[Congressional Record Volume 143, Number 111 (Thursday, July 31, 1997)]
[Senate]
[Pages S8498-S8503]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




              NOTICE OF DECISION OF THE BOARD OF DIRECTORS

  Mr. THURMOND. Mr. President, the Board of Directors of the Office of 
Compliance has issued its first decision on appeal. The case involved 
an alleged violation of the Worker Adjustment and Retraining 
Notification [WARN] provisions made applicable by the Congressional 
Accountability Act of 1995. Pursuant to section 416(d) of the act and 
section 104(d) of the office's regulations, the Board has exercised its 
discretion to make the decision public. It will be publicly available 
at the Office of Compliance and of the Office's Internet Website.
  I ask unanimous consent that the decision of the Board of Directors 
be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                          Office of Compliance

 GERARD J. SCHMELZER, Appellant, v. OFFICE OF THE CHIEF ADMINISTRATIVE 
           OFFICER, U.S. House of Representatives, Appellee.

                        (Case No. 96-HS-14 (WN))

       Before the Board of Directors: Glen D. Nager, Chair; James 
     N. Adler; Jerry M. Hunter; Lawrence Z. Lorber; Virginia A. 
     Seitz, Members.


                   DECISION OF THE BOARD OF DIRECTORS

       These cases, consolidated on appeal, arise out of the 
     privatization of the internal postal operations of the House 
     of Representatives. Appellants are nine former employees of 
     the House of Representatives, who served in House Postal 
     Operations (the ``HPO'') under the Chief Administrative 
     Officer (the ``CAO'') of the House. Appellants lost their 
     jobs as a result of the privatization of the House's internal 
     mail functions. They subsequently filed claims with the 
     Office of Compliance alleging that the notice of the 
     privatization that they received did not satisfy the 
     requirements of the Worker Adjustment and Retraining 
     Notification Act (the ``WARN Act''), as applied by section 
     205 of the Congressional Accountability Act of 1995 (the 
     ``CAA''), 2 U.S.C. Sec. 1315, and the Board's implementing 
     regulations.
       Pursuant to section 405 of the CAA, 2 U.S.C. Sec. 1405, a 
     Hearing Officer was appointed who heard all nine cases. Eight 
     of the cases, in which the parties were represented by the 
     same counsel, were consolidated for one hearing; the case of 
     appellant Schmelzer, which raised the same issues, was heard 
     in a separate hearing by the same Hearing Officer. In 
     separate decisions issued the same day, the Hearing Officer 
     determined, among other things, that the CAO had given 
     legally sufficient notice to all appellants and, finding no 
     violation of the Act, ordered entry of judgment in favor of 
     the CAO in each case. Decision of the Hearing Officer in 
     Gerald J. Schmelzer v. Office of the Chief Administrative 
     Officer, U.S. House of Representatives (the ``Schmelzer 
     Decision'') at 58-60. Decision of the Hearing Officer in Avis 
     Quick et al. v. Office of the Chief Administrative Officer, 
     U.S. House of Representatives (the ``Quick Decision'') at 59-
     61. (All citations hereinafter to the Hearing Officer's 
     Decision or Findings of Fact shall be to Schmelzer, unless 
     otherwise stated.)
       The Hearing Officer found that a memorandum that the Office 
     of the CAO distributed to HPO employees on December 13, 1995 
     (the ``December 13, 1995 memorandum'') 1 
     constituted written notice which substantially complied with 
     the CAA's notice requirements, even though it was technically 
     deficient, principally because it did not state the specific 
     date on which appellants' employment would terminate, as 
     required by the Board's regulations. The Hearing Officer 
     concluded, however, that in the particular circumstances of 
     this case, the technical defects of the memorandum were not 
     fatal because the memorandum provided a general indication of 
     the termination date and because that date had been 
     communicated in meetings attended by all appellants, was 
     widely publicized, was generally well-known, and was readily 
     ascertainable by HPO employees. Decision at 58. These appeals 
     followed.
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     \1\ The December 13, 1995 memorandum is reproduced as 
     Appendix A to this opinion.
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                                   I.

       The Hearing Officer determined that the December 13, 1995 
     memorandum ``needs to be read in context'' in order to decide 
     whether the omission of the specific closing date of the HPO 
     compelled a finding of violation, Decision at 53, and, to 
     that end, he considered the long and public process leading 
     up to the privatization, including a series of updating 
     memoranda and employee meetings which predated the 
     terminations occasioned by the privatization of the HPO by 
     sixty days or more. He found the following facts to be 
     relevant.
       The CAO's first plan to privatize HPO functions was 
     submitted to the Committee on House Oversight of the House of 
     Representatives (the ``Committee'') on February 28, 1995, 
     and, at the Committee's request, the CAO twice submitted 
     revised plans over the next several months. See Decision at 
     5. The Hearing Officer found that, during this period, the 
     possible privatization of HPO operations was ``a subject 
     of discussion and interest'' among HPO employees. Id.
       On June 14, 1995, the Committee directed the CAO to issue a 
     request for proposals (``RFP'') to contract out House mail 
     functions, and, on that same day, CAO managers distributed a 
     memorandum to HPO staff informing them of the Committee's 
     action and assuring them that any selected vendor would be 
     required to interview all interested current employees for 
     future employment with the vendor. House Comm. on House 
     Oversight, 104th Cong., 1st Sess., Resolution, ``Postal 
     Operations.'' The Hearing Officer found that, at this point, 
     the ``level of interest'' of HPO employees in the possibility 
     of privatization ``increased.'' Decision at 5. An RFP was 
     published in Commerce Business Daily during August, and, on 
     September 8, 1995, the Office of the CAO distributed another 
     memorandum to HPO employees. See id. at 6.
       The memorandum of September 8, 1995 stated that it was 
     written in response to employee inquiries: ``many of you have 
     requested an update on the status of the [RFP] to outsource 
     Postal Operations.'' 2 Id. The memorandum 
     reiterated that the winning bidder would ``interview all 
     interested Postal Operations employees for possible 
     employment.'' Id. The memorandum also gave employees a 
     schedule for the transition to the private contractor, 
     stating that final bids were due in by September 15, 1995 and 
     that review and recommendation on award of the contract was 
     due to the Committee at the beginning of November. See id. 
     The September 8 memorandum concluded by telling employees 
     when the privatization was due to take place: ``[t]he new 
     facilities management company is scheduled to begin 
     operations in mid-December.'' Id. The memorandum also offered 
     to answer any ``additional questions'' that employees might 
     have. Id.
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     \2\ The September 8, 1995 memorandum is reproduced as 
     Appendix B to this opinion.
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        On December 13, 1995, the Committee adopted a resolution 
     directing that ``all functions of House Postal Operations 
     shall be terminated as of the close of business on Tuesday, 
     February 13, 1996'' and authorizing the CAO to contract with 
     Pitney Bowes Management Services, Inc. (``PBMS'' or ``Pitney 
     Bowes'') to provide those internal mail services for the 
     House. House Comm. on House Oversight, 104th Cong., 1st 
     Sess., Resolution, ``House Postal Contract.'' 3 
     The Committee resolution also instructed the CAO ``to 
     immediately provide sixty days notice to existing House 
     employees affected [by the privatization].'' Id. One of the 
     appellants attended the Committee meeting, and the resolution 
     of the Committee was posted for several days on the bulletin 
     board at the main HPO facility. See Findings of Fact at 3; 
     Quick Findings of Fact at 4.
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     \3\ The December 13, 1995 Committee Resolution is reproduced 
     as Appendix C to this opinion.
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       On that same day, soon after the Committee meeting, in 
     response to the Committee's action, CAO management asked all 
     HPO employees who were present at work to attend either of 
     two meetings. It was at these meetings that CAO officials 
     distributed the December 13, 1995 memorandum, which announced 
     to employees the award of the contract to Pitney Bowes and 
     explained that the contractor would distribute 
     applications for employment the next day and would make 
     its hiring decisions in January, 1996. See Decision at 7. 
     The memorandum also promised that support, resources, and 
     employee assistance programs would be provided ``[t]o make 
     the transition from employment with the U.S. House of 
     Representatives as smooth as possible. * * *'' Id. at 48. 
     CAO managers also explained at the December 13 meeting 
     that February 14, 1996, Valentine's Day, was the target 
     date for Pitney Bowes to begin operations. See id. at 57.
       Appellant Schmelzer acknowledged having received a copy of 
     the December 13, 1995 memorandum at one of the meetings, as 
     did one of the other appellants. See id. at 46; Quick 
     Decision at 48. All of the other appellants likewise attended 
     one of the meetings. See Quick Decision at 47-48.
       On the next day, December 14, 1995, further meetings were 
     convened, at which Pitney Bowes met with the employees and 
     distributed job applications. Several representatives of the 
     CAO and of Pitney Bowes spoke, and it was stated at several 
     points that Pitney Bowes would begin serving as the House's 
     mail delivery contractor on Valentine's Day, February 14, 
     1996. See Findings of Fact at 4; Quick Findings of Fact at 5. 
     All appellants attended one of these meetings, and all 
     submitted job applications to Pitney Bowes. See Findings of 
     Fact at 4; Quick Findings of Fact at 5.
       On January 22, 1996, individual letters were hand-delivered 
     to all HPO employees present

