Damron v. Rob Fork Min. Corp., 90-6367

Citation945 F.2d 121
Decision Date06 August 1991
Docket NumberNo. 90-6367,90-6367
Parties120 Lab.Cas. P 10,942, 6 IER Cases 1448 Robert L. DAMRON; Randall Burke; Leonard Fleming; Ricky D. Mullins, Plaintiffs-Appellants, v. ROB FORK MINING CORPORATION; Rob Fork Processing Corporation; Jackal Mining Company; Mine 29 Mining and Processing, Inc.; Sidewinder Mining Company; Bethlehem Steel Corporation; BethEnergy Mines, Inc., Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

Sherry Brashear, Goss & Goss, Harlan, Ky. (argued and briefed), for Robert Damron, Randall Burke, Leonard Fleming and Ricky D. Mullins.

Ronald E. Meisburg, Smith, Heenan & Althen, Washington, D.C., Forrest H. Roles (briefed), Mark E. Heath (briefed), Smith, Heenan & Althen, Charleston, W. Va., for Rob Fork Mining Corp., and Rob Fork Processing Corp.

Charles J. Baird, Pikeville, Ky., for Jackal Mining Co., and Sidewinder Min. Co.

James D. Asher, Whitesburg, Ky., Bruce A. Levy, Pikeville, Ky., for Mine 29 Mining and Processing, Inc.

Joseph L. Hamilton (briefed), Stites & Harbison, Louisville, Ky., for Bethlehem Steel Corp., and BethEnergy Mines, Inc.

Before KEITH and BOGGS, Circuit Judges, and WELLFORD, Senior Circuit Judge.

WELLFORD, Senior Circuit Judge.

Plaintiffs are four former employees of defendant Mine 29 Mining and Processing, Inc. (Mine 29), who seek damages, lost wages and benefits "for themselves and all other members of the class" which they described as "employees who were employed or who had a reasonable expectancy of recall and suffered an employment loss under 29 U.S.C. § 2101(a) of the [Worker Adjustment and Retraining Notification] Act 1 when the defendants told them their services were no longer needed." Plaintiffs originally sued Mine 29, 2 Rob Fork Mining Corporation (RFMC), Rob Fork Processing Corporation (RFPC), Jackal Mining Company (Jackal), Sidewinder Mining Company (Sidewinder), Bethlehem Steel Corporation (Bethlehem), and BethEnergy Mines, Inc. (BethEnergy); Bethlehem and its subsidiaries were subsequently dismissed by an agreed order.

BethEnergy moved for summary judgment, contending that it was not an employer or mine owner within the meaning of the WARN Act at the time of announcement of the mine closing in question, having conveyed its interests to defendants, RFMC, RFPC, and others, on November 29, 1988. The WARN Act became effective six months after enactment on February 4, 1989. The Act was not in effect at the time the sale was effectuated and for this reason the district court granted BethEnergy summary judgment. 739 F.Supp. 341.

The district court also granted summary judgments for defendants RFMC, RFPC, Jackal, and Sidewinder, because at a maximum only 83 persons who were employed, or expected to be re-employed, "were affected by the loss of employment some three months after the closing was announced." Since 100 persons had to be employed, or reasonably expected to be re-employed, for the WARN Act to be effective, the district court held that these four defendants should be granted judgment. Summary judgment was thus granted to all defendants except as to Mine 29. See supra n. 2. No class was certified as requested by plaintiffs, who have appealed the grants of summary judgment as to all remaining defendants.

Plaintiffs contend that they are "affected employees" within the meaning of 29 U.S.C. § 2101(a)(5) of the WARN Act; that RFMC, RFPC, and Mine 29 are "employers" within the meaning of 29 U.S.C. § 2101(a)(1) of said Act; and that Jackal is a purchaser of the employer's business within the meaning of 29 U.S.C. § 2101(b) of said Act. Plaintiffs claim that there was a "plant closing" or "mass layoff" on October 13, 1989, within the meaning of 29 U.S.C. §§ 2101(a)(2) and (3) of the Act, and that on said date there was a sale of the employer's business in Pike County, Kentucky, to Jackal within the meaning of 29 U.S.C. § 2101(b)(1). 3 Plaintiffs aver that they did not receive, as aggrieved employees, from defendants any 60-day notice of the closing as prescribed by the WARN Act. They assert that at least 55 active mine employees and 46 others "with a reasonable expectancy of recall" were terminated in October, 1989, thus amounting to the 100 aggrieved employees required for application of the Act. They claim also that there were at that time plans to recall approximately 60 hourly workers and to add shifts to the mine operations in question in the future. The district court found that plaintiffs were so-called "panel employees" formerly working for BethEnergy, which sold mining rights to the operation in controversy to RFMC and RFPC, which then "contracted out the site to Mine 29 [which] had agreed to recognize the BethEnergy panel."

