OFFICE OF COMPLIANCE
LA 200, John Adams Building, 110 Second
Street, S.E.
Washington, DC 20540-1999
___________________________
GERARD J. SCHMELZER,
Appellant,
v. Case No. 96-HS-14 (WN)
OFFICE OF THE CHIEF
ADMINISTRATIVE OFFICER,
U.S. House of Representatives
Appellee.
___________________________
AND
___________________________
AVIS QUIC, Case No. 96-HS-04 (WN)
DEBORAH MACK, Case No. 96-HS-05 (WN)
NATHALINE SMITH, Case No. 96-HS-06 (WN)
CLARA ZELL WARD, Case No. 96-HS-09 (WN)
DOROTHY COWARD, Case No. 96-HS-16 (WN)
BETTY G. JUMPER, Case No. 96-HS-18 (WN)
BRIDGETTE M. GILLESPIE, Case No. 96-HS-20 (WN)
LEE DORA JOHNSON, Case No. 96-HS-26 (WN)
Appellants, (Consolidated)
v.
OFFICE OF THE CHIEF
ADMINISTRATIVE OFFICER,
U.S. House of Representatives
Appellee.
___________________________
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 OF DIRECTORS
These cases, consolidated on appeal, arise out
of the privatization of the internal postal operations of the House
of Representatives. Appellants are nine former employees of the
House of Representatives, who served in House Postal Operations
(the "HPO") under the Chief Administrative Officer (the "CAO") of
the House. Appellants lost their jobs as a result of the privatization
of the House's internal mail functions. They subsequently filed
claims with the Office of Compliance alleging that the notice of
the privatization that they received did not satisfy the requirements
of 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.
Pursuant to section 405 of the CAA, 2 U.S.C.
§ 1405, a Hearing Officer was appointed who heard all nine
cases. Eight of the cases, in which the parties were represented
by the same counsel, were consolidated for one hearing; the case
of appellant Schmelzer, which raised the same issues, was heard
in a separate hearing by the same Hearing Officer. In separate
decisions issued the same day, the Hearing Officer determined, among
other things, that the CAO had given legally sufficient notice to
all appellants and, finding no violation of the Act, ordered entry
of judgment in favor of the CAO in each case. Decision of the Hearing
Officer in Gerald J. Schmelzer v. Office of the Chief Administrative
Officer, U.S. House of Representatives (the "Schmelzer
Decision") at 58-60. Decision of the Hearing Officer in Avis
Quick et al. v. Office of the Chief Administrative Officer, U.S.
House of Representatives (the "Quick Decision") at 59-61.
(All citations hereinafter to the Hearing Officer's Decision or
Findings of Fact shall be to Schmelzer, unless otherwise
stated.)
The Hearing Officer found that a memorandum
that the Office of the CAO distributed to HPO employees on December
13, 1995 (the "December 13, 1995 memorandum")
(1) constituted written notice which substantially complied
with the CAA's notice requirements, even though it was technically
deficient, principally because it did not state the specific date
on which appellants' employment would terminate, as required by
the Board's regulations. The Hearing Officer concluded, however,
that in the particular circumstances of this case, the technical
defects of the memorandum were not fatal because the memorandum
provided a general indication of the termination date and because
that date had been communicated in meetings attended by all appellants,
was widely publicized, was generally well-known, and was readily
ascertainable by HPO employees. Decision at 58. These appeals followed.
I.
The Hearing Officer determined that the December
13, 1995 memorandum "needs to be read in context" in order to decide
whether the omission of the specific closing date of the HPO compelled
a finding of violation, Decision at 53, and, to that end, he considered
the long and public process leading up to the privatization, including
a series of updating memoranda and employee meetings which predated
the terminations occasioned by the privatization of the HPO by sixty
days or more. He found the following facts to be relevant.
The CAO's first plan to privatize HPO functions
was submitted to the Committee on House Oversight of the House of
Representatives (the "Committee") on February 28, 1995, and, at
the Committee's request, the CAO twice submitted revised plans over
the next several months. See Decision at 5. The Hearing Officer
found that, during this period, the possible privatization of HPO
operations was "a subject of discussion and interest" among HPO
employees. Id.
On June 14, 1995, the Committee directed the
CAO to issue a request for proposals ("RFP") to contract out House
mail functions, and, on that same day, CAO managers distributed
a memorandum to HPO staff informing them of the Committee's action
and assuring them that any selected vendor would be required to
interview all interested current employees for future employment
with the vendor. House Comm. on House Oversight, 104th Cong., 1st
Sess., Resolution, "Postal Operations." The Hearing Officer found
that, at this point, the "level of interest" of HPO employees in
the possibility of privatization "increased." Decision at 5. An
RFP was published in Commerce Business Daily during August, and,
on September 8, 1995, the Office of the CAO distributed another
memorandum to HPO employees. See id. at 6.
