Petition for Writ of Certiorari — North Star Steel Co. v. Thomas

Supreme Court brief1995

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No.

IN THE

Supreme Court of the Wunited States

OCTOBER TERM, 1994

NORTH STAR STEEL COMPANY,

Petitioner.

Vv.

CHARLES A. THOMAS, et a/..

Respondents.

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Third Circuit

PETITION FOR WRIT OF CERTIORARI

VINCENT CANDIELLO *

MORGAN, LEWIS & BOCKIUS

417 Walnut Street

Harrisburg, PA 17101-1904

(717) 237-4014

WAYNE D. RUTMAN

MORGAN, LEWIs & BOCKIUS

2000 One Logan Square

Philadelphia, PA 19103

(215) 963-5098

Attorneys for Petitioner

November 7, 1994 * Counsel of Record

ON NE

WILSON - Eres PrintinGc Co., Inc. - 789-0096 - WASHINGTON. D.C. 20001

QUESTION PRESENTED

Whether, in actions brought under the federal Worker

Adjustment and Retraining Notification Act, the appli-

cable limitations period should be drawn from Section

10(b) of the National Labor Relations Act rather than

state law.

(i)

PARTIES TO PROCEEDINGS BELOW

AND RULE 29.1 STATEMENT

Petitioner/Defendant Below

North Star Steel Company (“North Star”) is a wholly-

owned subsidiary of Cargill, Inc., which is a privately-held

corporation. None of Cargill’s shareholders is itself a

publicly-traded entity.

Respondents/Plaintiffs Below

Respondents are Charles A. Thomas; Darren Boop;

Robert W. Bower; William D. Bridge; James Clingan;

Neil B. Housner; Jonathan L. Noaker; Wayne D. Orner;

Gerald W. Ranck; Harold E. Van Sickle, Jr.; Richard A.

Winter; and Eugene L. Witmer, Sr.

TABLE OF CONTENTS

Page

eee ee eee v

EE LE 1

LET 1

STATUTORY PROVISIONS INVOLVED .................... 2

pease OF THE CASE .................................... 2

I. The North Star Plant Closing And Previous

Sa 2

II. The Proceedings Below ..0.......00..000-cecccccccccecee------ 3

REASONS FOR GRANTING THE PETITION .......... 5

I. THE THIRD CIRCUIT’S REFUSAL TO BOR-

ROW THE SECTION 10(b) LIMITATIONS

PERIOD FOR WARN ACTIONS CONFLICTS

WITH THE RULINGS OF THE FIFTH AND

SIXTH CIRCUITS AND AGGRAVATES A

GROWING SPLIT IN AUTHORITY AMONG

eee eee COURTS 5

II. RESOLUTION OF THE QUESTION PRE-

SENTED BY THIS PETITION IS VITALLY

Cee cesduumesnenseumeers 8

A. WARN Needs a Final, Uniform Limitations

ESS EES 8

B. The Current Limitations Borrowing Doctrine

Is Flawed and Should Be Re-examined _........ 10

lil. THE DECISION OF THE THIRD CIRCUIT IS

ERRONEOUS UNDER EXISTING SUPREME

COURT PRECEDENT .......................................... 13

A. The Framework of the Limitations Debate... 14

(iii)

TABLE OF CONTENTS-—Continued

B. The Third Circuit Misapplied DelCostello and

Be TN Socios eat eceatlabemaneiginseon 15

1. WARN is “closely analogous” to the

NLRA, and dissimilar from any poten-

tial state statutes of limitations ................ 16

a. WARN and the NLRA impose parallel

notification requirements on employers

and are structurally similar -............... 16

b. The close relationship between WARN

and the NLRA has been recognized by

all three branches of government ....... 17

e. The Third Circuit erroneously dis-

counted WARN’s _interrelationship

NTI: TD FIG rienrecdenntessiesincntnenncnscsones 18

d. The Third Circuit erred by applying

Pennsylvania law without finding any

analogy between WARN and the ap-

plicable state limitations periods ......... 20

2. The federal interests at stake in the quick

resolution of labor disputes support re-

versal of the Third Circuit’s decision ....... 22

a. Congress and the courts repeatedly

impose short limitations periods in

federal labor matters ............................ 22

b. A short limitations period is equally

appropriate for WARN ..................... Re 23

3. The Third Circuit erroneously discounted

the danger of forum shopping ................... 26

CPR TORII iss issicccsitndiichan shabbat eapsdaaiaiaalan Tessie 28

TABLE OF AUTHORITIES

CASES Page

Agency Holding Corp. v. Malley Duff & Assocs.,

joe 6d ee Os) ee 9, 10-11, 15

Aluminum, Brick & Glassworkers Int’l Union Local

674 v. A.P. Green Refractories, Inc., 895 F.2d

TE I ss ces 15

Automobile Mechanics’ Local No. 701 v. Santa Fe

Terminal Servs., Inc., 830 F. Supp. 432 (N.D.

SSRN ARC ESET ESS a va 6

Campbell v. City of Haverhill, 155 U.S. 610

INN Esti cea toric hseciapeatasatcacaka te eececnnlecskcen aides eerie 10

Cureington v. General Dynamics Corp., No. 93-

1680 (N.D. Tex. 1993), aff’d, sub nom. Halkias

v. General Dynamics Corp., 31 F.3d 224 (5th

Cir.), en bane rehearing granted, Nos. 93-1664,

93-1680, 93-8204, 1994 WL 520351 (5th Cir.

ne eo secaisene 6

Damron v. Rob Fork Mining Co., 739 F. Supp. 341

(E.D. Ky. 1990), aff'd, 945 F.2d 121 (6th Cir.

| PRESS SU ree ct oni i a 18

DelCostello v. International Brotherhood of Team-

CM aS A RG passim

Dubuque Packing Co., 303 N.L.R.B. 386 (1991),

review granted in part, enforcement granted in

part, remanded, 1 F.3d 24 (D.C. Cir. 1993), cert.

dismissed, 114 S. Ct. 2157 (1994) ........... SSO 16

Frymire v. Ampex Corp., 821 F. Supp. 651 (D.

ESSA» SRD oe 7

Haggerty v. USAir, Inc., 952 F.2d 781 (3d Cir.

CRE AE Sere ee NP en Te ea 15, 21, 23

Halkias v. General Dynamics Corp., 825 F. Supp.

123 (N.D. Tex. 1993), aff’d, 31 F.3d 224 (5th

Cir.), en banc rehearing granted, Nos. 93-1664,

93-1680, 93-8204, 1994 WL 520351 (5th Cir.,

a at LA AN a Tl oat passim

Hugh H. Wilson Corp. v. National Labor Relations

Bd., 414 F.2d 1845 (8d Cir. 1969), cert. denied,

er I a emecnaeie 20

Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gil-

bertson, 501 U.S. 350 (1991) «0.000.000... 11, 15, 22, 26

TABLE OF AUTHORITIES—Continued

Page

Lloyd v. United States Dep’t of Labor, 637 F.2d

1267 (9th Cir. 1980) RAEN nae Se 23

McCluny v. Silliman, 28 U.S. (3 Pet.) 270 (1830)... 10

National Labor Relations Bd. v. Columbia Univ.,

osm A f fee Rea o neeenaaae 20

Newspaper & Mail Deliverers’ Union v. United

Magazine Co., 809 F. Supp. 185 (E.D.N.Y.

5) Maa eS LEE yA. IIE, AS Rea ee 6,17

Norris v. Wirtz, 818 F.2d 13829 (7th Cir.), cert.

denied, 484 U.S. 948 (1967) _............................. 12

Occidental Chem. Corp. v. International Chemical

Workers Union, 853 F.2d 1310 (6th Cir. 1988).. 23

Occidental Life Ins. Co. v. Equal Employment Op-

portunity Comm’n, 432 U.S. 355 (1977) ...00000..... 14

Penntech Papers, Inc. v. National Labor Relations

Bd., 706 F.2d 18 (1st Cir.), cert. denied, 464

ThE. SE nahi satan eaieieen oo... 16

Staudt v. Glastron Inc., No. SA-92-CA-1174, 1993

WL 85356 (W.D. Tex. Feb. 23, 1993), aff’d sub

nom. Halkias v. General Dynamics Corp., 31 F.3d

por SRD RE en a CC 6

Thomas v. North Star Steel Co., 838 F. Supp. 970

(M.D. Pa. 1993), rev’d sub nom. United Steel-

workers v. Crown Cork & Seal Co., 32 F.3d 53

CBB Coa TI eeepeeeadiscitetacen Aecicleatelattecreaangicconn passim

United Mine Workers v. Peabody Coal Co., No. 92-

0073-0 (CS) (W.D. Ky. June 30, 1993), aff'd,

No. 93-6020, 1994 WL 590188 (6th Cir. Oct. 31,

QOID ccecesesisicsip sienna eensiatiadaina tient cian tei stein passim

United Paperworkers Int'l Union Local 30 v. Spe-

cialty Paperboard, Inc., 999 F.2d 51 (2d Cir.

ROG) ..ciesciecsnsnensiseeitnitentiniceaitah incisiiaatinabiasiacainiiaithancdiadasiiahieinn passim

United Steelworkers v. Warrior & Gulf Navigation

Co., 363 U.S. 574 (1960) -................. 22

United Steelworkers v. Crown Cork & Seal Co., be

833 F. Supp. 467 (E.D. Pa. 1993), aff'd, 32 F.3d

53 (3d Cir. 1994) passim

vii

TABLE OF AUTHORITIES—Continued

Page

United Steelworkers v. North Star Steel Co., 809

F. Supp. 5 (M.D. Pa. 1992), aff’d in relevant

nart, 5 F.8d 39 (3d Cir. 1993), cert. denied,

BO ga tecassrcennsenecnnesonons 3, 17-18

Vigman v. Community Nat’l Bank & Trust Co.,

635 F.2d 455 (5th Cir. 1981) -......00020 27

Wallace v. Detroit Coke Corp., 818 F. Supp. 192

Se ee ee 7

Wang Labs., Inc. v. Kagan, 990 F.2d 1126 (9th

SF Ey ACE Ce 26-27

West v. Conrail, 481 U.S. 35 (1987)... eee. 15

Wholesale & Retail Food Distrib. Local 63 v. Santa

Fe Terminal Servs., Inc., 826 F. Supp. 326 (C.D.

re ceanenenispacinaeues 6, 7,9

OTHER AUTHORITIES

I i _. asnemsnaesdnesninnnniaccimptannesenensssins 1

I an ninespaiicisenearesoemenecien SAR eee TE 8, 11-12

National Labor Relations Act (“NLRA”), 29

U.S.C. § 160(b) ......... SETS RNG: a passim

Age Discrimination in Employment Act

ee os oe Seen SO OeeCe). ........................... 23

The Worker Adjustment and Retraining Notifica-

tion Act (“WARN”), 29 U.S.C. § 2101 et seq. passim

ET | a eer 17

PRUE EO be OT | Tae a 5

en cnessnaceesemnemnsstsndyanavnnencs 17

Be ie Oe IN OD osc bcs cenneesneetiinsencneene~ 26

Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(e).... 23

Rules of Decision Act, ch. 20, § 34, 1 Stat. 73, 92

(1789) (now cedified with minor changes at 28

lcd A is sessieonniteniianeniasntonsins 10

reer te CD ann nae. 17

ei icnindiaticigielasasnenncsssonteurnscyciomecse 25

I tic rtentcceniennienceeerernsesansunsennsnees 25

134 Cong. Rec. 15923, 15924 (1988) ....0. ee. 18

136 Cong. Rec. $17,581 (daily ed. Oct. 27, 1990) ....... 11-12

42 Pa. Stat. Ann. § 5524(5) (1994) 0.02... 21

42 Pa. Cons. Stat. Ann. § 5527 (1994) ...................... 21

Viii

TABLE OF AUTHORITIES—Continued

S. Rep. No. 62, 100th Cong., 1st Sess. 2 (1987) ..........

H.R. Rep. No. 734, 101st Cong., 2d Sess. 24 (1990),

reprinted in U.S.C.C.A.N. 6860 .........20002-.2.22--- eee

Pennsylvania Wage Payment and Collection Law,

Pa. Stat. Ann. tit. 43, § 260.9a(g) (1992) -.........

Pennsylvania Human Relations Act, Pa. Stat. Ann.

2 __ | RRR sera On

Kimberly Norwood, 28 U.S.C. § 1658: A Limita-

tion Period With Real Limitations, 69 Ind. L. J.

GE SIGE cicksiccs leticecppdisareednabedias denied.

Kent Mayo, Comment, Warning! This Claim Will

Not Self-Destruct In Six Months—The Second

Circuit Applies A State Statute Of Limitations

To Claims Arising Under The 1988 Worker Ad-

justment And Retraining Act, 72 Wash. U.L.Q.

CEI, Be ascesicttieceiekieesnstrcingumeteenienaens 19, 24-25

Joseph L. Calamari, Note, The Limited Reach of

DelCostello v. International Brotherhood of

Teamsters: A Statute of Limitations in LMRDA

Title I Actions, 56 Fordham L. Rev. 227 (1987)..

Katherine F. Nelson, The 1990 Federal “Fallback”

Statute Of Limitations: Limitations By Default,

Ve. Se A | Bs. | Peeencmec one

Federal Courts Study Committee, Judicial Confer-

ence of the United States, Report of the Federal

Courts Study Committee (1990) ................2.22-------

ry rae

IN THE

Supreme Court of the United States

OCTOBER TERM, 1994

No.

NorTH STAR STEEL COMPANY,

‘ Petitioner.

CHARLES A. THOMAS, et al.,

Respondents.

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Third Circuit

PETITION FOR WRIT OF CERTIORARI

North Star Steel Company (‘North Star”) respectfully

petitions for a Writ of Certiorari to review the judgment

and opinion of the court of appeals in this case.

OPINIONS BELOW

The Opinion of the court of appeals (App. la-l6a)

is reported at 32 F.3d 53. The decision of the district

court is reported at 838 F. Supp. 970. (App. 17a-25a)

A further decision of the district court (App. 26a-28a)

is not reported.

JURISDICTION

The court of appeals entered its judgment on August

10, 1994. (App. A). The jurisdiction of this Court is

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

STATUTORY PROVISIONS INVOLVED

The Worker Adjustment and Retraining Notification

Act (“WARN”), 29 U.S.C. § 2101 et seq., is set forth

in Appendix D at 29a to 37a. Section 10(b) of the Na-

tional Labor Relations Act (“NLRA”), 29 U.S.C.

§ 160(b), is set forth in the same appendix at 38a.

