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May 21, 2003


The opinion of the court was delivered by: Rebecca R. Pallmeyer, United States District Judge.


Plaintiffs Rene Moreno, Heriberto Uribe, and Jose Manuel Uribe filed this class action against their former employer DFG Foods, L.L.C. (hereinafter "DFG" or "Defendant") Plaintiffs allege that Defendant failed to provide Plaintiffs with sixty days' advance notice of termination in connection with Defendant's closing of a production plant on or about January 18, 2002. This failure, Plaintiffs assert, violated the Worker Adjustment and Retaining Notification Act ("WARN") 29 U.S.C. § 2101 et seq. On October 17, 2002, Plaintiffs filed a motion for certification of a class consisting of all employees of Defendant as of January 18, 2002, who were not given the required sixty-day notice prior to the plant closing. For the reasons set forth below, the motion is granted.


In ruling on certification, the court has an independent duty to scrutinize the appropriateness of a class action and is not limited to arguments made by the parties. In re General Motors Corp. engine Interchange Litigation, 594 F.2d 1106, 1124 (7th Cir. 1979). The court is not to assume the truth of factual allegations in the complaint that go to the issue of class certification, but rather, as would be true on a motion to dismiss for lack of jurisdiction, should resolve factual issues related to certification using any rational mode of inquiry. Szabo v. Bridgeport Machs., Inc., 249 F.3d 672, 675-77 (7th Cir. 2001). See Coopers & Lybrand v. Livesay, 437 U.S. 463, 469 (1978) ("the class determination generally involves considerations that are enmeshed in the factual and legal issues comprising the plaintiff's cause of action.") (internal quotation marks omitted). In considering this motion, the court has summarized facts taken from the Plaintiffs' Complaint and Defendant's Answer, documentary evidence submitted by the parties, and excerpts of depositions taken during the course of discovery in this case.

DFG is a subsidiary of Foodbrands America, Inc., which is in turn a subsidiary of Tyson Foods, Inc. (Complaint ¶ 7.) Until January 18, 2002, DFG maintained a food processing plant at 550 West 14th Place, in Chicago, Illinois. (Id.) Plaintiffs Rene Moreno, Heriberto Uribe, and Jose Manuel Uribe all worked for DFG at the 550 West 14th Place location. (Id. ¶ 10.) Rene Moreno was employed as a "food preparer," and as of January 18, 2002, earned $13.52 per hour at the DFG plant. (Id. ¶ 4.) Heriberto Uribe was a "production worker" at DFG, for which he earned $9.00 per hour. (Id. ¶ 5.) It is undisputed that Jose Manuel Uribe earned $12.00 per hour, and while he claims he was a "mixer" and Defendant claims he was employed as a "lead," (Id. ¶ 6; Answer ¶ 6) this dispute appears immaterial to the class certification motion (nor is the court aware of the meaning of these job titles or the difference between them, if any).

In the morning of January 18, 2002, Mark Easter, DFG's Senior Vice President of Operations and Technical Services, held a meeting with the DFG employees at 550 West 14th Place. (Rena Moreno Deposition (hereinafter "Moreno Dep.") at 33-34, Ex. B to Defendant's Brief in Opposition to Plaintiffs' Motion for Class Certification (hereinafter "Def. Brief); Def. Brief at 2.) All three Plaintiffs attended the meeting. (Moreno Dep. at 33; Deposition of Heriberto Uribe (hereinafter "H. Uribe Dep.") at 29, Ex. A to Plaintiffs' Reply to Def. Brief (hereinafter "Pl. Reply"); Deposition of Jose Manuel Uribe (hereinafter'" J. Uribe Dep.") at 33, Ex. A to Pl. Reply.) During the meeting. Easter announced that DFG was immediately and permanently closing the plant at 550 West 14th Place in order to consolidate the facility's operations with its Culinary Foods plant, located at 4201 S. Ashland Avenue, also in Chicago. The Culinary Foods plant is another food preparation facility operated by Tyson Foods. (Complaint ¶ 10; Def. Brief at 2.) Easter indicated to the DFG employees that they would be offered the opportunity to work at the Culinary Foods plant (Moreno Dep. at 33-37; Def. Brief at 2), but he did not provide specific information about wages or whether people would retain the same job responsibilities. He explained only that salaries would be set according to the union at Culinary Foods. (Moreno Dep. at 36.)

