Burns v. Stone Forest Industries, Inc., 96-35715

• Decision Date: 14 July 1998
• Docket Number: No. 96-35715,96-35715
• Citation: 1998 WL 388497,147 F.3d 1182
• Parties: 14 IER Cases 193, 98 Cal. Daily Op. Serv. 5496, 98 Daily Journal D.A.R. 7703 Rosella E. BURNS; Timothy Ray Keener; Ted-Hyun Kim; Emil Martin; Belle McGovern; Brenda L. Miotke; Keith Miotke; William Parker; Lavern Rhodes; Orrin Savage; Larry Vetter, Plaintiffs-Appellants, v. STONE FOREST INDUSTRIES, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1182

147 F.3d 1182

14 IER Cases 193, 98 Cal. Daily Op. Serv. 5496,

98 Daily Journal D.A.R. 7703

Rosella E. BURNS; Timothy Ray Keener; Ted-Hyun Kim; Emil Martin; Belle McGovern; Brenda L. Miotke; Keith Miotke William Parker; Lavern Rhodes; Orrin Savage; Larry Vetter, Plaintiffs-Appellants, v. STONE FOREST INDUSTRIES, INC., Defendant-Appellee.

No. 96-35715.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Sept. 11, 1997.

Decided July 14, 1998.

Megan Glor, Swanson, Thomas & Coon, Portland, Oregon, for the plaintiffs-appellants.

Joel H. Spitz, Ross & Hardies, Chicago, Illinois, for the defendant-appellee.

Kary L. Moss and Lamont Satchel, Maurice and Jane Sugar Law Center, Detroit, Michigan, for amici curiae International Brotherhood of Teamsters, Laborers International Union of North America, United Electrical, Radio and Machine Workers of America, United Food and Commercial Workers Union, United Mineworkers International Union, Union of Needletrades, Industrial and Textile Employees.

Appeal from the United States District Court, for the District of Oregon; Thomas M. Coffin, Magistrate Judge, Presiding. D.C. No. CV-95-06103-TMC.

Before: CANBY, T.G. NELSON, and KLEINFELD, Circuit Judges.

KLEINFELD, Circuit Judge:

The only significant issue in this case is whether employees deprived of 60 days notice of a plant closing are entitled to get paid for each of the 60 days, or for what would have been work days during the 60 days. The Worker Adjustment and Retraining Notification Act, 29 U.S.C. § 2101 et seq., controls. We join most of the other circuits

that have ruled on the issue in construing the statute to mean work days.

FACTS

Because of restrictions on timber supply and rising costs, Stone Forest Industries shut down its plywood mill in Albany, Oregon. The company told the employees on September 26, 1994, that the mill would close two days later, September 28, but that they would be paid until November 26, 61 days after the notice. They could pick up their paychecks each payday at the personnel office. Even though the mill would be closed and they would not be working, they would get paid during the 61 days, measured by what they had worked before the shutdown, with benefits and vacation pay to be cashed out with their final paychecks.

The full time employees brought a class action for additional pay. Their theory was that they should get paid for each calendar day during the last 60 days, not just each work day. The magistrate judge opined that they were entitled only to be paid for the work days, and because the company had paid them fully for all work days, they were entitled to no damages for the company's failure to give them the required 60 days notice before the mill shut down. The district court accepted the magistrate judge's recommendation, and granted summary judgment to the company. The workers appeal. No party asserts that there are any issues of fact.

ANALYSIS

Congress passed a law in 1988 saying that "[a]n employer shall not order a plant closing or mass layoff until the end of a 60-day period after the employer serves written notice...." 29 U.S.C. § 2102(a).

The statute carefully delineates the liability of employers who violate its terms, and provides that the remedies listed are "exclusive." 29 U.S.C. § 2104(b). The remedy relevant to the case at bar is "back pay for each day of violation" "for the period of the violation":

(a) Civil actions against employers

(1) Any employer who orders a plant closing or mass layoff in violation of section 2102 of this title shall be liable to each aggrieved employee who suffers an employment loss as a result of such closing or layoff for--

(A) back pay for each day of violation at a rate of compensation not less than the higher of--

(i) the average regular rate received by such employee during the last 3 years of the employee's employment; or

(ii) the final regular rate received by such employee;

...

Such liability shall be calculated for the period of the violation, up to a maximum of 60 days, but in no event for more than one-half the number of days the employee was employed by the employer.

29 U.S.C. § 2104(a)(1). The employer's liability is reduced by wages and other payments the employer makes to the laid off employees for the period of the violation. 29 U.S.C. § 2104(a)(2). Civil penalties of not more than $500 per day may be imposed in some circumstances, on top of the back pay. 29 U.S.C. § 2104(a)(3). This appeal does not raise any question of liability for a penalty.

There were 18 fewer work days than calendar days in the 60 day period at issue. The period included about nine weeks, spanning 17 weekend days and Thanksgiving. The company paid the workers the rate to which they would have been entitled for all work days, but not for calendar days within the 60 day period that would not have been work days. The money at stake is what the workers would have been paid, had their hourly rates applied to those 18 non-work days.

The statute makes the company liable for "back pay for each day of violation" to be "calculated for the period of the violation, up to a maximum of 60 days." The reading favorable to the company is that "back pay" means what the employees would have been paid, had the violation not occurred. The reading favorable to the workers is that "for each day of violation" and "calculated for the period of the violation" means pay for every calendar day during the period, not just every work day. Each side makes a "plain language" argument. We cannot resolve the case simply by reading the words and looking up their definitions, because a literal reading of the words and syntax of the statute allows for either reading.

One approach to this form of ambiguity is to look to legislative history. "As is often the case, the legislative history is more indeterminate in its meaning than the statute itself." United States v. Baird, 85 F.3d 450, 454 (9th Cir.1996). The Senate Report supports the work days analysis: "wages ... the employee would have received had the plant remained open." S.Rep. No. 62, 100th Cong., 1st Sess. 24 (1987). The House Report is less clear, but seems to favor the calendar days analysis: "for each day of violation, an employer is liable to each aggrieved employee for the amount paid in wages and benefits to such employee prior to the layoff." H.R. Conf. Rep. No. 576, 100th Cong., 2d Sess. 1052 (1988), U.S. Code Cong. & Admin. News at 1547, 2085. Neither formulation was passed by both houses and was signed by the president, so neither formulation is the law. See Puerta v. United States, 121 F.3d 1338, 1344 (9th Cir.1997). It makes no sense to parse the ambiguous legislative history as though it were the law.

The preferable way to resolve linguistic ambiguity is to evaluate the alternative readings in light of the purpose of the statute. See Sacks v. Commissioner, 69 F.3d 982, 992 (9th Cir.1995). "We must examine the meaning of the words to see whether one construction makes more sense than the other as a means of attributing a rational purpose to Congress." Longview Fibre Co. v. Rasmussen, 980 F.2d 1307, 1311 (9th Cir.1992). Law is more complex and interesting than algebra, because the words are not mere symbols to be manipulated, but expressions of human purposes to be served.

The statute is a wage workers' equivalent of business interruption insurance. It protects a worker from being told on payday that the plant is closing that afternoon and his stream of income is shut off, though ...