The memorandum of September 8, 1995 stated that
it was written in response to employee inquiries: "many of you have
requested an update on the status of the [RFP] to outsource Postal
Operations." (2) Id. The
memorandum reiterated that the winning bidder would "interview all
interested Postal Operations employees for possible employment."
Id. The memorandum also gave employees a schedule for the
transition to the private contractor, stating that final bids were
due in by September 15, 1995 and that review and recommendation
on award of the contract was due to the Committee at the beginning
of November. See id. The September 8 memorandum concluded
by telling employees when the privatization was due to take place:
"[t]he new facilities management company is scheduled to begin operations
in mid-December." Id. The memorandum also offered to answer
any "additional questions" that employees might have. Id.
On December 13, 1995, the Committee adopted
a resolution directing that "all functions of House Postal Operations
shall be terminated as of the close of business on Tuesday, February
13, 1996" and authorizing the CAO to contract with Pitney Bowes
Management Services, Inc. ("PBMS" or "Pitney Bowes") to provide
those internal mail services for the House. House Comm. on House
Oversight, 104th Cong., 1st Sess., Resolution, "House Postal Contract."
(3) The Committee resolution also instructed the CAO "to
immediately provide sixty days notice to existing House employees
affected [by the privatization]." Id. One of the appellants
attended the Committee meeting, and the resolution of the
Committee was posted for several days on the bulletin board at the
main HPO facility. See Findings of Fact at 3;Quick
Findings of Fact at 4.
On that same day, soon after the Committee meeting,
in response to the Committee's action, CAO management asked all
HPO employees who were present at work to attend either of two meetings.
It was at these meetings that CAO officials distributed the December
13, 1995 memorandum, which announced to employees the award of the
contract to Pitney Bowes and explained that the contractor would
distribute applications for employment the next day and would make
its hiring decisions in January, 1996. See Decision at 7.
The memorandum also promised that support, resources, and employee
assistance programs would be provided "[t]o make the transition
from employment with the U.S. House of Representatives as smooth
as possible . . . ." Id. at 48. CAO managers also explained
at the December 13 meeting that February 14, 1996, Valentine's
Day, was the target date for Pitney Bowes to begin operations. See
id. at 57.
Appellant Schmelzer acknowledged having received
a copy of the December 13, 1995 memorandum at one of the meetings,
as did one of the other appellants. See id. at 46; Quick
Decision at 48. All of the other appellants likewise attended one
of the meetings. See Quick Decision at 47-48.
On the next day, December 14, 1995, further
meetings were convened, at which Pitney Bowes met with the employees
and distributed job applications. Several representatives of the
CAO and of Pitney Bowes spoke, and it was stated at several points
that Pitney Bowes would begin serving as the House's mail delivery
contractor on Valentine's Day, February 14, 1996. See Findings
of Fact at 4; Quick Findings of Fact at 5. All appellants
attended one of these meetings, and all submitted job applications
to Pitney Bowes. See Findings of Fact at 4; Quick Findings
of Fact at 5.
On January 22, 1996, individual letters were
hand-delivered to all HPO employees present at work. Each letter
stated that Pitney Bowes would assume mail delivery functions on
February 14, 1996, and that the recipient's employment with the
House would terminate at close-of-business on February 13, 1996.
All but two of the appellants were at work on January 22 and received
the letter on that day. The two other appellants received their
letters on January 23 and January 29, when each returned to work.
See Findings of Fact at 5; Quick Findings of Fact
at 6-7. The legal sufficiency of the notice provided by these letters
is undisputed.
Both before and after the Committee's December
13, 1995 decision to terminate all functions of the HPO, the CAO
offered an array of support services to HPO employees. See Decision
at 8-9; Quick Decision at 9-10. These included establishing
an outplacement service office, which assisted employees with resume
writing and preparing job applications, as well as offering coaching
on how to interview. See Transcript in Quick at 179-184.
A job bank listing sources both inside the Congress and outside,
as well as a bank of computers and telephones for employee use,
were also provided. See id. Staff of the outplacement service
also furnished information on "Ramspeck" rights, health insurance,
and other employee benefits, as well as other transition advice.