[[Page S8499]]

     at work. Each letter stated that Pitney Bowes would assume 
     mail delivery functions on February 14, 1996, and that the 
     recipient's employment with the House would terminate at 
     close-of-business on February 13, 1996. All but two of the 
     appellants were at work on January 22 and received the letter 
     on that day. The two other appellants received their letters 
     on January 23 and January 29, when each returned to work. See 
     Findings of Fact at 5; Quick Findings of Fact at 6-7. The 
     legal sufficiency of the notice provided by these letters is 
     undisputed.
       Both before and after the Committee's December 13, 1995 
     decision to terminate all functions of the HPO, the CAO 
     offered an array of support services to HPO employees. See 
     Decision at 8-9; Quick Decision at 9-10. These included 
     establishing an outplacement service office, which assisted 
     employees with resume writing and preparing job applications, 
     as well as offering coaching on how to interview. See 
     Transcript in Quick at 179-184. A job bank listing sources 
     both inside the Congress and outside, as well as a bank of 
     computers and telephones for employee use, were also 
     provided. See id. Staff of the outplacement service also 
     furnished information on ``Ramspeck'' rights, health 
     insurance, and other employee benefits, as well as other 
     transition advice. See id.; Transcript in Schmelzer at 114. 
     In addition to the services provided in-house, the CAO had 
     arranged for the District of Columbia Employment Services to 
     present two workshops for postal employees on October 20, 
     1995, entitled, ``Job Hunting in Today's Tight Job Market,'' 
     which, among other things, explained the training 
     opportunities under the Economic Dislocation and Worker 
     Assistance Act. See Transcript in Quick at 182-83. Appellant 
     Schmelzer, among others, made use of the outplacement and 
     other services provided by the CAO for HPO employees. See 
     Findings of Fact at 5.
       Appellants' employment with the House of Representatives 
     ended when HPO functions ceased at close of business on 
     February 13, 1996. Overall, of the 113 employees affected by 
     the privatization, three remained employed by the House of 
     Representatives under the CAO, and Pitney Bowes extended 
     offers of employment to 90 of the HPO employees, of whom 
     about two-thirds accepted and began working for Pitney Bowes 
     directly from their House employment, when Pitney Bowes took 
     over the internal House postal operations on February 14, 
     1996. See Decision at 9. All appellants interviewed for 
     employment with Pitney Bowes; two were not given offers of 
     employment; the rest declined the offers tendered. See id. at 
     8-9; Quick Decision at 8-9.


                                 II. a.

       Appellants petitioned the Board to review and reverse the 
     Hearing Officer's decisions. They argue that the Hearing 
     Officer misconstrued the applicable law in concluding that 
     the December 13, 1995 memorandum substantially complied with 
     the notice requirements of the WARN Act, as applied by the 
     CAA. Appellants in Quick also argue on appeal that the 
     Hearing Officer erred in concluding that the distribution of 
     the December 13, 1995 memorandum constituted a reasonable 
     method of delivery. Appellant Schmelzer does not join in this 
     contention, having acknowledged his receipt of the December 
     13, 1995 memorandum. See Findings of Fact at 4; see also 
     Appellant's Brief at 7.
       Appellee CAO seeks affirmance on a number of grounds. 
     Appellee argues that the Hearing Officer's conclusion that 
     the notice provided by the CAO substantially complied with 
     section 205 of the CAA and the pertinent regulations is based 
     on the correct application of law and is supported by 
     substantial evidence in the record. Alternatively, appellee 
     argues that, as a matter of law, section 205 of the CAA did 
     not apply to the closing of the HPO because the decision to 
     close the HPO was made and notice to employees of the closing 
     was delivered before the effective date of section 205 of the 
     CAA. Appellee also contends that fewer than fifty employees 
     actually suffered an employment loss when the number of 
     employees who were offered employment with Pitney Bowes is 
     calculated under the sale of business/privatization exclusion 
     of section 2(b)(1) of the WARN Act, 29 U.S.C. 
     Sec. 2101(b)(1), as applied by section 225(f)(1) of the CAA, 
     2 U.S.C. Sec. 1361(f)(1), and section 639.4(c) of the Board's 
     regulations. In addition, appellee argues that, even if the 
     CAO were to be found liable for a technical violation of the 
     notice requirements, the Hearing Officer's findings of fact 
     support granting the CAO a good faith reduction or 
     elimination of damages, as provided by section 5(a)(4) of the 
     WARN Act, 29 U.S.C. Sec. 2104(a)(4), as applied by section 
     205(b) of the CAA, 2 U.S.C. Sec. 1315(b).
       Because the Board agrees with the Hearing Officer's 
     conclusion that, in the totality of the circumstances here, 
     the notice provided by the December 13, 1995 memorandum 
     substantially complied with the notice requirements of the 
     Act and the applicable regulations, we do not reach the 
     alternative grounds for affirmance urged by the CAO. We 
     therefore turn to the notice requirements of the Act and the 
     Board's WARN Act regulations.4
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     \4\ The CAO has raised the question whether the Board's WARN 
     Act regulations can fairly be applied to the December 13, 
     1995 notice since these regulations did not go into effect 
     until January 23, 1996. In light of our disposition of the 
     case, the Board need not decide this issue which, in the 
     unique circumstances of this case, is without precedential 
     value. We note, however, that the Board's regulations are, as 
     required by section 205(c)(2) of the CAA, substantively the 
     same as the Department of Labor WARN Act regulations. See 
     also section 411 of the CAA (stating that the Department of 
     Labor's WARN Act regulations apply ``to the extent necessary 
     and appropriate'' where the Board has not issued a regulation 
     required by the CAA to implement a statutory provision).
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                                 II. b.