STATEMENT OF THE CASE

Respondents,-former salaried employees of North Star,

filed their Complaint on October 22, 1992 in the United

States District Court for the Middle District of Pennsyl-

vania. They alleged they were entitled to damages under

the WARN Act because they were laid off twenty months

earlier without receiving advance notice. On April 1,

1993, North Star moved for summary judgment on

grounds that Respondents’ action was time-barred by the

six-month statute of limitations set forth in Section 10(b)

of the NLRA. The district court agreed and on May 25,

1993 granted North Star summary judgment. However,

on August 10, 1994, the Third Circuit reversed this deci-

sion, declaring, in accordance with the view of the Second

Circuit, that state law controls the applicable WARN lim-

itations period.

Two weeks later, on August 24, 1994, a conflict among

the circuits developed when the Fifth Circuit, under vir-

tually identical factual circumstances, held that the Sec-

tion 10(b) limitations period governed the timeliness of

WARN actions, and expressly rejected the reasoning of

its sister appellate courts. On October 31, 1994, the

Sixth Circuit also adopted the Section 10(b) limitations

period for WARN. Thus, the courts of appeals which

have addressed this issue are now evenly divided on this

critical question.

I. The North Star Plant Closing And Previous Litigation.

On February 25, 1991, North Star ceased production

and laid off approximately 270 employees at its Milton,

Pennsylvania steel plant. After suffering a WARN-

defined “employment loss” later that year, the United

Steelworkers of America (“USWA”), a union represent-

ing approximately 250 employees at the Milton plant,

filed a complaint in federal court on September 9, 1991

alleging that North Star had violated the WARN Act by

failing to give the Union sixty days advance notice of the

closing. On April 9, 1992, the district court granted

USWA’s motion for summary judgment on liability, hold-

ing that the layoff constituted a “plant closing” subject

to WARN. In a separate order dated December 11,

1992, the district judge determined the number of days

for which the company was required to pay WARN dam-

ages. United Steelworkers v. North Star Steel Co., 809

F. Supp. 5 (M.D. Pa. 1992), aff'd in relevant part, 5

F.3d 39 (3d Cir. 1993), cert. denied, 114 S. Ct. 1060

(1994).

Respondents, twelve salaried employees at the Milton

plant, were unrepresented by USWA and, thus, unaffected

by the United Steelworkers litigation. However, on Octo-

ber 22, 1992—more than six months after the district

court’s determination of a violation and more than 20

months after the layoff occurred—Respondents filed this

action seeking to collect their own WARN damages

against North Star.

II. The Proceedings Below.

On April 1, 1993, North Star moved for summary

judgment on grounds that the Respondents’ action was

time-barred. Noting that the WARN Acct itself contained

no statute of limitations, North Star argued that the court

should “borrow” the limitations period set forth in Section

10(b) of the NLRA. In response, the Respondents ar-

gued that their complaint was timely filed because the

court instead should borrow a longer statute of limitations

from state law, such as the three-year limitations period

contained in the Pennsylvania Wage Payment and Collec-

tion law.

On May 25, 1993, the district court granted North

Star’s motion for summary judgment. Applying DelCos-

tello v. International Brotherhood of Teamsters, 462 U.S.

151 (1983), the court determined that the NLRA pro-

vided a closer analogy to WARN than any available state

statute and that the federal policies at stake and the prac-

ticalities of litigation made it more appropriate to borrow

the NLRA limitations period.

On appeal, Respondents’ claim was consolidated with

the appeal of Crown Cork & Seal Co., an employer that

had been unsuccessful in asserting the Section 10(b) lim-

itations period in another WARN action in the Eastern

District of Pennsylvania. United Steelworkers v. Crown

Cork & Seal Co., 833 F. Supp. 467 (E.D. Pa. 1993),

aff'd, 32 F.3d 53 (3d Cir. 1994). In reversing the judg-

ment for North Star and affirming the judgment against

Crown Cork the court of appeals held that the most

closely analogous state statute of limitations, rather than

the six-month statute of limitations set forth in the NLRA,

should govern WARN actions. Although it acknowledged

that “none of the possible state laws provide [sic] perfect

analogies to WARN,” that “courts have looked to NLRA

cases in interpreting WARN,” and “that there are some

definitional overlaps” between the two federal statutes,

it nonetheless interpreted DelCostello to require applica-

tion of a state limitations period. (App. 10a). The

Third Circuit reached this decision despite being unwilling

—or perhaps unable—to decide which of a multitude of

possible state limitations periods would now actually con-

trol WARN actions in Pennsylvania.

REASONS FOR GRANTING THE PETITION

The Third Circuit’s decision in this case, which is in

accord with United Paperworkers International Union

Local 340 v. Specialty Paperboard, Inc., 999 F.2d 51

(2d Cir. 1993), conflicts directly with the Fifth Circuit’s

subsequent holding in Halkias v. General Dynamics

Corp., 31 F.3d 224, en banc rehearing granted, Nos. 93-

1664, 93-1680, 93-8204, 1994 WL 520351 (Sth Cir.

Sept. 22, 1994), and with the Sixth Circuit’s even more

recent decision in United Mine Workers v. Peabody Coal

Co., No. 93-6020, 1994 WL 590188 (6th Cir. Oct. 31,

1994). At the district court level, conflicting decisions

as to the WARN limitations period are also proliferating

rapidly, and the need for instruction from this Court is

acute. Judicial resources are too scarce, and the financial

burden on litigants too large, for the Court to allow this

important issue to fester unabated in the lower courts.

Moreover, the decisions of the Second and Third Circuits

are erroneous, and the need to clarify and redirect the

convoluted law of limitations “borrowing” is important.

I. THE THIRD CIRCUIT’S REFUSAL TO BORROW

THE SECTION 10(b) LIMITATIONS PERIOD FOR

WARN ACTIONS CONFLICTS WITH THE RUL-

INGS OF THE FIFTH AND SIXTH CIRCUITS AND

AGGRAVATES A GROWING SPLIT IN AUTHOR-

ITY AMONG THE DISTRICT COURTS.

Under WARN, employers having at least one hundred

employees are subject to civil liability if they fail to give

their employees at least sixty days written notice of a

statutorily-defined “plant closing” or “mass layoff.” 29

U.S.C. §§ 2101-2109. However, “[a]s is often the case in

federal civil law,” DelCostello, 462 U.S. at 158, the

WARN statute does not contain an express limitations

period.

Initially, district courts confronted with WARN limita-

tions questions analogized the facts to “hybrid” Section

301/duty of fair representation claims and “borrowed”

i ———

the six-month statute of limitations contained in Section

10(b) of the NLRA. See Newspaper & Mail Deliverers’

Union v. United Magazine Co., 809 F. Supp. 185, 188-

92 (E.D.N.Y. 1992), on reconsideration, No. CV 92-0449

(ADS), 1993 WL 308138 (E.D.N.Y. Apr. 10, 1993);

Staudt v. Glastron Inc., No. SA-92-CA-1174, 1993 WL

85356, at *2 (W.D. Tex. Feb. 23, 1993), aff'd sub nom.

Halkias vy. General Dynamics Corp., 31 F.3d 224 (Sth

Cir. 1994), rehearing en banc granted, Nos. 93-1664,

93-1680, 93-8204, 1994 WL 520351 (Sth Cir. Sept. 22,

1994). Subsequently, at least four other district court

rulings also adopted the NLRA’s six-month limitations

period for WARN actions.’

However, shortly after the United Magazine and Staudt

cases were decided, other district courts began to reach

different conclusions regarding the appropriate WARN

limitations period. Refusing to borrow the Section 10(b)

period, these courts instead applied various state statutes

of limitations to determine the timeliness of WARN

claims.

1 See Halkias v. General Dynamics Corp., 825 F. Supp. 123

(N.D. Tex. 1993), aff'd, 31 F.3d 224 (5th Cir. 1994), rehearing

en bane granted, Nos. 93-1664, 93-1680, 93-8204, 1994 WL 520351

(5th Cir. Sept. 22, 1994); Cureington v. General Dynamics Corp.,

No. 93-1680 (N.D. Tex. 1993), aff'd sub nom. Halkias v. General

Dynamics Corp., 31 F.3d 224 (5th Cir. 1994), en bane rehearing

granted, Nos. 93-1664, 93-1680, 93-8204, 1994 WL 520351 (5th

Cir. Sept. 22, 1994) ; Thomas v. North Star Steel Co., 838 F. Supp.

970, 972-75 (M.D. Pa. 1993), rev’d sub nom. United Steelworkers

v. Crown Cork & Seal Co., 32 F.3d 53 (3d Cir. 1994) ; United Mine

Workers v. Peabody Coal Co., No. 92-0073-0 (CS) (W.D. Ky. June

30, 1993), aff'd, No. 93-6020, 1994 WL 590188 (6th Cir. Oct. 31,

1994).

2 United Steelworkers v. Crown Cork & Seal Co., 833 F. Supp.

467, 467-70 (E.D. Pa. 1993), aff'd, 32 F.3d 53 (3d Cir. 1994);

Automobile Mechanics’ Local No. 701 v. Santa Fe Terminal Servs.,

Ine., 830 F. Supp. 482, 435-37 (N.D. Ill. 1993); Wholesale & Retail

Food Distrib. Local 63 v. Santa Fe Terminal Servs., Inc., 826

F. Supp. 326, 329-31 (C.D. Cal. 1993) (applying California limi-

tations period after determining that defendant had waived limi-

This division among the district courts as to the proper

WARN limitations period has now split the courts of

appeals as well. In Specialty Paperboard, 999 F.2d at

51, the Second Circuit sided with the district courts that

had found WARN not sufficiently analogous to the NLRA

to warrant application of the federal limitations period.

The same outcome was reached by the Third Circuit in

the instant case. (App. A).

However, in Halkias and Peabody Coal, the Fifth and

Sixth Circuits have drawn an opposite conclusion. In

Halkias, in affirming a series of district court rulings

which adopted Section 10(b) as the proper limitations

period for WARN, the Fifth Circuit noted “the necessity

for a uniform limitations period for WARN claims,” and

found the NLRA to be “a closer analogy than available

state statutes.” 31 F.3d at 233, 241 (citing DelCostello,

462 F.2d at 171-72). In Peabody Coal, the Sixth Circuit

also affirmed a district court’s application of the Section

10(b) limitations period, finding that “Section 10( b) of

the NLRA provides the more analogous limitations provi-

sion and better effectuates the policies underlying WARN

- 1994 WL 590188 at *8. In their rulings, the

Fifth and Sixth Circuits expressly rejected the holdings

and rationale of their sister circuits. Halkias, 31 F.3d at

228; Peabody Coal, 1994 WL 590188 at *6.

With the district and appellate courts now almost evenly

divided, there is no realistic prospect for resolution of

this vexing limitations question without a decision by the

Court. All future decisions on this issue will simply side

with one camp or the other, incrementally shifting the

weight of authority in one direction or the other. Fur-

thermore, without a real constituency for the establish-

tations defense) ; Frymire v. Ampex Corp., 821 F. Supp. 651, 653-

55 (D. Colo. 1993); Wallace v. Detroit Coke Corp., 818 F. Supp.

192, 194-97 (E.D. Mich. 1993).

ment of limitations periods, there is little hope that Con-

gress will act to resolve this issue.®

Obviously, no benefit can be derived from the continual

ad hoc determination of the WARN limitations period in

the lower courts. The cost in judicial time and attorneys’

fees is too high to permit this constant distraction from

the underlying merits of the parties’ WARN claims, to

say nothing of the courts’ need to address other pressing

substantive issues. Now that the strengths and weak-

nesses of each position have been thoughtfully analyzed

below, this case presents a timely vehicle for the Court

to determine definitively the appropriate WARN limita-

tions period.

II. RESOLUTION OF THE QUESTION PRESENTED

BY THIS PETITION IS VITALLY IMPORTANT.

A. WARN Needs a Final, Uniform Limitations Period.

The current state of WARN limitations law is entirely

unsatisfactory to both litigants and the courts. Unless the

court grants certiorari in this case, an incalculable num-

ber of hours will be wasted as judges are continually

forced to revisit this limitations question—time that obvi-

ously would be better dedicated to other matters.

Moreover, in those circuits (such as the Second and

Third) that opt for a state limitations period, the work

of bench and bar is only beginning. Litigants and judges

in these courts will now be forced to spend their time and

resources “characterizing” their WARN claims and then

3In 1990 Congress enacted a “fallback” statute of limitations

for all civil claims arising under federal legislation passed after

December 1, 1990. 28 U.S.C. § 1658. However, despite the recom-

mendation of the Federal Courts Study Committee, Congress was

unable, or unwilling, to set limitations periods for the vast array

of pre-existing federal statutes, such as WARN, that do not con-

tain them. See Kimberly Norwood, 28 U.S.C. § 1658: A Limitation

Period With Real Limitations, 69 Ind. L. J. 477, 503-04 (1994).

analogizing them to each forum state’s various causes of

actions and statutes of limitations. Because these char-

acterizations will vary from state to state, and even likely

from judge to judge, WARN limitations law will be long

plagued by uncertainty and confusion—to say nothing

of the possibilities for forum shopping. See Agency

Holding Corp. v. Malley-Duff & Associates, 483 US.

143, 147 (1987) (concluding that “a uniform statute of

limitations [was] required to avoid intolerable ‘uncertainty

and time-consuming litigation.*”) (citation omitted ).

The few existing attempts to analogize WARN to state

causes of action have demonstrated the overwhelming

problems of borrowing state law in this area. For exam-

ple, while the Second Circuit in Specialty Paperboard

determined that Vermont’s six-year statute of limitations

for breach of contract actions should fix the WARN

limitations period, another court characterized WARN as

most analogous to California’s three-year residual limita-

tions statute. Wholesale & Retail Food Distrib. Local

63 v. Santa Fe Terminal Servs., Inc., 826 F. Supp. 326,

330 (C.D. Cal. 1993). The Sixth Circuit summarized

this growing confusion resulting from state law borrowing

as follows:

The suggestions of possibly analogous limitations

periods run the gamut from the catchall limitations

period advocated here to those governing contracts

or torts. Even the Specialty Paperboard and Wallace

courts, which agreed that state contract limitations

periods should apply, did so for divergent reasons.

Add to these limitations periods, arguments that can

be raised under state unemployment laws, state wage

laws, state benefit laws, state plant closing laws, and

the opportunities are endless. Thus, selecting a

WARN limitations period implicates the same con-

cerns for uniformity present in Agency Holding

Corp.

Peabody Coal, 1994 WL 590188 at *7.

Given the obvious need to end this senseless “charac-

terization” odyssey though state law, and the obvious

benefit of having an important federal statute interpreted

consistently throughout the nation, Section 10(b) should

be adopted as the uniform WARN limitations period.

Because the Third Circuit failed to reach this conclusion,

Petitioner’s certiorari request should be granted.