See id.; Transcript in Schmelzer at 114. In
addition to the services provided in-house, the CAO had arranged
for the District of Columbia Employment Services to present two
workshops for postal employees on October 20, 1995, entitled, "Job
Hunting in Today's Tight Job Market," which, among other things,
explained the training opportunities under the Economic Dislocation
and Worker Assistance Act. See Transcript in Quick
at 182-83. Appellant Schmelzer, among others, made use of the outplacement
and other services provided by the CAO for HPO employees. See
Findings of Fact at 5.
Appellants' employment with the House of Representatives
ended when HPO functions ceased at close of business on February
13, 1996. Overall, of the 113 employees affected by the privatization,
three remained employed by the House of Representatives under the
CAO, and Pitney Bowes extended offers of employment to 90 of the
HPO employees, of whom about two-thirds accepted and began working
for Pitney Bowes directly from their House employment, when Pitney
Bowes took over the internal House postal operations on February
14, 1996. See Decision at 9. All appellants interviewed for
employment with Pitney Bowes; two were not given offers of employment;
the rest declined the offers tendered. See id. at 8-9; Quick
Decision at 8-9.
II. a.
Appellants petitioned the Board to review and
reverse the Hearing Officer's decisions. They argue that the Hearing
Officer misconstrued the applicable law in concluding that the December
13, 1995 memorandum substantially complied with the notice requirements
of the WARN Act, as applied by the CAA. Appellants in Quick
also argue on appeal that the Hearing Officer erred in concluding
that the distribution of the December 13, 1995 memorandum constituted
a reasonable method of delivery. Appellant Schmelzer does not join
in this contention, having acknowledged his receipt of the December
13, 1995 memorandum. See Findings of Fact at 4; see also
Appellant's Brief at 7.
Appellee CAO seeks affirmance on a number of
grounds. Appellee argues that the Hearing Officer's conclusion that
the notice provided by the CAO substantially complied with section
205 of the CAA and the pertinent regulations is based on the correct
application of law and is supported by substantial evidence in the
record. Alternatively, appellee argues that, as a matter of law,
section 205 of the CAA did not apply to the closing of the HPO because
the decision to close the HPO was made and notice to employees of
the closing was delivered before the effective date of section 205
of the CAA. Appellee also contends that fewer than fifty employees
actually suffered an employment loss when the number of employees
who were offered employment with Pitney Bowes is calculated under
the sale of business/privatization exclusion of section 2(b)(1)
of the WARN Act, 29 U.S.C. § 2101(b)(1), as applied by section
225(f)(1) of the CAA, 2 U.S.C. § 1361(f)(1), and section 639.4(c)
of the Board's regulations. In addition, appellee argues that, even
if the CAO were to be found liable for a technical violation of
the notice requirements, the Hearing Officer's findings of fact
support granting the CAO a good faith reduction or elimination of
damages, as provided by section 5(a)(4) of the WARN Act, 29 U.S.C.
§ 2104(a)(4), as applied by section 205(b) of the CAA, 2 U.S.C.
§ 1315(b).
Because the Board agrees with the Hearing Officer's
conclusion that, in the totality of the circumstances here, the
notice provided by the December 13, 1995 memorandum substantially
complied with the notice requirements of the Act and the applicable
regulations, we do not reach the alternative grounds for affirmance
urged by the CAO. We therefore turn to the notice requirements of
the Act and the Board's WARN Act regulations.
(4)
II. b.
Section 205(a) of the CAA provides "Worker Adjustment
and Retraining Notification Rights" to covered employees, as follows:
No employing office shall be closed or a mass
layoff ordered within the meaning of section 3 of the Worker Adjustment
and Retraining Notification Act (29 U.S.C. § 2102) until
the end of a 60-day period after the employing office serves written
notice of such prospective closing or layoff to representatives
of covered employees or, if there are no representatives, to covered
employees.
While the statute does not explicitly state what
the notice must contain, the regulations have mandated that certain
information be provided in order to effectuate the purpose of the
WARN Act to provide workers with adequate advance notification of
an employment loss. As explained in the Department of Labor's regulations
and in section 639.1(a) of the Board's Interim Regulations, WARN
Act notice "provides workers and their families some transition
time to adjust to the prospective loss of employment, to seek and
obtain alternative jobs and, if necessary, to enter skill training
or retraining that will allow these workers to successfully compete
in the job market." Notice of Adoption of Regulation and Submission
for Approval and Issuance of Interim Regulations, 142 Cong. Rec.
