United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 98-1230

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Teamsters Local 838, *

*

Appellant, *

*

v. *

*

Laidlaw Transit, Inc., *

*

Appellee. *

*

_____________________________ * Appeal from the United States

* District Court for the Western

Danny Lee McConnell, Jacqueline C. * District of Missouri.

McGlothen, Teresa Martin, Barbara *

Hasim, Shirley Williams, Sandy *

Hamer, Glenn Robinson, and Leona *

Burbanks, *

*

Appellants, *

*

v. *

*

Laidlaw Transit, Inc., *

*

Appellee. *

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Submitted: June 11, 1998

Filed: September 22, 1998

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The Honorable Owen M. Panner, United States District Judge for the District 1

of Oregon, sitting by designation.

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Before RICHARD S. ARNOLD and MORRIS SHEPPARD ARNOLD, Circuit

Judges, and PANNER, District Judge. 1

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MORRIS SHEPPARD ARNOLD, Circuit Judge.

Laidlaw and the Kansas City, Missouri, School District entered into a contract

in which Laidlaw agreed to provide school bus transportation for the 1993-1994, 1994-

1995, and 1995-1996 school years. Although the contract was for a three-year period,

the parties renegotiated its terms every year, and in January, 1995, Laidlaw and the

school district began to discuss terminating the contract before the 1995-1996 school

year. Despite the apparent lack of an official termination, Laidlaw seems to have

known quite early in the year that it would not be required to provide bus service for

the 1995-1996 school year.

On June 8, 1995, at the end of the school year, Laidlaw laid off its seasonal

drivers and helped them to obtain summer unemployment benefits. In previous years,

Laidlaw had rehired those drivers in September, and they reasonably expected to be

rehired in September, 1995. At the end of June, however, Laidlaw learned that the

school board had not assigned any bus routes to Laidlaw for the 1995-1996 school

year. On July 7, Laidlaw notified its employees that it would be closing its Kansas City

Terminal (the base of operations for its Kansas City School District service) on

September 5, 1995, which was exactly 60 days after the notice, and that the employees

would not be rehired there at the start of the new school year. 

Teamsters Local 838 sued, alleging that Laidlaw had violated the Worker

Adjustment and Retraining Notification Act (WARN Act), see 29 U.S.C.
The Honorable Fernando J. Gaitan, Jr., United States District Judge for the

2

Western District of Missouri.

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§§ 2101-2109, by failing to provide its seasonal employees with 60 days' notice of an

impending plant closing. Eight nonunion employees brought a separate action, alleging

that Laidlaw had violated the WARN Act by failing to provide its nonseasonal

employees with the same notice. After the two cases were consolidated, the parties

filed cross-motions for summary judgment. The district court granted partial summary

judgment to each party, ruling that the seasonal employees received sufficient notice

but that the nonseasonal employees did not. The court ordered Laidlaw to reimburse

the nonseasonal employees for the period of the violation in accordance with the

damages provisions of the WARN Act, see 29 U.S.C. § 2104(a)(1). 

On appeal, Teamsters Local 838 argues that the district court erred in

determining that Laidlaw did not violate the WARN Act with respect to its seasonal

employees, and the nonseasonal employees argue that the district court erred in

awarding them back pay on the basis of the number of workdays, rather than calendar

days, in the relevant period. We affirm the judgment of the district court. 

2

I.

The WARN Act requires an employer to give 60 days' written notice of a "plant

closing" to affected employees or their representatives . See 29 U.S.C. § 2102(a)(1).

The act defines a plant closing as "the permanent or temporary shutdown of a single

site of employment, ... if the shutdown results in an employment loss at the single site

of employment during any 30-day period." See 29 U.S.C. § 2101(a)(2). An

"employment loss," as relevant here, is "an employment termination, other than a

discharge for cause, voluntary departure, or retirement." See 29 U.S.C.

§ 2101(a)(6)(A). "Affected employees" are those employees "who may reasonably be

expected to experience an employment loss as a consequence of a proposed plant

closing ... by their employer." See 29 U.S.C. § 2101(a)(5).
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The seasonal employees rightly contend that, under the act, they were employees

of Laidlaw even though they were on temporary layoff. According to an interpretive

regulation promulgated by the Secretary of Labor, "[w]orkers on temporary layoff or

on leave who have a reasonable expectation of recall are counted as employees." See

20 C.F.R. § 639.3(a)(1). 

This regulation, however, defines the word "employee"; it does not add meaning

to the term "affected employee." We believe that the seasonal employees were not

"affected employees" under the act, because they did not suffer an employment loss as

the result of Laidlaw's plant closing. Even though these workers were laid off after

Laidlaw evidently knew of the impending plant closing, they would have been laid off

in June in any case. The employment loss that they suffered in June, therefore, cannot

have been a "consequence of a proposed plant closing." See 29 U.S.C. § 2101(a)(5).

We also believe that it is not legally significant that their temporary layoff was

eventually converted into a termination when the plant closed in September. At that

time, they lost only the immediate expectation of being rehired, and loss of the

expectation of employment is not an "employment loss" under the WARN Act. See

29 U.S.C. § 2101(a)(6)(A). 

To the extent that these employees suffered anything resembling an employment

loss as the result of the plant closing, they experienced it in September when they were

not rehired for the new school year. For this employment loss, if it was one, they

received sufficient WARN Act notification because of the July 7 notice from Laidlaw

that its plant was going to close. See, e.g., Marques v. Telles Ranch, Inc., 131 F.3d

1331, 1334 (9 Cir. 1997), and Kalwaytis v. Preferred Meal Systems, Inc., 78 F.3d

th

117, 122 (3 Cir. 1996), cert. denied, 117 S. Ct. 73 (1996). We therefore find that the rd

district court properly granted Laidlaw's motion for summary judgment.
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II.

The WARN Act provides that any employer who orders a plant closing in

violation of the act shall be liable to each affected employee for "back pay for each day

of violation." See 29 U.S.C. § 2104(a)(1)(A). The eight nonseasonal employees

contend that the district court erred in using workdays rather than calendar days to

compute their damages. A recent case, however, has foreclosed that argument. In

Breedlove v. Earthgrains Baking Companies, Inc., 140 F.3d 797, 801 (8 Cir. 1998), th

petition for cert. filed, 67 U.S.L.W. 3083 (U.S. July 6, 1998) (No. 98-77), we held that

a back-pay calculation for damages under the WARN Act is properly based on the

number of workdays at issue, rather than on the number of calendar days, and we

therefore find no error in the district court's calculation of damages.

III.

For the foregoing reasons, we affirm the judgment of the district court.

RICHARD S. ARNOLD, Circuit Judge, concurring in part and concurring in the 

judgment.

I join Part II of the Court's opinion and, in addition, agree with the result

reached by Part I. My route to that result differs, however, somewhat. In my view,

the seasonal employees were "affected" and did suffer an "employment loss" when

the plant closed in September. But they received 60 days notice in advance of the

closing, and that notice complied with the statute. Perhaps the employer should, in

fairness, have given an earlier warning. The employees could have used the

additional time to look for other work. But Laidlaw seems to me to have done all

that the statute requires.
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A true copy.

Attest:

 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.