LA 200, John Adams Building, 110 Second Street, S.E.
Washington, DC 20540-1999
v. Case No. 96-HS-41 (WN)
OFFICE OF THE CHIEF
U.S. House of Representatives
Before the Board of Directors: Glen D.
Nager, Chair; James N. Adler; Jerry M. Hunter; Lawrence Z. Lorber;
Virginia A. Seitz, Members
DECISION OF THE BOARD
Appellant, Jarvis Gray, a former employee of
the House of Representatives Postal Operations (the "HPO"), lost
his employment when HPO internal mail functions were taken over
by a private contractor, Pitney Bowes Management Services ("PBMS").
Appellant claims that the Office of the Chief Administrative Officer
(the "CAO") of the House failed to provide him with adequate advance
notice of his prospective termination, as required under the Worker
Adjustment and Retraining Notification Act (the "WARN Act"), as
applied by section 205 of the Congressional Accountability Act of
1995 (the "CAA"), 2 U.S.C. § 1315, and the Board's implementing
regulations. In particular, appellant argues on appeal that the
distribution of a December 13, 1995 memorandum advising of the prospective
take-over at a meeting of employees on December 13, 1995 did not
constitute a reasonable method of delivery, within the meaning of
the Board's implementing regulations, and that the memorandum itself
did not satisfy the requirements of the WARN Act, as applied by
the CAA and the Board's regulations. For the reasons set forth below,
the Board affirms the Hearing Officer's decision granting summary
judgment against appellant.
In this case, the Hearing Officer concluded
that, although the notice provided by the CAO omitted the expected
date of the office closing and the expected date of the employees'
separation from employment, as required by section 639.7(d)(2) of
the Board's implementing regulations, the December 13, 1995 memorandum
"substantially complied with the notice requirements of the WARN
Act as incorporated in CAA § 205; any omissions of information normally
required in such a notice were, under the circumstances here, minor,
inadvertent errors which do not give rise to a violation." Conclusion
of Law No. 4 at 2. In Gerard J. Schmelzer v. Office of the Chief
Administrative Officer (Case No. 96-HS-14 (WN), consolidated
on appeal with Case Nos. 96-HS-05, 06, 09, 16, 18, 20, 26 (WN))
(hereinafter "Schmelzer"), the Board affirmed the Hearing
Officer's legal conclusion, reasoning that the December 13, 1995
memorandum substantially complied with the statute and regulations
because "all appellants either knew the dates on which their employment
with the House would terminate and PBMS would take over the functions
of the HPO or attended a meeting that took place at least 60 days
before the closing of the HPO, at which these dates were discussed.
Thus, the notification purpose of the statute was satisfied despite
the technical deficiencies in the December 13, 1995 memorandum."
Schmelzer at 14.
That holding in Schmelzer also governs
the resolution of this case. It is undisputed that, in addition
to the December 13, 1995 employee meeting, appellant attended a
December 14, 1995 PBMS orientation session and that, at that time,
he learned the date on which PBMS expected to take over HPO operations.
Finding of Fact No. 12 at 4; Decision at 55. Accordingly, under
Schmelzer, appellant received sufficient notice for purposes
of section 205 and its implementing regulations.
The only facts that appellant points to that
are different from those found in Schmelzer do not change
that result. Appellant claims that he did not receive timely notice
of his actual termination date because, as explained at the December
14, 1995 orientation session, PBMS's contract had a contingency
clause which allowed it to cancel within two weeks of the take-over
date. For that reason, appellant contends, he reasonably believed
that the February 14, 1996 takeover date was only tentative. Appellant
further argues that, although he read the December 13, 1995 memorandum
posted on an employee bulletin board shortly after it was distributed,
the CAO should be held liable because appellant did not receive
a copy of the memorandum at the December 13, 1995 employee meeting.
The Board finds these contentions to be without merit.
Section 639.7(b) of the Board's regulations
defines "date" as the specific date or 14-day period at which "separations
are expected to occur." Section 639.7(a)(4) also states that "[t]he
information provided in the notice shall be based on the best information
available to the employing office at the time the notice is served."
Even taking the facts and the reasonable inferences to be derived
from these facts in the light most favorable to appellant, it is
nonetheless clear that appellant knew the "expected" date of the
take-over, as legally required by the Board's regulations. As the
Hearing Officer stated: "While complainant says that at this meeting
there was mention that, under the contract, PBMS had a two-week
period in which they could 'change their mind about taking over,'
his declaration refers to February 14, 1996 as the 'expected' takeover
date, which conforms precisely to the regulation's requirement that
employees be informed of the 'expected' date of the office closing."
Decision at 55.
Similarly, it does not matter whether the December
13, 1995 memorandum was distributed at the December 13, 1995 employee
meeting by CAO staff or by HPO employees, as appellant contends.
As the Board stated in Schmelzer at 14-15:
Section 639.8 of the Board's regulations allows
the use of "[a]ny reasonable method of delivery" and terms signed
receipts "optional." Under the circumstances here, we agree with
the Hearing Officer's conclusion that distributing a memorandum
at the meetings of the employees was a reasonable method of effecting
delivery to these employees.
That appellant did not receive a copy of the
memorandum at that meeting does not alter this conclusion. As the
Hearing Officer concluded, appellant "was aware of all the information
in the December 13, 1995 memorandum on or shortly after the date
of its distribution, and thus his failure to receive a copy of that
which was distributed generally in a reasonable manner is immaterial."
Decision at 45. See also Saxion v. Titan-C-Manufacturing, Inc.,
86 F.3d 553, 555 (6th Cir. 1996); cf. Wholesale and Retail
Food Distribution Local 63 v. Sante Fe Terminal Services, Inc.,
826 F. Supp. 326, 333 (C.D. Cal. 1993) (properly addressed letter
placed in the care of the postal service is presumed to have arrived
and employer is not liable under WARN when union leader fails to
receive letter properly mailed).
The Board therefore affirms the decision of
the Hearing Officer.
It is so ordered.
Issued, Washington, D.C., December 1, 1997.