Graphic Communications International Union, Local 31-N v. Quebecor Printing (USA) Corp.

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

GRAPHIC COMMUNICATIONS 
INTERNATIONAL UNION, LOCAL 31-N;
GRAPHIC COMMUNICATIONS
INTERNATIONAL UNION, LOCAL 582-M,
Plaintiffs-Appellants,
v.  No. 00-2032

QUEBECOR PRINTING (USA)
CORPORATION, d/b/a Quebecor
Printing Glen Burnie,
Defendant-Appellee.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
William M. Nickerson, District Judge.
(CA-99-383-WMN)

Argued: February 26, 2001

Decided: June 4, 2001

Before WILKINS, NIEMEYER, and LUTTIG, Circuit Judges.

Reversed and remanded by published opinion. Judge Luttig wrote the
opinion, in which Judge Wilkins and Judge Niemeyer joined.

COUNSEL

ARGUED: Peter Joshua Leff, O’DONNELL, SCHWARTZ &
ANDERSON, P.C., Washington, D.C., for Appellants. Russell Frank-
2 GRAPHIC COMMUNICATIONS INT’L UNION v. QUEBECOR PRINTING
lin Morris, Jr., BASS, BERRY & SIMS, P.L.C., Nashville, Tennes-
see, for Appellee. ON BRIEF: Michael S. Moschel, BASS, BERRY
& SIMS, P.L.C., Nashville, Tennessee, for Appellee.

OPINION

LUTTIG, Circuit Judge:

Graphic Communications International Union, Local 31-N and
Graphic Communications International Union, Local 582-M appeal
the district court’s judgment that Quebecor Printing (USA) Corpora-
tion did not violate the Worker Adjustment and Retraining Notifica-
tion Act ("WARN Act"), 29 U.S.C. §§ 2101-2109, when it ordered
the permanent closure of its Glen Burnie, Maryland plant without pro-
viding 60 days prior notice. For the reasons set forth below, we
reverse the district court’s grant of summary judgment to Quebecor
and remand the case for a determination of the damages, if any, owed
to former union employees of Quebecor’s Glen Burnie plant.

I.

Quebecor Printing (USA) Corporation ("Quebecor") operates eight
gravure printing plants in its Retail Group, which produces newspaper
advertising circulars and commercial retail inserts. At the end of
1995, Quebecor designated its Glen Burnie, Maryland and Provi-
dence, Rhode Island facilities as "overflow plants," which would per-
form any work that its other gravure plants could not handle. With no
regular customers, the Glen Burnie plant became especially suscepti-
ble to fluctuations in demand for gravure printing services and, in
both October 1996 and October 1997, Quebecor issued a WARN Act
notice to Graphic Communications International Union, Local 31-N
and Graphic Communications International Union, Local 582-M (col-
lectively "Unions"), indicating that there would be a mass layoff at
the Glen Burnie plant beginning in December. In both years the notice
informed the Unions that

[t]his layoff is presently expected to be temporary. How-
ever, because the length of the layoff is dependent on many
 GRAPHIC COMMUNICATIONS INT’L UNION v. QUEBECOR PRINTING 3
factors over which the company has no control, the layoff
may last longer than six months.

J.A. 261, 268 (emphasis added). Subsequent to the temporary layoffs
in December of 1996 and 1997, the Glen Burnie plant received work
unexpectedly and recalled employees beginning in March; the
remaining employees were recalled later in each year.

On September 18, 1998, Quebecor issued a slightly different
WARN Act notice. First, it provided notice of a mass layoff and tem-
porary plant shutdown. Second, it informed employees that "the lay-
off is expected to last longer than six (6) months." J.A. 278. Pursuant
to this notice, the Glen Burnie plant was temporarily shut down, and
all employees were laid off on December 11, 1998.

On December 15, 1998, officials from Quebecor’s Retail Group
determined that customer orders and production capacity elsewhere in
the Retail Group meant that there would be no work for the Glen Bur-
nie plant in the first half of 1999. Therefore, officials decided to per-
manently close the plant. By letter dated December 16, 1998,
Quebecor informed the Unions of its decision, explaining that the
nature of the September 18, 1998 WARN Act notification "has been
changed from a mass layoff and temporary shutdown to a permanent
plant closure." J.A. 282.