B. The Current Limitations Borrowing Doctrine Is

Flawed and Should Be Re-examined.

Although the practical need for a final, uniform WARN

limitations period alone warrants Supreme Court review,

Petitioner submits that this case raises broader questions

concerning the overall wisdom of the current limitations

borrowing doctrine. That doctrine originated last century,

when the federal judiciary under the guise of the Rules

of Decision Act began “borrowing” state statutes of limita-

tions whenever Congress failed to provide a limitations

period in federal law.* See, e.g., Campbell v. City of

Haverhill, 155 U.S. 610 (1895); McCluny v. Silliman,

28 U.S. (3 Pet.) 270 (1830).

In more recent times, the Court has rejected the idea

that the Rules of Decision Act formally mandates the

imposition of state limitations periods on federal actions.

DelCostello v. International Brotherhood of Teamsters,

462 U.S. 151, 160 n.13 (1983) (rejecting reliance “on a

few turn-of-the-century cases suggesting that the Rules of

Decision Act compels application of state limitations

periods”). Later Court decisions have concurred in this

view. See, e.g., .4gency Holding Corp., 483 U.S. at 143.

4 Rules of Decision Act, ch. 20, § 34, 1 Stat. 73, 92 (1789) (now

codified with minor changes at 28 U.S.C. § 1652). The Rules of

Decision Act then provided: “[T]he laws of the several states,

except where the constitution, treaties or statutes of the United

States shall otherwise require or provide, shall be regarded as

rules of decision in trials at common law in the courts of the

United States in cases where they apply.” Jd. (footnote omitted).

’ ; ‘ =

See also Joseph L. Calamari, Note, The Limited Reach

of DelCostello v. International Brotherhood of Team-

sters: A Statute of Limitations in LMRDA Title I Actions,

56 Fordham L. Rev. 227, 245 n.19 (1987) (“Both the

majority approach and Justice Scalia’s view agree that the

Rules of Decision Act does not mandate application of

State limitations periods because the Act merely begs the

question, authorizing federal courts to use state laws ‘in

cases where they apply.’”) (citations omitted).

Although reliance on the Rules of Decision Act has

been discredited, the practice of using state law to deter-

mine unspecified federal limitations periods has not. With-

Out deeper contemplation, the Court has premised its

continued borrowing of state limitations periods on the

belief that Congress “intends by its silence that we borrow

state law.” Lampf, Pleva, Lipkind, Prupis & Petigrow v.

Gilbertson, 501 U.S. 350, 355 (1991) (quoting Agency

Holding Corp., 483 U.S. at 147).

However, it now is clear that the Court’s rationale, to

the extent that it ever held credence, is no longer tenable.

In enacting the post-1990 “fallback” statute of limitations,

28 U.S.C. § 1658, Congress explicitly stated that the con-

tinued absorption of state limitations periods for federal

Statutes is undesirable. As the Senate noted:

Statutes of limitations provide a specific time period

after the contested event within which a case must

be commenced. At present, the federal courts “bor-

row” the most analogous state law limitations period

for federal claims lacking limitations periods. Bor-

rowing, while defensible as a decisionable approach

in the absence of legislation, appeals [sic] to lack

persuasive support as a matter of policy.

It also creates several practical problems: It obligates

judges and lawyers to determine the most analogous

State law claim; it imposes uncertainty on litigants;

reliance on varying state laws results in undesirable

variance among the federal courts and disrupts the

development of federal doctrine on the suspension

of limitations periods.

See 136 Cong. Rec. $17,581 (daily ed. Oct. 27, 1990)

(statement of Sen. Biden) (emphasis added).°

Congress has not been alone in recognizing the defects

in the current limitations borrowing scheme. Indeed, Sen-

ator Biden’s remarks in the Congressional Record were

excerpted from the findings of the 1990 Report of the

Federal Courts Study Committee, appointed by Chief

Justice Rehnquist. See Federal Courts Study Committee,

Judicial Conference of the United States, Report of the

Federal Courts Study Committee (1990). The Study Com-

mittee’s analysis of DelCostello reflects the opinion of

many members of the federal bench. See, e.g., Norris v.

Wirtz, 818 F.2d 1329, 1332 (7th Cir.) (“This is one

tottering parapet of a ramshackle edifice. Deciding which

features of state periods of limitations to adopt for which

federal statutes wastes untold hours.”) (citation omitted),

cert. denied, 484 U.S. 943 (1987).

Recent commentaries have echoed these legislative and

judicial doubts about the wisdom of continued state limi-

tations borrowing and have drawn attention to the obvious

adverse impact that this current policy has on the equita-

ble administration of federal rights. One commentator

summarized these concerns as follows:

[Blorrowing state time-bars for federal claims causes

serious equitable concerns. The state legislatures do

not consider the federal interests at issue when they

adopt a statute of limitations for a particular state

right or category of state rights. Accordingly, the

5 The House Report on Section 1658 contains similar language.

See H. R. Rep. No. 734, 101st Cong., 2d Sess. 24 (1990), reprinted

in 1990 U.S.C.C.A.N. 6860, 6870. As commentators have noted,

Section 1658 “addresses only a small portion of the borrowing

problem because it is limited to new federal] statutes.” Katherine

F. Nelson, The 1990 Federal “Fallback” Statute Of Limitations:

Limitations By Default, 72 Neb. L. Rev. 454 (1993).

. . * vane

‘13

litigants’ interests in the federal right, as well as

society’s interest in having that right asserted, are

not part of the state’s balancing process.

* * *

More importantly, borrowing state time-bars leads

to the inequitable administration of federal rights.

One of the main reasons for enacting a federal law,

rather than leaving the problem to the states, is the

need for uniformity. When the courts borrow state

limitations periods for federal claims, federal rights

vary from state to state because each state has its

Own Statutes of limitations.

Nelson, 72 Neb. L. Rev. at 454 (footnotes omitted).

See also Norwood, 69 Ind. L.J. at 512-13 (“[W ]henever

a State enjoys the right to decide the longevity of a federal

Statutory claim, federal interests are automatically frus-

trated. . . . [A] national cause of action should [not]

affect litigants differently depending upon the state in

which the plaintiff is able to meet jurisdictional and venue

requirements.”) (footnotes omitted ).

Congress, the Study Committee, and those commenta-

tors clearly are correct in drawing attention to the serious

flaws in prevailing limitations borrowing practice. Conse-

quently, this case presents an opportunity for the Court

to address these perceived shortcomings in the borrowing

doctrine and to provide much-needed practical guidance

on the WARN limitations question. Given the importance

of these issues, and the far-reaching split among the cir-

cuits, the Court should grant this petition.

Ill. THE DECISION OF THE THIRD CIRCUIT IS

ERRONEOUS UNDER’ EXISTING SUPREME

COURT PRECEDENT.

Although Petitioner believes that the Court should re-

view the entire underpinning of its borrowing doctrine, it

also believes that the Third Circuit’s decision in this case

is clearly wrong under existing precedent. This Court

has held repeatedly that a federal limitations period should

be borrowed whenever the federal statute provides a

“closer analogy” than state law, and where “federal poli-

cies” and “the practicalities of litigation” support such a

decision. See DelCostello, 462 U.S. at 171-72. In the in-

stant case, by overlooking the close analogy between

WARN and the NLRA, by ignoring longstanding federal

labor policy favoring rapid settlement of employment dis-

putes, and by failing to recognize the danger of inappro-

priate forum shopping, the Third Circuit has erroneously

imposed an unspecified and unsuitable state statute of

limitations on WARN proceedings, clearly contrary to

existing precedent.

A. The Framework of the Limitations Debate.

In overturning the early Rules of Decision Act cases,

DelCostello substituted a doctrine that continued the pref-

erence for absorbing state statutes of limitations, but also

acknowledged the propriety of borrowing limitations peri-

ods from federal law in appropriate cases. As the Court

observed, “[s]tate legislatures do not devise their limita-

tions periods with national interests in mind,” and thus

“state statutes of limitations can be unsatisfactory vehicles

for the enforcement of federal law.” Jd. at 161 (quoting

Occidental Life Ins. Co. v. Equal Employment Opportu-

nity Commission, 432, U.S. 355, 367 (1977)). Based on

these principles, the Court adopted the following standard

for federal limitations borrowing:

[W]hen a rule from elsewhere in federal law clearly

provides a closer analogy than available state stat-

utes, and when the federal policies at stake and the

practicalities of litigation make that rule a signifi-

cantly more appropriate vehicle for interstitial law-

making, we [will] not hesitat[e] to turn away from

state law.

DelCostello, 462 U.S. at 172. The Court described the

continued preference for borrowing state statutes as “a

sort of fallback rule of thumb.” I/d., 462 U.S. at 160 n.12.

Utilizing this approach, the DelCostello Court applied

the NLRA’s Section 10(b) limitations period to a “hy-

brid” Section 301/duty of fair representation claim

brought by an employee against both his employer and

the union. /d. at 165. Subsequently, Section 10(b) also

was applied to other federal employment provisions that

contained no limitations period. See, e.g., West v. Con-

rail, 481 U.S. 35 (1987) (applying Section 10(b) to

Railway Labor Act); Haggerty v. USAir, Inc., 952 F.2d

781 (3d Cir. 1992) (Section 10(b) applied to worker

dislocation provisions contained in Airline Deregulation

Act); Aluminum, Brick & Glassworkers Int’l Union Loca!

674 v. A.P. Green Refractories, Inc., 895 F.2d 1053.

1054-55 (Sth Cir. 1990) (NLRA period applied to

“pure” Section 301 actions under Labor Management

Relations Act).

The DelCostello federal borrowing rule also has been

utilized in civil actions arising from substantive laws out-

side the labor field. For example, in Agency Holding

Corp. v. Malley-Duff & Associates, 483 U.S. 143 (1987).

the Court extended the limitations period contained in the

Clayton Antitrust Act to civil RICO claims. The Court

did so after finding the federal statute to be a “far closer

analogy . . . than any state law alternative,” noting the

“similarities in purpose and structure” between the two

federal statutes and recognizing the potential for forum

shopping if diverse state limitations periods were applied.

Id. at 150-52. See also Lampf, Pleva, Lipkind, Prupis &

Petigrow v. Gilbertson, 501 U.S. 350 (1991) (Court

found federal limitations period applicable to claims

brought under Section 10(b) of the Securities Exchange

Act).

B. The Third Circuit Misapplied DelCostello and Its

Progeny.

Although much of the above precedent was cited in the

Third Circuit’s decision, it was largely misapplied. The

court of appeals failed to give sufficient weight to the

obvious similarities between WARN and the NLRA, failed

to adequately consider the long-standing federal policy

favoring quick resolution of labor and employment dis-

putes, and failed to recognize that forum shopping likely

will result from the borrowing of multiple state limitations

periods.

1. WARN is “closely analogous” to the NLRA, and

dissimilar from any potential state statute of

limitations.

Although the Third Circuit conceded it should apply

Section 10(b)’s six-month limitations period to WARN

if the NLRA provided “a closer analogy than available

state statutes,” the court mistakenly found insufficient sim-

ilarities between the two federal statutes. (App. Sa).

The court compounded its error by not even attempting

to analogize WARN to the proposed state statutes of limi-

tations—an exercise possibly abandoned due to the obvi-

ous dissimilarities between WARN and those provisions.

a. WARN and the NLRA impose parallel noti-

fication requirements on employers and are

structurally similar.

In Halkias, the Fifth Circuit correctly observed that

“It]he NLRA is more than just analogous to WARN; in

fact, WARN may be thought of as an outgrowth of the

NLRA, because §§ 8(a)(1) and 8(a)(5) of the NLRA

.. . have [both] been interpreted to require an employer

to notify a union of its decision to close a plant.” 31

F.3d at 232 (citing Penntech Papers, Inc. v. National

Labor Relations Bd., 706 F.2d 18, 26 (1st Cir.) (NLRA

requires employer to provide “timely notice to the union

of the decision to close”), cert. denied, 464 U.S. 892

(1983)). See also Dubuque Packing Co., 303 N.L.R.B.

386 (1991) (NLRB imposes affirmative duties on em-

ployers resulting from decision to close plant), review

granted in part, enforcement granted in part, remanded,

1 F.3d 24 (D.C. Cir. 1993), cert. dismissed, 114 S. Ct.

2157 (1994).

In addition to recognizing that both WARN and the

NLRA impose requirements upon employers implement-

ing workforce reductions, several courts have commented

on the obvious structural similarities between the two

federal statutes. “‘[T]he family resemblance is undeni-

able, and indeed there is a substantial overlap’ between

them.” Halkias, 31 F.3d at 231 (quoting DelCostello,

462 U.S. at 170) (not discussing WARN); see also Pea-

body Coal, 1994 WL 590188 at *3 (“WARN cross-

references the NLRA in several respects.” ); United Mag-

azine, 809 F. Supp. at 191 (“the relationship between

WARN and the NLRA is strengthened” by linguistic sim-

ilarities); accord Thomas v. North Star Steel Co., 838

F. Supp. 970, 973 (M.D. Pa. 1993), rev’d sub nom.

United Steelworkers v. Crown Cork & Seal Co., 32 F.3d

53 (3d Cir. 1994). In fact, WARN’s definitional borrow-

ing from the NLRA occurs in both the actual text of

WARN (see 29 U.S.C. § 2103(2), providing that NLRA

“economic strikers” are not entitled to notice, and 29

U.S.C. § 2101 (a) (4), incorporating NLRA definition of

“exclusive representative”), and in the Labor Depart-

ment’s implementing regulations. See, ¢g., ae CFR.

§ 639.3(d) (1994) (defining “representative” for WARN

purposes by explicit reference to §§ 9(a) and 8(f) of

the NLRA); 20 C.F.R. § 639.3(a)(1) (II) (1994) (de-

fining “reasonable expectation of recall”); 20 C.F.R.

§ 639.3(a)(2) (1994) (defining “independent contrac-

tors and subsidiaries” by reference to NLRA case law).

b. The close relationship between WARN and

the NLRA has been recognized by all three

branches of government.

Given the linguistic overlap between WARN and the

NLRA, “it is not surprising that, like the Department of

Labor, federal courts have [also] turned to NLRA case

law in interpreting WARN.” Halkias, 31 F.3d at 232.

Indeed, in United Steelworkers, the earlier action against

North Star arising from the same factual circumstances,

the court borrowed provisions of the NLRA to determine

prejudgment interest and attorney’s fees. 809 F. Supp.

at 9-10. See also, e.g., Damron v. Rob Fork Mining Co.,

739 F. Supp. 341, 344 (E.D. Ky. 1990) (adopting

NLRA’s “reasonable expectation of recall” standard for

determining similar provision in WARN), aff'd, 945 F.2d

121 (6th Cir. 1991).