S271-72 (daily ed. Jan. 22, 1996) (All citations are to the "Interim
Regulations," which were in effect at the time of the privatization
of the HPO). See also the Department of Labor's response to comments
on its regulatory notice requirements: "While the Act does not enumerate
specific elements which should be included in the advance written
notice, . . . [t]he content of notice to each party [required by
the regulations] is designed to provide information necessary for
each of them to take responsible action." 54 Fed. Reg. 16042, 16059
(April 20, 1989) (Response to Comments, section 639.7(d) WARN Notice).
To effectuate the notification purposes of the
WARN Act, section 639.7(d) of the Board's Interim Regulations, like
the Department of Labor's WARN Act regulations, requires that notice
to individual employees contain the following four elements:
(1) A statement as to whether the planned
action is expected to be permanent or temporary and, if the entire
office is to be closed, a statement to that effect;
(2) The expected date when the office closing or mass layoff will
commence and the expected date when the individual employee will
be separated;
(3) An indication whether or not bumping rights exist;
(4) The name and telephone number of an employing office official
to contact for further information.
142 Cong. Rec. S270, S274 (daily ed. Jan. 22,
1996).
Courts construing these notice requirements
have, in light of the notice purposes of the WARN Act, distinguished
between the situation in which an employer has failed to provide
any written notice, and the situation in which written notice was
provided, but the contents of the notice failed to meet the technical
requirements of the regulations. See, e.g., Carpenters Dist.
Council v. Dillard Dep't Stores, 15 F.3d 1275, 1287 n.19 (5th
Cir. 1994), cert. denied, 115 S.Ct. 933 (1995); accord
Saxion v. Titan-C-Mfg. Inc., 86 F.3d 553, 561 (6th Cir. 1996);
Marques v. Telles Ranch, 867 F. Supp. 1438, 1445-46 (N.D.
Cal. 1994); United Automobile Aerospace & Agricultural Implement
of America Local 1077 v. Shadyside Stamping Corp., 1991 WL 340191
(S.D. Ohio) (dictum), aff'd without published opinion, 947
F.2d 946 (6th Cir.1991). The Hearing Officer appropriately was guided
by these cases, which we also find to be persuasive.
(5)
In Dillard, the court, considering the
adequacy of notices that gave inaccurate termination dates, noted
that "neither the regulations nor the Act itself addresses how courts
are to treat notices that are determined to be defective or inadequate.
As such, neither the Act nor the regulations suggest that defective
notice is automatically to be treated as though no notice had been
provided at all." 15 F.3d at 1287 n.19 (citation omitted). Similarly,
the Saxion court, quoting Dillard with approval in
a case in which the notice failed to give a termination date, among
its other technical deficiencies, concluded: "We are not persuaded
that the technical deficiencies in the March 13 letter required
the district court to proceed as if there had been no notice at
all." 86 F.3d at 561. Likewise, in Marques, the court again
quoted Dillard with approval, and construed the Department
of Labor regulations as providing that "technical deficiencies or
omissions in notice do not invalidate notice or result in WARN liability."
867 F. Supp. at 1445. In that case, the court found adequate a WARN
notice provided to seasonal workers during their seasonal lay-off,
despite its lack of date, because the court concluded that, in context,
the notice could only be read as referring to a permanent layoff
beginning in the upcoming harvest season. Id. at 1446. Finally,
in Shadyside Stamping Corp., the court, analyzing whether
notices that, among other things, failed to provide precise termination
dates, were nonetheless adequate, found relevant whether "all the
information required to be provided by the employer was produced
or at least well known." 1991 WL 34091 at star page 7 (emphasis
added). Thus, all four cases stand for the proposition that omitting
termination dates or providing inaccurate termination dates does
not necessarily render written WARN notices fatally deficient.
The Department of Labor's interpretative comments
to the enforcement provisions of its WARN Act regulations also distinguish
between the failure to give notice and the provision of technically
defective notice. The Department of Labor's commentary on its WARN
Act regulations provides guidance that "technical violations of
the notice requirements not intended to evade the purposes of WARN
ought to be treated differently than either the failure to give
notice or the giving of notice intended to evade the purposes of
the Act." 54 Fed. Reg. 16042, 16043 (April 20, 1989) (Response to
Comments, section 639.1(d) WARN Enforcement). Some "technical violations"
are best characterized as "minor, inadvertent errors," which the
Department of Labor states "are not intended to be violations of
the regulations." Id. "Other kinds of violations, i.e., the
failure to provide information required in these regulations, may
constitute a violation of WARN." Id. (emphasis added). Thus,
the Department of Labor indicates that such errors "may," but do
not necessarily, violate the Act. We agree.
