Food and Commercial Workers v. Brown Group, Inc., 517 U.S. 544, 6 (1996)

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Cite as: 517 U. S. 544 (1996)

Opinion of the Court

benefits for each day of the violation.3 Section 2104(a)(5) provides that "[a] person seeking to enforce such liability, including a representative of employees . . . aggrieved under paragraph (1) . . . , may sue either for such person or for other persons similarly situated, or both, [in an appropriate district court]."

Since the union is the "representative of employees . . . aggrieved," it is a person who may sue on behalf of the "persons similarly situated" in order to "enforce such liability." "[S]uch liability" must refer to liability under 2104, since its remedies are exclusive. See 29 U. S. C. 2104(b). Because the section makes no provision for liability to the union itself, any "such liability" sought by the union must (so far as concerns us here) be liability to its employee-members, so long as they can be understood to be "persons similarly situated" for the purposes of the Act. We believe they may be so understood, since each is aggrieved by the employer's failure to give timely notice.

Brown Shoe's alternative construction is unconvincing. It contends that a previous bill would have imposed civil liability on employers who failed to notify the union of a plant

3 102 Stat. 893, as set forth in 29 U. S. C. 2104(a)(1): "Any employer who orders a plant closing or mass layoff in violation of section 2102 of this title shall be liable to each aggrieved employee who suffers an employment loss as a result of such closing or layoff for—

"(A) back pay for each day of violation at a rate of compensation not less than the higher of—

"(i) the average regular rate received by such employee during the last 3 years of the employee's employment; or

"(ii) the final regular rate received by such employee; and "(B) benefits under an employee benefit plan . . . , including the cost of medical expenses incurred during the employment loss which would have been covered under an employee benefit plan if the employment loss had not occurred. "Such liability shall be calculated for the period of the violation, up to a maximum of 60 days, but in no event for more than one-half the number of days the employee was employed by the employer."

549

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