That WARN and the NLRA are substantially entwined

is fully documented in the statute’s legislative history.

During the Senate floor debate on WARN, the ranking

minority member of the Senate Labor Committee cau-

tioned that WARN “constitutes a major change in the

National Labor Relations Act; so much that it ba-

siacally [sic] . . .. amend[s] the [NLRA].” 134 Cong.

Rec. 15923, 15924 (1988) (remarks of Senator Hatch).

After WARN’s enactment, the National Labor Relations

Board’s General Counsel likewise “predicted substantial

interplay between the new law [WARN] . . . and the

nation’s basic labor law administered by the NLRB.”

Halkias, 31 F.3d at 231-32 (quoting 226 Daily Lab. Rep.

(BNA) A-3 (Nov. 23, 1988)).

ce. The Third Circuit erroneously discounted

WARN’s interrelationship with the NLRA.

Despite these recognized analogies between the two

statutes, the Third Circuit’s decision in this case rests on

a supposed “lack of similarity between the NLRA and

WARN.” (App. 10a, n.2). To support this conclusion—

remarkable in light of the above-quoted passages—the

court described WARN as a “substantive” statute, while

maintaining that the NLRA “is concerned with ensuring

an equitable bargaining process.” (App. 7a) (citation

omitted). The Third Circuit also maintained that the

statutes were not analogous because, allegedly unlike the

NLRA, “[t]he benefits of WARN accrue not only to

unionized workers but to all workers alike.” (App. 8a).*

6In Specialty Paperboard, the Second Circuit justified its bor-

rowing of Vermont’s six-year residual] limitations period on similar

However, as the Fifth Circuit noted in Halkias, the

Third Circuit's reasoning is both factually flawed and

premised on a distorted understanding of this Court’s

precedent. First, as Halkias notes, the Third Circuit’s

attempt to draw a distinction between the “procedural”

purpose of the NLRA and the “substantive” nature of

WARN is preposterous:

The purposes of the NLRA are similar to those of

WARN. Both regulate labor-management relations:

WARN, by requiring notice of impending layoffs and

terminations; the NLRA, by facilitating concerted

action by employees aid governing collective bar-

gaining procedures. Both do so to achieve similar

objectives.

* * *

WARN’s purpose may be seen as a subset of the

NLRA’s....

Id. See also Thomas, 838 F. Supp. at 973 (“While the

specific rights created by [WARN and the NLRA|] are

different, the policies behind each of the acts are consist-

ent, mutually-reinforcing, and to some extent identical.” ).

Moreover, even assuming, arguendo, that a distinction

between the procedural and substantive “purposes” of the

Statutes could be discerned, the Third Circuit would stil]

te without a sufficient foundation to deny federal bor-

rowing. As the Fifth Circuit observed,

[a] strict identity of purposes is not a requisite for

borrowing a limitations period from one federal stat-

ute for use in another. To the contrary, a federal

grounds. See Specialty Paperboard, 999 F.2d at 54-55 (“purpose

of WARN, unlike that of the NLRA, is not to ensure labor peace

but to alleviate the distress associated with job loss .. .”; WARN

“has only a tangential effect on collective bargaining’). See also

A. Kent Mayo, Comment, Warning! This Claim Will Not Self-

Destruct In Siz Months—The Second Circuit Applies A State

Statute Of Limitations To Claims Arising Under The 1988 Worker

Adjustment And Retraining Act, 72 Wash. U. L.Q. 545 (Spring,

1994) (outlining Second Circuit's reasoning).

Sstatute’s limitations period is to be borrowed if,

among other things, it provides a closer analogy than

available state statutes. If an identity of purposes

were required, it would seem that the Court would

not have borrowed the Clayton Act’s limitations

period in establishing a uniform period for RICO.

Halkias, 31 F.3d at 233 (citations and quotations omit-

ted). See also Peabody Coal, 1994 WL 590188 at *7

(“[D]espite admitted differences between WARN and the

NLRA, both are designed to afford protection against

job loss—a safeguard that goes to the heart of the em-

ployment relationship .... ‘[T]his similarity of purpose’

provides the analogy necessary to extend section 10(b)

outside the parameters of the NLRA.”) (citation omitted).

Similarly in error is the Third Circuit’s belief that the

NLRA protects only unionized employees. Like WARN,

the NLRA clearly applies regardless of whether the af-

fected employees are represented by a union. See, e.g.,

National Labor Relations Bd. v. Columbia Univ., 541

F.2d 922, 931 (2d Cir. 1976) (“there can be little doubt

that the protection afforded to concerted activities under

the NLRA applies equally to workers in unionized or in

non-unionized firms”); Hugh H. Wilson Corp. v. National

Labor Relations Bd., 414 F.2d 1345, 1347 (3d Cir.

1969) (“The mantle of protection of concerted activities

. . . extends to both union and non-union employees” )

(footnotes omitted), cert. denied, 397 U.S. 935 (1970).

d. The Third Circuit erred by applying Pennsyl-

vania law without finding any analogy between

WARN and the applicable state limitations

periods.

In addition to these misinterpretations of statutory in-

tent and court precedent, the Third Court also erred by

failing to actually review the state statutes that it de-

clared to be more analogous to WARN than the NLRA.

See DelCostello, 462 U.S. at 172 (federal law applies if

it provides “closer analogy than available state statutes”).

Had it attempted such a review, the court no doubt would

have found precious little analogy between state law and

WARN.

At the appellate level, for example, Respondents rec-

ommend no fewer than three alternative state limitations

periods: the three-year Pennsylvania Wage Payment and

Collection Law, Pa. Stat. Ann. tit. 43, § 260.9a(g)

(1992); the six-year state “residual” statute of limitations,

42 Pa. Cons. Stat. Ann. § 5527 (1994); and Pennsyl-

vania’s two-year statute for enforcing civil penalties, 42

Pa. Cons. Stat. Ann. § 5524(5) (1994).7 However, in

Haggerty v. USAir, Inc., 952 F.2d 781, 787 (3d Cir.

1992), the Third Circuit rejected the applicability of this

same group of limitations periods to a similar claim for

damages under the Airline Deregulation Act’s worker dis-

location provisions. Moreover, in considering a nearly

identical array of Texas statutes in the context of WARN,

the Fifth Circuit drew the following conclusion equally

applicable to the Pennsylvania provisions:

In sum, canvassing the possible Texas periods re-

veals none as analogous to WARN as the NLRA.

None seeks to accommodate the same, or very sim-

ilar, interests as WARN, much less govern an action

that will frequently overlap with WARN. And, need-

less to say, none embraces causes of action that share

common language with WARN.*

Halkias, 31 F.3d at 235-36 (footnotes omitted). See also

Peabody Coal, 1994 WL 590188 at *7 (“The only com-

7 For obvious timeliness reasons, Respondents did not proffer

the six-month limitations period contained in the Pennsylvania

Human Relations Act, Pa. Stat. Ann. tit. 43, §959(h) (1994).

8 At the trial court level, where a comparison between the NLRA

and potential Pennsylvania limitations periods was made, the

court expressly determined that “the framework and goals of the

National Labor Relations Act are such that it is more analogous

to the Worker Adjustment and Retraining Notification Act than

to any state statute of which we are aware.” (App. 22a).

monality between WARN and the proffered state statute is

that both are pieces of legislation.” ).

Accordingly, by failing to credit the widely-recognized

analogies between WARN and the NLRA and by refusing

to even consider the obvious differences between WARN

and the available state limitations periods, the Third Cir-

cuit has misapplied the precedent of DelCostello and

Lampf.

2. The federal interests at stake in the quick reso-

lution of labor disputes support reversal of the

Third Circuit’s decision.

As DelCostello also holds, courts should “not hesitat[e]

to turn away from state law” when “the federal policies

at stake and the practicalities of litigation” support the

borrowing of a federal limitations period. /d., 462 US.

at 172. In the instant case, by failing to recognize that

the quick resolution of labor disputes is an important

federal interest fully applicable to WARN, the Third Cir-

cuit clearly compounded its misapplication of the Del-

Costello criteria and committed reversible error.

a. Congress and the courts repeatedly impose

short limitations periods in federal labor

matters.

The speedy resolution of employment disputes is a

longstanding cornerstone of federal labor policy. See Hal-

kias, 31 F.3d at 238 (“federal labor policy has long

favored the rapid settlement of disputes between an em-

ployer and an employee”); United Steelworkers v. War-

rior & Gulf Navigation Co., 363 U.S. 574 (1960) (dis-

cussing strong federal policy in favor of speedy resolu-

tion of industrial disputes through arbitration). Where

Congress has included limitations periods in federal stat-

utes affecting the employer/employee relationship, the

filing deadlines have been consistently short. See, e.g.,

National Labor Relations Act §10(b), 29 U.S.C.

§ 160(b) (providing six-month limitations period for fil-

ing unfair labor practice charge before NLRB); Title

VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-

S(e) (requiring that an employment discrimination

charge be filed with the EEOC within 180 days, or 300

days in a deferral state, of the discriminatory act); Age

Discrimination in Employment Act (“ADEA”), 29 U.S.C.

§ 626(d) (imposing a similar 180/300 day deadline for

filing an age discrimination charge).

Given these statutory pronouncements, it is hardly sur-

prising that the courts have generally “borrowed” com-

parable—and, therefore, short—federal limitations pe-

riods where Congress has not specified a limitations period

for employment-related legislation. See, e.g., DelCostello,

462 U.S. at 168 (borrowing NLRA’s six-month limita-

tions period for “hybrid” Section 301/duty of fair repre-

sentation claims); Haggerty, 952 F.2d at 787 ( borrowing

Section 10(b) limitations period for worker dislocation

provisions of Airline Deregulation Act). See also Lloyd

v. United States Dep’t of Labor, 637 F.2d 1267, 1271

(9th Cir. 1980) (approving one-year limitations period

for “retraining, adjustment and relocation” benefits under

Federal Trade Act of 1974); Occidental Chemical Corp.

v. International Chem. Workers Union, 853 F.2d 1310,

1315 (6th Cir. 1988) (“Given the desirability of a rapid

resolution of disputes over an arbitrator’s award, three

months appears to us to be a more appropriate limit than

six for an action attacking the validity of an award.”).

b. A short limitations period is equally appro-

priate for WARN.

Despite this established preference for short labor lim- |

itations periods, the Third Circuit brushed aside its appli-

cability in a single paragraph. Without addressing the ex-

istence of other federal employment provisions, the court

described the burden of filing an unfair labor practice

charge under the NLRA as “minimal,” and concluded

simply that “a short statute of limitations could very well

frustrate the policies behind WARN.” °

However, even a cursory examination of pertinent leg-

islative history compels the conclusion that federal policy

favoring the quick resolution of employment disputes was

intended to be fully applicable to WARN. As the Senate

Report indicated, WARN “establishes a comprehensive

system for providing prompt adjustment and training serv-

ices to dislocated workers.” S. Rep. No. 62, 100th Cong.,

Ist Sess. 2 (1987) (emphasis added). The Sixth Circuit

found it extremely significant that WARN only requires

employers to provide laid off workers with 60 days ad-

vance notice—a time limitation that also determines the

maximum compensatory damages available to employees

who do not receive this required notice:

By implementing a 60-day notice requirement, Con-

gress clearly intended to provide short-term relief not

only to affected employees, but to their communities

and supporting state agencies as well. This purpose

of bridging what would otherwise be a drain on

resources would be defeated if not rapidly imple-

mented. A prolonged statute of limitations would

do nothing to achieve WARN’s aim of starting em-

ployees on the road to retraining and reemployment

before unemployment becomes a problem.

Peabody Coal, 1994 WL 590188 at *7.

The Sixth Circuit’s view—that the expediency require-

ments built into WARN require a short limitations period

—has been shared by others. One commentator sum-

marized the underlying Congressional intent as follows:

[B]ecause WARN was intended to aid displaced

workers by giving them time to seek other employ-

®The Second Circuit applied a similar rationale in Specialty

Paperboard, 999 F.2d at 55 (short statute of limitations under

NLRA justified by “minimal” burden to pursue unfair labor prac-

tice charge).

ment or training before being terminated, applying

a state statute of limitations of several years or more

does not serve the policy underlying WARN. Re-

covering damages several years after being laid off

will not help a terminated employee search for im-

mediate training or employment. Rather, these dam-

ages would merely ameliorate the employee’s general

living conditions, a remedy beyond the scope of

WARN.

Mayo, 72 Wash. U. L.Q. at 557 (footnotes omitted). See

also Halkias, 31 F.2d at 239 (“[{A]pplication of expansive

limitations periods would disserve WARN’s most specific

objective: the provision of a cushion of time for em-

ployees to explore other job opportunities and, if neces-

sary, seek retraining.” ).

Moreover, the need for a short WARN limitations

period is also evident from the typical state of an em-

ployer’s business following a plant closing or mass layoff.

If WARN plaintiffs were allowed several years to bring

suit, it likely would be quite difficult, if not impossible,

to obtain the requisite records and documentation neces-

sary to determine liability or damages, and increasingly

difficult to locate key witnesses and claimants.’® See Hal-

kias, 31 F.3d at 238-39. One need not stretch the imag-

ination to envision the burdens on both the court and

the employer in handling a WARN claim asserted several

years after the fact—as would likely occur under the

lengthy state limitations periods suggested below. Despite

the Third Circuit’s avoidance of these issues, Congress

clearly could not have intended such a deviational result.

10In keeping with the short limitations periods for labor and

employment claims, federal law only requires employers to retain

payroll records indicating the names of employees and their paid

remuneration for a period of three years. 29 C.F.R. $516.5; 29

C.F.R. § 1627.3(a). If long state limitations periods for WARN

actions are permitted—such as the Second Circuit’s use of a six-

year Vermont period—courts will no doubt be confronted with

stale WARN claims where the records needed to answer funda-

mental liability and damage issues will have been destroyed.

3. The Third Circuit erroneously discounted the

danger of forum shopping.

The Third Circuit was also wrong in dismissing Peti-

tioner’s argument that the “practicalities of litigation”

favor the borrowing of a uniform federal limitations pe-

riod. In its appellate brief, Petitioner noted that the

WARN Act’s expansive jurisdictional provision—which

permits an action to be brought not only in “any district

in which the violation is alleged to have occurred” but

also in any district “in which the employer transacts busi-

ness”—created an easy mechanism for forum shopping

that could only be prevented by the adoption of a uniform

federal limitations period. 29 U.S.C. § 2104(a)(5). See

Lampf, 501 U.S. at 357 (availability of forum shopping

weighs heavily in favor of uniform federal standard).

