1998 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-30-1998

Ciarlante v. Brown & Williamson

Precedential or Non-Precedential:

Docket 97-1152,97-1174,97-1725

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Recommended Citation

"Ciarlante v. Brown & Williamson" (1998). 1998 Decisions. Paper 97.

http://digitalcommons.law.villanova.edu/thirdcircuit_1998/97
Filed April 30, 1998 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

Nos. 97-1152, 97-1174 and 97-1725 

LOUIS A. CIARLANTE; THOMAS A. MARSHALL, 

INDIVIDUALLY AND ON BEHALF OF A CLASS OF 

INDIVIDUALS 

 Appellants/Cross-Appellees 

 in Appeal No. 97-1174 

v. 

BROWN & WILLIAMSON TOBACCO CORPORATION; 

THE AMERICAN TOBACCO COMPANY; 

AMERICAN BRANDS, INC. 

 Brown & Williamson Tobacco Corporation and 

 The American Tobacco Company, 

 Appellants/Cross-Appellees 

 in Appeal No. 97-1152 and 97-1725 

On Appeal from the United States District Court 

for the Eastern District of Pennsylvania 

(D.C. No. 95-cv-04646) 

Argued Tuesday, November 4, 1997 

BEFORE: BECKER, ROTH and GARTH, Circuit Judges 

(Opinion filed April 30, 1998) 
 John M. Elliott, Esq. 

 Timothy H. Myers, Esq. 

 Frederick P. Santarelli, Esq. (Argued) 

 Elliott, Reihner, Siedzikowski & 

 Egan 

 925 Harvest Drive 

 Union Meeting Corporate Center V 

 Blue Bell, PA 19422 

 Attorneys for Louis A. Ciarlante and 

 Thomas A. Marshall, Individually and 

 on behalf of a Class of Individuals 

 Barry Simon, Esq. (Argued) 

 Christopher J. Moran 

 Simon Higgins & Moran, P.C. 

 1650 Market Street 

 One Liberty Place 

 Philadelphia, PA 19103-7397 

 Attorney for Brown & Williamson 

 Tobacco Corporation; The American 

 Tobacco Company 

OPINION OF THE COURT 

GARTH, Circuit Judge: 

This appeal requires us to decide whether the district 

court properly granted summary judgment to the plaintiff 

class against the defendants. The district court held as a 

matter of law that the defendants' Chester, Virginia 

administrative center was the plaintiffs' "single site of 

employment" under the Worker Adjustment and Retraining 

Notification Act, 29 U.S.C. S 2101(a)(3)(B), and therefore 

awarded damages and attorneys' fees to the plaintiffs. We 

hold that a genuine issue exists as to whether the Chester 

center was the plaintiffs' "single site of employment," so 

that the district court's grant of summary judgment was 

improper. We will reverse and remand. 

I. 

The plaintiffs in this action are a class of over one 

hundred former employees of the American Tobacco 

 2 
Company ("the Company"), who worked throughout the 

United States as traveling salespeople. Officially titled Field 

Sales Representatives ("sales representatives"), the plaintiffs 

were each assigned to a geographical district in which they 

were responsible, along with other sales representatives, for 

selling the Company's products to wholesalers and retailers 

in that district. Altogether, the Company employed over one 

thousand sales representatives, located in 150 different 

districts covering the entire United States. Sales 

representatives were each provided a company car, and 

spent an overwhelming proportion of their time "on the 

road" visiting customers within their district. 

The sales representatives communicated with other 

employees at the Company mostly by telephone. There were 

two primary contacts. First, each sales representative kept 

in close contact with a district sales manager, who, like the 

sales representatives, lived and worked in the designated 

district. Each district sales manager was responsible for 

managing the handful of sales representatives assigned 

within the district; like the sales representatives, most 

district sales managers worked from home, and had no 

other permanent office. The sales representatives' second 

significant contact was with the Company's administrative 

center in Chester, Virginia. Sales representatives called the 

Chester center every day to check messages, and also 

contacted the center regularly to order supplies. 

The events that prompted this lawsuit occurred on 

January 11, 1995, soon after the defendant Brown & 

Williamson acquired the Company from American Brands, 

Inc. On that day, the Company summoned the sales 

representatives to "sales meetings" held across the country. 

At the "sales meetings," Company officials announced to 

the sales representatives that they were being laid off, 

effective immediately. The sales representatives were forced 

to hand over their keys, samples, and distribution lists to 

Company representatives before they were allowed to leave. 

The Company also encouraged the employees to sign 

release forms, which would entitle each employee to a 

week's pay and job counseling services in exchange for a 

waiver of rights to additional benefits. 