The Glen Burnie plant was in fact permanently closed on Decem-
ber 16, 1998 and, as a result, Union members lost a number of
employee benefits, including dental and life insurance benefits and
seniority recall rights. See J.A. 144. Claiming that Quebecor’s failure
to provide 60 days notice of the permanent plant closing violated the
WARN Act, the Unions requested that Quebecor compensate its
members. When Quebecor refused, the Unions filed suit in federal
district court. The district court granted Quebecor’s cross-motion for
summary judgment, and this appeal followed.

II.

The district court held that Quebecor was not required to provide
notice of the December 16 permanent closing of the Glen Burnie
4 GRAPHIC COMMUNICATIONS INT’L UNION v. QUEBECOR PRINTING
plant because Union members had been laid off on December 11 pur-
suant to a proper notice of mass layoff and temporary shutdown, and
therefore did not suffer an "employment loss" as a result of the per-
manent plant closing. Reviewing the district court’s interpretation of
the WARN Act de novo, see Providence Square Assocs., L.L.C. v.
G.D.F., Inc., 211 F.3d 846, 850 (4th Cir. 2000), we conclude that
Quebecor employees did experience an "employment loss" when the
Glen Burnie plant was permanently closed and they were terminated.

A.

The WARN Act provides that specified employers must provide 60
days notice of a plant closing or mass layoff to "affected employees,"
29 U.S.C. § 2102(a)(1), defined as "employee[s] who may reasonably
be expected to experience an employment loss as a consequence of a
proposed plant closing or mass layoff." 29 U.S.C. § 2101(a)(5)
(emphasis added). An employer who fails to provide the required
notice is liable to "each aggrieved employee who suffers an employ-
ment loss as a result of such plant closing or layoff." 29 U.S.C.
§ 2104(a)(1). Not every negative turn in employment circumstances
constitutes an "employment loss" for purposes of the WARN Act.
"Employment loss" is statutorily defined to include only "(A) an
employment termination other than a discharge for cause, voluntary
departure, or retirement, (B) a layoff exceeding six months, or (C) a
reduction in hours of work of more than 50 percent during each
month of any six-month period." 29 U.S.C. § 2101(a)(6).

Quebecor employees suffered an "employment termination," i.e.,
they were terminated, on December 16, when the Glen Burnie plant
was permanently closed. See 54 Fed. Reg. 16,047 (1987) (defining
"termination" as "a permanent cessation of the employment relation-
ship"). Under the plain terms of 29 U.S.C. § 2101(a)(6)(A), they suf-
fered, on that date, an "employment loss." As a consequence, absent
the existence of a statutory exception, they were "affected employ-
ees," entitled to WARN Act notice 60 days prior to their termination,
pursuant to 29 U.S.C. § 2102(a)(1).

The district court held that the Quebecor employees were not enti-
tled to notice for the December 16 permanent plant closure, conclud-
ing that the employees did not suffer an "employment loss" as a result
 GRAPHIC COMMUNICATIONS INT’L UNION v. QUEBECOR PRINTING 5
of this closure because the employees had already suffered an "em-
ployment loss" on December 11, as a result of a "mass layoff" and
"plant closing." The district court reasoned, therefore, that the
employees had at most an expectation of recall when the plant closed
permanently, the loss of which did not constitute an "employment
loss" for which notice is required.