At the meeting, DFG employees at 550 West 14th Place were handed written notice of the plant's closure. (Complaint ¶ 10.) Plaintiffs and other DFG employees received a letter from Cynthia LeBron, Human Resource Manager for DFG, stating in full:

January 18, 2002

Dear DFG Team Member:

We regret to inform you that DFG Foods, L.L.C., a member of the Tyson Foods family, intends to permanently discontinue all manufacturing and distribution operations at its plant located at 550 W. 14th Place, Chicago, Illinois, effective January 18, 2002. The only activities taking place in the plant thereafter will be the dismantling and removal of equipment.
Much of the production heretofore performed at the plant will be transferred to the Tyson Foods, Inc. facility, dba Culinary Foods in Chicago. Please accept this letter as your formal notice that you are hereby being offered the opportunity to transfer to the Culinary Foods plant located at 4201 South Ashland Avenue in Chicago, Illinois, within reasonable commuting distance from the 14th Place DFG plant.
You should be aware that Culinary Foods' production and maintenance employees are represented, for purposes of collective bargaining, by the Production and Maintenance Union, Local 101. Should you accept the opportunity for transfer to the Culinary Foods plant, your job classification assignment, wages, benefits and all other terms and conditions of employment will be subject to negotiation and agreement with the Union.
Should you accept the opportunity for transfer to the Culinary Foods plant, it is anticipated that your active employment at that plant would commence as soon as March, 2002 but, in any event, no later than within six (6) months following the Production Cessation Date of January 18, 2002.
The Company official to contact for further information concerning these matters is:
Cynthia LeBron Human Resource Manager DFG Foods, LLC 111 N. Canal, Suite 1111 Chicago, IL 60606-7204 (312) 279-1327
(Letter to DFG Employees of January 18, 2002, Ex. A to Def. Brief.) Plaintiffs do not dispute that they received this letter on January 18, 2002, after the meeting with Easter, nor is it disputed that Plaintiffs had been given no notice prior to January 18, 2002 that the plant would be closing (Complaint ¶ 10.)

About one month after the plant closed, DFG began contacting former 550 West 14th Place employees by phone and offering them new positions at the Culinary Foods plant. (Cynthia LeBron Deposition (hereinafter "LeBron Dep.") at 133, Ex. A to Pl. Reply.) Cynthia LeBron, the Shift Human Resources Manager for Culinary Foods, was primarily responsible for placing these calls. (Id. at 133-34.) According to LeBron, once she received notice of job openings from the various managers at the Culinary Foods plant, she or one of her assistants would begin to contact the appropriate employees from the closed DFG plant, and offer them positions. (Id. at 136.)

In late February or early March 2002, Moreno received a phone call from a Culinary Foods representative informing him that he should report to work at the Culinary Foods cafeteria on the following Monday. (Moreno Dep. at 48.) During the call, Moreno did not ask and was not informed of what his job duties or wages would be at Culinary Foods. (Id. at 49.) Moreno testified that when he arrived to work at Culinary Foods a few days later, LeBron informed him that his rate of pay would be $6.40 per hour plus a 20 cent bonus for working a second shift. (Id. at 58, 60.) Defendant admits that Moreno was offered a job in the production department, but denies that he was offered $6.40 per hour (Defendant does not state what hourly wage he was offered). (Answer ¶ 13.) Moreno stated that LeBron told him that he would not have any benefits and that Culinary Foods was not honoring the seniority status of former DFG employees. (Moreno Dep. at 58.) Dissatisfied with the much lower rate of pay than he had been earning at DFG, Moreno declined the employment offer at Culinary Foods. (Complaint ¶ 13.)

Approximately two months after the DFG plant closed (the record does not identify the precise date), Heriberto Uribe also received a phone call from a Culinary Foods representative who offered him a sanitation job at Culinary Foods. (H. Uribe Dep. at 52-53.) In their motion for class certification, Plaintiffs state that the offer was for $6.40 per hour but Heriberto Uribe testified at his deposition that he was offered $5.15 per hour and was told he would have to work the night shift. (Heriberto Uribe Dep. at 54, 62.) Like Moreno, Heriberto Uribe declined the offer to work at Culinary Foods because he was not satisfied with the proposed pay. (Complaint ¶ 13.) Defendant denies that Heriberto Uribe was offered $6.40 per hour, but again does not state how much he was offered to work at Culinary Foods. (Answer ¶ 13.)

Jose Manuel Uribe was also given an offer to work in sanitation at Culinary Foods, though the timing of his offer is not clear from the record. (Complaint ¶ 13.) Plaintiffs claim he was offered $6.40 per hour, but declined the job because it represented a reduction of $5.60 per hour from his pay at DFG. (Id. ¶¶ 6, 13.) Defendant disputes that he was offered $6.40 per hour, but, as with Moreno and Heriberto Uribe, does not state the wage he was offered. (Answer ¶ 13.)

It is undisputed that as of January 18, 2002, DFG employed 266 workers at its plant on West 14th Place. (Def. Brief at 3.) of those 266 workers, all but eight were offered a transfer to the Culinary Foods plant. (Id.) According to DFG, each of these eight employees was offered, and accepted a separation package which included a release of all potential claims against DFG. (Id. at 3.) It is also undisputed that approximately 160 out of the remaining 258 employees did accept job transfer offers to the Culinary Foods plant. Their proposed rates of pay and other terms and conditions of employment at Culinary Foods were governed by the existing collective bargaining agreement between the Local 101 of the Production and Maintenance Union and Culinary Foods. (Def. Brief at 3, 4; Plaintiff's Memorandum in Support of Class Certification (hereinafter "Pl. Brief") at 4.) LeBron acknowledged that only a "few" DFG employees were hired at positions other than entry level at Culinary Foods, and none of the DFG employees enjoyed the seniority they had previously held, except for the purposes of calculating vacation time. ...

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