Amicus Curiae Brief — North Star Steel Co. v. Thomas

Supreme Court brief1995

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Nos. 94-834 and 94-835 | HAR 23 1995

" THE CLERA

In the Supreme Court of the United States --—-

OCTOBER TERM, 1994

NORTH STAR STEEL COMPANY, PETITIONER

Vv.

CHARLES A. THOMAS, ET AL.

CROWN CORK & SEAL Co., INC., PETITIONER

UNITED STEELWORKERS OF AMERICA,

AFL-CIO-CLC

ON WRITS OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF FOR

THE UNITED STATES AS AMICUS CURIAE

SUPPORTING RESPONDENTS

DREW'S. DAyYs, III

Solicitor General

THOMAS S. WILLIAMSON, JR EDWIN S. KNEEDLER

Solicitor of Labor Deputy Solicitor General

ALLEN H. FELDMAN MALCOLM L. STEWAR'

Associate Solicitor Assistant to the Solicitor

STEVEN J. MANDEL General

Deputy Associate Solicitor Department of Justice

JUDITH D. HEIMLICH Washington, D.C. 20530

(202) 514-2217

Attorney

Department of Labor

Washington, D.C. 20210

QUESTION PRESENTED

Whether civil actions brought under the Worker

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

2101 et seqg., which contains no statute of limitations, are

subject to the most analogous state statute of limitations

or to the six-month limitations period for filing an unfair

labor practice charge under Section 10(b) of the National

Labor Relations Act, 29 U.S.C. 160(b).

TABLE OF CONTENTS

Page

Interest of the United States wo... cc cecccceccsscessscceseces 1

Ss aceiccccmesvcevesecencocssrocsecesessaes 7

a scsaccasssensnaseseceocscecors 8

Argument:

The statute of limitations for WARN Act claims should

be borrowed from the most closely analogous state law.. 10

A. When a federal statute creates an express cause :

of action but establishes no limitations period, the

most closely analogous state statute of limitations

is presumptively applicable .......................s:ssseseeeeees 10

B. The NLRA protects the process of collective bar-

gaining and private dispute resolution, while the

WARN Act confers substantive rights separate and

distinct from the collective bargaining process........ 14

C. The practicalities of litigation weigh against

application of the NLRA’s limitations period

I I iis caceccunasacscencsscsecevececceeeceee 22

D. Pennsylvania’s three-year limitations period for

actions to recover “unpaid wages or liquidated

damages” provides the most appropriate period for

LLL ELL 27

I is iesrpcencstciveiccsens RE 30

TABLE OF AUTHORITIES

Cases:

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

rice cccevancivksnacesvecesoreneses 11, 12, 18, 22

Campbell v. Haverhill, 155 U.S. 610 (1895) ..........0.cc000.. 11, 22

Cope v. Anderson, 331 U.S. 461 (1947) ceccccccccccccccccccee. 26

DelCostello °. International Bhd. of Teamsters,

| 5, 6, 10, 11, 12, 18, 15, 19, 27

First Nat'l Maintenance Corp. v. NLRB, 452 U.S. 666

ee ee rrcacibeuccanccensasccnsrocssesescceseocccecs 14, 19

Fort Halifax Packing Co. v. Coyne, 482 U.S. 1 (1987) ..... 17, 18

(III)

Cases—Continued: Page

Halkias v. General Dynamics Corp., 31 F.3d 224

(1994), reh’g en bane granted, Nos. 93-1664,

93-1680 & 93-8204 (5th Cir. Sept. 22, 1994)... 5, 25, 26

Holmberg v. Armbrecht, 327 U.S. 392 (1946) ................ 1]

International Union v. Hoosier Cardinal Corp.,

TUG TB A I oivscsiiteeeccnone, 11, 14, 18, 19, 22

Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson,

PE OF ais GE URED Sabncesahinnemisenciuabisdsasacacinushensbcteinaes 12, 13, 14

McCluny v. Silliman, 28 U.S. (3 Pet.) 270 (1880) ........... 11

Metropolitan Life Ins. Co. v. Massachusetts,

GED Sia. Fe CRED Uonidnticincbpccieccsseacetngistiedinsatcbnsaaes 17, 18

Occidental Life Ins. Co. v. EEOC, 432 U.S. 355 (1977) .... 22

Phelps Dodge Corp. v. NLRB, 313 U.S. 177 (1941) .......... 29

Reed v. United Transp. Union, 488 U.S. 319

RMON. sianrsdseninciasesverinseniusunteceiananen 6, 10, 13, 16, 17, 18, 20, 22

Times Herald Printing Co., No. 16-CA-15433, 1994 NLRB

LEXIS 972 (NLRB Nov. 30, 1994) .........ccccccccscssesceseveess 21

United Mine Workers v. Peabody Coal Co., 38 F.3d 850

(6th Cir. 1994), petition for cert. pending, No. 94-1398.. 5

United Paperworkers International Union v.

Specialty Paperboard, Inc., 999 F.2d 51

eee: ee eee. 4, 5, 18, 21, 23, 25

United Parcel Serv., Inc. v. Mitchell, 451 U.S. 56

COE iagaccsdebascccuctncdsccinthacaberssaasetaadanticinss ache deeamoneant 15

United States v. Burke, 112 S. Ct. 1867 (1992) .............. 29

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

Supp. 5 (M.D. Pa. 1992), aff’d in part, vacated in part,

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

GID canichsndseskocsecnccvansesensvacereasenaananess sceceniiatvebrasaiess 4

United Steelworkers v. Warrior & Gulf Navigation Co.,

SE Se Ee IE Sacdictenechcnanmusdcsasueuseenesssaieredevedeks tenis 16

Statutes, regulations and rule:

Bacon-Davis Act, 40 U.S.C. 276a et seq. ..........ccceceeceeeeeeees 24

Civil Rights Act of 1964, Tit. VII, 42 U.S.C. 2000e

FBR, sricancsnissnaunbisntiansesuncnaparsaranieascuieeiptaneiaiacers 20

Statutes, regulations and rule—Continued: Page

Employee Polygraph Protection Act of 1988,

ee le I ciniicddini ate etrdetapaicnewianinckentosnansavs 24

Employee Retirement Income Security Act of 1974,

Be SF A ee paneer kisi Aida dea bis adibieietailahebinenbensshoatedses 24

Fair Labor Standards Act of 1938, 29 U.S.C. 201 et seq. .. 24

Family and Medical Leave Act of 1993, 29 U.S.C.