       Section 205(a) of the CAA provides ``Worker Adjustment and 
     Retraining Notification Rights'' to covered employees, as 
     follows: ``No employing office shall be closed or a mass 
     layoff ordered within the meaning of section 3 of the Worker 
     Adjustment and Retraining Notification Act (29 U.S.C. 
     Sec. 2102) until the end of a 60-day period after the 
     employing office serves written notice of such prospective 
     closing or layoff to representatives of covered employees or, 
     if there are no representatives, to covered employees.''
       While the statute does not explicitly state what the notice 
     must contain, the regulations have mandated that certain 
     information be provided in order to effectuate the purpose of 
     the WARN Act to provide workers with adequate advance 
     notification of an employment loss. As explained in the 
     Department of Labor's regulations and in section 639.1(a) of 
     the Board's Interim Regulations, WARN Act notice ``provides 
     workers and their families some transition time to adjust to 
     the prospective loss of employment, to seek and obtain 
     alternative jobs and, if necessary, to enter skill training 
     or retraining that will allow these workers to successfully 
     compete in the job market.'' Notice of Adoption of Regulation 
     and Submission for Approval and Issuance of Interim 
     Regulations, 142 Cong. Rec. S271-72 (daily ed. Jan. 22, 1996) 
     (All citations are to the ``Interim Regulations,'' which were 
     in effect at the time of the privatization of the HPO). See 
     also the Department of Labor's response to comments on its 
     regulatory notice requirements: ``While the Act does not 
     enumerate specific elements which should be included in the 
     advance written notice, * * * [t]he content of notice to each 
     party [required by the regulations] is designed to provide 
     information necessary for each of them to take responsible 
     action.'' 54 Fed. Reg. 16042, 16059 (April 20, 1989) 
     (Response to Comments, section 639.7(d) WARN Notice).
       To effectuate the notification purposes of the WARN Act, 
     section 639.7(d) of the Board's Interim Regulations, like the 
     Department of Labor's WARN Act regulations, requires that 
     notice to individual employees contain the following four 
     elements:
       (1) A statement as to whether the planned action is 
     expected to be permanent or temporary and, if the entire 
     office is to be closed, a statement to that effect;
       (2) The expected date when the office closing or mass 
     layoff will commence and the expected date when the 
     individual employee will be separated;
       (3) An indication whether or not bumping rights exist;
       (4) The name and telephone number of an employing office 
     official to contact for further information.
       142 Cong. Rec. S270, S274 (daily ed. Jan. 22, 1996).
       Courts construing these notice requirements have, in light 
     of the notice purposes of the WARN Act, distinguished between 
     the situation in which an employer has failed to provide any 
     written notice, and the situation in which written notice was 
     provided, but the contents of the notice failed to meet the 
     technical requirements of the regulations. See, e.g., 
     Carpenters Dist. Council v. Dillard Dep't Stores, 15 F.3d 
     1275, 1287 n.19 (5th Cir. 1994), cert. denied, 115 S.Ct. 933 
     (1995); accord Saxion v. Titan-C-Mfg. Inc., 86 F.3d 553, 561 
     (6th Cir. 1996); Marques v. Telles Ranch, 867 F. Supp. 1438, 
     1445-46 (N.D. Cal. 1994); United Automobile Aerospace & 
     Agricultural Implement of America Local 1077 v. Shadyside 
     Stamping Corp., 1991 WL 340191 (S.D. Ohio) (dictum), aff'd 
     without published opinion, 947 F.2d 946 (6th Cir.1991). The 
     Hearing Officer appropriately was guided by these cases, 
     which we also find to be persuasive. 5
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     \5\ Section 405(h) of the CAA provides that ``[a] hearing 
     officer who conducts a hearing * * * shall be guided by 
     judicial decisions under the laws made applicable by section 
     102 [of the CAA] * * *.'' 2 U.S.C. Sec. 1405(h).
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       In Dillard, the court, considering the adequacy of notices 
     that gave inaccurate termination dates, noted that ``neither 
     the regulations nor the Act itself addresses how courts are 
     to treat notices that are determined to be defective or 
     inadequate. As such, neither the Act nor the regulations 
     suggest that defective notice is automatically to be treated 
     as though no notice had been provided at all.'' 15 F.3d at 
     1287 n.19 (citation omitted). Similarly, the Saxion court, 
     quoting Dillard with approval in a case in which the notice 
     failed to give a termination date, among its other technical 
     deficiencies, concluded: ``We are not persuaded that the 
     technical deficiencies in the March 13 letter required the 
     district court to proceed as if there had been no notice at 
     all.'' 86 F.3d at 561. Likewise, in Marques, the court again 
     quoted Dillard with approval, and construed the Department of 
     Labor regulations as providing that ``technical deficiencies 
     or omissions in notice do not invalidate notice or result in 
     WARN liability.'' 867 F. Supp. at 1445. In that case, the 
     court found adequate a WARN notice provided to seasonal 
     workers during their seasonal lay-off, despite its lack of 
     date, because the court concluded that, in context, the 
     notice could only be read as referring to a permanent 
     layoff beginning in the upcoming harvest season. Id. at 
     1446. Finally, in

[[Page S8500]]