Quoting the Second Circuit’s analysis in United Paper-

workers Union Local 340 v. Specialty Paperboard, Inc.,

999 F.2d 51, 56 (2d Cir. 1993), the Third Circuit sum-

marily dismissed this concern by contending that “courts

will have little difficulty in determining which state’s law

to apply and workers will gain few advantages by suing

in a court far from the site of injury.” 32 F.3d at 60

(footnote omitted).

However, as Halkias observed, the Second and Third

Circuits’ suggestion that this choice of laws problem pre-

sents “little difficulty” is fallacious. If, for example, a

plaintiff who loses his jo» in state X were to bring a

WARN claim in state Y %ecause state Y has a longer

statute of limitations, there is little reason under existing

federal law to believe that the court in state Y would

impose state X’s shorter limitations period. See Halkias,

31 F.3d at 237 (in “examining borrowing cases involving

a conflict over which state’s limitation period should apply,

we find a consistent preference for borrowing the forum

state’s”). See also Wang Labs., Inc. v. Kagan, 990 F.2d

1126, 1128 (9th Cir. 1993) (“[iJn an ERISA case, we

ordinarily borrow the forum state’s statute of limita-

tions”); Vigman v. Community Nat'l Bank & Trust Co.,

635 F.2d 455, 459 (Sth Cir. 1981) (“[w]hen federal

law contains no limitations period applicable to a par-

ticular federal cause of action, federal courts are to apply

the forum state’s limitations period.”). Given this prece-

dent and WARN’s expansive jurisdictional reach, the

Sixth Circuit determined that, “in today’s national and

international corporate environment,” application of vary-

ing state limitations periods would result in a “limitless”

opportunity for forum shopping. Peabody Coal, 1994

WL 590188 at * 6.

Furthermore, an additional danger of forum shopping

under WARN will occur when a single employment deci-

sion affects employees in different states. The scope of

recent WARN litigation indicates that this will be a re-

curring factual development. In Halkias, for example, the

WARN plaintiffs could certainly have filed suit in Texas,

Oklahoma or Missouri (the three states where the layoff

occurred) and—had they considered it—might have se-

lected any other state in which General Dynamics trans-

acts business. See Halkias, 31 F.3d at 237 (“Given the

possibility for multistate WARN litigation, the issue of

which state’s limitations period should control might be-

come an issue of time-consuming litigation.”).

In light of these dangers, “the federal policies at stake

and the practicalities of litigation” clearly point toward

the borrowing of a uniform federal statute of limitations

for WARN. Halkias, 31 F.3d at 229. By failing to give

adequate attention to these important considerations, the

Third Circuit misconstrued this Court’s precedent and

committed reversible error.

CONCLUSION

For each of the foregoing reasons, North Star’s Peti-

tion for Writ of Certiorari should be granted. |

Respectfully submitted,

VINCENT CANDIELLO *

MORGAN, LEWIS & BOCKIUS

417 Walnut Street

Harrisburg, PA 17101-1904

(717) 237-4014

WAYNE D. RUTMAN

MorGAN, LEWIS & BOCKIUS

2000 One Logan Square

Philadelphia, PA 19103

(215) 963-5098

Attorneys for Petitioner

November 7, 1994 * Counsel of Record

APPEND!CES

PBEST AVAILABLE COPY

APPENDIX A

Filed August 10, 1994

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 93-2008 and 93-7613

UNITED STEELWORKERS OF AMERICA,

AFL-CIO-CLC

CROWN CorK & SEAL Co., INC.,

Appellant (in No. 93-2008)

CHARLES A. THOMAS; DARREN Boop; ROBERT W.

BoweER; WILLIAM D. BripGE; JAMES CLINGAN; NEAL

B. HousNerR; JONATHAN L. NOAKER; WAYNE D.

ORNER; GERALD W. RANCK; HAROLD E. VAN SICKLE,

Jr.; RICHARD A. WINTER; EUGENE L. WITMER, SR.,

Appellants (in No. 93-7613)

NorRTH STAR STEEL COMPANY

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 92-CV-05968 )

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. No. 92-CV-01507)

Argued May 24, 1994

Before: Cowen and Roth, Circuit Judges

Ackerman, District Judge *

(Filed August 10, 1994)

OPINION OF THE COURT

ACKERMAN, District Judge.

These two cases present the following discrete issue:

In an action brought pursuant to the Worker Adjustment

and Retraining Notification Act, 29 U.S.C. § 2101 et seq.

(“WARN”), a statute which, like so many others, fails to

explicitly provide a statute of limitations, should we fol-

low the general rule and borrow a state statute of limita-

tions or should we instead opt for the six-month statute

of limitations set forth in section 10(b) of the federal

National Labor Relations Act. The two cases present the

identical issue for review and we will consider both cases

in this Opinion.

For the reasons detailed below, we find that for cases

arising under WARN, courts should apply the most

closely analogous state statute of limitations. Thus, we

will reverse the decision in Thomas v. North Star Steel

and will affirm the decision in United Steelworkers of

America v. Crown Cork & Seal.

Background

Both of the underlying cases were filed pursuant to

WARN, a federal statute which requires companies with

one hundred or more employees to provide their workers

* Honorable Harold A. Ackerman, United States District Judge

for the District of New Jersey, sitting by designation.

with a minimum of sixty days written notice before a

plant closing or mass layoff. Employers who fail to pro-

vide the requisite notice must compensate employees suf-

fering an employment loss for each day of the violation.

The statute creates a private civil action for damages in

federal court.

On September 9, 1991, the United Steelworkers of

America, AFL-CIO-CLC, filed a complaint in federal

court alleging that the North Star Steel Company (“North

Star”) had violated the WARN Act by failing to give

the union sixty days advance notice of a February 25,

1991 layoff of about 270 people, at the company’s Mil-

ton, Pennsylvania plant. Although the suit was filed more

than six months after the layoff occurred, North Star did

not raise the statute of limitations as a defense. On April

9, 1992, the district court granted the union’s motion for

summary judgment on liability, holding that the layoff

constituted a “plant closing” subject to WARN. In a

separate Order, dated December 11, 1992, the district

judge determined the number of days for which the com-

pany was required to pay WARN damages. United Steel-

workers v. North Star Steel, 809 F. Supp. 5, 6-7 (M.D.

Pa. 1992), aff'd 5 F.3d 39 (1993).

Appellants were non-unionized employees of North

Star, unrepresented by the union and hence unaffected by

the union’s successful lawsuit against North Star. They

therefore filed a separate action, the instant case, also

seeking damages pursuant to WARN. On May 25, 1993,

the district court granted North Star’s motion for sum-

mary judgment, finding that the action was barred under

1 The statute defines “plant closing” as the permanent or tempo-

rary shutdown of a single site of employment, which results in an

employment loss to a certain minimum number of employees. 29

U.S.C. § 2101(a) (2). “Mass layoff” is defined as a reduction-in-

force, resulting from a plant closing, which results in a certain

minimum employment loss. 29 U.S.C. § 2101(a) (3). A layoff must

last more than six months before it qualifies as actionable under

WARN. 29 U.S.C. § 2101(a) (6) (B).

what it deemed to be the applicable statute of limitations.

The employees’ motion for reconsideration was denied on

August 26, 1993. This appeal followed.

United Steelworkers of America v. Crown Cork & Seal

Co., Inc. (“Crown Cork”), arises out of an event that

took place on September 30, 1991. On that day, the

company ordered a reduction-in-force and shutdown of its

Perry, Georgia plant. As a result of this reduction in

force, about 85 employees were terminated. On October

15, 1992, the United Steelworkers of America (the un-

ion) filed a complaint, alleging that the company violated

WARN by failing to give it 60 days notice prior to the

shutdown. Crown Cork & Seal then moved for sum-

mary judgment, contending that the action was barred

by the applicable statute of limitations. The district court

denied the motion on August 24, 1993 but in an order

dated September 26, 1993, certified the August order for

immediate interlocutory appeal pursuant to 28 U.S.C.

§ 1292.

We have jurisdiction over the appeal in Thomas v.

North Star Steel pursuant to 28 U.S.C. § 1291. Our ju-

risdiction over United Steelworkers of America v. Crown

Cork & Seal arises from our October 13, 1993 Order

granting the company permission to appeal pursuant to

28 U.S.C. § 1292(b). Our review over both cases is

plenary.

Discussion

In this case we visit a general question of federal law

that we have repeatedly addressed: When a federal stat-

ute does not contain an explicit statute of limitations,

when is it appropriate to borrow a statute of limitations

from elsewhere in federal law rather than adopting the

most closely analogous state statute of limitations.

The companies argue that in this case, a federal statute

—the six-month statute of limitations contained in section

10(b) of the National Labor Relations Act (“NLRA”)

for filing a claim of an unfair labor practice with the Na-

aN eT

, ” Se i a

tional Labor Relations Board (“NLRB”)—provides the

most appropriate limitations period. The employees and

the union exhort us to borrow one of various state stat-

utes. Courts addressing the question have adopted both

approaches. Some have borrowed the six-month § 10(b)

Statute; see, e.g., Newspaper and Mail Delivers’ Union

of N.Y. and Vicinity v. United Magazine Co., 809 F.

Supp. 185 (E.D.N.Y. 1992) (adopting NLRA statute):

Staudt v. Glastron, Inc., No. SA-92-CA-1174, 1993 WL

85356, 1993 U.S. Dist. LEXIS 3090 (W.D.Tex. Febru-

ary 23, 1993) (same). Other courts, including the only

Court of Appeals to reach the question, have expressly

considered and rejected the section 10(b) six-month pe-

riod, instead opting for various state law limitations pe-

riods. See, e.g., United Paperworkers Local 340 vy. Spe-

cialty Paperboard, Inc., 999 F.2d 51 (2d Cir. 1992)

(hereinafter United Paperworkers): Wallace v. Detroit

Coke Corp., 818 F. Supp. 192 (E.D. Mich. 1993) (re-

jecting NLRA statute and adopting six-year state contract

statute); Automobile Mechanics’ Local No. 70] of the Int'l

Assoc. of Machinists & Aerospace Workers v. Santa Fe

Terminal Services, Inc., 830 F. Supp. 432 (N.D. Iil.

1993) (rejecting NLRA statute and adopting, without

specifying, most analogous state statute).

The two district court opinions before us now reached

contrary conclusions. The district court in North Star

Steel adopted the six-month statute of limitations set forth

in § 10(b); the court in Crown Cork & Seal rejected the

§ 10(b) statute, and without deciding the appropriate stat-

ute of limitations, found the action timely under all of the

possibilities.

Our analysis must begin with the general assumption

that when a federal statute is silent as to a statute of

limitations, the court should apply “the most closely analo-

gous statute of limitations under state law.” DelCostello

v. International Brotherhood of Teamsters, 462 US. 151,

158 (1983); see also Lampf, Pleva, Lipkind, Prupis &

Petigrow v. Gilbertson, 501 U.S. 350, » 433 SAX.

2773, 2778 (1991); Haggerty v. USAIR, Inc., 952 F.2d

781, 783 (3d Cir. 1992). This general rule is not set

in stone, however. Rather, the United States Supreme

Court has recognized that, in order to prevent frustration

of federal policy, it is sometimes more appropriate to bor-

row a limitations period from an analogous area of fed-

eral law. DelCostello, 462 U.S. at 162. This exception is

“closely circumscribed”, see Reed v. United Transp. Un-

ion, 488 U.S. 319, 324 (1989), and should only be

applied “when a rule from elsewhere in federal law clearly

provides a closer analogy than available state statutes, and

when the federal policies at stake and the practicalities

of litigation make that rule a significantly more appro-

priate vehicle for interstitial lawmaking”. DelCostello,

462 US. at 172.

In following the principles enunciated in DelCostello

and Reed, we repeatedly have recognized our duty “to

take seriously [the Supreme Court’s admonition] that

analogous state statutes of limitations are to be used un-

less they frustrate or significantly interfere with federal

policies.” Reed, 488 U.S. at 327. For instance, the mere

fact that a statute touches upon issues of labor law does

not mean that the Court must resort to the statute of

limitations contained in § 10(b) of the NLRA. Thus, in

Eichleay Corp. v. Intern. Ass'n of Bridge, Structural and

Ornamental Iron Workers, 944 F.2d 1047 (3d Cir.

1991), we applied a state statute of limitations for va-

cating arbitration awards to an action to enforce an ar-

bitration awards pursuant to § 301 of the Labor Manage-

ment Relations Act, 29 U.S.C. § 185. Similarly, in Bren-

ner v. Local 514, United Brothers of Carpenters, 927

F.2d 1283 (3d Cir. 1991), we remanded the case to the

district court to apply the most closely analogous state

statute of limitations to a § 301 claim of retaliation against

internal union activities. In Grasty v. Amalgamated Cloth-

ing & Textile Workers Union, 828 F.2d 123 (3d Cir.

1987), cert. denied, 484 U.S. 1042 (1988), we applied

Pennsylvania’s four-year breach of contract statute of limi-

tations to a union member’s claim that the union failed to

rebate dues and improperly charged disabled workers. In

this case, as in those, the federal statute may be borrowed

only if it clearly provides a closer analogy than the avail-

able state statutes. Answering this question requires us

to focus on the respective policies behind the NLRA and

WARN.

The primary purpose of the NLRA is “to protect the

right of workers to join together in labor organizations

and collectively bargain for thc terms and conditions of

employment.” United Paperworkers, 999 F.2d at 54:

see also Fort Halifax Packing Co., Inc. v. Coyne, 482

U.S. 1, 20-21 (1987). The statute “is concerned with en-

suring an equitable bargaining process, not with the sub-

stantive terms that may emerge from such bargaining.”

Fort Halifax, 482 U.S. at 20 (citing Metropolitan Life

Ins. Co. v. Massachusetts, 471 U.S. 724 (1985)). More

specifically, as the Supreme Court noted in Reed, the

NLRA has “effects upon the formation and operation of

the collective-bargaining agreement between the employer

and the bargaining representative, and upon the private

settlement of disputes under that agreement through

grievance-and-arbitration procedures”. Reed, 488 USS.

at 329. The NLRA, then, is concerned with the impor-

tance and integrity of a process. From the NLRA’s per-

spective, “minimum terms of employment” that may arise

from another federal statute—or from the process of col-

lective bargaining itself—are irrelevant so long as the

process is fair.

The six-month statute of limitations set forth in § 10

(b) represents Congress’s view of the proper balancing of.

the various interests involved in the process of collective

bargaining. The six-month period takes into account “the

national interests in stable bargaining relationships and

finality of private settlements, and an employee’s interest

in setting aside what he views as an unjust settlement

under the collective-bargaining system.” DelCostello, 462

U.S. at 171 (quoting United Parcel Service, Inc. v.