ZEIT(EXNIAZ) (Supp. Vi 19GB) ....cccecccccsssscorsesesscdeccscceseses 24

Labor Management Relations Act, 1947, 29 U.S.C. 141

GE DID. sactnsnsatakeminvdbastisncnsentadeciniicbenesdsvdipsatsntiainnabenaaineies 14

De a te wrens iceie tates ictcnweisncrecdoninpnecnen 14

Sg ee eae TUE sa dndsnersothccuswicnuiebhanvavectesic 11, 15, 17, 19

Labor-Management Reporting and Disclosure Act of

1959, Tit. I, § 101(a)(2), 29 U.S.C. 411(a)(2) ............00000 12,17

National Labor Relations Act, 29 U.S.C. 151 et seq. :

i ei IND cunvanbaidis aakincnscdona alms bicvnnsesinddncicenensiie 14

ee aD Savansicas prccaitnsxansncadinenccceseenaiaise 14

CEG h, Be UA, BORO) vsccccoseseseicrsceccssconssvnoscam 20, 21

Ds i ets IED ncncsccispanaseonstoscansoxtvennsanecsoos passim

Portal-to-Portal Act of 1947, 29 U.S.C. 255(a) .................. 24

Racketeer Influenced and Corrupt Organizations Act,

Bee ect ale NEE © baa id besa daalensny bnncekcasbabinientusccstisavadasinvicnnses 7

Walsh-Healey Act, 41 U.S.C. 35-45 ..............ccccsccoecccesconees 24

Worker Adjustment and Retraining Notification Act,

ee reas Se Oe WINES: cccundermivanccwkenn danse Uipbersanssnemeahcscviasese 1

D BURR, BRR, Bie vcevsccccecsiscsccscncsescrsceess 3, 23

SF Bay Be A BOR UBIED secsesceciscevecnesasessnsedenane 3, 23

S ZURNG), BO U.BAs. BAGONG) cncicccciccssncccercssscccssesess 3

5 ZlaNS), FO UBC. TICHONS) co cccvccevessocccescssscssscvsees 23

ee rir ED cas cedcasacecadvacacavenssanvessteentianes 2

iy Be res SIG ED veces secckescesincsccincccnnsnssees 2

S BME), TO U.K. SIURONE) cccccccccccecccseccessccesscones 2-3, 24

De ee ee ND srrcenencccncscpsvvcessacsvscscndsesaeseces 23

De ey ID sceckesc sa scccesesnssconssnccanenssitnsvenss 23

a A es I eats rds tbiindadaes iijacdnaaraea dasbusiawutios 23

S DEMME Fh UA, BIGAMAD ccciccsscccconsesssesccscvasccasass 3

$ 5(aX1MA), 29 U.S.C. 2104(a)(I (A) ........ccccccccccsccees 3, 28

Statutes, regulations and rule—Continued: Page

§ 5(a)(1)(A)(i), 29 U.S.C. 2104(a)(1)(AD(i) ..... ee. 28

§ 5(a)(1)(A)(ii), 29 U.S.C. 2104(a)(1)(A)(ii) .......000.. 28

§ 5(a)(2)(A), 29 U.S.C. 2104(aN(2Z)(A) ..............0.0.0c00e- 28

§ 5(aX(2XB), 29 U.S.C. 21I0M&aN ZB) ..............cccseecess 17

$ Gla), FT UBC. Bae crccccsteccssscrsseccssescccnseses 3 \

§ 5(a)(5), 29 U.S.C. 2104(a)(5) ecececccccecceseeceeeeeee 3, 13, 14, 26

§ 6€£3 URC. Dunia 18 |

9 Seb @ UML. SI axiceeraiee ees 2

2B U BA. GEO) ccccscnnncnscteaasnideneeies 26

28 U.S.C. 5668 Gane. VF TED ccdieceesittmieen 12

MB U BAC. TOD ccctatsssisscitiemaiiaa cane 7

43 Pa. Stat. Ann. (1992):

S DOOD se scesinsscinistanancisiineacegeiaennaanss 10, 27, 29

20 C.F.R.::

BE GID cnseciccsistitcnssstninedsasmeinniiaeaeaiaaneae aes 2

Section GRR cesisssnocccsscdaleieieataanememens 20

Section GHP. scccnncsccvcsnsscsnantemaaanataacniaaensiniass 2

Goethe GORI F vcnusismscsaseciaauesaaadeaennan 2

SOCtIGN GIST) nccincanensnessnnsiiniueteiamemmnaaasons 17

29 C.F.R.:

Sections GAGS .snsccccssssnisinizienammmanmamaaemansainaien 25

Section RGRTT) ciscissscnscuccssdcataniaabeeiiaseaitlctamiann 25

Fed. BR. Ciw. F. URGRES scinsceeeeeeeetnee 23

Miscellaneous:

134 Cong. Rec. 26,GIRB Cae wesncinssesesasmementasttttancetecne 17

H.R. Conf. Rep. No. 576, 100th Cong., 2d Sess. (1988)...... 28

S. Rep. No. 62, 100th Cong., Ist Sess. (1987) «0.0... 21, 29

D. Siegel, Commentary on 1988 and 1990 Revisions of

Section 1391, 2B UDG. TE Oe Be cccsteaernseivticeesssces 26

In the Supreme Court of the Gited States

OCTOBER TERM, 1994

No. 94-834

NortTuH STAR STEEL COMPANY, PETITIONER

Vv.

CHARLES A. THOMAS, ET AL.

No. 94-835

*ROWN CORK & SEAL Co., INC., PETITIONER

Vv.

UNITED STEELWORKERS OF AMERICA,

AFL-CIO-CLC

ON WRITS OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF FOR

THE UNITED STATES AS AMICUS CURIAE

SUPPORTING RESPONDENTS

INTEREST OF THE UNITED STATES

The Worker Adjustment and Retraining Notification

(WARN) Act, 29 U.S.C. 2101 et seqg., requires covered

(1)

employers to give employees or their representatives 60

days’ notice of a plant closing or mass layoff. These

cases present the question of the appropriate statute of

limitations in a civil action brought under the Act. The

WARN Act grants the Secretary of Labor authority to

“prescribe such regulations as may be necessary to

carry out” the Act. 29 U.S.C. 2107(a). The Secretary

has promulgated regulations that “establish basic

definitions and rules for giving notice” under the Act, 20

C.F.R. 639.1(b), which are part of a coordinated effort to

assist dislocated workers. 20 C.F.R. 639.1(f); see 20

C.F.R. Pt. 639. Those regulations implement the

purposes and policies of the WARN Act, which are impli-

cated in the determination of an appropriate limitations

period. The United States therefore has a substantial

interest in the effective enforcement of the WARN Act’s

prohibitions through the civil actions expressly author-

ized by that Act, and in the proper resolution of the

question presented in these cases.

STATEMENT

1. With exceptions not relevant here, the WARN Act

provides that an employer of 100 or more employees

“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.” 29 U.S.C. 2102(a). The Act

requires that the notice be served “to each repre-

sentative of the affected employees as of the time of the

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

to each affected employee.” 29 U.S.C. 2102(a)(1). Notice

must also be given to “the State dislocated worker unit

(designated or created under title III of the Job Training

Partnership Act [29 U.S.C. 1651 et seq.],” and to “the

chief elected official of the unit of local government

within which [the] closing or layoff is to occur.” 29

U.S.C. 2102(a)(2). The Act identifies those plant closings

or mass layoffs for which an employer must give notice

according to the number of employees affected, 29 U.S.C.

2101(a)(2) and (3), and defines affected employees as those

who “may reasonably be expected to experience” an “em-

ployment loss,” including termination, a layoff longer

than six months, or a greater than 50% reduction in

work hours for each of six months. 29 U.S.C. 2101(a)(5)

and (6).

The Act provides that “[a]ny employer who orders a

plant closing or mass layoff in violation 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.” 29 U.S.C. 2104(a)(1). An aggrieved employee

may collect “back pay for each day of violation,” 29

U.S.C. 2104(a)(1)(A), “up to a maximum of 60 days.” 29

U.S.C. 2104(a)(1). An employer who fails to give the

requisite notice to an affected unit of local government

“shall be subject to a civil penalty of not more than $500

for each day of such violation.” 29 U.S.C. 2104(a)(3). An

aggrieved employee, his representative, or an aggrieved

unit of local government may file a civil action “in any

district court of the United States for any district in

which the violation is alleged to have occurred, or in

which the employer transacts business.” 29 U.S.C.