     Shadyside Stamping Corp., the court, analyzing whether 
     notices that, among other things, failed to provide 
     precise termination dates, were nonetheless adequate, 
     found relevant whether ``all the information required to 
     be provided by the employer was produced or at least well 
     known.'' 1991 WL 34091 at star page 7 (emphasis added). 
     Thus, all four cases stand for the proposition that 
     omitting termination dates or providing inaccurate 
     termination dates does not necessarily render written WARN 
     notices fatally deficient.
       The Department of Labor's interpretative comments to the 
     enforcement provisions of its WARN Act regulations also 
     distinguish between the failure to give notice and the 
     provision of technically defective notice. The Department of 
     Labor's commentary on its WARN Act regulations provides 
     guidance that ``technical violations of the notice 
     requirements not intended to evade the purposes of WARN ought 
     to be treated differently than either the failure to give 
     notice or the giving of notice intended to evade the purposes 
     of the Act.'' 54 Fed. Reg. 16042, 16043 (April 20, 1989) 
     (Response to Comments, section 639.1(d) WARN Enforcement). 
     Some ``technical violations'' are best characterized as 
     ``minor, inadvertent errors,'' which the Department of Labor 
     states ``are not intended to be violations of the 
     regulations.'' Id. ``Other kinds of violations, i.e., the 
     failure to provide information required in these regulations, 
     may constitute a violation of WARN.'' Id. (emphasis added). 
     Thus, the Department of Labor indicates that such errors 
     ``may,'' but do not necessarily, violate the Act. We agree.
       When faced with technically deficient WARN notices, courts 
     have, consistent with the Department of Labor's view, asked 
     whether, in the circumstances of the case, the employees 
     nonetheless received notice that satisfies the purposes of 
     the Act. See, e.g. Dillard, 15 F.3d. at 1286; Marques, 867 F. 
     Supp. at 1445. In making that determination, courts have 
     consistently looked at all the communications provided by 
     employers to determine whether, when viewed in context, one 
     or more written communications qualified as notice under the 
     WARN Act and applicable regulations. See Kalwaytis v. 
     Preferred Meal Systems, Inc., 78 F.3d 117, 121-22 (3d. Cir.), 
     cert. denied, 117 S. Ct. 73 (1996); Dillard, 15 F.3d. at 
     1286-87; Saxion, 86 F.3d at 561; Marques, 867 F. Supp. at 
     1445-46. Cf. also Oil, Chemical and Atomic Workers Int'l 
     Union v. American Home Products Corp., 790 F. Supp. 1441 
     (N.D. Ind. 1992) (employer who failed timely to update 
     written notice provided one year in advance of closing which 
     contained inaccurate termination date and who provided only 
     seven days written notice of actual termination date was 
     entitled to summary judgment based upon statutory good faith 
     defense because the requirements of the regulations were 
     unclear); Shadyside Stamping Corp., 1991 WL 340191 at star 
     pages 8-10 (employer who provided five months written notice 
     and a written reminder notice, but failed to meet the 
     technical requirements of the regulations, was entitled to 
     summary judgment based upon statutory good faith defense).
       In Kalwaytis, the employer wrote a letter to employees laid 
     off by the outsourcing of its school meal preparation 
     services informing them that it was ceasing food service 
     operations at its plant and contracting out that function. 
     The initial letter stated that the new employer has 
     ``an immediate offer of employment to make to you.'' Id. 
     at 119. A later letter made clear that an offer of 
     employment was in the contractor's discretion. Id. The 
     court concluded that adequate notice had been provided: 
     ``Giving a reasonably pragmatic interpretation of the two 
     letters, we conclude that, read together, they do meet the 
     statutory requirements of notice.'' Id. at 122.
       Similarly, the Dillard court, construing a series of three 
     written notices, the last two of which gave estimated 
     termination dates that did not provide the full sixty days 
     required by the WARN Act, found that employees who actually 
     worked for at least sixty days after receipt of the notices 
     were not entitled to back pay damages because they had, in 
     fact, received the notice that they were entitled to under 
     the Act. 15 F.3d. at 1286-87. The court concluded that any 
     other interpretation was ``inconsistent with both the 
     language and the purpose of the Act'' which requires only 
     that an employer provide sixty days notice of termination. 
     Id. at 1286.
       Likewise, in Saxion, 86 F.3d at 561, the court found that 
     appellant should not have been found in violation of the WARN 
     Act for the full sixty-day period where, ten days before the 
     plant shut down, appellant gave a written notice stating that 
     the plant was going to close and giving the name and phone 
     number of a company official to contact with further 
     questions. The court reduced the violation period to fifty 
     days, despite the omission of the date of the plant's shut 
     down, concluding: ``[t]hat the notice was deficient in other 
     respects does not change the fact that ten days before the 
     plant was closed, the affected employees clearly knew that it 
     was going to be closed.'' Id.
       Finally, in Marques, 867 F. Supp. at 1445, the court 
     analyzed the notice in light of whether the purpose of the 
     notice provision was served and determined that, because none 
     of the omissions in the notice caused harm to the employees, 
     the technical deficiencies did not give rise to liability. 
     The court found that, despite the lack of a specific 
     separation date, the time frame could be determined from the 
     notice and surrounding circumstances. Id. The omission of 
     bumping rights was immaterial since employees did not enjoy 
     such rights. Id. Further, ``although there was no name and 
     number of a company official to contact for further 
     information, Plaintiffs clearly knew and understood how to 
     contact Defendants because Plaintiffs had done so every 
     season to determine the date harvesting operations were to 
     resume.'' Id. Thus, the deficiencies in the written notice 
     did not undermine the notice purposes of the Act because 
     employees either already knew the missing information from 
     other contexts or could infer it from the notice and 
     surrounding circumstances, or because it was irrelevant to 
     their situation.
       In sum, courts have approached the notice requirements with 
     an eye to practicalities: ``Fairly read, the regulations 
     require a practical and realistic appraisal of the 
     information given to affected employees.'' Kalwaytis, 78 F.3d 
     at 121-22. Evaluating the notices received by employees from 
     that practical perspective, the courts in Marques, Saxion, 
     and Dillard found that the omissions in the written notices 
     did not undermine the purpose of the statute where the 
     pertinent information that the written notice should have 
     conveyed was actually known by, or was readily available to, 
     the employees. Thus, under the applicable case law, the 
     Hearing Officer was correct in concluding that: ``[u]nder 
     prevailing WARN case law, neither the inclusion of inaccurate 
     termination dates, nor the omission of termination dates 
     altogether, necessarily renders a WARN notice defective, 
     particularly if employees can easily ascertain the date 
     from surrounding circumstances or readily available 
     sources of information.'' Decision at 56.


                                 II. c.

       We also conclude that the substantial compliance standard 
     adopted by the Hearing Officer is an appropriate standard to 
     be used in determining if a violation has occurred. Indeed, 
     all cases construing a written WARN notice that is 
     technically defective because of the omission or inaccurate 
     statement of a termination date use the substantial 
     compliance standard, either explicitly, Marques, F. Supp. at 
     1446, and Shadyside Stamping Corp., 1991 WL 340191 at star 
     pages 7-9, or implicitly, Saxion, 86 F.3d at 561, and 
     Dillard, 15 F.3d at 1286-87 & n.19. 6
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     \6\ We note that courts have held that substantial compliance 
     is sufficient to meet the notice requirements of a number of 
     other employment-related regulatory schemes. For example, 
     under ERISA, if a plan administrator denies a claim without 
     providing notice that meets applicable regulatory 
     requirements, several circuits have applied a ``substantial 
     compliance'' standard in evaluating whether the defects in 
     notice invalidate the plan administrator's decision. See 
     Brogan v. Holland, 105 F.3d 158, 164-65 (4th Cir. 1997); 
     Donato v. Metropolitan Life Ins. Co.,19 F.3d 375, 382-83 (7th 
     Cir. 1994); see also Kent v. United of Omaha Life Ins. Co., 
     96 F.3d 803, 807 (6th Cir. 1996). A substantial compliance 
     standard has also been applied to notice that unions must 
     provide to employees regarding service fees, see Laramie v. 
     County of Santa Clara, 784 F. Supp. 1492 (N.D. Cal. 1992), 
     see also Chicago Teachers Union Local 1 v. Hudson, 475 U.S. 
     292, 307 n.18 (1986); notice procedure for discharging school 
     teachers, see Roberts v. Van Buren Public Schools, 773 F.2d 
     949, 959 (8th Cir. 1985); and notice expressing intent to 
     terminate a collective bargaining agreement, see Purex Corp. 
     v. Automotive, Petroleum and Allied Indus. Employees Union, 
     Local 618, 543 F. Supp. 1011, 1015-1016 (E.D. Mo. 1982), 
     aff'd 705 F.2d 274 (8th Cir. 1983).
---------------------------------------------------------------------------
        This standard is particularly appropriate here because the 
     instant cases arose during the early days of implementation 
     of section 205 of the CAA. It was over a month before the 
     January 23, 1996 effective date of section 205 of the CAA and 
     of the Board's Interim Regulations that the Committee on 
     House Oversight adopted the resolution instructing the CAO 
     ``to immediately provide sixty days notice to existing House 
     employees affected by the issuance of the contract.'' The 
     memorandum from the CAO explaining the situation to employees 
     was issued on the same date as the resolution. This was a 
     period that the Board described as one of ``regulatory 
     uncertainty.'' Notice of Issuance of Interim Regulations, 142 
     Cong. Rec. S270, S271 (daily ed. Jan. 22, 1996). As the Board 
     there noted: ``[i]n the absence of the issuance of such 
     interim regulations, covered employees, employing offices, 
     and the Office of Compliance staff itself would be forced to 
     operate in regulatory uncertainty. * * * [E]mploying offices 
     and the Office of Compliance staff might not know what 
     regulation, if any, would be found applicable in particular 
     circumstances absent the procedures suggested here.'' Id.
       In comparable circumstances, the Department of Labor 
     concluded that ``* * * in the early days of WARN 
     implementation substantial compliance with regulatory 
     requirements should be sufficient to comply with WARN.'' 53 
     Fed. Reg. 48884-85 (1988) (notice adopting interim 
     interpretative rules of Dec 2, 1988). Courts construing WARN 
     notices issued during the transition period adopted the 
     substantial compliance standard. See, e.g. Shadyside Stamping 
     Corp., 1991 WL 340191, at star pages 7-9 (noting that the 
     substantial compliance standard may be satisfied if the 
     information missing from the notice was otherwise provided by 
     the employer or was readily available to employees).