Mitchell, 451 U.S. at 70-71 (1980) (opinion concurring

in the judgment) ). In DelCostello itself, it was precisely

this direct effect on the collective bargaining process that

led the Court to invoke the §$ 10(b) statute of limita-

tions. That case involved a § 301 hybrid suit (1) against

an employer for breach of a collective bargaining agree-

ment pursuant to the NLRA, and (2) against a labor

union for breach of the duty of fair representation. Such

a hybrid action really alleges that the process of collective

bargaining has broken down. Thus, the NLRA policies

applied: “The employee’s interest in setting aside the

‘final and binding’ determination of a grievance through

the method established by the collective-bargaining agree-

ment unquestionably implicates ‘those consensual processes

that federal labor law is chiefly designed to promote—

the formation of the . . . agreement and the private settle-

ment of disputes under it.’” DelCostello, 462 U.S. at

171 (quoting Mitchell, 451 U.S. at 70-71 (opinion con-

curring in judgment) ).

In DelCostello, the parallels between the cause of ac-

tion and the policies behind the NLRA were unmistak-

able. In Reed, however, the Supreme Court, while ac-

knowledging that many employment-related statutes affect-

ing labor will in some way affect the collective bargain-

ing process, cautioned that even plausible “tangential and _

remote” effects upon collective bargaining are insufficient

to warrant departure from the general rule. Reed, 488

U.S. at 330, 331. Thus, the Court refused to borrow

the § 10(b) NLRA statute of limitations to govern a

union member’s free speech claim against the union.

WARN falls into this latter category—any effects it has

on collective bargaining are tangential at best. The bene-

fits of WARN accrue not only to unionized workers but

to all workers alike. WARN, like dozens of other employ-

ment statutes which bestow substantive rights simply

“gives employees something for which they otherwise

might have to bargain.” Fort Halifax, 482 U.S. at 21

(addressing Maine plant closing law). That is why in

that case, the Supreme Court held that the NLRA did

not preempt a Maine statute providing protection to work-

ers from plant closings. Unlike the NLRA, the Maine

regulation “provide{d] protection to individual union and

nonunion workers alike, and thus ‘neither encourage[d]

nor discourage[d] the collective bargaining processes... .’”

Fort Halifax, 482 U.S. at 21 (quoting Metropolitan Life,

471 U.S. at 755). The WARN protections, like the

Maine plant closing law discussed in Fort Halifax, is [sic]

also properly understood as establishing part of the “back-

drop” of rights that the parties bring to the collective

bargaining table, and not as affecting the substantive

rights that may emerge from the collective bargaining dis-

cussions. Fort Halifax, 482 U.S. at 21.

WARN serves a broader purpose as well, that goes be-

yond the employer-employee relationship addressed by

the NLRA. The statute mandates that employers plan-

ning a plant closing or mass lay-off must notify the “chief

elected official of the unit of local government within

which such closing or layoff is to occur”. 29 U.S.C.

§ 2102(a)(2). Employers who fail to comply with the

provision are subject to civil penalties of $500 per day.

29 U.S.C. §2104(a)(3). Thus, WARN serves very

broad societal goals—to protect workers, their families

and their communities in the wake of potentially harmful

employment decisions. Its remedial nature really has very

little to do with the day to day process of collective bar-

gaining.

To be sure, it cannot be said that WARN has no effect

on collective bargaining. The companies point out, for

example, that under the NLRA, an employer must pro-

vide notice to represented workers, in order to give the

workers the opportunity for meaningful bargaining. See,

e.g.[,] First National Maintenance Corp. v. NLRB, 452

U.S. 666, 681 (1981). This fact does present a superficial

10a

rememblance between the NLRA and WARN, but on

closer inspection, it highlights the difference. The rights

bestowed by the NLRA focus solely on the need for a

meaningful collective bargaining process; WARN provides

an across-the-board substantive right. The implementing

regulations of the statute highlight this crucial distinction

by providing that “[c]Jollective bargaining agreements may

be used to clarify or [to] amplify the terms and conditions

of WARN, but may not reduce WARN rights.” 20 C.F.R.

§ 639.1(g) (emphasis added). In other words, the NLRA

requires notice to protect the meaningfulness of the collec-

tive-bargaining process; WARN’s purpose is to substan-

tively protect employees and their communities.

The fact that courts have looked to NLRA cases in

interpreting WARN, and the fact that there are some

definitional overlaps, does not change this fundamental

distinction between the two statutes. At best, WARN

has a family resemblance to the NLRA. In Brenner v.

Local 514, United Brothers of Carpenters, 927 F.2d 1283

(3d Cir. 1991), we rejected the proposition that a family

resemblance is sufficient to justify adopting the § 10(b)

statute of limitations. There, we held that a claim against

a union for breach of the duty of fair representation, while

having some effect upon the collective bargaining atmos-

phere, did not have an effect sufficient enough to counsel

adoption of the federal statute. 7d. at 1295. In order to

justify departing from the general rule, the analogy must

be more direct.”

2 The lack of similarity between the NLRA and WARN becomes

even starker when one looks at the remedies afforded by the re-

spective statutes. Under the NLRA, the National Labor Relations

Board has broad discretion to “ ‘take such affirmative action in-

cluding reinstatement of employees . .. as will effectuate the

policies of [the Act]’ to remedy an employer’s unfair labor prac-

tices.” Tubari Ltd., Inc. v. NLRB, 959 F.2d 451, 453 (3d Cir.

1992). WARN by its very terms precludes such broad equitable

relief; “[A] Federal court shall not have authority to enjoin a

plant closing or mass layoff.” (emphasis added). Similarly, the

ors

lla

As the Second Circuit pointed out in United Paper-

workers, courts adopting the section 10(b) statute of

limitations for WARN actions “have failed to grasp this

crucial distinction between statutes which specifically reg-

ulate the collective bargaining relationship and those

which remain peripheral to that concern.” United Paper-

workers, 999 F.2d at 55.

Nonetheless, despite the vast gulf between the respec-

tive policies behind the NLRA and WARN, the com-

panies look for relief in our own prior decision of Hag-

gerty v. USAir. Their reliance is misplaced. That case

addressed the Employee Protection Program of the Airline

Deregulation Act, 49 U.S.C. $ 1552(d)(1) (1988)

(“EPP”), a federal statute which provided certain air

carrier employees with a right of first hire against other

air carriers. The EPP directly affected the collective

bargaining environment by impacting on “the seniority

relationships of other employees’. .-. .” Haggerty, 952

F.2d at 787. As in DelCostello, this direct impact on

the collective bargaining environment required a statute

of limitations that furthered the need for the rapid reso-

lution of labor disputes. And since, as we noted in Hag-

gerty itself, the airline industry was nearly 90% unionized

and the right-to-hire program was inserted into the stat-

ute at the insistence of unions, the six-month section

10(b) statute of limitations was the obvious choice.*

In determining whether to apply a federal statute of

limitations, we also have considered whether the federal

policies at stake and the practicalities of litigation make

the NLRA statute “a significantly more appropriate ve-

NLRB’s discretion in awarding back pay is broad. See Tubari,

959 F.2d at 453. WARN, though, provides a strict statutory

mechanism for computing damages.

3 We also found that “as with the NLRA, the Department of

Labor has had a role in administering the EPP as the agency

charged with maintaining a listing of airline vacancies for the use

of protected employees under the EPP.” Haggerty, 952 F.2d at 787.

12a

hicle for interstitial lawmaking”. DelCostello, 462 U.S.

at 172; Haggerty, 952 F.2d at 786. The companies argue

that WARN requires a single federal statute of limita-

tions, because subjecting the companies to multiple state

statutes of limitations would make it difficult for em-

ployers to calculate their contingent liabilities.

This case simply does not present serious uniformity

concerns. The need for uniformity becomes real only

when the federal statute at issue contains numerous types

of claims and legal theories or when the prospect of multi-

ple state statutes of limitation[s] presents serious practical

problems. Uniformity concerns motivated the Supreme

Court in Wilson v. Garcia, 471 U.S. 261 (1985), to ap-

ply a uniform limitations period (a state limitations period

in that case) to claims arising under 42 U.S.C. § 1983.

As the Court pointed out, claims under the broad civil

rights statute “would encompass numerous and diverse

topics and subtopics.” Wilson, 471 U.S. at 273. Thus,

“Tilf the choice of the statute of limitations were to de-

pend upon the particular facts or the precise legal theory

of each claim, counsel could almost always argue, with

considerable force, that two or more periods of limitations

should apply to each § 1983 claim.” Jd. at 273-74. The

Court used similar reasoning in Agency Holding Corp. v.

Malley-Duff & Associates, Inc., 483 U.S. 143 (1987):

Since RICO “encompass[es] numerous diverse topics and

subtopics . . . a uniform statute of limitations is required

to avoid intolerable ‘uncertainty and time-consuming liti-

gation.’ ” Id. at 149-50 (quoting Wilson, 471 U.S. at 273,

ath}.

In Haggerty, we relied on uniformity concerns in de-

ciding to apply the section 10(b) statute. Under the

EPP, a protected employee who had been terminated or

furloughed could claim a right of first hire with any

other carrier that was hiring employees. We noted that

airline carriers would have difficulty “managing a co-

hesive policy with respect to the EPP were they subject

13a

to the varying limitations periods of each of the states

in which they operate.” Haggerty, 952 F.2d at 786.

Thus, without a uniform federal statute of limitations,

the entire airline industry faced constant and protracted

uncertainty.

Unlike RICO and Section 1983, WARN contains but

a single cause of action, and all WARN claims involve

nearly identical fact patterns and discrete inquiries. And

unlike the EPP, under which an airline may be the for-

tuitous victim of events involving other air carriers all

across the country, WARN’s obligations simply do not

implicate such geographic concerns favoring uniformity.

As the Second Circuit put it:

“The term ‘plant closing’ as defined by the Act is

limited to single sites of employment, and venue is

limited to the district where the violation is alleged

to have occurred or where the employer does busi-

ness; unless a single plant site straddles the boundary

between two states, it is unlikely prospective plaintiffs

will have a broad choice of fora in which to bring

their claims or that doubt will arise as to in which

State triggering events occurred. Therefore, geo-

graphic considerations do not counsel for the appli-

cation of a uniform federal limitations period for

WARN Act claims.” United Paperworkers, 999

F.2d at 56 (quoting district court opinion).

Because of these same factors, “courts will have little

difficulty in determining which state’s law to apply and

workers will gain few advantages by suing in a court far

from the site of injury.” United Paperworkers, 999 F.2d

at 56.*

* Since the Crown Cork & Seal action occurred in Perry, Georgia,

there is a question as to whether the statute of limitations should

be borrowed from Georgia or Pennsylvania law. We have pre-

viously held that “as a general rule the governing statute of limi-

tations should be that of the state in which the federal court sits,

unless a party can make a compelling showing that the application

14a

The companies’ further concern about the effect of a

plant closing on service of process, and on the mechanics

of litigation, simply do not implicate federal concerns;

rather, they are the same concerns at issue in every cause

of action, whenever the statute of limitations is longer

then [sic] a year or so.

On the other hand, a short statute of limitations could

very well frustrate the policies behind WARN. As the

Second Circuit found, under the complex administrative

scheme of the NLRA, in which the NLRB plays a large

and active role in prosecuting claims, “[t]he burden on

complainants in pursuing a claim is minimal, justifying

the short statute of limitations.” United Paperworkers,

999 F.2d at 55. WARN does not contain those adminis-

trative safeguards, and a six-month statute could very

well constitute too great a burden on the claimants.

Finally, cases finding that the practicalities of litigation

favor adoption of a federal statute of limitations have

focused on the problems with the potential state statutes.

For example, in DelCostello, the Court pointed out that

the two possible state statutes were inconsistent with the

relevant federal policy favoring the finality of settlements

and the opportunity to attack an unfair result under col-

lective bargaining. The extremely short time periods in

state arbitration statutes “fail to provide an aggrieved

employee with a satisfactory opportunity to vindicate his

rights under § 301 and the fair representation doctrine.”

Id. at 166. Conversely, the relatively lengthy time period

of that statutory time bar would seriously frustrate federal labor

policy or work severe hardship to the litigants.” Consolidated Ez-

press, Inc. v. New York Shipping Association, Inc., 602 F.2d 494,

507-08 (3d Cir. 1979), vacated on other grounds, 448 U.S. 902

(1980). We need not decide whether the statute of limitations

should be borrowed from Pennsylvania or Georgia law, since no

party has brought to the lower courts’ attention a statute of limi-

tations, from either state, under which the instant actions would

be untimely.

15a

governing legal malpractice claims “would preclude the

relatively rapid final resolution of labor disputes favored

by federal law—a problem not present when a party toa

commercial arbitration sues his lawyer.” Jd. at 168.

Here, the state statutes of limitations brought to the

lower courts’ attention—which range from the two-year

period for enforcing civil penalties under 42 Pa. Cons.

Stat. Ann. § 5524(5) to Pennsylvania’s six-year residual

Statute of limitations, 42 Pa. Cons. Stat. Ann. § 5527—

do not interfere with federal policy.’ Because of WARN’s

remedial nature and its limited effect on collective bar-

gaining, a short statute of limitations is unnecessary. And

none of the state statutes are so short as to interfere with

a worker’s potential for seeking or gaining relief. While

we acknowledge that none of the possible state laws pro-

vide perfect analogies to WARN, the absence of a perfect

analogy is an insufficient reason to depart from the gen-

eral rule, particularly when federal law does not provide

a satisfactory alternative. See, e.g., DelCostello, 462

U.S. at 171; Gavalik v. Continental Can Co., 812 F.2d

834, 847 (3d Cir. 1987).

Here, we need not decide which state statute applies,

since the actions would be timely under any of the pos-

sible statutes of limitations brought to the court’s atten-

tion.

Conclusion

We conclude that, for the reasons detailed above, for

actions arising under WARN, courts must apply the most

closely analogous state statute of limitations. We there-

fore will affirm the district court’s Order in United Steel-

workers of America v. Crown Cork & Seal denying Crown

Cork & Seal’s motion for summary judgment. We will

5 Other possible state statutes of limitations include the three

year period set forth in 43 Pa. Stat. Ann. § 260.9a(g) for bringing

claims under the Pennsylvania Wage Payment and Collection Law,

and the four year limitations period for breach of an implied

contract, 42 Pa. Cons. Stat. Ann. § 5525(4).

16a

reverse the Order of the district court in Thomas v. North

Star Steel granting North Star’s motion for summary judg-

ment in favor of North Star. These cases will be re-

manded to the respective district courts for further pro-

ceedings consistent with this opinion. Costs taxed against

the appellant in 93-2008. Costs taxed against the appellee

in 93-7613.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

17a

APPENDIX B

UNITED STATES DISTRICT COURT

M.D. PENNSYLVANIA

No. 4:CV-92-1507

CHARLES A. THOMAS, et al.,

Plaintiffs,

NORTH STAR STEEL COMPANY, INC.,

Defendant.