2104(a)(5). The WARN Act does not establish a statute

of limitations for the civil actions authorized by Section

2104(a)(5).

2. These consolidated cases involve suits against

employers who are alleged to have violated the Act.

Respondents in North Star are several non-unionized

employees. Respondents filed suit against petitioner

North Star Steel Company (NS) on October 23, 1992,

alleging that North Star had failed to give 60 days’ notice

before laying off 270 workers at a Pennsylvania plant on

February 25, 1991. NS Pet. App. 17a. On North Star’s

motion for summary judgment, the district court held

that suits brought under the WARN Act are governed by

the six-month limitations period for filing an unfair labor

practice charge with the National Labor Relations

Board (NLRB) under Section 10(b) of the National Labor

Relations Act (NLRA), 29 U.S.C. 160(b). NS Pet. App.

24a. The court therefore dismissed the employees’ suit

as untimely. Jd. at 24a-25a. The court rejected respon-

dents’ contention that the suit should be governed by the

three-year statute of limitations contained in Penn-

sylvania’s Wage Payment and Collection Law. /d. at 18a-

19a.'

In Crown Cork, respondent United Steelworkers of

America filed suit on October 15, 1992, on behalf of

unionized employees. The complaint alleged that peti-

tioner Crown Cork & Seal Company (CC), a national

corporation headquartered in Philadelphia, had laid off 85

employees at its Georgia plant on September 30, 1991,

without giving 60 days’ advance written notice. CC Pet.

App. 17a-18a. Relying on the Second Circuit’s decision

in United Paperworkers International Union v.

Specialty Paperboard, Inc., 999 F.2d 51 (1993), the

' This action by non-union employees foliowed a successful

WARN Act suit brought by the United Steelworkers of America

on behalf of unionized employees against North Star arising out of

the same layoff. Although the union filed its action more than six

months after the layoff, North Star failed to assert a statute-of-

limitations defense, and the district court granted summary

judgment for the union. See NS Pet. App. 3a. The district court

subsequently awarded the union employees back pay for each

calendar day of the violation, and the court of appeals affirmed.

United Steelworkers vy. North Star Steel Co., 809 F. Supp. 5 (M.D.

Pa. 1992), aff'd in part, vacated in part on other grounds, 5 F.3d

39, 42 (3d Cir. 1993), cert. denied, 114 S. Ct. 1060 (1994).

district court held that “Pennsylvania law provides the

appropriate limitations period for civil suits under the

WARN Act” and denied Crown Cork’s motion for

summary judgment. CC Pet. App. 22a, 23a. The court

deemed it unnecessary to “determine the particular

Pennsylvania statute from which to borrow” because the

union’s suit was timely under all of the potentially

applicable state statutes suggested by the parties. Jd. at

22a.

3. The court of appeals affirmed the district court’s

order in Crown Cork and reversed the district court’s

order in North Siar. NS Pet. App. la-16a.2_ The court

held that “for actions arising under WARN, courts must

apply the most closely analogous state statute of

limitations,” id. at 15a, and it therefore rejected peti-

tioners’ contention that the six-month limitations period

in Section 10(b) of the NLRA should apply to WARN Act

claims, NS Pet. App. 6a-1 1a.

The court of appeals first noted the general rule that

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

limitations, the court should apply ‘the most closely

analogous statute of limitations under state law.’” NS

Pet. App. 5a (quoting DelCostello v. International Bhd.

of Teamsters, 462 U.S. 151, 158 (1983)). The court

“ The Third Circuit’s decision in the instant cases and the

Second Circuit’s earlier decision in United Paperworkers, supra,

conflict with subsequent decisions of the Fifth and Sixth Circuits

holding that the six-month limitations period of Section 10(b) of the

NLRA applies to WARN Act claims. United Mine Workers v.

Peabody Coal Co., 38 F.3d 850 (6th Cir. 1994), petition for cert.

pending, No. 94-1398 (filed Feb. 16, 1995); Halkias v. General

Dynamics Corp., 31 F.3d 224 (1994), reh’g en bane granted, Nos.

93-1664, 93-1680 & 93-8204 (5th Cir. Sept. 22, 1994). The issue is

also pending in the Tenth Circuit. Frymire v. Ampex Corp., Nos.

94-1059 & 94-1090 (argued Mar. 6, 1995).

acknowledged that “it is sometimes more appropriate to

borrow a limitations period from an analogous area of

federal law,” but observed that this exception is “closely

circumscribed.” NS Pet. App. 6a (quoting Reed v.

United Transp. Union, 488 U.S. 319, 324 (1989)). The

court explained that the exception should be invoked only

“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 appropriate vehicle for interstitial lawmaking.”

NS Pet. App. 6a (quoting DelCostello, 462 U.S. at 172). It

emphasized that “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.” Jbid.

Applying those principles, the court of appeals con-

cluded that a “vast gulf” exists between the policies

underlying the NLRA and the WARN Act. NS Pet. App.

7a, lla. The primary purpose of the NLRA, the court

stated, is to protect the right of workers to organize, to

bargain collectively for the terms and conditions of their

employment, and to ensure that the bargaining process

is fair. The NLRA is not, however, concerned with the

substantive terms that emerge from collective bar-

gaining. /d. at 7a. The NLRA’s six-month statute of

limitations for charging an unfair labor practice, the

court observed, “represents Congress’s view of the

proper balancing of the various interests involved in the

process of collective bargaining.” J/bid.

By contrast, the court noted, “any effects [the WARN

Act] has on collective bargaining are tangential at best.

The benefits of WARN accrue not only to unionized

workers but to all workers alike.” NS Pet. App. 8a.

Moreover, by requiring notice to affected units of local

government, and by permitting local governments to

collect civil penalties if the requisite notice is not given,

“WARN serves a broader purpose as well, that goes

beyond the employer-employee relationship addressed by

the NLRA.” Jd. at 9a. The court thus distinguished the

WARN Act’s notice requirement, which confers “an

across-the-board substantive right” on all employees and

their communities, from the requirement under the

NLRA to provide notice of a plant closing to represented

workers, which “protect[s] the meaningfulness of the

collective-bargaining process.” Jd. at 10a.

The court of appeals rejected petitioners’ argument

that application of “multiple state statutes of

limitations” to WARN Act claims would raise “serious

uniformity concerns.” NS Pet. App. 12a. Unlike 42

U.S.C. 1983 and the Racketeer Influenced and Corrupt

Organizations Act, 18 U.S.C. 1964, which encompass

more complex actions and warrant application of uniform

limitations periods, “WARN contains but a single cause

of action, and all WARN claims involve nearly identical

fact patterns and discrete inquiries.” NS Pet. App. 18a.

Moreover, the court suggested, the WARN Act’s venue

provision does not provide an especially broad choice of

fora, and the site-based nature of a violation should

facilitate the identification of the State in which the

violation allegedly occurred. /bid. The court further

reasoned that the brief six-month limitations period

applicable to the filing of charges with the NLRB under

the NLRA could “constitute too great a burden” on

WARN Act claimants, whose formal complaints must be

filed in federal court. Jd. at 14a. The court concluded

that it “need not decide which state statute applies, since

the actions would be timely under any of the possible

statutes of limitations brought to the court’s attention.”

Id. at 15a.”

SUMMARY OF ARGUMENT

When a federal law provides a cause of action but

contains no statute of limitations, this Court’s usual

practice is to “borrow” a state law limitations period.