                                  III.

       With these principles in mind, we turn to the notice 
     provided to employees in this case. The Board agrees with the 
     Hearing Officer that the December 13, 1995 memorandum can 
     fairly be read to supply two of the four elements required by 
     section 639.7(d) of the Board's regulations, that is, a 
     statement

[[Page S8501]]

     to the effect that House Postal Operations is to be 
     permanently closed and the name and telephone number of an 
     official to contact for further information. See sections 
     639.7(d)(1), (4).
       Looking at the actual language of the memorandum, the Board 
     agrees with the Hearing Officer's conclusion that today's 
     government employees, especially those of the 104th Congress 
     in which privatization had been a topic of debate, would 
     reasonably understand that the issuance of a request for 
     proposals ``to privatize the current House postal delivery 
     operations'' meant that the House was seeking to contract 
     with a private contractor to perform the jobs of the current 
     incumbents. The only logical inference from the announcement 
     of ``Pitney Bowes Management Services being selected as the 
     House vendor for postal delivery operations'' is that this 
     private contractor has now been hired to take over the 
     functions of the HPO.
       The memorandum also makes clear that jobs with the new 
     contractor are not automatic. Employees must apply, go 
     through an interview process, and await the contractor's 
     independent hiring decisions. The memorandum states that 
     ``the vendor has agreed to interview all current Postal 
     Operations employees interested in employment with their 
     organization'' (emphasis added). This confirms that the 
     current House jobs in Postal Operations are going to be 
     privatized and that future jobs in postal operations will be 
     with the private contractor who is now conducting interviews 
     for that employment. Moreover, the memorandum also states 
     that hiring decisions will be made by PBMS: ``The vendor will 
     inform you directly if you are selected for a position in 
     their organization.'' Finally, the memorandum describes the 
     services that will be made available to make the employees' 
     ``transition from employment with the U.S. House of 
     Representatives as smooth as possible'' (emphasis added). The 
     plain meaning of ``transition from House employment'' is that 
     the employees' current jobs will be terminated when PBMS 
     takes over on February 14, 1996, a date that has been 
     identified for the HPO employees. Thus, this notice is like 
     the second notice in Kalwaytis, 78 F.3d at 122, which made 
     clear that laid-off employees would have to apply for 
     employment directly with the new employer. Therefore, 
     the Board agrees with the Hearing Officer that the 
     December 13, 1995 memorandum substantially complies with 
     the requirement of section 639.7(d)(1) of the Board's 
     Interim Regulations.
       The memorandum gives employees several points of contact 
     for further information, in satisfaction of section 
     639.7(d)(4). It provides the address and telephone numbers of 
     ``[t]he Human Resources' Office of Training'' and the 
     ``Outplacement Resources Center,'' as well as stating the 
     full name and title of the memorandum's author, the Associate 
     Administrator for Human Resources in the Office of the CAO. 
     Clearly, employees knew how to get in touch with someone on 
     the CAO's staff who could answer their questions. Moreover, 
     the omission of the telephone number of the Associate 
     Administrator for Human Resources was of no consequence; she 
     spoke at the orientation meeting introducing Pitney Bowes 
     Management Services, attended by all appellants, the day 
     after the memorandum was distributed.
       The memorandum fails, however, to inform employees whether 
     bumping rights exist, as required by section 639.7(d)(3). 
     However, there was no testimony during the Hearing regarding 
     this omission, nor any complaint on appeal. Moreover, bumping 
     rights have no relevance, where, as here, the entire 
     operation is closed. See Marques, 867 F. Supp. at 1446. The 
     Board therefore agrees with the Hearing Officer's conclusion 
     that, in these circumstances, the omission of this 
     information is a minor, inadvertent error, within the meaning 
     of section 639.7(a)(4) of the Board's regulations.
       The December 13, 1995 memorandum also fail to state 
     explicitly the expected date of the office closing and the 
     expected date when employees will be separated from 
     employment, as required by section 639.7(d)(2). However, as 
     the Hearing Officer concluded, ``[g]iven that the December 
     13, 1995 memorandum provides some indication of the 
     privatization date (i.e., reasonably soon after completion of 
     the interview process in January 1996), given that the date 
     was fixed and certain and widely publicized in a variety of 
     oral and written ways, and given that employees had a wealth 
     of readily available means to ascertain the date, . . . [the 
     failure to provide this date] does not compel a finding of 
     violation.'' Decision at 58. While the December 13, 1995 
     memorandum was technically deficient in its failure to 
     provide the date required by section 639.7(d)(2) of the 
     Board's WARN Act regulations, the information missing from 
     the notice was otherwise provided to employees by the CAO and 
     also was readily available to them from a number of sources, 
     at least sixty days in advance of the employees' termination, 
     such that the purposes of the WARN Act were satisfied. See 
     Marques, 867 F. Supp. at 1445-46; see also Saxion, 86 F.3d at 
     561; see also Shadyside Stamping Corp., 1991 WL 340191 at 
     star pages 7-8.
       Examining the record, moreover, the Board does not find 
     that the omission of the termination date from the CAO's 
     otherwise timely and adequate written notice defeated the 
     purposes of the statute. Judged in the totality of the 
     circumstances, the CAO took appropriate steps under the WARN 
     Act, as applied by the CAA, to provide adequate notice for 
     employees to make the transition to new employment. In the 
     spirit of the purposes of the WARN Act, see section 639.1(a) 
     of the Board's regulations, the CAO voluntarily gave 
     employees early notice that the Committee on House Oversight 
     was contemplating the privatization of the HPO. The CAO's 
     June memorandum was updated by notice in September in a 
     memorandum that provided an actual schedule for the 
     privatization process, based on the best information then 
     available. It is in this context that the December 13, 1995 
     memorandum must be read to determine whether the omission of 
     the date deprived employees of legally sufficient notice of 
     their date of termination.7
---------------------------------------------------------------------------
     \7\ We note that the December 13, 1995 memorandum was part of 
     the CAO's response to the Committee's direction to 
     ``immediately provide sixty days notice to existing House 
     employees affected'' by the Committee resolution of December 
     13, 1995 authorizing the contract to privatize the HPO.
---------------------------------------------------------------------------
       The December 13 memorandum states that the ``review/
     selection process'' for employment with PBMS ``will be 
     completed in January, 1996.'' From that information, 
     employees could expect that the contractor would begin 
     operations shortly thereafter as, in fact, PBMS did. That 
     conclusion is supported by the fact that the earlier 
     memorandum of September 8, 1995 had notified employees that 
     the contractor was ``scheduled to begin operations in mid-
     December,'' so that employees were already on written notice 
     that the contractor would take over shortly. While it was 
     clear by December 13, 1995, that the earlier deadline had 
     slipped, the fact remains that, through the September 8, 1995 
     memorandum, employees had received written notice of a likely 
     termination date, and were given updated information about 
     the contractor's plans on December 13, 1995, over sixty days 
     before their actual termination.
       Looking at the September 8, 1995 memorandum together with 
     the December 13, 1995 memorandum, the Board finds this to be 
     a situation in which employees received multiple notices 
     whose technical deficiencies do not merit a finding of 
     liability. See, e.g., Kalwaytis, 78 F.3d at 121-22; Dillard, 
     15 F.3d at 1286-87 & n.19; cf. American Home Products, 790 F. 
     Supp. at 1444-45, 1450-53; Shadyside Stamping Corp., 1991 WL 
     340191 at star pages 1-3, 8-11. Reading the letters together, 
     and making ``a practical and realistic appraisal of the 
     information given to affected employees,'' Kalwaytis, 78 F.3d 
     at 121-22, the Board concludes that, over sixty days before 
     their termination, appellants were provided with adequate 
     information to determine that they were going to lose their 
     government jobs on February 13, 1996, when the contractor 
     took over House Postal Operations.
       Thus, because appellants received over sixty days written 
     notice from the mid-December estimated take-over by the 
     contractor, they were like those employees in Dillard who 
     worked past the estimated termination dates given in their 
     notices such that they actually received over sixty days 
     notice, see 15 F.3d at 1286-87 & n.19. As the Dillard court 
     held, sixty days notice satisfies ``both the language and the 
     purpose of the Act.'' Id. at 1286. Such actual notice of 
     termination is what is essentially required by the notice 
     requirements of the Act to give employees adequate notice to 
     plan for the loss of their jobs. In such circumstances, the 
     inaccuracy in the termination date is not fatal. See id.
       Moreover, as the Hearing Officer found, the date was well 
     known and widely disseminated. Decision at 56-58. Appellant 
     Schmelzer, for example, conceded that he was well aware of 
     the termination date; he wrote it on his application for 
     employment with PBMS. See id. at 57. Another appellant 
     attended part of the Committee meeting in which the 
     resolution was passed that effected the February 13, 1996 
     closure of the HPO. See Quick Findings of Fact at 4. And the 
     Committee's resolution was posted on the HPO bulletin board. 
     See Decision at 56-57. Further, testimony credited by the 
     Hearing Officer made clear that the date of Valentine's Day, 
     February 14, 1996, was stated repeatedly at the December 14, 
     1995 meeting attended by all appellants. See id. at 57; Quick 
     Decision at 58. In addition, the Hearing Officer noted seven 
     ways by which any employee, still in doubt, could have 
     ascertained the information. Decision at 57. Notable among 
     his findings was the simple expedient of asking the question 
     at either the December 13 or the December 14 meetings, 
     attended by all appellants, during which the Office of the 
     CAO not only provided question-and-answer periods, but also 
     announced the February 14, 1996 date for PBMS to take over 
     the HPO operations. Id. Or employees could have called any of 
     the three official CAO management sources provided on the 
     December 13, 1995 memorandum. Id.
       The Board therefore concludes that there is substantial 
     evidence in the record supporting the Hearing Officer's 
     conclusion that, at least sixty days before the closing of 
     the HPO, all appellants either knew the dates on which their 
     employment with the House would terminate and PBMS would take 
     over the functions of the HPO or attended a meeting that took 
     place at least sixty days before the closing of the HPO, at 
     which these dates were discussed. Thus, the notification 
     purpose of the statute was satisfied despite the technical 
     deficiencies in the December 13, 1995 memorandum. See 
     Marques, 867 F. Supp. at 1445-46, see also Saxion, 86 F.3d at 
     561; Dillard, 15 F.3d at 1287 & n.19.
       The only case cited by appellants as compelling a different 
     result, American Home

