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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_0780%3A08

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1995
- **Citation:** 513 U.S. 1072

## Text

fy \ x ¢, oreme Leu 2 U.S,
\9 / (| | FILED
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
v.
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)

IV

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

V

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

© FER, Be re RPMI ED tisnssnrbanvececssessasncosessess 23
D BURR, BRR, Bie vcevsccccecsiscsccscncsescrsceess 3, 23
SF Bay Be A BOR UBIED secsesceciscevecnesasessnsedenane 3, 23
© DIOR, Br TG, BIO acnccsncseccscssussccnsccncosnss 3
S ZURNG), BO U.BAs. BAGONG) cncicccciccssncccercssscccssesess 3
5 ZlaNS), FO UBC. TICHONS) co cccvccevessocccescssscssscvsees 23
© TO, Be Va Bee) exec crssceneserccsennenssccenee 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

VI

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
© DODD aicsiicnpanrstnissscssinmimaae eee 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)

2

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

3

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

4

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).

5

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).

6

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

7

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

8

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.

9

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

10

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

11

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.

12

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.

13

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

14

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.

15

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

16

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

17

“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-

18

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

19

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).

20

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.

21

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

22

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.

23

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

24

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).

25

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.

26

(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

27

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

28

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

29

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.

30

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_0780%3A08. Public record. Not legal advice.