Petitioners contend that suits under the WARN Act

should be governed not by state statutes of limitations,

but by the six-month limitations period for bringing an

unfair labor practice charge under Section 10(b) of the

National Labor Relations Act, 29 U.S.C. 160(b). That

contention should be rejected.

A. Section 10(b)’s comparatively short limitations

period reflects Congress’s desire for swift resolution of

claims implicating the collective bargaining relation-

_ ship. This Court has stressed in particular the need for

expeditious resolution of disputes the outcome of which

may affect the continuing relationship between con-

tracting parties. Civil actions under the WARN Act, by

contrast, are typically filed after dissolution of the

employment relationship. More generally, the NLRA

governs the process of collective bargaining and private

dispute resolution, but does not dictate the substantive

terms of the agreement; the WARN Act imposes a

substantive obligation that cannot be avoided by

agreement of the parties and that augments any similar

obligation that the employer has assumed by contract.

% The alleged statutory violation in Crown Cork occurred in

Georgia, although the suit was filed in Pennsylvania. The court of

appeals noted that it “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 limitations, from either state, under which the instant actions

would be untimely.” NS Pet. App. 14a n.4.

There is consequently no basis for petitioners’ attempt

to analogize WARN Act suits to unfair labor practice

charges under the NLRA.

B. That conclusion is not altered by the fact that

some WARN Act violations will also constitute unfair

labor practices prohibited by the NLRA. The overlap is

far from complete, since the WARN Act applies to

unrepresented as well as represented workers and

requires more extensive notice than was typically

provided to unionized employees before its passage.

Moreover, the two Acts serve distinct purposes even

with respect to conduct that is governed by both. The

WARN Act presumes the termination of the relationship

between employer and employees and serves to alleviate

the effects of that termination by providing workers time

to seek new positions. The NLRA notice requirement,

by contrast, serves to facilitate bargaining between the

employer and the union regarding the effects of a plant

closing.

C. The practicalities of litigation also weigh against

application of Section 10(b)’s limitations period to WARN

Act claims. Institution of a WARN Act suit will often

involve extensive investigation, and will always require

the filing of a complaint in court, at a time when the

disruptions caused by recent job loss are likely to

distract an employee from prosecution of his claim.

Application of state law limitations periods, by contrast,

will create no extraordinary litigation burdens.

D. Because neither petitioner identifies any po-

tentially applicable state limitations period under which

the actions here would be untimely, this Court may

affirm the judgment of the court of appeals without

deciding which state limitations period is most

appropriately applied to WARN Act suits. If this Court

chooses to decide that question, however, we believe that

it would be appropriate to apply Pennsylvania’s three-

year limitations period for actions to recover “unpaid

wages or liquidated damages.” 43 Pa. Stat. Ann.

§ 260.9a(g) (1992). Like an award of back pay under the

WARN Act, recoveries under that Pennsylvania statute

serve both to compensate aggrieved employees for lost

wages, and to deter and punish employers’ violatiens of

their legal duties.

ARGUMENT

THE STATUTE OF LIMITATIONS FOR WARN ACT

CLAIMS SHOULD BE BORROWED FROM THE

MOST CLOSELY ANALOGOUS STATE LAW

A. When A Federal Statute Creates An Express Cause

Of Action But Establishes No Limitations Period, The

Most Closely Analogous State Statute Of Limitations

Is Presumptively Applicable

Like many federal statutes, the WARN Act provides a

cause of action for violations but contains no express

statute of limitations. “In such situations [the Court

does] not ordinarily assume that Congress intended that

there be no time limit on actions at all; rather, [its] task

is to ‘borrow’ the most suitable statute or other rule of

timeliness from some other source.” DelCostello v.

International Bhd. of Teamsters, 462 U.S. 151, 158

(1983). This Court’s decisions recognize a “general rule

that statutes of limitations are to be borrowed from state

law.” Reed v. United Transp. Union, 488 U.S. 319, 324

(1989); accord DelCostello, 462 U.S. at 158 (“We have

generally concluded that Congress intended that the

courts apply the most closely analogous statute of

limitations under state law.”). “Given [the Court’s]

longstanding practice of borrowing state law, and the

congressional awareness of this practice, [the Court] can

generally assume that Congress intends by its silence

that [the Court] borrow state law.” Agency Holding

Corp. v. Malley-Duff & Assocs., Inc., 483 U.S. 148, 147

(1987).

Petitioners contend that suits under the WARN Act

should be governed not by state limitations periods, but

by the six-month limitations period for filing an unfair

labor practice charge under Section 10(b) of the National

Labor Relations Act (NLRA), 29 U.S.C. 160(b). Peti-

tioners place principal reliance on DelCostello, in which

this Court held that the Section 10(b) limitations period

applied to a “hybrid” suit by employees against both

their employer and their union for breaches of the

collective bargaining agreement (under Section 301 of

the Labor Management Relations Act, 1947, 29 U.S.C.

185) and of the duty of fair representation. See 462 U.S.

4 This Court’s earlier decisions applied state statutes of

limitations to federal claims as a matter of state law, unless

Congress expressly provided otherwise. International Union v.

Hoosier Cardinal Corp., 383 U.S. 696, 703-704 (1966); see Campbell

v. Haverhill, 155 U.S. 610, 614-616 (1895); McCluny v. Silliman, 28

U.S. (3 Pet.) 270, 277-278 (1830); Agency Holding, 483 U.S. at 159-

162 (Sealia, J., concurring in the judgment). In more recent

decisions the Court has continued to hold that state limitations

periods apply to federal actions, but on the slightly different

theory that Congress’s failure to provide a limitations period

constitutes an implicit federal directive to “borrow” the state law

limitations period for federal claims. Agency Holding, 483 U.S. at

158, 164 (Scalia, J., concurring in the judgment); see Hoosier

Cardinal, 383 U.S. at 706; Holmberg v. Armbrecht, 327 U.S. 392,

395 (1946) (“As to actions at law, the silence of Congress has been

interpreted to mean that it is federal policy to adopt the local law

of limitation.”). The result remains, however, that state

limitations periods presumptively govern the timeliness of federal

claims. See Hoosier Cardinal, 383 U.S. at 704.

at 154-155.” In our view, DelCostello provides scant

support for petitioners’ position.

The Court in DelCostello expressly gave its holding a

narrow scope, stressing that the decision “should not be

taken as a departure from prior practice in borrowing

limitations periods for federal causes of action, in labor

law or elsewhere.” 462 U.S. at 171. The Court re-

affirmed that principle in Reed, holding that state

limitations periods should apply to a union member’s

claim, under Section 101(a)(2) of the Labor-Management

Reporting and Disclosure Act of 1959 (LMRDA), 29

U.S.C. 411(a)(2), that a union had violated his right to

° Petitioner North Star also contends (NS Br. 32-37) that the

Court should abandon its practice of borrowing state limitations

periods in light of the recent passage of a residual federal statute

of limitations. See 28 U.S.C. 1658 (Supp. V 1993) (“Except as

otherwise provided by law, a civil action arising under an Act of

Congress enacted after the date of the enactment of this section

may not be commenced later than 4 years after the cause of action

accrues.”). That argument is without merit. Section 1658 applies

by its terms only to claims arising under federal statutes “enacted

after the date of the enactment of” that section (December 1,

1990), and it therefore “has no application in the present

litigation.” Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbert-

son, 501 U.S. 350, 364 n.10 (1991). Congress’s refusal to make

Section 1658 applicable to actions brought under previously

enacted laws indicates its intent that existing legal standards be

applied to such statutes. Cf. Agency Holding, 483 U.S. at 147.