[[Page S8502]]

     Products, does not. In that case, employees were provided 
     with only seven days actual notice of the date of their 
     layoff and they had no other source of information from which 
     they could learn the date. However, that situation is 
     markedly different from the case here, where the employees 
     were provided with multiple written notices and where the 
     final written notice, coupled with the information readily 
     available to the employees, reasonably assured sixty days 
     actual notice of the employees' termination date. Thus, we 
     affirm the Hearing Officer's conclusion that, in the totality 
     of the circumstances, the employees were provided with 
     adequate notice under the requirements of the CAA and the 
     applicable regulations.
       Appellants in Quick also argue on appeal that the Hearing 
     Officer erred in concluding that the distribution of the 
     December 13, 1995 memorandum constituted a reasonable method 
     of delivery, and they contrast the handout of that memorandum 
     with the individualized delivery of the January 22, 1996 
     termination notice, with signed receipt. This contention is 
     without merit. Section 639.8 of the Board's Regulations 
     allows the use of ``[a]ny reasonable method of delivery'' and 
     terms signed receipts ``optional.'' Under the circumstances 
     here, we agree with the Hearing Officer's conclusion that 
     distributing a memorandum at the meetings of the employees 
     was a reasonable method of effecting delivery to these 
     employees.
       This is not a case in which the employer failed to provide 
     notice or provided notice intended to evade the purposes of 
     the notice requirements of the CAA. See Department of Labor 
     Preamble to the WARN Act Regulations, 54 Fed. Reg. 16042, 
     16043 (April 20, 1989) (Response to Comments, section 
     639.1(d) WARN Enforcement). To the contrary. Four separate 
     written notices were provided to employees. Four meetings 
     informing employees of the privatization were held in the 
     space of two days. The Committee itself was cognizant of the 
     need to provide timely notice to the employees. Its 
     resolution of December 13, 1995 directed the CAO to provide 
     sixty days notice to the employees immediately.
       Indeed, the House tried in many additional ways, in the 
     spirit of the underlying purposes of the WARN Act, to ease 
     the transition to new employment. The Committee required, as 
     a condition of the contract, that the contractor interview 
     all current House employees for the jobs that were 
     privatized. The Office of the CAO went beyond the suggestions 
     in section 639.7(d) of the Board's regulations for providing 
     transition information useful to the employees. An array of 
     transition and support services were offered, including a job 
     bank, help with job applications, and resume writing, 
     computer training courses, stress management training, and 
     making arrangements for outplacement seminars for the 
     employees. These efforts further belie any suggestion that 
     the CAO was attempting to evade the purposes of the Act.
       In sum, the record is clear that the privatization of the 
     HPO was not the type of stealth plant closing which leaves 
     employees adrift and which the Act, and its inclusion in the 
     CAA, were meant to prevent. There was a public debate and a 
     public decision regarding the privatization of House Postal 
     Operations, and employees were advised of these developments 
     as they occurred. In addition to the multiple written notices 
     provided, public employee meetings were held sixty days in 
     advance of any terminations. At these meetings, the process 
     and specific effective date of the privatization were 
     repeatedly announced. In these circumstances, it would 
     elevate form over substance to find that the CAO's written 
     notices of the privatization of the HPO violated the WARN 
     Act, as applied by the CAA. The Board therefore affirms the 
     decisions of the Hearing Officer.
       It is so ordered.
       Issued, Washington, D.C., July 29, 1997