Whether the Quebecor employees suffered an "employment loss"
on December 11 is immaterial to whether the employees were entitled
to notice of the permanent plant closing on December 16. Even if the
Quebecor employees had suffered an "employment loss" on Decem-
ber 11, as the district court concluded, they still would have been enti-
tled to WARN Act notice prior to the permanent plant closing. The
WARN Act clearly contemplates that an employee may suffer multi-
ple employment losses, necessitating separate notices. As recited
supra, "employment loss" is statutorily defined as "(A) an employ-
ment termination other than a discharge for cause, voluntary depar-
ture, or retirement, (B) a layoff exceeding six months, or (C) a
reduction in hours of work of more than 50 percent during each
month of any six-month period." 29 U.S.C. § 2101(a)(6). Thus,
assuming that termination is not the initial employment action, an
employee can suffer an "employment loss" for any or all of an "em-
ployment termination," "a layoff exceeding six months," or "a reduc-
tion in hours" of the magnitude and duration specified. Quebecor
itself conceded at argument that, if an employee were to receive
required notice of an anticipated reduction in hours under 29 U.S.C.
§ 2101(a)(6)(C), that employee would still be entitled to WARN Act
notice if, subsequently, he were either laid off or terminated under the
circumstances set forth in 29 U.S.C. § 2101(a)(6)(A) or (B). Of
course, this would be no less true were an "employment termination,"
like that that the Quebecor employees suffered on December 16, to
follow a reduction in hours of the magnitude and duration specified
in 29 U.S.C. § 2101(a)(6)(C) or a layoff within the definition of 29
U.S.C. § 2101(a)(6)(B).

B.

While it is irrelevant whether the Quebecor employees suffered an
"employment loss" on December 11 (or at some time before Decem-
ber 16), the district court actually erred in its conclusion that the
6 GRAPHIC COMMUNICATIONS INT’L UNION v. QUEBECOR PRINTING
employees did suffer an "employment loss" as a result of the Decem-
ber 11 layoff. Quebecor employees did not suffer an "employment
loss" on December 11 (or any time before December 16), as that term
is defined within the WARN Act. The December 11 layoff created an
expectation of employment loss sufficient to require notice to Union
members as "affected employees," because the layoff was expected to
last "in excess of six months." See 29 U.S.C. § 2102(a)(1); id. at
§ 2101(a)(5). However, the December 11 layoff did not itself result
in an "employment loss," because the statute requires that a layoff
"exceed six months" in order for it to be considered an "employment
loss." See 29 U.S.C. § 2101(a)(6)(B).

Indeed, also contrary to the district court’s conclusion, the Decem-
ber 11 layoff was not even a "mass layoff" or "plant closing" for pur-
poses of the notice requirement of the WARN Act. Not every
reduction in force or plant shutdown is a "mass layoff" or "plant clos-
ing." Rather, only those reductions in force and plant shutdowns that
result in an "employment loss" are "mass layoffs" and "plant clos-
ings." See 29 U.S.C. § 2101(a)(2) (defining "plant closing" as a "per-
manent or temporary shutdown . . . if the shutdown results in an
employment loss"); 29 U.S.C. § 2101(a)(3) (defining "mass layoff" as
"a reduction in force" that is not the result of a plant closing and "(B)
results in an employment loss"). Because the temporary shutdown on
December 11 had not, for the reason stated above, resulted in an "em-
ployment loss," it follows that neither was that shutdown a "mass lay-
off" or "plant closing" within the meaning of the Act.

Accordingly, notwithstanding that the Quebecor employees had
been laid off pursuant to the temporary plant shutdown on December
11, they were entitled, pursuant to 29 U.S.C. § 2101(a)(6)(A), to 60-
days notice prior to their "employment termination" on December 16.

III.

Quebecor argues that even if notice of the December 16 plant clos-
ing was required, the December 16 notice was sufficient because the
Quebecor employees did not suffer any employment loss until more
than 60 days after December 16. Alternatively, Quebecor contends
that the September 16, 1998 notice of the temporary plant closing was
 GRAPHIC COMMUNICATIONS INT’L UNION v. QUEBECOR PRINTING 7
sufficient notice for the permanent plant closing. Neither argument is
persuasive.

A.

Quebecor argues that the December 16 notice was timely because
the Quebecor employees did not suffer any employment loss until that
time when they could reasonably have expected to be recalled to work
from the December 11 temporary layoff, which was in either March
(when workers had been recalled from layoff in past years) or in May
(six months after the layoff began).

