The opinion of the court was delivered by: GRADY
Plaintiff Local 1239, International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers ("Local 1239"), along with several of its members individually and on behalf of similarly situated members of Local 1239, have sued under the Worker Adjustment and Retraining Notification Act (the "WARN Act"), 29 U.S.C. §§ 2101-2109, alleging that defendant Allsteel, Inc. ("Allsteel") failed to comply with the notification provisions of the Act when it closed a manufacturing facility. Plaintiff Local 1239 now moves for partial summary judgment on liability under Rule 56 of the Federal Rules of Civil Procedure.
The undisputed facts were outlined in this court's opinion of June 7, 1995. Local 1239 v. Allsteel, Inc., 1995 U.S. Dist. LEXIS 7884, 1995 WL 348028, at *1-2 (N.D. Ill. June 7, 1995) (Grady, J.). In that opinion, we denied defendant's motion for summary judgment on the question of whether the oral notice Allsteel gave Local 1239 on February 24, 1994, was sufficient additional notice under 20 C.F.R. § 639.10(a). We held that Allsteel's failure to give additional notice until at least ten days after the date on which it could have given notice was a violation of the WARN Act. On April 15, 1996, we denied defendant's motion for partial summary judgment on the question of whether, if the oral notice was insufficient, Allsteel was entitled to WARN's "good faith" defense under 29 U.S.C. § 2104(a)(4). Local 1239 v. Allsteel, Inc., 1996 U.S. Dist. LEXIS 4829, 1996 WL 182567, (N.D. Ill. April 15, 1996) (Grady, J.). We held that Allsteel's failure to give proper WARN notice of the final closing date to Local 1239 as soon as possible was unreasonable, and as such, precludes a "good faith" defense.
Plaintiff now moves for partial summary judgment on Allsteel's liability under the WARN Act for failure to give proper written notice of the April 8, 1994 plant closing.
Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). A "genuine issue of material fact exists only where 'there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.'" Wallace v. Tilley, 41 F.3d 296, 299 (7th Cir. 1994) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986)). In considering such a motion, the court must view all inferences in the light most favorable to the nonmoving party. Tolentino v. Friedman, 46 F.3d 645, 649 (7th Cir.), cert. denied, 132 L. Ed. 2d 856, 115 S. Ct. 2613 (1995).
Allsteel's Violation of the WARN Act
An employer who has given notice under WARN may postpone the action announced in the prior notice, provided it gives additional notice. 20 C.F.R. § 639.10. Looking to the plain language of the regulations, in our opinion of June 7, 1995, we discerned the following requirements for additional notice under WARN: (1) the postponement must be less than 60 days, or else new notice is required, (2) the additional notice must be provided "as soon as possible," (3) the notice must be given to all of the parties who are regularly supposed to receive notice under WARN, (4) the notice must contain the date to which the action has been postponed and the reasons for the postponement, and (5) the notice must be given in a manner which will provide the notice to all affected employees. 20 C.F.R. § 639.10. Without deciding whether the oral notice of February 24, 1994, satisfied WARN in other respects, we held that Allsteel had violated WARN by failing to give additional notice as soon as possible. As the affidavit of Allsteel's Dan Cosgrove attested, he had a draft of a written additional WARN notice on or about February 15, 1994, at the time when Allsteel had decided to close the Aurora plant April 8, 1994. Cosgrove Affidavit, § 41. But Cosgrove did not deliver that notice, or give any proper notice to Local 1239 or its members, until April 6, 1994, only two days before the plant closing date.
In its present memorandum of law in opposition to Local 1239's motion for summary judgment, Allsteel attempts to create issues of material fact regarding its failure to give proper WARN notice. We do not find its arguments persuasive, nor do we find that there are any genuine issues of material fact that preclude us from granting summary judgment for Local 1239 on the WARN act violation.
Allsteel's contention that it did not control the timing of the plant closing rests upon specious reasoning about the contents of the arbitration award. While the award required Allsteel to pay its employees until April 8, the expiration date of the collective bargaining agreement, the arbitrator did not bar Allsteel from closing its plant or laying off its employees at any time. To suggest that the arbitrator and, by extension, Local 1239, controlled the timing of the plant closing strikes us as disingenuous, to use one of Allsteel's own words from its memorandum. Furthermore, Allsteel misses the mark by claiming that summary judgment is precluded because discovery is needed on disputed facts over "Local 1239's strategy, the purpose of the Union-initiated litigation, and the understanding of the parties." As the Supreme Court has noted, "Only disputes that might affect the outcome of the suit under the governing law will properly preclude entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). None of these issues are relevant to Allsteel's own decision to give additional WARN notice when it did on April 6, and do not preclude us from granting summary judgment.
Good Faith Defense to Allsteel's WARN Act Violation
An employer that has violated the WARN Act may avoid liability if it shows both that the act or omission constituting the violation was in good faith and that the employer "had reasonable grounds for believing that the act or omission was not a violation." 29 U.S.C. § 2104(a)(4). If the employer "proves to the satisfaction of the court" the good faith defense, the court "may, in its discretion, reduce the amount of the liability or penalty. . . ." Id. As it did in its prior motion for summary judgment, Allsteel contends that it has a good ...