                               Appendix A


                               memorandum

     To: Office of Postal Operations Staff.
     From: Kay E. Ford, Associate Administrator Human Resources.
     Subject: Status of Operations.
     Date: December 13, 1995.
       As you have been previously informed, on Wednesday, June 
     14, 1995 the Committee on House Oversight authorized the 
     preparation and issuance of requests for possible (RFP's) to 
     privatize the current House postal delivery operations.
       The review of the proposals submitted resulted in Pitney 
     Bowes Management Services being selected as the House vendor 
     for postal delivery operations. The selection of Pitney Bowes 
     Management Services has subsequently been approved by the 
     Committee on House Oversight. As a condition of the selection 
     process, the vendor has agreed to interview all current 
     Postal Operations employees interested in employment with 
     their organization.
       To facilitate this process the vendor will distribute 
     applications for employment on Thursday, December 14, 1995. 
     We have been assured that their review/selection process will 
     be completed in January, 1996. The vendor will inform you 
     directly if you are selected for a position in their 
     organization.
       The Human Resources' Office of Training, extension 60526, 
     room 219, FHOB, and the Outplacement Resources Center, 
     extension 64068, rooms 170-171, FHOB, are prepared to offer 
     advice and assist with the preparation of applications on an 
     appointment basis.
       To make the transition from employment with the U.S. House 
     of Representatives as smooth as possible, an array of 
     support, resources and information will be made available to 
     you. This will include employee assistance programs designed 
     to address the personal, professional and family concerns 
     associated with the transition process as well as employee 
     benefits consultations and briefings.
       Throughout this process we encourage each of you to 
     continue to provide the high degree of quality service for 
     which you are known. We are committed to do all we can to 
     assist and work with you throughout this process and will 
     provide additional information to you as it is available.

                               Appendix B


                               memorandum

     To: Postal Operations Employees.
     From: Ben Lusby, Associate Administrator Publications and 
         Distribution.
     Date: September 8, 1995.
     Re: Status Update.
       Many of you have requested an update on the status of the 
     Request For Proposal to outsource Postal Operations. As you 
     know the Committee on House Oversight on June 14, 1995 
     approved the issuance of a request for proposal. This RFP was 
     publicly advertised on August 7, 1995 and a bidders 
     conference to answer bidder's questions was held on August 
     27, 1995. Final bids are due to the Office of Procurement and 
     Purchasing by close of business September 15, 1995.
       There has been a great deal of interest shown by facilities 
     management companies and we expect some very competitive 
     bids. However, we have structured the requirements of the RFP 
     to ensure that the winning bidder runs the ``world class'' 
     operation that the House desires and deserves. As announced 
     on June 14, 1995, the winning bidder will interview all 
     interested Postal Operations employees for possible 
     employment.
       The bids will be analyzed and a final recommendation will 
     be submitted to the Committee on House Oversight by the 
     beginning of November. The new facilities management company 
     is scheduled to begin operations in mid-December. Please let 
     me know if you have additional questions.

               Appendix C.--Committee on House Oversight

                   Resolution.--House Postal Contract


                       Adopted December 13, 1995

       Resolved, that all functions of House Postal Operations 
     shall be terminated as of the close of business on Tuesday, 
     February 13, 1996. The Chief Administrative Officer is hereby 
     authorized to execute the contract with Pitney Bowes 
     Management Services (hereinafter ``Contractor'') as submitted 
     to the Committee on November 7, 1995 as a result of CAO 
     Solicitation 95-R-003 issued in accordance with the Committee 
     Resolution entitled, ``Postal Operations'' adopted on June 
     14, 1995 by the Committee on House Oversight.
       Resolved further, that the Committee on House Oversight 
     directs the Chief Administrative Officer to fully cooperate 
     with the Contractor to implement the mandates of the June 14 
     Resolution by facilitating an orderly transition of 
     operations between the House and the Contractor, and by 
     ensuring that all existing House employees affected by the 
     issuance of the contract shall be given an opportunity to 
     apply for, be interviewed for, and be considered for 
     employment with respect to the contract arising from CAO 
     Solicitation 95-R-003.
       Resolved further, that the Committee directs the CAO to 
     immediately provide sixty days notice to existing House 
     employees affected by the issuance of the contract arising 
     from CAO Solicitation 95-R-003 and further directs the CAO to 
     fully implement the provisions of the Committee Resolution 
     adopted on June 14, 1995 entitled ``Employee Assistance with 
     respect to existing House employees affected by the issuance 
     of the contract arising from CAO Solicitation 95-R-003.
       Resolved further, that the Chief Administrative Officer 
     shall report to the Committee, no later than the tenth day of 
     each month, beginning in January 1996 on the status of 
     implementation of the House Postal Contract.
       Member Seitz, with whom Chairman Nager joins, concurring in 
     the judgment: 1
---------------------------------------------------------------------------
     \1\  Member Hunter also joins in those parts of the 
     concurrence discussing substantial compliance, with the 
     exception of footnote 3.
---------------------------------------------------------------------------
       I agree with the majority opinion's conclusion that the 
     Hearing Officer's decision should be affirmed because 
     appellants received notices which, in combination, 
     substantially complied with WARN Act requirements. The path I 
     followed to this conclusion diverges somewhat from that of 
     the majority, and so I briefly describe my reasoning.
       The doctrine of substantial compliance considers whether a 
     defendant in technical noncompliance with a statutory 
     requirement has taken action sufficient to meet the purposes 
     of the statutory requirement at issue. See, e.g., Hickel v. 
     Oil Shale Corp., 400 U.S. 48 (1970) (annual work assessment 
     requirements of federal mining laws); Kent v. United Omaha 
     Life Ins. Co., 96 F.3d 803, 807 (6th Cir. 1996) (notice 
     requirements in regulations under the Employee Retirement 
     Income Security Act); Donato v. Metropolitan Life Ins. Co., 
     19 F.3d 375, 382-83 (7th Cir. 1994) (same); Straub v. A.P. 
     Green, 38 F.3d 448, 452-53 (9th Cir. 1994) (service of 
     process requirements under Foreign Service Immunities Act). 
     If federal law has been ``followed sufficiently so as to 
     carry out the intent for which [the law] was adopted,'' a 
     defendant is said to have substantially

