## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 98-1230

___________ 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. *

___________ Submitted: June 11, 1998 Filed: September 22, 1998

___________The Honorable Owen M. Panner, United States District Judge for the District 1 of Oregon, sitting by designation. -2- Be fore RICHARD S. ARNOLD and MORRIS SHEPPARD ARNOLD, Circui t Judges, and PANNER, District Judge. 1

___________ MORRIS SHEPPARD ARNOLD, Circuit Judge. Laidl aw and the Kansas City, Missouri, School District entered into a contract in which Laidlaw agreed to provide school bus transportatio n for the 1993-1994, 1994- 1995, and 1995-1996 school years. Although the contract was for a three-year period, the parti es renegotiated its terms every year, and in January, 1995, Laidlaw and th e 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 hav e knownquite 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 seasona l drivers and helped them to obtain summer unemployment benefits. In previous years, Laidl aw had rehired those drivers in September, and they reasonably expected to b e rehired in Se ptember, 1995. At the end of June, however, Laidlaw learned that th e school b oard had not assigned any bus routes to Laidlaw for the 1995-1996 schoo l year. On July 7, Laidlaw notified its employees that it would be closin g its Kansas City Terminal (the base of operations for its Kansas City School District service) o n 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.
Teamste rs Local 838 sued, alleging that Laidlaw had violated the Worke r Adjustment and Retraining Notification Act (WARN Act), see 29 U.S.C.The Honorable Fernando J. Gaitan, Jr., United States District Judge for th e 2 Western District of Missouri. -3- §§ 2101-2109, byfailing to provide its seasonal employees with 60 days' notice of an impending plant closing. Eight nonunion employees brought a separate action, alleging that Laidla w had violated the WARN Act by failing to provide its nonseasona l employees with the same notice. After the two cases were consolidated, the partie s 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 t hat the nonseasonal employees did not. The court ordered Laidlaw to reimburse th e nonseasonal employees for the period of the violation in accordance with th e 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 i n dete rmining that Laidlaw did not violate the WARN Act with respect to its seasona l emp loyees, and the nonseasonal employees argue that the district court erred i n 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 giv e 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 singl e site of employment , ... if the shutdown results in an employment loss at the single site of employmen t during any 30-day period." See 29 U.S.C. § 2101(a)(2). A n "employment

loss," as relevant here, is "an employment termination, other than a dis charge 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 plan t closing ... by their employer." See 29 U.S.C. § 2101(a)(5).-4-

The seasonal employees rightly contend that, under the act, they w ere 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 rea sonable expectation of recall are counted as employees." See 20 C.F.R. § 639.3(a)(1). This regulation, however, defines the word "employe e"; it does not add meaning to the term "affected employee." We believe that the seasonal employees were no t "affected employees" under the act, beca use they did not suffer an employment loss as the resu lt of Laidlaw's plant closing. Even though these workers were laid off afte r Laidlaw evidently knew of t he 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 a lso believe that it is not legally significant that their temporary layoff wa s eventually converted into a termination when the plant closed in September. At tha t ti me, they lost only the immediate expectation of being rehired, and loss of th e expecta tionof employment is not an "employment loss" under the WARN Act. Se e 29 U.S.C. § 2101(a)(6)(A). To the extent that these employees suffered any thing resembling an employment loss as the result of the plant closing, they experi enced it in September when they were not rehired forthe new school year. For this employment loss, if it was one, the y 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.3 d 1331, 1334 (9 Cir. 1997), andKalwaytis v. Preferred Meal Systems, Inc. , 78 F.3 d

th 117, 122 (3 Cir. 1996), cert. denied , 117 S. C t. 73 (1996). We therefore find that the

rd district court properly granted Laidlaw's motion for summary judgment.-5- II. The WARN Act provides that any employer who orders a plant closing i n violation of the act shall be liable to each affected emplo yee for "back pay for each day of vi olation." See 29 U.S.C. § 2104(a)(1)(A)

. The eight nonseasonal employee s contend that the district court erred in using workdays rather than calendar days t o compute t heir damages. A recent case, however, has foreclosed that argument. I n Breedlove v. EarthgrainsBaking 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-pa y calculation for damages under the WARN Act is properly based on th e number of workdays at issue, rather than on the number of calendar days, and w e 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.-6-

A true copy.
Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.