Even if it were relevant to the instant cases, moreover, Section

1658 does not reflect a policy judgment that the most analogous

federal limitations period should be “borrowed.” It reflects instead

Congress’s decision that a relatively long (four-year) limitations

period should apply unless Congress has expressly enacted a

different one. Section 1658 therefore could hardly support

petitioners’ argument that the suits at issue here, which were filed

less than two years after respondents’ causes of action accrued,

should be dismissed as untimely.

free speech regarding union matters. 488 U.S. at 323.

The Court declined to apply the NLRA’s six-month

limitations period, reiterating that, “‘in labor law or

elsewhere,’ application of a federal statute will be

unusual, and ‘resort to state law remains the norm for

borrowing of limitations periods.’” Jd. at 324 (quoting

DelCostello, 462 U.S. at 171). The Court noted that it

“decline[s] to borrow a state statute of limitations only

‘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 appropriate vehicle for interstitial lawmaking.’ ”

488 U.S. at 324 (quoting DelCostello, 462 U.S. at 172).

Reed thus makes clear that the presumption in favor of

state-law borrowing survives DelCostello, and that it

applies with full force to federal labor statutes.°

® This Court’s subsequent decision in Lampf, Pleva, Lipkind,

Prupis & Petigrow v. Gilbertson, 501 U.S. 350 (1991), casts no

doubt on the continuing vitality of those principles. The Court in

Lampf faced “the awkward task” of determining the appropriate

statute of limitations for a cause of action implied under a federal

statute. Id. at 359. The Court “conclude[d] that where * * * the

claim asserted is one implied under a statute that also contains an

express cause of action with its own time limitation, a court should

look first to the statute of origin to ascertain the proper limitations

period. We can imagine no clearer indication of how Congress

would have balanced the policy considerations implicit in any

limitations provision than the balance struck by the same Congress

in limiting similar and related protections.” Jbid.

Lampf is inapposite here for two reasons. First, the WARN Act

provides an express right of action. 29 U.S.C. 2104(a)(5).

Congress’s silence regarding the appropriate limitations period

thus suggests congressional acquiescence in this Court’s

“longstanding practice of borrowing state law,” Agency Holding,

483 U.S. at 147—an inference that would not be legitimate where

For the reasons that follow, unfair labor practice

charges filed with the NLRB under the NLRA furnish a

distinctly inapt analogy for suits brought in court under

the WARN Act. Application of Section 10(b)’s six-month

limitations period in the instant cases is therefore

unwarranted.

B. The NLRA Protects The Process Of Collective Bargaining

And Private Dispute Resolution, While The WARN Act

Confers Substantive Rights Separate And Distinct From

The Collective Bargaining Process

1. The purpose of the NLRA is to achieve industrial

peace by protecting the rights of workers to organize

and to bargain collectively over the terms and conditions

of their employment. See 29 U.S.C. 151; 29 U.S.C. 141(b)

(Labor Management Relations Act, 1947); First Nat’l

Maintenance Corp. v. NLRB, 452 U.S. 666, 674 (1981).

To that end, the NLRA focuses on “the formation of the

collective agreement and the private settlement of

disputes under it” through the grievance and arbitration

system. International Union v. Hoosier Cardinal

Corp., 383 U.S. 696, 702 (1966). Section 10(b) was tailored

to effectuate those goals. It provides that the General

Counsel shall not issue a complaint “based upon any

unfair labor practice occurring more than six months

prior to the filing of the charge with the Board.” 29

U.S.C. 160(b); see 29 U.S.C. 153(d) (functions of General

Counsel). In providing for the swift disposition of

disputes, “Congress established a limitations period

the cause of action itself is implied. See Lampf, 501 U.S. at 365

(Sealia, J., concurring in part and concurring in the judgment).

Second, petitioners in this case do not argue that the limitations

period for civil actions under Section 2104(a)(5) should be drawn

from some other provision in the WARN Act; they contend instead

that the Court should adopt the limitations provision of a different

federal statute enacted more than 40 years earlier.

attuned to what it viewed as the proper balance between

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

Serv., Inc. v. Mitchell, 451 U.S. 56, 70 (1981) (Stewart, J.,

concurring in the judgment)).

Explaining its decision to apply the NLRA’s six-

month limitations period to hybrid Section 301/duty-of-

fair-representation suits, the DelCostello Court stressed

the importance of speedy resolution of disputes con-

cerning the collective bargaining process, observing that

the grievance and arbitration procedure often pro-

cesses disputes involving interpretation of critical

terms in the collective-bargaining agreement affect-

ing the entire relationship between company and

union. This system, with its heavy emphasis on

grievance, arbitration, and the law of the shop, could

easily become unworkable if a decision which has

given meaning and content to the terms of an agree-

ment, and even affected subsequent modifications of

the agreement, could suddenly be called into question

as much as three years later.

462 U.S. at 169 (quoting United Parcel Serv., 451 U.S. at

64 (brackets, ellipsis, and internal quotation marks

omitted). The Court thus recognized that application of

the NLRA’s comparatively short limitations period to

hybrid Section 301/duty-of-fair-representation suits is

justified, in substantial measure, by the fact that

adjudication of such actions (like the NLRB’s

investigation and prosecution of unfair labor practice

charges) frequently involves resolution of disputes

whose outcome may affect the continuing relationship

between contracting parties.’ The smooth functioning of

that relationship obviously depends upon expeditious

resolution of any disputes that may arise. Civil actions

under the WARN Act, by contrast, are typically filed

after the dissolution of the employment relationship, and

a central justification for the unusually short

limitations period established by Section 10(b) of the

NLRA is consequently inapplicable.

2. More generally, a claim under the WARN Act

neither resembles an unfair labor practice charge nor

directly implicates the “federal interests in stable

bargaining relationships and in private dispute

resolution” between represented workers and employers

that the six-month limitations period of Section 10(b)

accommodates. Reed, 488 U.S. at 333.5. The NLRA is

’ As this Court observed in United Steelworkers v. Warrior &

Gulf Navigation Co., 363 U.S. 574, 581 (1960), “[t]he processing of

disputes through the grievance machinery is actually a vehicle by

which meaning and content are given to the collective bargaining

agreement”; “[t]he grievance procedure is, in other words, a part

of the continuous collective bargaining process.” The arbitrator's

resolution of a grievance thus does more than terminate a

particular dispute. It serves as well to shape the contracting

parties’ understanding as to the parameters of their agreement,

and forms part of the backdrop to their subsequent negotiations.

Given the influence of arbitral decisions upon subsequent

interaction between the parties, speedy resolution of any chal-

lenges to those decisions is essential.

* In Reed, the Court explained that in De/Costelio “{t}he specific

focus of our comparison between unfair labor practice charges

governed by § 10(b) and hybrid § 301/fair representation claims

was their 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.” 488 U.S. at 329. This Court in Reed deemed the

interests in stable bargaining relationships and private dispute

“concerned primarily with establishing an equitable

process for determining terms and conditions of

employment, and not with particular substantive terms

of the bargain that is struck.” Metropolitan Life Ins.

Co. v. Massachusetts, 471 U.S. 724, 753 (1985); accord

Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 20 (1987).