When faced with technically deficient WARN notices,
courts have, consistent with the Department of Labor's view, asked
whether, in the circumstances of the case, the employees nonetheless
received notice that satisfies the purposes of the Act. See,
e.g. Dillard, 15 F.3d. at 1286; Marques, 867 F. Supp.
at 1445. In making that determination, courts have consistently
looked at all the communications provided by employers to determine
whether, when viewed in context, one or more written communications
qualified as notice under the WARN Act and applicable regulations.
See Kalwaytis v. Preferred Meal Systems, Inc., 78 F.3d 117,
121-22 (3d. Cir.), cert. denied, 117 S. Ct. 73 (1996); Dillard,
15 F.3d. at 1286-87; Saxion, 86 F.3d at 561; Marques,
867 F. Supp. at 1445-46. Cf. also Oil, Chemical and Atomic
Workers Int'l Union v. American Home Products Corp., 790 F.
Supp. 1441 (N.D. Ind. 1992) (employer who failed timely to update
written notice provided one year in advance of closing which contained
inaccurate termination date and who provided only seven days written
notice of actual termination date was entitled to summary judgment
based upon statutory good faith defense because the requirements
of the regulations were unclear); Shadyside Stamping Corp.,
1991 WL 340191 at star pages 8-10 (employer who provided five months
written notice and a written reminder notice, but failed to meet
the technical requirements of the regulations, was entitled to summary
judgment based upon statutory good faith defense).
In Kalwaytis, the employer wrote a letter
to employees laid off by the outsourcing of its school meal preparation
services informing them that it was ceasing food service operations
at its plant and contracting out that function. The initial letter
stated that the new employer has "an immediate offer of employment
to make to you." Id. at 119. A later letter made clear that
an offer of employment was in the contractor's discretion. Id.
The court concluded that adequate notice had been provided: "Giving
a reasonably pragmatic interpretation of the two letters, we conclude
that, read together, they do meet the statutory requirements of
notice." Id. at 122.
Similarly, the Dillard court, construing
a series of three written notices, the last two of which gave estimated
termination dates that did not provide the full sixty days required
by the WARN Act, found that employees who actually worked for at
least sixty days after receipt of the notices were not entitled
to back pay damages because they had, in fact, received the notice
that they were entitled to under the Act. 15 F.3d. at 1286-87. The
court concluded that any other interpretation was "inconsistent
with both the language and the purpose of the Act" which requires
only that an employer provide sixty days notice of termination.
Id. at 1286.
Likewise, in Saxion, 86 F.3d at 561, the
court found that appellant should not have been found in violation
of the WARN Act for the full sixty-day period where, ten days before
the plant shut down, appellant gave a written notice stating that
the plant was going to close and giving the name and phone number
of a company official to contact with further questions. The court
reduced the violation period to fifty days, despite the omission
of the date of the plant's shut down, concluding: "[t]hat the notice
was deficient in other respects does not change the fact that ten
days before the plant was closed, the affected employees clearly
knew that it was going to be closed." Id.
Finally, in Marques, 867 F. Supp. at
1445, the court analyzed the notice in light of whether the purpose
of the notice provision was served and determined that, because
none of the omissions in the notice caused harm to the employees,
the technical deficiencies did not give rise to liability. The court
found that, despite the lack of a specific separation date, the
time frame could be determined from the notice and surrounding circumstances.
Id. The omission of bumping rights was immaterial since employees
did not enjoy such rights. Id. Further, "although there was
no name and number of a company official to contact for further
information, Plaintiffs clearly knew and understood how to contact
Defendants because Plaintiffs had done so every season to determine
the date harvesting operations were to resume." Id. Thus,
the deficiencies in the written notice did not undermine the notice
purposes of the Act because employees either already knew the missing
information from other contexts or could infer it from the notice
and surrounding circumstances, or because it was irrelevant to their
situation.
In sum, courts have approached the notice requirements
with an eye to practicalities: "Fairly read, the regulations require
a practical and realistic appraisal of the information given to
affected employees." Kalwaytis, 78 F.3d at 121-22. Evaluating
the notices received by employees from that practical perspective,
the courts in Marques, Saxion, and Dillard
found that the omissions in the written notices did not undermine
the purpose of the statute where the pertinent information that
the written notice should have conveyed was actually known by, or
was readily available to, the employees. Thus, under the applicable
case law, the Hearing Officer was correct in concluding that: "[u]nder
prevailing WARN case law, neither the inclusion of inaccurate termination
dates, nor the omission of termination dates altogether, necessarily
renders a WARN notice defective, particularly if employees can easily
ascertain the date from surrounding circumstances or readily available
sources of information." Decision at 56.
