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,  No. 00-2032

v.

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-
lin Morris, Jr., BASS, BERRY & SIMS, P.L.C., Nashville, Tennessee, 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) Corporation did not violate the Worker Adjustment and Retraining Notification Act ("WARN Act"), 29 U.S.C. §§ 2101-2109, when it ordered

the permanent closure of its Glen Burnie, Maryland plant without providing 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 Providence, Rhode Island facilities as "overflow plants," which would perform any work that its other gravure plants could not handle. With no

regular customers, the Glen Burnie plant became especially susceptible 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 (collectively "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. However, because the length of the layoff is dependent on many

2 GRAPHIC COMMUNICATIONS INT’L UNION v. QUEBECOR PRINTING
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 temporary plant shutdown. Second, it informed employees that "the layoff 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 Burnie plant in the first half of 1999. Therefore, officials decided to permanently 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 December 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

GRAPHIC COMMUNICATIONS INT’L UNION v. QUEBECOR PRINTING 3
plant because Union members had been laid off on December 11 pursuant to a proper notice of mass layoff and temporary shutdown, and

therefore did not suffer an "employment loss" as a result of the permanent 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 employment 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 relationship"). Under the plain terms of 29 U.S.C. § 2101(a)(6)(A), they suffered, on that date, an "employment loss." As a consequence, absent

the existence of a statutory exception, they were "affected employees," 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 entitled to notice for the December 16 permanent plant closure, concluding that the employees did not suffer an "employment loss" as a result

4 GRAPHIC COMMUNICATIONS INT’L UNION v. QUEBECOR PRINTING
of this closure because the employees had already suffered an "employment 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 December 11, as the district court concluded, they still would have been entitled to WARN Act notice prior to the permanent plant closing. The

WARN Act clearly contemplates that an employee may suffer multiple employment losses, necessitating separate notices. As recited

supra, "employment loss" is statutorily defined as "(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). Thus,

assuming that termination is not the initial employment action, an

employee can suffer an "employment loss" for any or all of an "employment termination," "a layoff exceeding six months," or "a reduction 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 December 16), the district court actually erred in its conclusion that the

GRAPHIC COMMUNICATIONS INT’L UNION v. QUEBECOR PRINTING 5
employees did suffer an "employment loss" as a result of the December 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 December 11 layoff was not even a "mass layoff" or "plant closing" for purposes of the notice requirement of the WARN Act. Not every

reduction in force or plant shutdown is a "mass layoff" or "plant closing." Rather, only those reductions in force and plant shutdowns that

result in an "employment loss" are "mass layoffs" and "plant closings." See 29 U.S.C. § 2101(a)(2) (defining "plant closing" as a "permanent 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 "employment loss," it follows that neither was that shutdown a "mass layoff" 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 closing 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

6 GRAPHIC COMMUNICATIONS INT’L UNION v. QUEBECOR PRINTING
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 suffered an "employment loss" as a consequence of their permanent termination on December 16. The only question, therefore, is whether,

under the terms of the WARN Act, they did in fact suffer an "employment 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

GRAPHIC COMMUNICATIONS INT’L UNION v. QUEBECOR PRINTING 7
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, inadvertent errors are to be the basis for finding a violation of

WARN. 

In addition, the regulations provide that "[n]otice to each representative 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 regulation does not — and could not consistently with the statute — excuse

the failure to provide any WARN Act notice with respect to a permanent 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 December 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 employees" 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. 

8 GRAPHIC COMMUNICATIONS INT’L UNION v. QUEBECOR PRINTING
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 benefits 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

GRAPHIC COMMUNICATIONS INT’L UNION v. QUEBECOR PRINTING 9