The WARN Act, by contrast, imposes a substantive

obligation that cannot be avoided by agreement of the

parties’ and that augments any similar obligation that

the employer has assumed by contract.'? Moreover, the

resolution implicated in only a “tangential and contingent” fashion

(488 U.S. at 328) by free speech claims brought by a union member

under Title I of the LMRDA, 29 U.S.C. 411(a)(2). Because the

LMRDA is concerned with internal union affairs, it was “not

directly related in any way to collective bargaining or dispute

settlement under a collective-bargaining agreement.” Reed, 488

U.S. at 330.. The Court contrasted an LMRDA suit to “hybrid”

Section 301/duty-of-fair-representation claims, “which directly

challenge both the employer’s adherence to the collective-

bargaining agreement and the union’s representation of the

employee in grievance-and-arbitraticn procedures.” Jd. at 331.

Accordingly, the Court analogized the LMRDA action to a state

personal injury claim and refused to apply the six-month

limitations period of Section 10(b).

® See 20 C.F.R. 639.1(g) (“(cJollective bargaining agreements”

may “clarify or amplify the terms and conditions of WARN, but

may not reduce WARN rights”).

" An employer’s WARN Act liability may be offset by “any

voluntary and unconditional payment by the employer to the

employee that is not required by any legal obligation.” 29 U.S.C.

2104(a)(2)(B). The legislative history indicates that this language

was fashioned to ensure that severance payments made pursuant to

a collective bargaining agreement could not be deducted in

determining the employer's WARN Act liability. Cf. 134 Cong.

Ree. 15,928 (1988) (Sen. Metzenbaum) (opposing proposed amend-

ment on the ground that “the employees may already be entitled to

severance pay and benefits under a collective bargaining agree-

WARN Act’s provision for civil penalty actions by

affected units of local governments has no analogue in

the NLRA.

In short, the WARN Act “implements a federal policy

* * * that simply had no part in the design of a statute

of limitations for unfair labor practice charges.” Reed,

488 U.S. at 332. The WARN Act thus resembles the

state “minimum substantive labor standard|]” at issue in

Fort Halifax, 482 U.S. at 20, which this Court held not to

be preempted by the NLRA because it “does not intrude

upon the collective-bargaining process.” Jd. at 6-7. The

Maine law in Fort Halifax required certain employers

that closed or relocated their businesses to make

severance payments according to a statutory formula; it

authorized affected employees, or a state official in their

stead, to sue a noncomplying employer to recover the

severance pay. Id. at 5. Like the Maine law, the WARN

Act protects “individual union and nonunion workers

alike, and thus ‘neither encourage[s] nor discourage|[s]

the collective-bargaining processes that are the subject

of the NLRA.’” 7d. at 21 (quoting Metropolitan Life,

471 U.S. at 755). Absent an effect on collective bargain-

ing, it would therefore be inappropriate to subject

WARN Act claims to the NLRA’s six-month limitations

period. See United Paperworkers International Union

v. Specialty Paperboard, Inc., 999 F.2d 51, 54 (2d Cir.

1993)."

ment[.] * * * The [proposed] amendment would allow employers

who already owe severance pay to escape the notice requirement

simply by paying the severance they already owed. * * * [T]hat

is unfair.”). See also 29 U.S.C. 2105 (WARN Act rights are “in

addition to, and not in lieu of, any other contractual or statutory

rights or remedies of the employees”).

In International Union v. Hoosier Cardinal Corp., 383 U.S.

696 (1966), the Court applied a state limitations period to a union’s

3. Petitioners also emphasize (NS Br. 19; CC Br. 12-

15) that where employees are represented by a union,

Section 8(a)(5) of the NLRA, 29 U.S.C. 158(a)(5),

requires an employer to bargain over the effects of a

decision to shut down part of its business. See First

Nat'l Maintenance Corp. v. NLRB, 452 U.S. 666 (1981).

Because such bargaining “must be conducted in a

meaningful manner and at a meaningful time,” id. at 682,

an employer’s failure to give adequate notice of its

intention to close a plant will sometimes constitute

an unfair labor practice. Petitioners argue that this

overlap between the prohibitions of the NLRA and the

WARN Act suggests a congruence of purpose that

justifies application of the Section 10(b) limitations

period to WARN Act suits. That argument is without

merit.

First, it is hardly the case that every violation of the

WARN Act will also constitute an unfair labor practice

suit under Section 301 of the Labor Management Relations Act,

1947, 29 U.S.C. 185, for breach of a collective bargaining

agreement by an employer. Discussing that prior decision, the

Court in DelCastello stressed the distinction between a

“straightforward breach-of-contract suit under § 301,” like Hoosier

Cardinal, and a hybrid Section 301/duty-of-fair-representation

claim, “amounting to a direct challenge to the private settlement

of disputes under the collective-bargaining agreement.” 462 U.S.

at 165 (brackets and internal quotation marks omitted). The Court

in DelCostello thus made clear that suits implicating private

resolution of disputes affecting the collective bargaining process

raise concerns distinct from other actions grounded in federal

labor law. See also zd. at 162-163 (“national uniformity is of less

importance when the case does not involve ‘those consensual

processes that federal labor law is chiefly designed to promote—the

formation of the collective agreement and the private settlement

of disputes under it’”) (quoting Hoosier Cardinal, 383 U.S. at

702).

prohibited by the NLRA. Unlike Section 8(a)(5) of the

NLRA, 29 U.S.C. 158(a)(5), which requires the employer

“to bargain collectively with the representatives of his

employees” regarding the effects of a plant closing, the

WARN Act confers a right to notice of an impending

plant closing upon represented and unrepresented

workers alike, as well as upon enumerated governmental

entities. Prior to the WARN Act’s passage, moreover,

unionized workers received an average of only 14 days’

advance notice before a plant closing or mass layoff. See

S. Rep. No. 62, 100th Cong., Ist Sess. 13 (1987). By man-

dating 60 days’ notice for all workers, Congress clearly

intended to supplement existing rights under the NLRA.

Second (and more fundamentally), the WARN Act and

the NLRA serve distinct purposes even with respect to

conduct that is governed by both.'* The purpose of the

WARN Act’s notice requirement is to protect “workers,

their families and communities” by providing “transition

time to adjust to the prospective loss of employment,” to

seek other jobs, and to obtain “skill training or

retraining” to “compete in the job market.” 20 C.F.R.

639.1(a). Congress tailored the provisions of the WARN

Act to effectuate those purposes. It mandated a

minimum of 60 days’ advance rotice to enable dislocated

employees to adjust their finances to the impending job

loss and afford them an early opportunity to begin a

2 In Reed, this Court held that the Section 10(b) limitations

period should not be applied to claims under Title I of the LMRDA

even if it were assumed that the alleged Title I violations would

also constitute unfair labor practices and breaches of the duty of

fair representation. 488 U.S. at 333 n.7. The Court explained that

any such “overlap * * * would not be attributable to similar

federal policies underlying each of these areas of protection, for

the policies behind [the relevant prohibitions] are quite different.”

Ibid.

job search. See S. Rep. No. 62, supra, at 9, 10-11. In

addition, Congress mandated that employers simultan-

eously give notice to designated local and state officials

to enable them to provide job counseling, evaluation, and

training services at the worksite before employees have

dispersed; the statutory goal is to speed the rein-

tegration of dislocated employees into the work force,

while reducing the broader social costs of unemployment

insurance, welfare services, and a diminished local

economy. Id. at 5, 10-12. The purpose of the NLRA’s

notice-of-plant-closing requirement, by contrast, is to

facilitate collective bargaining between the employer and

the union regarding the effects of the plant closing."