May 25, 1993

ORDER

MUIR, District Judge.

THE BACKGROUND OF THIS ORDER

IS AS FOLLOWS:

On October 23, 1992, the Piaintiffs filed this action

pursuant to the Worker Adjustment and Retraining No-

tification Act, 29 U.S.C. § 2101, et seq. The events

which form the basis of this action occurred on Febru-

ary 25, 1991. On that date North Star Steel Company,

Inc. (hereafter “North Star Steel”), laid off approximately

270 employees at its Milton, Pennsylvania, plant. The

Plaintiffs allege that they are entitled to damages because

they were laid off without any notice.

On April 1, 1993, the parties filed cross motions for

summary judgment. Both of those motions have been

fully briefed and are ripe for disposition.

18a

The standard for summary judgment pursuant to Fed-

eral Rule of Civil Procedure 56 is well settled. Sum-

mary judgment is not proper where a reasonable jury

could find for the non-moving party on a material issue of

fact. Since a reasonable jury presumably needs more

than a scintilla of evidence to find in favor of a party

with the burden of persuasion, more than that amount of

evidence must be produced by the non-movant in order to

survive a summary judgment motion. The non-movant

must present evidence beyond his or her pleadings to meet

this requirement. Williams v. Borough of West Chester,

891 F.2d 458, 459-60 (3d Cir. 1989). We first address

North Star Steel’s motion for summary judgment.

In its motion North Star Steel argues that the Plain-

tiffs’ claims are time barred because they commenced

this action approximately 20 months after the events

which gave rise to their cause of action. North Star Steel

reasons that the appropriate statute of limitations for

actions brought pursuant to the Worker Adjustment and

Retraining Notification Act is six months. In response

the Plaintiffs argue that their complaint was timely filed

because the applicable statute of limitations is three years.

The Worker Adjustment and Retraining Notification

Act.does not contain an express statute of limitations.

@@uch instances the United States Supreme Court has

“generally concluded that Congress intended that the

Courts apply the most closely analogous statute of limi-

tations under state law.” Reed v. United Transp. Union,

488 U.S. 319, 323, 109 S.Ct. 621, 625, 102 L.Ed.2d

665 (1989) (quoting DelCostello v. Teamsters, 462 U.S.

151, 158, 103 S.Ct. 2281, 2287, 76 L.Ed.2d 476

(1983)). However, that general principle does not apply

when a rule from elsewhere in federal law clearly

provides a closer analogy than available state stat-

utes, and when the federal policies at stake and the

practicalities of litigation make that rule a signifi-

SS ee

19a

cantly more appropriate vehicle for interstitial law-

making.

Id. (quoting DelCostello, 462 U.S. at 172, 103 S.Ct. at

2294).

The Plaintiffs assert that the general principle should

be followed and that the statute of limitations in Penn-

Sylvania’s Wage Payment and Collection Law, which is

three years, should be applied in this case.

The Wage Payment and Collection Law, 43 PS.

§§ 260.1 et seq., does not create an employee’s right to

compensation but only establishes a right to enforce the

payment of wages and compensation to which an em-

ployee is otherwise entitled. 43 P.S. § 260.5(a); Weldon

v. Kraft, Inc., 896 F.2d 793 (3d Cir. 1990). The Worker

Adjustment and Retraining Notification Act differs from

the Pennsylvania Wage Payment and Collection Law in

that the former creates a Statutory right to monetary

damages when an employer violates its provisions.

In Haggerty v. USAir, Inc., 952 F.2d 781 (3d Cir.

1992), the Court of Appeals for the Third Circuit de-

clined to borrow the statute of limitations in the Pennsyl-

vania Wage Payment and Collection Law in a case

brought pursuant to a federal statute that did not contain

a statute of limitations. The statute at issue in Haggerty

was the Employee Protection Program which was an

amendment to the Airline Deregulation Act. The Em-

ployee Protection Program “gave a protected employee

not only a ‘first right of hire’ by any other air carrier but

also a right to recall and [to] retention of seniority in

his or her original air carrier employment.” Haggerty,

952 F.2d at 785. That Program implicitly provided that

an employee covered by it could bring an action based

on the statutory rights that it created.

In deciding that the statute of limitations in the Penn-

sylvania Wage Payment and Collection Law did not ap-

20a

ply to Haggerty’s claim brought pursuant to the Employee

Protection Program, the Court of Appeals stated that

[t]he wage payment law is for payment of wages to

employees, not for hiring claims, and it is premised

on a contractual obligation that an employer has to

pay wages and benefits, not a statutory right like the

one here.

Id. at 786 (footnote omitted). That reasoning applies to

this case because the Plaintiffs seek to enforce a statutory

right established by the Worker Adjustment and Retrain-

ing Notification Act and their action is not premised on

any pre-existing contractual obligation between them and

North Star Steel. However, that conclusion does not end

our inquiry.

We may decline to borrow a state stitute of limitations

only where: (1) a rule from elsewhere in federal law

clearly provides a closer analogy than available state

statutes; and (2) when the federal policies at stake and

the practicalities of litigation make that rule a signifi-

cantly more appropriate vehicle for interstitial lawmaking.

Reed v. United Transp. Union, supra. North Star Steel

argues that the National Labor Relations Act is the ap-

propriate statute from which we should borrow the ap-

plicable statute of limitations. The statute of limitations

in that Act is six months. 29 U.S.C. § 160(b).

We must determine whether the National Labor Rela-

tions Act is more analogous to the Worker Adjustment

and Retraining Notification Act than any available state

statute. We initially note that in another action against

North Star Steel which had arisen from the same facts

in this case, we analogized for the purposes of awarding

prejudgment interest and of awarding attorney’s fees an

action brought under the Worker Adjustment and Re-

training Notification Act to one pursuant to the National

Labor Relations Act for the purposes of awarding pre-

judgment interest and of awarding attorney’s fees. United

tid ere

2la

Steelworkers of America v. North Star Steel Corp., 809

F.Supp. 5 (M.D.Pa. 1993). We supplement our conclu-

sion in that case with the following factors.

A number of the provisions in the Worker Adjustment

and Retraining Notification Act apply specifically where

the terminated employees are represented by a union and

other provisions explicitly refer to the National Labor

Relations Act. Both the National Labor Relations Act

and the Worker Adjustment and Retraining Notification

Act bestow statutory rights upon employees. While the

specific rights created by each statute are different, the

policies behind each of the acts are consistent, mutually-

reinforcing, and to some extent identical.

The purposes of the National Labor Relations Act are

to prescribe the legitimate rights of both employees

and employers in their relations affecting commerce,

to provide orderly and peaceful procedures for pre-

venting the interference by either with the legitimate

rights of the other, to protect the rights of individual

employees in their relations with labor organizations

whose activities affect commerce, to define and pro-

scribe practices on the part of labor and management

which affect commerce and are inimical to the gen-

eral welfare, and to protect the rights of the public

in connection with labor disputes affecting commerce.

29 U.S.C. § 141(b).

The goal of the Worker Adjustment and Retraining

Notification Act is to provide

protection to workers, their families, and communi-

ties by requiring employers to provide notification

60 calendar days in advance of plant closings and

mass layoffs. Advance notice provides 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 train-

22a

ing or retraining that will allow these workers to

successfully compete in the job market.

20 C.F.R. § 639.1(a) (1992). Both statutes protect em-

ployees from job loss.

The analogy between the two statutes is strengthened

by the fact that the regulations interpreting the Worker

Adjustment and Retraining Notification Act provide that

“[c]Jollective bargaining agreements may be used to clarify

or [to] amplify the terms and conditions of WARN, but

may not be used to reduce WARN rights.” 20 C.F.R.

§ 639.1(g) (1992). The collective bargaining procedure

is one of the tools which the National Labor Relations

Act placed in the hands of employees.

We are of the view that the framework and goals of

the National Labor Relations Act are such that it is more

analogous to the Worker Adjustment and Retraining

Notification Act than to any state statute of which we

are aware.

In the light of that conclusion we must decide whether

the federal policies at stake and the practicalities of liti-

gation make the rule borrowed from the National Labor

- Relations Act a significantly more appropriate vehicle

for interstitial lawmaking than any state statute.

With respect to that issue, the United States Supreme

Court has stated that the threshold inquiry is “whether

all claims arising out of the federal statute ‘should be

characterized in the same way, or whether they should be

evaluated differently depending upon the varying factual

circumstances and legal theories presented in each indi-

vidual case.’” Agency Holding Corp. v. Malley-Duff &

Assoc.’s, 483 U.S. 143, 147, 107 S.Ct. 2759, 2762, 97

L.Ed.2d 121 (quoting Wilson v. Garcia, 471 U.S. 261

268, 105 S.Ct. 1938, 1942, 85 L.Ed.2d 254 (1985)).

When making that inquiry, the Court of Appeals for the

Third Circuit has stated that it “really entails an analysis

23a

of whether claims under a statute are enough alike so that

a uniform statute of limitations should be applied to all

of them, at least on a state-by-state basis.” Haggerty, 952

F.2d at 784 (footnote omitted). The Court of Appeals

in Haggerty further reasoned that a uniform, federal stat-

ute of limitations should be applied to claims which arise

“out of a similar factual matrix.” Jd. at 785-86.

We believe that claims pursuant to the Worker Adjust-

ment and Retraining Notification Act arise out of fac-

tually-similar circumstances in that all such claims will

encompass a plant closing or mass layoff of at least 100

employees. We next address the federal policies at stake

and the practicalities of litigation pursuant to the Worker

Adjustment and Retraining Notification Act.

A uniform statute of limitations applied nationwide is

appropriate for claims brought pursuant to the Worker

Adjustment and Retraining Notification Act because, as

in Haggerty, “[a] lack of uniformity among the many

state jurisdictions in which [the claims arise] can cause

uncertainty for both employees and employers.” Jd. at

786. In the regulations passed pursuant to the Worker

Adjustment and Retraining Notification Act, the Depart-

ment of Labor has foreseen “that Federal rulemaking

cannot address the multitude of industry and company-

specific situations in which [the Act will apply].” 20

C.F.R. § 639.1(b) (1992). The Department of Labor's

concerns appear to include potential complications caused

by the application of a patchwork of different state laws

to a single company. Although all actions arising under

the Werker Adjustment and Retraining Notification Act

may be based upon a factually-similar scenario, problems

may arise as a result of “a major automaker which has

dozens of automobile plants throughout the country.” 20

C.F.R. § 639.3(a)(4). A uniform statute of limitations

would benefit employees and employers when a single

employer may be subject to liability pursuant to the

Worker Adjustment and Retraining Notification Act in

24a

various states. The practicalities of litigation arising un-

der the Worker Adjustment and Retraining Notification

Act favor a uniform, federal statute of limitations.

With respect to the federal policies at stake, we are of

the view that the policies furthered by the Worker Adjust-

ment and Retraining Notification Act mirror those which

prompted passage of the National Labor Relations Act.

There is a substantial federal interest in labor-manage-

ment relations and the effect of mass layoffs on interstate

commerce.

We conclude that in actions brought pursuant to the

Worker Adjustment and Retraining Notification Act, it

is appropriate to borrow the six-month statute of limita-

tions set forth in the National Labor Relations Act. 29

U.S.C. § 160(b). Two other United States District Courts

which have addressed the issue have reached the same

result. Newspaper & Mail Deliverers’ v. United Maga-

zine, 809 F.Supp. 185 (E.D.N.Y. 1992); Staudt v. Glas-

tron, Inc., 8 Indiv. Empl. Rts. Cas. (BNA) 462, 1993

WL 85356 (W.D. Tex. 1993); but see, Wallace v. De-

troit Coke Corp., No. 92-72891 slip op., 1993 WL

104242 (S.D.N.Y. Feb. 26, 1993) (state statute of limi-

tations applies in WARN action).

The Plaintiffs argue that North Star Steel should be

equitably and collaterally estopped from asserting that the

applicable statute of limitations is six months. However,

the Plaintiffs have not shown that they relied upon any

representation of North Star Steel and they have not

shown that the issue of the statute of limitations had been

raised in any case based on the same factual allegations.

North Star Steel is not estopped from advancing the ar-

gument that the applicable statute of limitations is six

months.

North Star Steel’s motion for summary judgment should

be granted because there are no material facts in dispute,

the appropriate statute of limitations is six months, and

alt: Es peat

25a

this action was filed approximately 20 months after the

events upon which it is based had occurred.

In light of that conclusion, Plaintiffs’ motion for sum-

mary judgment will be denied as moot.

NOW, THEREFORE, IT IS ORDERED THAT:

1. North Star Steel’s motion for summary judgment

based on the contention that this action is time barred

is granted.

2. The Plaintiffs’ motion for summary judgment is de-

nied as moot.

3. The Clerk of Court shall enter judgment for North

Star Steel.

4. TheClerk of Court shall close this file.

26a

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

No. 4:CV-92-1507

Complaint Filed 10/23/92

(Judge Muir)

CHARLES A. THOMAS, et al.,

= Plaintiffs

NORTH STAR STEEL COMPANY, INC.,

Defendant

ORDER

August 26, 1993

THE BACKGROUND OF THIS ORDER

IS AS FOLLOWS:

On May 25, 1993, we granted Defendant North Star

Steel Company, Inc.’s (hereafter “North Star Steel”) mo-

tion for summary judgment. In that order we concluded

that the applicable statute of limitations is six months and

that this case was time-barred because the Plaintiffs

brought it approximately 20 months after the facts upon

which it is based occurred.

On June 10, 1993, the Plaintiffs filed a motion to va-

cate judgment pursuant to Rule 59(e) of the Federal

Rules of Civil Procedure. After being granted an exten-

sion of time to do so, the Plaintiffs timely filed a brief in

27a

support of that motion on July 19, 1993. North Star Steel

filed its brief in opposition on August 6, 1993. The time

allowed for the Plaintiffs to file a brief in reply has ex-

pired, they have filed none, and the matter is ripe for

disposition.

The grounds upon which we may grant a motion pur-

suant to Rule 59(e) are limited. Such a motion may be

based only upon (1) an intervening change in controlling

law; (2) the presentation of new evidence not previously

available which, if discovered previously might have af-

fected the Court’s decision; or (3) to correct a manifest

error of law or fact. Harasco Corp. v. Zlotnicki, 779

F.2d 906, 909 (3d Cir. 1985). Moreover,

A Rule 59(e) motion is not to be used as a means

“to reargue matters already argued and disposed

of” by prior rulings “or to put forward additional

arguments which it could have made but neglected

to make before judgment.”