It is true that the Quebecor employees were laid off prior to
December 16 and did not expect to return to work for some extended
period of time. However, whether one is an "affected employee" to
whom 60-days "notice" must be given is, under the Act, a function
solely of whether he has suffered, or reasonably may expect to suffer,
an "employment loss." The Quebecor employees allege that they suf-
fered an "employment loss" as a consequence of their permanent ter-
mination on December 16. The only question, therefore, is whether,
under the terms of the WARN Act, they did in fact suffer an "employ-
ment loss" on that date. It is irrelevant in answering this question
whether the employees had a reasonable expectation of recall as of
that date or only later. And, for the reasons explained, we conclude
that they did suffer an "employment loss" on December 16.

B.

We are similarly unpersuaded by Quebecor’s argument, which was
accepted by the district court, that the notice provided on September
18, 1998 — which clearly satisfied any WARN Act obligation with
respect to the December 11, 1998 shutdown of the Glen Burnie plant
— satisfied the notice required for the December 16 permanent plant
closing because that earlier notice provided the Unions with the best
information available at the time the notice was served. Title 20
C.F.R. § 639.7(a)(4) provides that:

The information provided in the notice shall be based on the
best information available to the employer at the time the
8 GRAPHIC COMMUNICATIONS INT’L UNION v. QUEBECOR PRINTING
notice is served. It is not the intent of the regulations, that
errors in the information provided in a notice that occurred
because events subsequently change or that are minor, inad-
vertent errors are to be the basis for finding a violation of
WARN.

In addition, the regulations provide that "[n]otice to each representa-
tive of the affected employees is to contain: . . . A statement as to
whether the planned action is expected to be permanent or temporary
and, if the entire plant is to be closed, a statement to that effect." 20
C.F.R. § 639.7(c)(2) (emphasis added).

To be sure, a WARN Act notice will not be deemed insufficient
solely because a detail in the notice is incorrect. However, the regula-
tion does not — and could not consistently with the statute — excuse
the failure to provide any WARN Act notice with respect to a perma-
nent plant closing reasonably expected to result in an employment
loss.

We therefore reject the district court’s conclusion that the notice
provided in September 1998 was sufficient to satisfy the WARN Act
with respect to the permanent shutdown and plant closing on Decem-
ber 16 because it "satisfied the purpose of WARN by alerting the
Glen Burnie employees that the plant was expected to be closed in
excess of six months." J.A. 141. The question for purposes of liability
is whether the Quebecor employees received the notice they were due
with respect to the particular employment loss they experienced on
December 16. This they did not receive.

IV.

Because the Quebecor employees suffered an "employment loss"
as a result of the December 16, 1998 permanent closing of the Glen
Burnie plant, for which Quebecor failed to provide 60 days notice as
required by the WARN Act, the employees are "aggrieved employ-
ees" within the meaning of the Act. 29 U.S.C. § 2104(a)(7). The case,
accordingly, is remanded to the district court to consider the damages,
if any, that Quebecor employees are entitled to receive.
 GRAPHIC COMMUNICATIONS INT’L UNION v. QUEBECOR PRINTING 9
In making this determination, the district court must decide
whether Quebecor acted in good faith and had reasonable grounds to
believe that the September 11, 1998 notice satisfied its WARN Act
obligations. If so, the district court may, in its discretion, reduce the
amount of the liability or penalty. 29 U.S.C. § 2104(a)(5). Relevant
to this inquiry will be, inter alia, whether there was evidence that
Quebecor had decided prior to December 15, 1998 to shut down the
Glen Burnie Plant; whether Quebecor acted on the advice of legal
counsel and reasonably believed that its October notice was sufficient
for purposes of the later, permanent plant closing; and evidence of
any internal deliberations — to include a description of the possible
permanent plant shutdown in the September 11, 1998 notice.

Whether Quebecor’s December 16, 1998 notice, in conjunction
with its September 11, 1998 notice, was an honest, albeit faulty, effort
to comply with the WARN Act and give its employees the best and
most timely information regarding their employment prospects, or
whether it was motivated by a desire to avoid paying whatever bene-
fits would otherwise be due employees over that 60-day period, is a
matter for the district court in the first instance.

CONCLUSION

The judgment of the district court is reversed and the case is
remanded with instructions to determine what damages, if any, are
due appellants.

REVERSED AND REMANDED