II. c.
We also conclude that the substantial compliance
standard adopted by the Hearing Officer is an appropriate standard
to be used in determining if a violation has occurred. Indeed, all
cases construing a written WARN notice that is technically defective
because of the omission or inaccurate statement of a termination
date use the substantial compliance standard, either explicitly,
Marques, F. Supp. at 1446, and Shadyside Stamping Corp.,
1991 WL 340191 at star pages 7-9, or implicitly, Saxion,
86 F.3d at 561, and Dillard, 15 F.3d at 1286-87 & n.19.
(6)
This standard is particularly appropriate here
because the instant cases arose during the early days of implementation
of section 205 of the CAA. It was over a month before the January
23, 1996 effective date of section 205 of the CAA and of the Board's
Interim Regulations that the Committee on House Oversight adopted
the resolution instructing the CAO "to immediately provide sixty
days notice to existing House employees affected by the issuance
of the contract." The memorandum from the CAO explaining the situation
to employees was issued on the same date as the resolution. This
was a period that the Board described as one of "regulatory uncertainty."
Notice of Issuance of Interim Regulations, 142 Cong. Rec. S270,
S271 (daily ed. Jan. 22, 1996). As the Board there noted: "[i]n
the absence of the issuance of such interim regulations, covered
employees, employing offices, and the Office of Compliance staff
itself would be forced to operate in regulatory uncertainty. . .
. [E]mploying offices and the Office of Compliance staff might not
know what regulation, if any, would be found applicable in particular
circumstances absent the procedures suggested here." Id.
In comparable circumstances, the Department
of Labor concluded that " . . . in the early days of WARN implementation
substantial compliance with regulatory requirements should be sufficient
to comply with WARN." 53 Fed. Reg. 48884 - 85 (1988) (notice adopting
interim interpretative rules of Dec 2, 1988). Courts construing
WARN notices issued during the transition period adopted the substantial
compliance standard. See, e.g. Shadyside Stamping Corp.,
1991 WL 340191, at star pages 7-9 (noting that the substantial compliance
standard may be satisfied if the information missing from the notice
was otherwise provided by the employer or was readily available
to employees).
III.
With these principles in mind, we turn to the
notice provided to employees in this case. The Board agrees with
the Hearing Officer that the December 13, 1995 memorandum can fairly
be read to supply two of the four elements required by section 639.7(d)
of the Board's regulations, that is, a statement to the effect that
House Postal Operations is to be permanently closed and the name
and telephone number of an official to contact for further information.
See sections 639.7(d)(1), (4).
Looking at the actual language of the memorandum,
the Board agrees with the Hearing Officer's conclusion that today's
government employees, especially those of the 104th Congress in
which privatization had been a topic of debate, would reasonably
understand that the issuance of a request for proposals "to privatize
the current House postal delivery operations" meant that the House
was seeking to contract with a private contractor to perform the
jobs of the current incumbents. The only logical inference from
the announcement of "Pitney Bowes Management Services being selected
as the House vendor for postal delivery operations" is that this
private contractor has now been hired to take over the functions
of the HPO.
The memorandum also makes clear that jobs with
the new contractor are not automatic. Employees must apply, go through
an interview process, and await the contractor's independent hiring
decisions. The memorandum states that "the vendor has agreed to
interview all current Postal Operations employees interested in
employment with their organization" (emphasis added). This confirms
that the current House jobs in Postal Operations are going to be
privatized and that future jobs in postal operations will be with
the private contractor who is now conducting interviews for that
employment. Moreover, the memorandum also states that hiring decisions
will be made by PBMS: "The vendor will inform you directly if you
are selected for a position in their organization." Finally, the
memorandum describes the services that will be made available to
make the employees' "transition from employment with the U.S. House
of Representatives as smooth as possible" (emphasis added). The
plain meaning of "transition from House employment" is that the
employees' current jobs will be terminated when PBMS takes over
on February 14, 1996, a date that has been identified for the HPO
employees. Thus, this notice is like the second notice in Kalwaytis,
78 F.3d at 122, which made clear that laid-off employees would have
to apply for employment directly with the new employer. Therefore,
the Board agrees with the Hearing Officer that the December 13,
1995 memorandum substantially complies with the requirement of section
639.7(d)(1) of the Board's Interim Regulations.
The memorandum gives employees several points
of contact for further information, in satisfaction of section 639.7(d)(4).
