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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1998
- **Citation:** 523 U.S. 1121

## Text

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
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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

L-1

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386006_1327%3A1. Public record. Not legal advice.