Labor Organization Standing to Bring Suit Under Warn
| Publication year | 1995 |
| Pages | 47 |
| Citation | Vol. 24 No. 1 Pg. 47 |
1995, January, Pg. 47. Labor Organization Standing to Bring Suit Under WARN
Justiciability issues have never been viewed as exciting elements of constitutional law. Rarely will an issue of standing or ripeness be worthy of front-page news, and these issues certainly will never appear as subject matter on CNN's "Crossfire." Unlike dynamic constitutional challenges, such as First Amendment rights, justiciability challenges, including standing, rarely attract public attention. However, standing is the first hurdle to every federal court action. This author's constitutional law professor summarized standing by asking whether the plaintiff was a "wounded elephant" because, as all first-year law students should know, a pachyderm that has been injured will fight mightily, whereas the pachyderm that has not been wounded is content regardless of the outcome of his injured brethren.
In the typical Worker Adjustment and Retraining Notification Act ("WARN" or "Act")(fn1) case involving a unionized employer, the labor organization representing the aggrieved employees will file a complaint in federal district court, seeking monetary damages on behalf of the employees. Since WARN's inception, courts and practitioners have argued whether specific factual cases meet the requisites of the Act, including such things as "mass layoffs," "plant closings" or "employment loss." However, each of these cases has presumed that the labor organization is the appropriate representative in court. As the following sections indicate, this presumption of standing is wholly misplaced. Simply stated, the elephant has suffered no injury.
In Textile Workers Union v. Darlington Manufacturing Co., the U.S. Supreme Court stated:
A proposition that a single businessman cannot choose to go out of business if he wants to would represent such a startling innovation that it should not be entertained without the clearest manifestation of legislative intent or unequivocal judicial precedent so construing the Labor Act. We find neither.(fn2)
In Darlington, after a successful organizing campaign by the Textile Workers, the company's board of directors voted to liquidate the company. The Court held that an employer has the absolute right to terminate his or her entire business for any reason he or she pleases. With the enactment of WARN in February 1989, Congress sought to minimize the supposed devastating effects of an employer's right to close its business for any reason, as had happened in Darlington.
WARN provides protection to workers, their families and communities by requiring employers to provide notification sixty calendar days in advance of plant closings and mass layoffs. The theory is that the advance notice period will protect workers and their families by providing them transition time to adjust to the prospective loss of employment, to seek alternative jobs and, if necessary, to enter skill training that will allow dislocated workers to be competitive in the job market. Much of the congressional debate, criticisms and challenges to WARN centered on the scope of WARN's coverage and its practical implications. However, lost in the partisan battle to broaden or minimize the scope of WARN was the constitutional question of conferring standing on an "employee representative" to seek redress for "aggrieved employees."
As stated above, WARN requires covered employers to provide sixty-day advance notice of mass layoffs or plant closings that result in employment loss. An employer may not close a facility or order a mass layoff until the end of the sixty-day period after the employer has served written notice to each affected employee or to the employee representative, if one exists, and to the state dislocated worker unit. An employer that violates the provisions of WARN is liable to each aggrieved employee for back wages and benefits up to sixty days.
In addition to notifying a representative of employees sixty days prior to plant closings or mass layoffs, WARN specifically authorizes a labor organization to have standing to sue on behalf of the aggrieved employees:
A person seeking to enforce such liability, including a representative of employees or a unit of local government
aggrieved... may sue either for such person or for other persons similarly situated, or both, in any district court of the United States...(fn3)
By this Act, Congress appears to have shot one elephant and conferred standing on another. In conferring standing on a labor organization to seek monetary redress for aggrieved employees, Congress apparently ignored constitutional law precedent that mandates a "case or controversy" under Article III of the U.S. Constitution. The Supreme Court has steadfastly adhered to associ-ational standing as arising under Article III and, thus, Congress may not (as it has done under WARN) override the Supreme Court mandate.
A fundamental tenet of constitutional law is that standing in the federal courts is to be considered in the framework of Article III, which restricts judicial power to cases and controversies. The Supreme Court has consistently set forth the importance of standing in the adjudication of federal court actions.(fn4) Thus, the question of standing...
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