failing to provide notice. Not one of those provisions contains language limiting liability based on the date that an employee was laid off. North Star is liable to all the individuals listed in Groups A and B. Moreover, North Star is liable to those employees for the maximum period in the statute because it never provided advance written notice to any employee or any employee representative.
We next address amounts which North Star argues should be deducted from its liability. The first amount is comprised of the wages earned by seven employees who were recalled to work between February 25, 1991, and April 25, 1991. The names of those employees are listed in the affidavit of Harold Olden. The statute provides for the offset of such amounts and the Union concedes that the wages earned by those seven employees should be deducted.
North Star next argues that it is not liable to the employees named in Group C because they were not available for work during the period of violation. The Union agrees.
The final offsets sought by North Star concern workmen's compensation payments, wages paid for work performed on the morning of February 25, 1991, to all employees laid off, and wages paid after February 25, 1991, to all the employees named in Group B. With respect to workmen's compensation, North Star is not entitled to offset those payments because they are not listed in the statute's apparently exhaustive list of excludable amounts. See 29 U.S.C. § 2104(a)(2).
With respect to wages paid on the morning of February 25, 1992, those amounts are not deductible because they were not paid during the period of North Star's violation of the Act. An employer may only deduct from its liability amounts paid during the period of its violation. 29 U.S.C. § 2104(a)(2)(A).
North Star's last theory is that it should be allowed to offset its liability based on wages paid to those named in Group B because they had constructive notice of their impending layoff via the February 25, 1991, layoff. In that argument North Star appears to equate constructive notice with the advanced written notice required in the statute. We are of the view that only written notice satisfies the statute.
The Union is entitled to summary judgment because it has shown an absence of any genuine issue of material fact and that it is entitled to judgment as a matter of law. North Star has failed to support the essential elements of its case on damages. We next address the Union's claims for prejudgment interest and reasonable attorneys' fees.
In its brief in support of its motion for summary judgment on damages, the Union presented authority for the proposition that prejudgment interest may be awarded in a federal labor law case when "the damages from breach of contract are ascertainable with mathematical precision." Glass, Molders Int'l Union v. Owens-Illinois, 758 F. Supp. 962, 975 (D.N.J. 1991)(Gerry, C.J.), aff'd without opinion, 941 F.2d 1201 (3d Cir. 1991). The Union attached to that brief a schedule of interest rates used by the National Labor Relations Board in fixing interest payments for monetary awards granted under the National Labor Relations Act.
North Star has failed to respond to the Union's request for prejudgment interest. In addition to being unopposed, the Union's request for prejudgment interest has merit.
This action was brought pursuant to a federal labor law and the damages are ascertainable with precision. Consequently, we are of the view that the Union is entitled to prejudgment interest based on the rate used on backpay awards in actions brought pursuant to the National Labor Relations Act. The period of the Union's award of prejudgment interest shall run from the date each employee's damages accrued to the date of this order.
The final issue raised in the Union's motion is its request for reasonable attorneys' fees. The Union states that because this case is analogous to a Title VII action our discretion in awarding fees should be guided by Title VII case law. The Union's request for fees is unopposed in that North Star has also failed to respond to it.
However, this case is distinguishable from a Title VII action and in our view the boundaries of our discretion in awarding attorneys' fees are delineated by federal labor law. In such cases the Court of Appeals for the Third Circuit has stated that each party must bear its own expenses unless the party against whom fees are sought has litigated in bad faith, vexatiously, or for oppressive reasons. Glass holders Int'l, infra. (citing Mobil Oil Corp. v. Independent Oil Workers Union, 679 F.2d 299, 305 (3d Cir. 1982)).
The Union is not entitled to attorneys' fees because North Star has not litigated in bad faith, vexatiously, or for oppressive reasons.
NOW, THEREFORE, IT IS ORDERED THAT:
1. The Union's motion for summary judgment on damages is granted.
2. The Union's request for prejudgment interest is granted.
3. The Union's request for attorneys' fees is denied.
4. Counsel shall within 20 days attempt in good faith to agree upon a form of proposed order which is consistent with the stipulation of facts and agreements entered into by the parties and consistent with the background of this order and shall file the same within 30 days of this order.
5. If counsel are unable to agree upon such a form of proposed order, each shall file a form of proposed order within 40 days of this order.
6. Each party may within 50 days from the date of this order file objections to the form of proposed order submitted by opposing counsel. Any such objections shall be limited to the alleged inconsistency with the stipulation of facts and agreements entered by the parties and the background of this order.
MUIR, U.S. District Judge
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