Because “(t]he purpose of WARN, unlike that of the

NLRA, is not to ensure labor peace but to alleviate the

distress associated with job loss for both the workers

and the community in which they live,” United

Paperworkers, 999 F.2d at 54, application of the Section

10(b) limitations period is inappropriate."

3 In a recent decision, the NLRB similarly emphasized the

distinction between WARN Act and NLRA rights. The Board

ruled that payments required by the WARN Act may not be

credited against payments required to remedy a violation of

Section 8(a)(5) of the NLRA. It noted that “WARN payments

remedy the Respondent’s violation of its obligations to give

advance notice of its decision to cease operations. The [NLRA]

payments remedy the Respondent’s violation of its obligations to

allow for meaningful bargaining over the effects of its decision to

cease operations.” Times Herald Printing Co., No. 16-CA-15433,

1994 NLRB LEXIS 972, at *12 (NLRB Nov. 30, 1994).

4 Petitioner Crown Cork relies (CC Br. 15-17) upon the

similarities between the WARN Act’s precursors and the NLRA

requirement to engage in collective bargaining over the effects of

plant closings and layoffs. Petitioner acknowledges, however, that

the predecessor bills “would have required employers not only to

notify but also to consult with employees or their exclusive

C. The Practicalities Of Litigation Weigh Against Application

Of The NLRA’s Limitations Period To WARN Act Claims

The practicalities of litigation also militate against

application of Section 10(b)’s limitations period to WARN

Act claims. The NLRA’s six-month limitations period

would create significant problems in the litigation of

such claims, thwarting the remedial purpose of the Act.

On the other hand, application of state limitations

periods should present no unusual problems for WARN

Act litigants.

In determining which statute of limitations to apply,

this Court has considered whether the limitations period

affords sufficient time to vindicate effectively the right

protected, particularly when the occurrence of the

violation may be difficult to detect and the assistance of

counsel will be needed to frame and file a suit. See, e.g.,

Agency Holding, 483 U.S. at 154 (“unduly short state

statutes of limitations * * * thwart the legislative

purpose of creating an effective remedy”); Reed, 488 U.S.

at 327 (selecting personal injury statute that generally

affords a one-year limitations period rather than Section

10(b)); DelCostello, 462 U.S. at 165-166 (rejecting 90-day

state limit in favor of Section 10(b)’s six-month limit

where unsophisticated employee will need to evaluate

union’s representation and retain counsel); Occidental

Life Ins. Co. v. EEOC, 432 U.S. 355, 368-869 (1977); Hoos-

ier Cardinal, 383 U.S. at 707 n.9; Campbell v. Haverhill,

155 U.S. 610, 615 (1895).

representative before closing a plant.” Jd. at 16. In our view, the

elimination of consultation requirements from the WARN Act as

passed reinforces the inference that the notice required by the Act

serves a purpose different from that served by the notice required

by the NLRA. Under the WARN Act, the opportunity to

negotiate with the employer is simply an incident of the notice

afforded, not its primary purpose. See pages 20-21, supra.

Section 10(b)’s six-month limitations period is too

short to vindicate WARN Act rights effectively because

a violation of the WARN Act may often be difficult to

ascertain. Determining whether a “plant closing” has

occurred requires knowledge of the number of original

employees and the number of part-time employees as

defined by their hours of work. 29 U.S.C. 2101(a)(1), (2)

and (8). Identifying a “mass layoff” requires knowledge

of the number and percentage of employees laid off over

any 30-day or 90-day period, taking into account

employees who have been offered a transfer. 29 U.S.C.

2101(a)(3), 2101(b)(2), 2102(d). Assessing the merit of a

WARN Act claim also requires potential litigants to

determine whether any of the exemptions from and

reductions in the Act’s 60-day notice period, see 29

U.S.C. 2102(b), 2103, are applicable to their cases. Even

assuming that unions could acquire and evaluate the

information necessary to substantiate a violation of the

Act, unrepresented claimants will frequently be unable

to do so. Finally, a WARN Act claimant who suspects a

violation will need to retain an attorney to evaluate the

case and file a complaint in federal district court, subject

to the strictures of Fed. R. Civ. P. 11(b)(3).'° The ur-

As the Second Circuit has recognized, see United

Paperworkers, 999 F.2d at 55, the requirement that a WARN Act

claim be filed in federal district court weighs against the

application of Section 10(b)’s six-month limitations period. Under

the NLRA, the claimant’s duty is limited to the filing of a charge

with the NLRB, which determines whether a complaint should be

issued and bears responsibility for prosecuting the case. J/bid.

Thus, “(t]he burden on [NLRA] complainants in pursuing a claim is

minimal, justifying the short statute of limitations.” bid. The

statutes cited by petitioners (NS Br. 28; CC Br. 27-28) for the

proposition that federal employment laws typically contain short

limitations periods similarly provide for enforcement by

gency of finding a new job, and the participation in the

very services for dislocated workers that the Act

promotes, see 29 U.S.C. 2102(a)(2) (mandating notice to

state dislocated workers unit and local government), may

distract aggrieved employees from immediate pursuit of

a possible WARN Act claim. The six-month limitations

period of Section 10(b), suited to the filing of an

administrative charge with the NLRB, often will not

permit the effective exercise of WARN Act rights in a

judicial forum.

Petitioners also contend that a short limitations

period is necessary in order (1) to further the WARN

Act’s purpose to provide prompt assistance to displaced

workers (NS Br. 30-31; CC Br. 25-26), and (2) to protect

employers from the burden of litigating stale claims (NS

Br. 31-32; CC Br. 26-27). As to the former point: The

WARN Act requires that notice of an impending plant

closing or mass layoff be provided in a timely fashion in

order to ensure prompt assistance to displaced workers;

effectuation of that purpose does not depend on adoption

of the Section 10(b) limitations period for the filing of a

suit after the closing or layoff has already occurred.

administrative bodies. By contrast, federal labor statutes that

require the commencement of actions by the filing of a complaint

in court typically provide longer limitations periods. See, e.g.,

Portal-to-Portal Act of 1947, 29 U.S.C. 255(a) (two-year limitations

period, or three years for willful violation, for Fair Labor

Standards Act of 1938, Walsh-Healey Act, or Bacon-Davis Act);

Employee Retirement Income Security Act of 1974, 29 U.S.C. 1113

(for breach of fiduciary duty, suit may be filed within six years

after violation or three years after actual knowledge of the

breach); Employee Polygraph Protection Act of 1988, 29 U.S.C.

2005(c)(2) (three-year limitations period); Family and Medical

Leave Act of 1993, 29 U.S.C. 2617(c)(1)-(2) (Supp. V 1993) (two-

year limitations period or three years for willful violation).

Moreover, adoption of a longer limitations period drawn

from state law will not prevent employees or their

representatives from filing suit within six months, and it

is bizarre in any event to suggest that adoption of the

shorter Section 10(b) period will further the interests of

potential plaintiffs. As to the latter: Concern for the

possibility of stale claims could serve to rebut the

presumption in favor of state-law borrowing only if the

likelihood that relevant evidence will become unavailable

were especially great in the WARN Act context. In fact,

quite the contrary is true. Because resolution of a

WARN Act suit will generally turn on documentary

evidence rather than on testimony based upon personal

recollection, accurate disposition of litigation brought

under the Act is particularly wnlikely to be impaired by

the passage of time."

