretative

regulations describing the methods by which employers may

provide for appropriate service of notice as required by this

Act.

ae a: eer eed

SS ete

APPENDIX L

THE DEPARTMENT OF LABOR'S FEDERAL REGISTER

Vol. 54.No 75/ Thursday, April 20, 1989/ Rules and

Regulations.

The Dept. of Labor's Federal Register 20 C.F.R. 639 Final

Rule (b) Section 639.3 (b) Definition of Plant Closing. This

section closely replicates the statutory definition of the term

"plant closing" and applies the definition to other WARN

requirements. There were few comments on the regulatory

language itself, and they supported the approach taken.

A comment made in the preamble to the proposed

regulations, suggesting that a plant closing occurs only where

the threshold number of workers are terminated or laid off as

a direct result of one or more plant closing, did however,

draw considerable comment. A number of commenters

supported this interpretation. Several commenters opposed it,

pointing to the structure of the statutory language. DOL has

revisited this issue and has decided to revise its earlier

position. Section 2 (a)(2) of WARN defines plant closing as

the permanent or temporary shutdown of *** one or more

facilities or operating units*** if the shutdown results in an

employment loss during any 30-day period for 50 or more

employees*** This language, particularly the use of the

words "results in" contemplates that BOTH employment

losses of the employees who work in the facility(s) or

operating unit(s) and those who lose their jobs as the direct

result of the shutdown(s) are to be counted in determining

when a plant closing has occurred. Thus, for example, if the

45 workers computer data entry department at a plant is

closed and, as a direct result of that closing (and within 30

days of the closing), 5 computer programmers also are

terminated, a covered plant closing has occurred. Another

commenter suggested that a series of closing or layoffs

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should be considered a plant closing or mass layoff" only if

each stem from the same business decision, personal action

or other distinct cause" where no distinct cause accounts for a

threshold number of employment losses there is no WARN

coverage. DOL, disagrees with this interpretation. WARN

Section 2(a)(2) and (3) say nothing about cause. Under the

language of those provisions, one merely counts up all the

employment losses that occur in a 30-day period to

determine coverage.

Section 639.3(j) Definition of Facility or Operating Unit

The regulations adopt common sense definitions of

the term "Facility and Operating unit" within a single site of

employment. These terms are important for determining

whether a plant closing has occurred. DOL has defined these

terms in a manner which attempts to define physically and

operationally distinct entities for purposes of determining

wheather a plant closing, the shutdown of a distinct entity,

has occurred.

The DOL agrees that only distinct structural or operational

entities within a single site of employment are intended to be

included as operating units. The definition revised reads; "an

organizationally or operationally distinct product, operation

or specific work function.

The reason for the use of the term "operating unit" in WARN

is to apply the protection of the law to small units of workers

in a larger plant when their units are closed.

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APPENDIX M

LABOR & EMPLOYMENT IN N.H. ISSUE 2 (1994)

EMPLOYER LIABILITY FOR EMPLOYEES' ACTS

9-3 RESPONSIBILITY FOR ACTS OF SUPERVISORS.

Usually , employers are held responsible for acts and

statements of supervisors which interfere with the rights of

employees. This may be so even if the conduct occurs

outside of the supervisor's responsibilities and even if the

conduct is not specifically authorized.