[[Page S8503]]

     complied. Videotronics v. Bend Electronics, 586 F. Supp. 478, 
     484 (D. Nev. 1984).
       The substantial compliance doctrine is closely related to 
     the de minimis doctrine which refers to a legal violation or 
     harm, ``often but not always trivial, for which the courts do 
     not think a legal remedy should be provided.'' Hessel v. 
     O'Hearn, 977 F.2d 299, 304 (7th Cir. 1992) (citations 
     omitted). See id. (describing substantial performance and de 
     minimis as ``closely related . . . meliorative doctrines''). 
     As is true of the substantial compliance doctrine, 
     ``[w]hether a particular activity is a de minimis deviation 
     from a prescribed standard must, of course, be determined 
     with reference to the purpose of the standard.'' Wisconsin 
     Dept. of Revenue v. Wrigley, 506 U.S. 214, 232 (1992).
       Whether the substantial compliance doctrine applies in a 
     particular context is an ordinary question of statutory and 
     regulatory interpretation. In some contexts, courts have 
     concluded that there was no room for application of the 
     doctrine. See, e.g., United States v. Locke, 471 U.S. 84, 
     100-102 (1985) (filing requirements of Federal Land Policy 
     and Management Act); Bennett v. Kentucky Dept. of Educ., 470 
     U.S. 656, 663-64 (1985) (repayment requirements of Elementary 
     and Secondary Education Act). In other contexts, where the 
     purpose of a federal enactment may be achieved with 
     substantial compliance, courts have permitted the doctrine's 
     application. See, e.g., Hickel v. Oil Shale Corp., 400 U.S. 
     at 100-02; Kent v. United Omaha Life Ins. Co., 96 F.3d at 
     807; Donato v. Metropolitan Life Ins. Co., 19 F.3d at 382-83; 
     Straub v. A.P. Green, 38 F.3d at, 452-53. Unlike the 
     substantial compliance doctrine, the de minimis doctrine is 
     generally presumed to apply to violations of federal 
     statutes, absent some contrary indication from Congress. See, 
     e.g., Wisconsin Dept. of Revenue v. Wrigley, 506 U.S. at 231.
       The first question to consider in this case is whether 
     either the substantial compliance doctrine or the de minimis 
     doctrine applies to the WARN Act requirements incorporated by 
     reference in the CAA, specifically the written notice 
     requirements of section 205(a) of the CAA and section 
     639.7(d) of the Board's Interim WARN Act regulations. I 
     conclude that the WARN Act's written notice requirements are 
     best interpreted to allow application of the substantial 
     compliance and de minimis doctrines in cases in which 
     technically deficient written notice has been provided.
       As explained in the majority opinion, the purpose of the 
     WARN Act is ``to provide workers with adequate advance 
     notification of an employment loss.'' Supra at 6. A WARN Act 
     notice ``provides workers and their families some transition 
     time to adjust to the prospective loss of employment, to seek 
     and obtain alternative jobs and, if necessary, to enter skill 
     training or retraining that will allow these workers to 
     successfully compete in the job market.'' Notice of Adoption 
     of Regulations and Submission for Approval and Issuance of 
     Interim Regulations, 142 Cong. Rec. S271-72 (daily ed. Jan. 
     22, 1996). The regulations require that an employing office 
     provide employees with written notice of several pieces of 
     information, most importantly the date on which that employee 
     will no longer have a job. The superiority of a fully 
     compliant written notice delivered individually is that a 
     writing is best calculated both to convey the information 
     that must be conveyed and to demonstrate beyond question (and 
     litigation) that the required notice has been provided. But 
     there are circumstances in which an omission from the writing 
     will not defeat the purpose of the WARN Act's legal 
     requirements. That purpose is to provide employees with 
     actual notice that they are going to lose their job and when 
     that job loss will take place. Because the purpose of the 
     written notice requirement can be fulfilled when employing 
     offices actually provide affected employees with timely 
     notice of impending job loss, I conclude that both the 
     substantial compliance and the de minimis doctrines are 
     applicable to the WARN Act requirements at issue.2
---------------------------------------------------------------------------
     \2\ Federal courts to have considered the question have 
     implicitly agreed with this conclusion. See supra at 10 
     (citing and describing cases).
---------------------------------------------------------------------------
       That brings me to the difficult question of whether the 
     employing office here, the Office of the CAO of the House of 
     Representatives, substantially complied with section 205(a) 
     of the CAA, and section 639.7(d) of the Board's implementing 
     regulations (or, put differently, whether its violation of 
     the legal requirements was de minimis). When a plant or 
     office closing is to occur, the most important questions for 
     employees and their families are whether they are going to 
     lose their jobs and, if so, when. And, although the CAO 
     provided employees with a timely written notice on December 
     13, 1995, it failed to put the most critical information--the 
     date of certain job loss--in that notice. There is no 
     apparent reason for the omission, and the CAO has provided no 
     explanation that makes sense in light of its admitted 
     knowledge of the relevant date. Indeed, the Committee on 
     House Oversight of the House of Representatives appears to 
     have instructed the CAO immediately to provide employees with 
     the required notice of all relevant information, including 
     the date. See supra at 3.3
---------------------------------------------------------------------------
     \3\ Had the CAO done as the Committee instructed, the CAO 
     would likely have avoided this extended litigation. But I 
     disagree with the majority opinion's suggestion that the 
     actions of the Committee or certain other actions of the CAO 
     on behalf of employees are relevant to the question of the 
     CAO's substantial compliance. The latter actions, i.e., the 
     employee assistance proffered by the CAO, might have been 
     relevant to the CAO's defense of good faith.
---------------------------------------------------------------------------
       The Hearing Officer concluded, however, that the CAO had 
     substantially complied with the notice requirements and that 
     the omissions were ``minor''--i.e., de minimis. He first 
     determined that the CAO had provided a written notice, that 
     the written notice contained two of the four items as to 
     which notice is required, and that, as to a third item 
     (bumping rights), the requirement was inapplicable and no 
     notice was required. With respect to the fourth item--notice 
     of the date of job loss--the Hearing Officer determined that 
     the written notice failed to provide that vital date.
       The Hearing Officer nonetheless determined that the CAO 
     substantially complied with the written notice requirement 
     or, put differently, that any violation was minor or de 
     minimis. He found that: (a) The CAO provided, on September 8, 
     1995, a written notice indicating that employees would lose 
     their jobs due to privatization and stating that 
     privatization was likely to occur by mid-December 1995; (b) 
     The CAO provided on December 13, 1995, a written notice again 
     indicating that employees would lose their jobs due to 
     privatization and that such job loss would occur some time 
     after January 1996; and (c) The CAO convened meetings on 
     December 13, and 14, 1996, at least one of which each 
     employee attended, where the CAO stated repeatedly that 
     February 14, 1996 was the date on which the private 
     contractor would take over House Post Office operations. As 
     to appellant Schmelzer, the Hearing Officer expressly found 
     actual notice of the date of job loss. And as to the 
     appellants in Quick, the Hearing Officer determined that 
     actual notice of the date of job loss was repeatedly given at 
     meetings on December 14, 1996 and that each appellant was 
     present at one of those meetings. The fairest reading of 
     these findings is that the CAO actually provided the Quick 
     appellants with notice of the date of job loss. These factual 
     findings are fully supported on the record.
       Based on these factual determinations, the Hearing Officer 
     concluded that the CAO substantially complied with the WARN 
     Act's legal requirements, and that, in these unique 
     circumstances, the omissions from the written notice were de 
     minimis. I believe that his legal conclusion, based on the 
     facts, is correct. I therefore concur in the judgment 
     affirming his decision and order.

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