Finally, application of state limitations periods to

WARN Act claims creates no extraordinary risk of

forum shopping. First, it is unclear whether a federal

court would borrow the statute of limitations from the

law of the forum State or that of the State in which the

violation occurred. Compare NS Pet. App. 14a n.4 and

Halkias v. General Dynamics Corp., 31 F.3d 224, 236-237

(1994) (suggesting forum State), reh’g en banc granted,

Nos. 93-1664, 93-1680 & 93-8204 (5th Cir. Sept. 22, 1994)

with United Paperworkers, 999 F.2d at 56 & n.9 and

Halkias, 31 F.3d at 247 (Wisdom, J., dissenting)

'S As petitioner North Star acknowledges (NS Br. 32 n.15),

federal law requires the preservation of employment records for a

three-year period. See 29 C.F.R. 516.5; 29 C.F.R. 1627.3(a). Of

course, nothing prevents a prudent employer from maintaining

such records for a longer period. Maintenance of the evidence

needed to defend against a WARN Act suit is thus entirely within

a potential defendant’s control.

(suggesting State of violation)."’ If the statute of

limitations is drawn from the law of the State of

violation, of course, then there is no advantage to “orum

shopping. Even if the limitations period of the forum

State applies, venue options are not unusually expansive

under the WARN Act.” Such claims are not inherently

multistate in nature; there will usually be only a single

site of violation, and thus no choices available in that

regard. Also, the option of suing where the employer

transacts business is actually narrower than the

generally applicable venue provisions in 28 U.S.C.

1391(c), which permits suit against a corporation “in any

judicial district in which it is subject to personal

jurisdiction.” See D. Siegel, Commentary on 1988 and

1990 Revisions of Section 1391, 28 U.S.C.A. 1391, at 17-19

(current venue statute permits suit not only where the

corporation is doing business, but also in any district in

which a state long-arm statute would permit out-of-state

service). Thus, forum shopping under the WARN Act

would be no more problematic than under other federal

statutes in which state statutes of limitations are

borrowed and where venue is governed by 28 U.S.C.

1391(c). See Halkias, 31 F.3d at 247 (Wisdom, J., dis-

senting).

17 Even if the district court applies the law of the forum State,

that law may include a state borrowing statute mandating

application of the limitations period of the State where the cause of

action arose. See Cope v. Anderson, 331 U.S. 461, 464-468 (1947).

18 Suits under the WARN Act may be brought in any district in

which the violation is alleged to have occurred or in which the

employer transacts business. 29 U.S.C. 2104(a)(5).

EE ————eO

D. Pennsylvania’s Three-Year Limitations Period For

Actions To Recover “Unpaid Wages Or Liquidated

Damages” Provides The Most Appropriate State Law

Analogue For WARN Act Claims

The court of appeals concluded that it “need not decide

which state statute applies, since the actions would be

timely under any of the possible statutes of limitations

brought to the court’s attention.” NS Pet. App. 15a. In

this Court as well, neither petitioner identifies any

potentially applicable state limitations period under

which the actions here would be untimely. This Court

therefore may affirm the judgment of the court of appeals

without deciding which state limitations period is most

appropriate.

If the Court chooses to resolve the question, however,

we believe that it would be appropriate to apply

Pennsylvania’s three-year limitations period for actions

to recover “unpaid wages or liquidated damages.” 43 Pa.

Stat. Ann. § 260.9a(g) (1992).’" An employee’s remedy for

19 As noted above, see note 3, supra, the alleged statutory

violation in Crown Cork occurred in Georgia, although suit was

filed in Pennsylvania. Because petitioner Crown Cork has not

contended that the district court should have borrowed a

limitations period from Georgia law, we have confined our analysis

to the law of Pennsylvania.

Petitioner North Star observes that, “[gliven the obvious

similarities in WARN litigation, there exists no suggestion in any

reported case or comment that the limitations period for WARN

should vary based upon the factual issues presented in each case.”

NS Br. 13 n.4. We agree that the appropriate characterization of a

WARN Act suit does not depend upon the facts of a particular

case. It does not follow, however, that WARN Act suits in States

other than Pennsylvania would inevitably be governed by the state

statute of limitations applicable to suits for unpaid wages.

Application of a different limitations period might be warranted,

either because the law of that State furnished an even more precise

a WARN Act violation is “back pay for each day of

violation,” 29 U.S.C. 2104(a)(1)(A), measured by ref-

erence to the employee’s “regular rate,” 29 U.S.C.

2104(a)(1)(A)(i) and (ii). The Act thus serves in part to

compensate aggrieved employees for the wages they

would have earned had the plant remained in operation

for the requisite 60 days after the employer gave notice

of its impending closure.

The “back pay” remedy available under the WARN Act

serves substantial noncompensatory purposes as well.

The Act provides that the amount of back pay for which a

noncomplying employer is liable shall be reduced by “any

wages paid by the employer to the employee for the

period of the violation.” 29 U.S.C. 2104(a)(2)(A). The

Conference Report makes clear that “the only payments

that may offset the back pay remedy are those made by

the violating employer. Wages received from another

employer, or unemployment compensation payments

received from the State, may not be used to offset the

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

1053 (1988). The absence of an offset for wages earned

from another employer makes clear that Congress

intended to deter and penalize violations of the Act, and

to ensure that employees have the security of continuing

their existing employment for each day of the 60-day

notice period, rather than simply to provide aggrieved

employees with the wages they would have earned had

no violation occurred.”” Those punitive and deterrent

analogue, or because the limitations period governing wage

payment suits was so short as to frustrate effective enforcement of

the WARN Act.

“9” In contrast to the WARN Act remedy, back pay typically is

intended to place an aggrieved employee in the same position he

would have occupied but for the employer’s unlawful action, and

purposes, however, also inform Pennsylvania’s wage

payment law, which provides for “liquidated damages [in]

an amount equal to twenty-five percent (25%) of the total

amount of wages due, or five hundred dollars ($500),

whichever is greater,” as a remedy for bad-faith refusal

to pay wages owed. 43 Pa. Stat. Ann. § 260.10 (1992).

Compare S. Rep. No. 62, supra, at 24 (WARN Act back

pay remedy “is in effect a liquidated damages provision[],

designed to penalize the wrongdoing employer, deter

future violations, and facilitate simplified damages

proceedings”).”’ The three-year limitations period

specified by 43 Pa. Stat. Ann. § 260.9a(g) (1992), which

applies to actions “for the collection of unpaid wages or

liquidated damages,” therefore appears to us to furnish

an appropriate analogue for an employee’s WARN Act

claim.

thus ordinarily includes an offset for wages earned from another

employer. See, e.g., Phelps Dodge Corp. v. NLRB, 313 U.S. 177,

197-198 (1941) (NLRA); United States v. Burke, 112 S. Ct. 1867,

1873-1874 (1992) (Title VII of the Civil Rights Act of 1964).

21 The Senate Report accompanied a predecessor version of the

Act. That version included the “back pay for each day of

violation” and “regular rate” formulations, but its treatment of

fringe benefits differed somewhat from the Aci as later passed.

See S. Rep. No. 62, supra, at 68.

CONCLUSION

The judgment of the court of appeals should be

affirmed.

Respectfully submitted.

DREW S. DAYS, III

Solicitor General

THOMAS S. WILLIAMSON, JR. EDWIN S. KNEEDLER

Solicitor of Labor Deputy Solicitor General

ALLEN H. FELDMAN MALCOLM L. STEWART

Associate Solicitor Assistant to the Solicitor

STEVEN J. MANDEL General

Deputy Associate Solicitor

JUDITH D. HEIMLICH

Attorney

Department of Labor

MARCH 1995

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.