numerous contentions that disputed issues of material fact remain are erroneous, and do not deter us from granting partial summary judgment for Local 1239.
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 faith defense to its WARN Act violation. However, we hold that the undisputed facts do not establish a good faith defense for Allsteel.
The WARN Act allows employers to base their notices on the best information available to them, excuses employers from the 60 day notice requirement where closings are due to circumstances that are not reasonably foreseeable, 29 U.S.C. § 2102(b)(2)(A), and requires notification as soon as practicable. 29 U.S.C. § 2102(b)(3); 20 C.F.R. § 639.10. Therefore, the WARN Act requires that interested parties be notified of plant closings when they become foreseeable, not when they are absolute certainties. As we noted in our earlier opinions, the draft WARN Act letter Cosgrove received from Allsteel's attorneys on February 15 stated that the closing date would be April 8, 1994. Also, on February 3, 1994, Cosgrove sent a letter to Local 1239 in which he stated that "the Aurora plant is scheduled to close in the near future," and acknowledged in his deposition that the April 8 closing date had been solidified in everyone's mind by February 3. These facts show that at least by February 15, and probably earlier, it was foreseeable that the plant would close on April 8 because Allsteel had formed the intent to close the plant on April 8. To have complied with the WARN Act, Allsteel should have notified Local 1239 of its intent to close the plant on April 8 as soon as it had formed that intent. It should not have waited until it was absolutely certain that it would be able to close the plant on April 8.
Likewise, if Allsteel had been acting in good faith it would not have delayed notifying Local 1239 of its intention to close the plant on April 8, 1996. In light of the following facts, Allsteel's delay in giving notice was unreasonable: (1) Allsteel had control over the timing of its "final" decision to close the plant; (2) Allsteel made the final decision on February 23, 1994, even though the company still had a question as to how it would be able to handle customer orders; (3) on February 24, 1994, Cosgrove informed Local 1239 that the closing would take place on April 8, 1994; (4) Cosgrove knew that if he did not give notice on or before February 25, 1994, Allsteel would have to issue a new 60 day WARN Act notice; and (5) Allsteel wanted "to issue a postponement notice, without having to issue a new 60 day WARN Act notice, because a new notice would not have permitted the plant closing until at least late April, 1994." These facts show that rather than making a good faith effort to inform Local 1239 as soon as it was foreseeable that the plant would close on April 8, 1994, Allsteel's efforts were directed solely at achieving its own goals with respect to the plant closing. We do not find that any of these undisputed facts have changed, even though it is Local 1239, instead of Allsteel, bringing this motion for summary judgment. Accordingly, we find that there is no genuine factual issue as to whether Allsteel has a valid "good faith" defense that prevents us from entering partial summary judgment for Local 1239 and against Allsteel on its WARN Act violation.
For the foregoing reasons, plaintiff's motion for summary judgment on WARN Act liability is granted, and partial summary judgment on WARN Act liability will be entered against defendant Allsteel. A status hearing will be held on January 15, 1997 at 9:30 A.M. to discuss further proceedings on damages.
DATED: December 18, 1996
John F. Grady, United States District Judge