It provides the address and telephone numbers of "[t]he Human Resources'
Office of Training" and the "Outplacement Resources Center," as
well as stating the full name and title of the memorandum's author,
the Associate Administrator for Human Resources in the Office of
the CAO. Clearly, employees knew how to get in touch with someone
on the CAO's staff who could answer their questions. Moreover, the
omission of the telephone number of the Associate Administrator
for Human Resources was of no consequence; she spoke at the orientation
meeting introducing Pitney Bowes Management Services, attended by
all appellants, the day after the memorandum was distributed.
The memorandum fails, however, to inform employees
whether bumping rights exist, as required by section 639.7(d)(3).
However, there was no testimony during the Hearing regarding this
omission, nor any complaint on appeal. Moreover, bumping rights
have no relevance, where, as here, the entire operation is closed.
See Marques, 867 F. Supp. at 1446. The Board therefore agrees
with the Hearing Officer's conclusion that, in these circumstances,
the omission of this information is a minor, inadvertent error,
within the meaning of section 639.7(a)(4) of the Board's regulations.
The December 13, 1995 memorandum also fail to
state explicitly the expected date of the office closing and the
expected date when employees will be separated from employment,
as required by section 639.7(d)(2). However, as the Hearing Officer
concluded, "[g]iven that the December 13, 1995 memorandum provides
some indication of the privatization date (i.e., reasonably soon
after completion of the interview process in January 1996), given
that the date was fixed and certain and widely publicized in a variety
of oral and written ways, and given that employees had a wealth
of readily available means to ascertain the date, . . . [the failure
to provide this date] does not compel a finding of violation." Decision
at 58. While the December 13, 1995 memorandum was technically deficient
in its failure to provide the date required by section 639.7(d)(2)
of the Board's WARN Act regulations, the information missing from
the notice was otherwise provided to employees by the CAO and also
was readily available to them from a number of sources, at least
sixty days in advance of the employees' termination, such that the
purposes of the WARN Act were satisfied. See Marques,
867 F. Supp. at 1445-46; see also Saxion, 86 F.3d at 561;
see also Shadyside Stamping Corp., 1991 WL 340191 at star pages
7-8.
Examining the record, moreover, the Board does
not find that the omission of the termination date from the CAO's
otherwise timely and adequate written notice defeated the purposes
of the statute. Judged in the totality of the circumstances, the
CAO took appropriate steps under the WARN Act, as applied by the
CAA, to provide adequate notice for employees to make the transition
to new employment. In the spirit of the purposes of the WARN Act,
see section 639.1(a) of the Board's regulations, the CAO
voluntarily gave employees early notice that the Committee on House
Oversight was contemplating the privatization of the HPO. The CAO's
June memorandum was updated by notice in September in a memorandum
that provided an actual schedule for the privatization process,
based on the best information then available. It is in this context
that the December 13, 1995 memorandum must be read to determine
whether the omission of the date deprived employees of legally sufficient
notice of their date of termination. (7)
The December 13 memorandum states that the "review/selection
process" for employment with PBMS "will be completed in January,
1996." From that information, employees could expect that the contractor
would begin operations shortly thereafter as, in fact, PBMS did.
That conclusion is supported by the fact that the earlier memorandum
of September 8, 1995 had notified employees that the contractor
was "scheduled to begin operations in mid-December," so that employees
were already on written notice that the contractor would take over
shortly. While it was clear by December 13, 1995, that the earlier
deadline had slipped, the fact remains that, through the September
8, 1995 memorandum, employees had received written notice of a likely
termination date, and were given updated information about the contractor's
plans on December 13, 1995, over sixty days before their actual
termination.
Looking at the September 8, 1995 memorandum
together with the December 13, 1995 memorandum, the Board finds
this to be a situation in which employees received multiple notices
whose technical deficiencies do not merit a finding of liability.
See, e.g., Kalwaytis, 78 F.3d at 121-22; Dillard,
15 F.3d at 1286-87 & n.19; cf. American Home Products, 790
F. Supp. at 1444-45, 1450-53; Shadyside Stamping Corp., 1991
WL 340191 at star pages 1-3, 8-11. Reading the letters together,
and making "a practical and realistic appraisal of the information
given to affected employees," Kalwaytis, 78 F.3d at 121-22,
the Board concludes that, over sixty days before their termination,
appellants were provided with adequate information to determine
that they were going to lose their government jobs on February 13,
1996, when the contractor took over House Postal Operations.
Thus, because appellants received over sixty
days written notice from the mid-December estimated take-over by
the contractor, they were like those employees in Dillard
who worked past the estimated termination dates given in their notices
such that they actually received over sixty days notice, see
15 F.3d at 1286-87 & n.19. As the Dillard court held,
sixty days notice satisfies "both the language and the purpose of
the Act." Id. at 1286. Such actual notice of termination
is what is essentially required by the notice requirements of the
Act to give employees adequate notice to plan for the loss of their
jobs. In such circumstances, the inaccuracy in the termination date
is not fatal. See id.