McDowell Oil Serv. v. Interstate Fire & Casualty Com-

pany, 817 F.Supp. 538, 541 (M.D. Pa. 1993) (citations

omitted) (McClure, J.).

In their motion the Plaintiffs assert, albeit in broad

terms, grounds which would entitle them to the relief

sought in their motion. However, in the brief supporting

their motion they

. urge the court to reconsider [the arguments pre-

sented in Plaintiff's Memorandum In Opposition To

Defendant’s Motion For Summary Judgment] in light

of the fast-developing caselaw on an issue which is

one of first impression in all jurisdictions known to

have considered it. For this purpose, Plaintiffs hereby

readopt and request the Court to incorporate into

this brief all of the arguments and citations to au-

thorities set forth in Part IIA1-3 (pages 2-17) of

said Memorandum filed in this matter [on May 5,

1993}.

28a

Plaintiffs’ Memorandum In Support of Motion To Va-

cate Judgment, page 1. That portion of the Plaintiffs’

brief reveals that they essentially reargue the position they

presented in their brief in opposition to North Star Steel’s

motion for summary judgment. The Plaintiffs have not

convinced us that there has been an intervening change

in controlling law, they have not presented any new evi-

dence, and they do not identify any error in our order

of May 25, 1993.

The Plaintiffs have not presented an appropriate basis

for the relief sought in their motion filed pursuant to

‘ Rule 59(e) of the Federal Rules of Civil Procedure. In

our view their arguments are best characterized as dis-

agreements which may be pursued through other avenues

of relief.

NOW, THEREFORE, IT IS ORDERED THAT:

The Plaintiffs’ motion to vacate the judgment entered

pursuant to our order of May 25, 1993, is denied.

/s/ Muir

MUIR

US. District Judge

29a

APPENDIX D

STATUTORY PROVISIONS

NATIONAL LABOR RELATIONS ACT

CHAPTER 23—WORKER ADJUSTMENT

AND RETRAINING NOTIFICATION

§ 2101. Definitions; exclusions from definition of loss of

employment

(a) Definitions.—As used in this chapter—

(1) the term “employer” means any business en-

terprise that employs—

(A) 100 or more employees, excluding part-

time employees; or

(B) 100 or more employees who in the ag-

gregate work at least 4,000 hours per week

(exclusive of hours of Overtime ) :

(2) the term “plant closing” means the perma-

nent Or temporary shutdown of a single site of em-

ployment, 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 any part-time employees:

(3) the term “mass layoff” means a reduction in

force which—

(A) is not the result of a plant closing; and

(B) results in an employment loss at the

single site of employment during any 3C-day pe-

riod for—

(i)(1) at least 33 percent of the em-

Ployees (excluding any part-time employ-

ees); and

30a

(II) at least 50 employees (excluding

any part-time employees) ; or

(ii) at least 500 employees (excluding

any part-time employees) ;

(4) the term “representative” means an exclu-

sive representative of employees within the meaning

of section 159(a) or 158(f) of this title or section

152 of Title 45;

(5) The term “affected employees” means em-

ployees who may reasonably be expected to experi-

ence an employment loss as a consequence of a pro-

posed plant closing or mass layoff by their em-

ployer;

(6) subject to subsection (b) of this section, the

term “employment loss” means (A) an employment

termination, other than a discharge for cause, vol-

untary departure, or retirement, (B) a layoff exceed-

ing 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; and

(8) the term “part-time employee” means an em-

ployee who is employed for an average of fewer than

20 hours per week or who has been employed for

fewer than 6 of the 12 months preceding the date

on which notice is required.

(b) Exclusions from definition of employment loss.—

(1) In the case of a sale of part or all of an employer’s

business, the seller shall be responsible for providing no-

tice for any plant closing or mass layoff in accordance

with section 2102 of this title, up to and including the

effective date of the sale. After the effective date of the

sale of part or all of an employer’s business, the purchaser

3la

shall be responsible for Providing notice for any plant

closing or mass layoff in accordance with section 2102

of this title. Notwithstanding any other provision of this

chapter, any person who is an employee of the seller

(other than a part-time employee) as of the effective date

of the sale shall be considered an employee of the pur-

chaser immediately after the effective date of the sale.

(2) Notwithstanding subsection (a)(6) of this section,

an employee may not be considered to have experienced

an employment loss if the closing or layoff is the result

of the relocation or consolidation of part or all of the

employer’s business and, prior to the closing or layoff—

(A) the employer offers to transfer the employee

to a different site of employment within a reason-

able commuting distance with no more than a 6-

month break in employment: or

(B) the employer offers to transfer the employee

to any other site of employment regardless of dis-

tance with no more than a 6-month break in em-

ployment, and the employee accepts within 30 days

of the offer or of the closing or layoff, whichever is

later.

(Pub.L. 100-379, § 2, Aug. 4, 1988, 102 Stat. 890.)

§ 2102. Notice required before plant closings and mass

layofts

(a) Notice to employees, state dislocated worker units,

and local governments.—An employer shall not 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—

(1) to each representative of the affected employ-

ees as of the time of the notice or, if there is no

such representative at that time, to each affected em-

ployee; and

(2) to the State dislocated worker unit ( desig-

nated or created under title III of the Job Training

32a

Partnership Act [29 U.S.C.A. § 1651 et seq.]) and

the chief elected official of the unit of local govern-

ment within which such closing or layoff is to occur.

If there is more than one such unit, the unit of local

government which the employer shall notify is the unit of

local government to which the employer pays the highest

taxes for the year preceding the year for which the de-

termination is made.

(b) Reduction of notification period—(1) An em-

ployer may order the shutdown of a single site of employ-

ment before the conclusion of the 60-day period if as of

the time that notice would have been required the em-

ployer was actively seeking capital or business which, if

obtained, would have enabled the employer to avoid or

postpone the shutdown and the employer reasonably and

in good faith believed that giving the notice required

would have precluded the employer from obtaining the

needed capital or business.

(2)(A) 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 cir-

cumstances that were not reasonably foreseeable as of the

time that notice would have been required.

(B) No notice under this chapter shall be required if

the plant closing or mass layoff is due to any form of

natural disaster, such as a flood, earthquake, or the

drought currently ravaging the farmlands of the United

States.

(3) An employer relying on this subsection shall give

as much notice as is practicable and at that time shall

give a brief statement of the basis for reducing the notifi-

cation period.

6 months which, at its outset, was announced to be a

layoff of 6 months or less, shall be treated as an employ-

ment loss under this chapter unless—

33a

(1) the extension beyond 6 months is caused by

business circumstances (including unforeseeable

changes in price or cost) not reasonably foreseeable

at the time of the initial layoff; and

(2) notice is given at the time it becomes reason-

ably foreseeable, that the extension beyond 6 months

will be required.

(d) Determinations with respect to employment loss.—

For purposes of this section, in determining whether a

plant closing or mass layoff has occurred or will occur,

employment losses for 2 or more groups at a single site

of employment, each of which is less than the minimum

number of employees specified in section 210] (a)(2) or

(3) of this title but which in the aggregate exceed that

minimum number, and which occur within any 90-day

period shall be considered to be a plant closing or mass

layoff unless the employer demonstrates that the employ-

ment losses are the result of separate and distinct actions

and causes and are not an attempt by the employer to

evade the requirements of this chapter.

(Pub.L. 100-379, § 3, Aug. 4, 1988, 102 Stat. 891.)

§ 2103. Exemptions

This chapter 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 re-

quirements of this chapter. Nothing in this chapter

Shall require an employer to serve written notice

pursuant to section 2102(a) of this title when per-

manently replacing a person who is deemed to be an

economic striker under the National Labor Relations

34a

Act [29 U.S.C.A. § 151 et seq.]: Provided, That

nothing in this chapter 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. [29 U.S.C.A. § 151 et seq.]:

(Pub.L. 100-379, § 4, Aug. 4, 1988, 102 Stat. 892.)

§ 2104. Administration and enforcement of requirements

(a) Civil actions against employers—(1) Any em-

ployer who orders a plant closing or mass layoff in viola-

tion of section 2102 of this title shall be liable to each

aggrieved employee who suffers an employment loss as

a result of such closing or layoff for—

(A) back pay for each day of violation at a rate

of compensation not less than the higher of—

(i) the average regular rate received by such

employee during the last 3 years of the em-

ployee’s employment; or

(ii) the final regular rate received by such

employee; and

(B) benefits under an employee benefit plan de-

scribed in section 1002(3) of this title, including

the cost of medical expenses incurred during the

employment loss which would have been covered

under an employee benefit plan if the employment

loss had not occurred.

Such liability shall be calculated for the period of the

violation, up to a maximum of 60 days, but in no event

_ for more than one-half the number of days the employee

was employed by the employer.

(2) The amount for which an employer is liable un-

der paragraph (1) shall be reduced by—

(A) any wages paid by the employer to the em-

ployee for the period of the violation;

35a

(B) any voluntary and unconditional payment by

the employer to the employee that is not required

by any legal obligation; and

party or trustee (such as premiums for health bene-

fits or payments to a defined contribution pension

plan) on behalf of and attributable to the employee

for the period of the violation.

In addition, any liability incurred under Paragraph (1)

with respect to a defined benefit pension plan may be

reduced by crediting the employee with service for all

Purposes under such a plan for the Period of the violation.

(3) Any employer who violates the provisions of sec-

tion 2102 of this title with respect to a unit of local

government shall be subject to a civil penalty of not more

than $500 for each day of such violation, except that

such penalty shall not apply if the employer pays to each

aggrieved employee the amount for which the employer

; is liable to that employee within 3 weeks from the date

the employer orders the shutdown or layoff.

(4) If an employer which has Violated this chapter

Proves to the satisfaction of the court that the act or

omission that violated this chapter was in good faith and

that the employer had reasonable grounds for believing

that the act or omission was not a violation of this chap-

ter the court may, in its discretion, reduce the amount of

the liability or penalty provided for in this section.

(5) A person seeking to enforce such liability, includ-

ing a representative of employees or a unit of local gov-

ernment aggrieved under paragraph (1) or (3), may sue

either for such person or for other persons similarly situ-

ated, 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 costs.

——

36a

(7) For purposes of this subsection, the term, “ag-

grieved employee” means an employee who has worked

for the employer ordering the plant closing or mass lay-

off and who, as a result of the failure by the employer

to comply with section 2102 of this title, did not receive

timely notice either directly or through his or her repre-

sentative as required by section 2102 of this title.

(b) Exclusivity of remedies—The remedies provided

for in this section shall be the exclusive remedies for any

violation of this chapter. Under this chapter, a Federal

court shall not have authority to enjoin a plant closing or

mass layoff.

(Pub.L. 100-379, § 5, Aug. 4, 1988, 102 Stat. 893.)

§ 2105. Procedures in addition to other rights of em-

ployees

The rights and remedies provided to employees by this

chapter are in addition to, and not in lieu of, any other

contractual or statutory rights and remedies of the em-

ployees, and are not intended to alter or affect such

rights and remedies, except that the period of notification

required by this chapter shall run concurrently with any

period of notification required by contract or by any

other statute.

(Pub.L. 100-379, § 6, Aug. 4, 1988, 102 Stat. 894.)

§ 2106. Procedures encouraged where not required

It is the sense of Congress that an employer who is

not required to comply with the notice requirements of

section 2102 of this title should, to the extent possible,

provide notice to its employees about a proposal to close

a plant or permanently recuce its workforce.

(Pub.L. 100-379, § 7, Aug. 4, 1988, 102 Stat. 894.)

§ 2107. Authority to prescribe regulations

(a) The Secretary of Labor shall prescribe such reg-

ulations as may be necessary to carry out this chapter.

Such regulations shall, at a minimum, include interpreta-

37a

tive regulations describing the methods by which em-

ployers may provide for appropriate service of notice as

required by this chapter.

(b) The mailing of notice to an employee’s last known

address or inclusion of notice in the employee’s paycheck

will be considered acceptable methods for fulfillment of

the employer’s obligation to give notice to each affected

employee under this chapter.

(Pub.L. 100-379, § 8, Aug. 4, 1988, 102 Stat. 894.)

§ 2108. Effect on other laws

The giving of notice pursuant to this chapter, if done

in good faith compliance with this chapter, shall not con-

Stitute a violation of the National Labor Relations Act

[29 U.S.C.A. § 151 et seq.] or the Railway Labor Act

[45 U.S.C.A. § 151 et seq. ].

(Pub.L. 100-379, § 9, Aug. 4, 1988, 102 Stat. 894. )

§ 2109. Report on employment and international com-

petitiveness

Two years after Aug. 4, 1988, the Comptroller General

shall submit to the Committee on Small Business of both

the House and Senate, the Committee on Labor and

Human Resources, and the Committee on Education and

Labor a report containing a detailed and objective analysis

of the effect of this chapter on employers (especially

small- and medium-sized businesses), the economy (inter-

national competitiveness), and employees (in terms of

levels and conditions of employment). The Comptroller

General shall assess both costs and benefits, including the

effect on Productivity, competitiveness, unemployment

fates and compensation, and worker retraining and re-

adjustment.

(Pub.L. 100-379, § 10, Aug. 4, 1988, 102 Stat. 894.)

38a

§ 160. Prevention of unfair labor practices

* * * *

(b) Complaint and notice of hearing; answer; court rules

of evidence inapplicable

Whenever it is charged that any person has engaged in

or is engaging in any such unfair labor practice, the

Board, or any agent or agency designated by the Board

for such purposes, shall have power to issue and cause to

be served upon such person a complaint stating the

charges in that respect, and containing a notice of hearing

before the Board or a member thereof, or before a desig-

nated agent or agency, at a place therein fixed, not less

than five days after the serving of said complaint: Pro-

vided, That no complaint shall issue based upon any un-

fair labor practice occurring more than six months prior

to the filing of the charge with the Board and the service

of a copy thereof upon the person against whom such

charge is made, unless the person aggrieved thereby was

prevented from filing such charge by reason of service in

the armed forces, in which event the six-month period shall

be computed from the day of his discharge. Any such

complaint may be amended by the member, agent, or

agency conducting the hearing or the Board in its discre-

tion at any time prior to the issuance of an order based

thereon. The person so complained of shall have the right

to file an answer to the original or amended complaint and

to appear in person or otherwise and give testimony at the

place and time fixed in the complaint. In the discretion

of the member, agent, or agency conducting the hearing or

the Board, any other person may be allowed to intervene

in the said proceeding and to present testimony. Any such

proceeding shall, so far as practicable, be conducted in

accordance with the rules of evidence applicable in the

district courts of the United States under the rules of civil

procedure for the district courts of the United Siates,

adopted by the Supreme Court of the United States pur.

suant w& section 2072 of Title 28.

OBIS reg Dy PVN RT ON SOR ey 5 RI

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.