The question in this case is whether former employees of BethEnergy, who were laid off for approximately eight to ten years and never recalled during that period, should, nevertheless, be considered "employees" of Mine 29 or other defendants so that 100 or more persons could be considered as "employees" of that particular deep mine operation for purposes of the WARN Act.

Apart from the regulations and looking only at the statute which refers to part-time employees as "employees" under certain circumstances, we would have little problem in concluding, as did the district court, that plaintiffs are not employees of any defendant nor are they otherwise similarly situated to plaintiffs. Black's Law Dictionary 525 (6th ed. 1990), for example, defines an employee as "[o]ne who works for an employer; a person working for salary or wages." 4 An employee would ordinarily be considered then as one working or performing services regularly for an employer. Plaintiffs do not fall into that category, and have never been in that category for any defendant except BethEnergy many years prior to the termination in question.

[A]lthough it may generally denote regular employment as distinguished from casual, incidental, or occasional employment, and usually a contract of service ... is required ..., the test to determine whether one person is another's employee is whether or not he is subject to the control of such other person.

30 C.J.S. Employee § 673-74 (emphasis added) (footnotes omitted). 5 In sum, the statutory language and use of the term "employee" would not generally include plaintiffs.

Title 29, U.S.C. § 2101(a)(1) defines an "employer" as a business enterprise that employs

(A) 100 or more employees, excluding part-time employees; or

(B) 100 or more employees who in the aggregate work at least 4,000 hours per week (exclusive of hours of overtime).

Title 29, U.S.C. § 2101(a)(5) defines "affected employees" as those "who may reasonably be expected to experience an employment loss as a consequence of a proposed plant closing or mass layoff by their employer." Plaintiffs clearly do not come within the statutory definition of subsection (A) part-time employees, nor did they work the requisite hours to qualify under § 2101(a)(1)(B). There is no statutory reference to laid-off employees being part of the requisite 100 or more employees.

The Secretary of Labor has promulgated an interpretative regulation with respect to the WARN Act language applicable to the 100-employee requirement:

Workers on temporary layoff or on leave who have a reasonable expectation of recall are counted as employees. An employee has a "reasonable expectation of recall" when he/she understands, through notification or through industry practice, that his/her employment ... has been temporarily interrupted and that he/she will be recalled to the same or to a similar job.

29 C.F.R. § 639.3(a)(1). The key expression in the regulation upon which plaintiffs rely is "temporary layoff." (Emphasis added). Both Webster and Black define "temporary" as meaning for a limited time only. Considering the usual and ordinary meaning of the words "temporary layoff," it is difficult to see how it could encompass a person absent from employment for many years. Plaintiffs do not claim to be on "leave." The undisputed facts in this case would eliminate plaintiffs, in our view, from the definition of 29 C.F.R. § 639.3(a)(1); they were not on "temporary layoff" so that they cannot be counted as employees covered under the WARN Act. Plaintiffs stated in their complaint, it should be remembered, that "defendants told them their services were no longer needed." (Emphasis added).

But even if, for purposes of argument, plaintiffs could be considered on temporary layoff under the regulatory language, we conclude that the district court was not in error in concluding as a matter of law that plaintiffs did not establish a "temporary layoff" as set out in the regulation.

The district court noted that the Secretary makes an analysis under the regulation's "reasonable expectation of recall" language similar to that used in the National Labor Relations Act (NLRA) in such situations.

The following criteria were utilized in the analysis by the district court and are comparable to the NLRB factors used to consider persons on layoff as employees:

(1) past experience of the employer;

(2) the employer's future plans;

(3) the circumstances of the layoff;

(4) expected length of the layoff;

(5) industry practice.

In addressing these criteria, the district court considered whether plaintiffs were employees of an employer "who have a reasonable expectation of recall." No plaintiff claims, with respect to the regulation language, that he received notice of any recall or anticipated recall from any defendant. Plaintiffs have demonstrated no industry practice, nor have they cited a case that considers a former employee on layoff status for the eight to ten year period involved...

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