Moreover, as the Hearing Officer found, the
date was well known and widely disseminated. Decision at 56-58.
Appellant Schmelzer, for example, conceded that he was well aware
of the termination date; he wrote it on his application for employment
with PBMS. See id. at 57. Another appellant attended
part of the Committee meeting in which the resolution was passed
that effected the February 13, 1996 closure of the HPO. See Quick Findings
of Fact at 4. And the Committee's resolution was posted on the HPO
bulletin board. See Decision at 56-57. Further, testimony
credited by the Hearing Officer made clear that the date of Valentine's
Day, February 14, 1996, was stated repeatedly at the December 14,
1995 meeting attended by all appellants. See id. at
57; Quick Decision at 58. In addition, the Hearing Officer
noted seven ways by which any employee, still in doubt, could have
ascertained the information. Decision at 57. Notable among his findings
was the simple expedient of asking the question at either the December
13 or the December 14 meetings, attended by all appellants, during
which the Office of the CAO not only provided question-and-answer
periods, but also announced the February 14, 1996 date for PBMS
to take over the HPO operations. Id. Or employees could have
called any of the three official CAO management sources provided
on the December 13, 1995 memorandum. Id.
The Board therefore concludes that there is
substantial evidence in the record supporting the Hearing Officer's
conclusion that, at least sixty days before the closing of the HPO,
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 sixty
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.
See Marques, 867 F. Supp. at 1445-46, see also
Saxion, 86 F.3d at 561; Dillard, 15 F.3d at 1287 &
n.19.
The only case cited by appellants as compelling
a different result, American Home Products, does not. In
that case, employees were provided with only seven days actual notice
of the date of their layoff and they had no other source of information
from which they could learn the date. However, that situation is
markedly different from the case here, where the employees were
provided with multiple written notices and where the final written
notice, coupled with the information readily available to the employees,
reasonably assured sixty days actual notice of the employees' termination
date. Thus, we affirm the Hearing Officer's conclusion that, in
the totality of the circumstances, the employees were provided with
adequate notice under the requirements of the CAA and the applicable
regulations.
Appellants in Quick also argue on appeal
that the Hearing Officer erred in concluding that the distribution
of the December 13, 1995 memorandum constituted a reasonable method
of delivery, and they contrast the handout of that memorandum with
the individualized delivery of the January 22, 1996 termination
notice, with signed receipt. This contention is without merit. 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.
This is not a case in which the employer failed
to provide notice or provided notice intended to evade the purposes
of the notice requirements of the CAA. See Department of
Labor Preamble to the WARN Act Regulations, 54 Fed. Reg. 16042,
16043 (April 20, 1989) (Response to Comments, section 639.1(d) WARN
Enforcement). To the contrary. Four separate written notices were
provided to employees. Four meetings informing employees of the
privatization were held in the space of two days. The Committee
itself was cognizant of the need to provide timely notice to the
employees. Its resolution of December 13, 1995 directed the CAO
to provide sixty days notice to the employees "immediately."
Indeed, the House tried in many additional ways,
in the spirit of the underlying purposes of the WARN Act, to ease
the transition to new employment. The Committee required, as a condition
of the contract, that the contractor interview all current House
employees for the jobs that were privatized. The Office of the CAO
went beyond the suggestions in section 639.7(d) of the Board's regulations
for providing transition "information useful to the employees."
An array of transition and support services were offered, including
a job bank, help with job applications, and resume writing, computer
training courses, stress management training, and making arrangements
for outplacement seminars for the employees. These efforts further
belie any suggestion that the CAO was attempting to evade the purposes
of the Act.
In sum, the record is clear that the privatization
of the HPO was not the type of stealth plant closing which leaves
employees adrift and which the Act, and its inclusion in the CAA,
were meant to prevent. There was a public debate and a public decision
regarding the privatization of House Postal Operations, and employees
were advised of these developments as they occurred. In addition
to the multiple written notices provided, public employee meetings
were held sixty days in advance of any terminations. At these meetings,
the process and specific effective date of the privatization were
repeatedly announced. In these circumstances, it would elevate form
over substance to find that the CAO's written notices of the privatization
of the HPO violated the WARN Act, as applied by the CAA. The Board
therefore affirms the decisions of the Hearing Officer.
It is so ordered.
Issued, Washington, D.C., July 29, 1997
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