 3 
The plaintiffs in this action are employees who did not 

sign the release form. They brought suit in the United 

States District Court for the Eastern District of 

Pennsylvania against Brown & Williamson, American 

Tobacco, and American Brands, Inc. (collectively,"B&W") 

alleging that B&W had violated the Worker Adjustment and 

Retraining Notification Act ("WARN"), 29 U.S.C. SS 2101-09, 

by failing to warn the plaintiffs of their impending layoffs.1 

Enacted in 1988, WARN requires that employers provide 

written notice to those employees who will be subject to a 

"mass layoff " sixty days before the layoff occurs. See 29 

U.S.C. S 2102(a).2 Congress defined a "mass layoff " as "a 

reduction in force which . . . results in an employment loss 

at the single site of employment during any 30-day period 

for . . . at least 50 employees." 29 U.S.C. S 2101(a)(3) 

(emphasis added). The Act entitles affected employees who 

are not notified of an impending "mass layoff" to damages 

from their former employer in an amount equal to back pay 

for each day of the violation, for up to sixty days. See 29 

U.S.C. S 2104(a). 

Following class certification, it became clear that the 

plaintiffs' recovery hinged on whether B&W's action was a 

"mass layoff." Specifically, the central question was whether 

the action had resulted in an employment loss of more than 

fifty employees at one "single site of employment" as 

required by 29 U.S.C. S 2101(a)(3)(B).3 In an order dated 

_________________________________________________________________ 

1. American Brands, Inc. is no longer a party to this action, as all 

claims 

against it were dismissed on December 19, 1995. 

2. 29 U.S.C. S 2102(a) (West Supp. 1998) provides in relevant part: 

 An employer shall not order a plant closing or mass layoff until 

 the end of a 60-day period after the employer serves written notice 

 of such an order-- 

 (1) to each representative of the affected employ ees as of the 

time 

 of the notice or, if there is no such representative at that time, 

to 

 each affected employee; and 

 (2) to the State dislocated worker unit (designat ed or created 

under 

 title III of the Job Training Partnership Act) and the chief 

elected 

 official of the unit of local government within which such closing 

or 

 layoff is to occur. 
3. B&W did not dispute that they had failed to provide the plaintiffs with 

written notice of the impending layoffs. In fact, the record reveals that 

 4 
September 23, 1996, the district court announced that it 

would treat pending discovery applications as crossmotions for summary judgment, focusing on the "single 

site" requirement. The parties responded with both evidence 

and legal argument attempting to show as a matter of law 

that the single site requirement had (or had not) been 

satisfied. 

The sales representatives argued that they were entitled 

to judgment as a matter of law because the Chester,

Virginia administrative center was their "single site of 

employment." The sales representatives offered statements 

by former employees suggesting that the Chester center 

was the primary contact point for sales representatives in 

the field. According to the statements, sales representatives 

received their instructions from and reported to the 

administrative center in Chester. App. 2208-10; App. 1936. 

Each sales representative was required to call Chester every 

day to check messages, which frequently included 

instructions from management left on the sales 

representative's voice mail. App. 1936-37. Sales 

_________________________________________________________________ 

B&W had gone to great lengths to keep the layoffs a secret. The only 

action by B&W that could be construed as any type of notification was 

the mailing of a letter to local government officials the day before the 

layoffs. The top of the letter reads, "NOTICE REQUIRED UNDER THE 

WORKER ADJUSTMENT AND RETRAINING NOTIFICATION ACT." The 

letter continues: 

 This notice is to advise you that The American Tobacco Company 

 ("American Tobacco") will undertake a layoff at its Administrative 

 Service Center located at 13203 North Enon Church Road, Chester, 

 Virginia, 23831. 

 While the number of affected employees has not yet been 

 determined, it is expected that the layoff will affect 

approximately 

 1550 employees at the Chester facility (inclusive of approximately 

 1200 Field Sales employees, located nationwide). 

 American Tobacco will advise affected employees of the layoff 

 commencing January 11, 1995. The date of separation may be 

 immediately upon notification to the affected employee, or, in some 

 cases, may be at a later date. 

App. 1880. 

 5 
representatives also communicated with the Chester center 

to obtain sales materials, supplies, and other items they 

needed to perform their job. App. 2178-79. The sales 

representatives argued that they were entitled to judgment 

because their affidavits proved that the Chester center was 

their "single site of employment." 

B&W's affidavits and arguments pointed to a different 

conclusion. According to B&W, it was entitled to judgment 

as a matter of law because the sales representatives' "single 

site[s] of employment" were the geographical districts where 

they actually worked. B&W maintained that the districts 

were the true hubs of the sales representatives' activities, 

as the local district sales managers were the employees who 

directed, managed, and monitored the sales 

representatives. B&W relied on various sources for support. 

First, they offered the affidavit of Mr. Randy Groonwald, a 

district sales manager from Milwaukee, who stated that his 

sales representatives were assigned work from him, not 

from Chester, Virginia. Groonwald also reported that he 

was responsible for the day-to-day concerns of his sales 

representatives, including hiring, training, job performance 

reviews, and approval of expenses. App. 1017-18. 

Groonwald's statements were supported by B&W's internal 

documents, which showed that supervision of sales 

representatives was the major task of district sales 

managers. App. 1223. B&W also relied upon its official job 

description for the sales representative position, which 

indicated that the sales representatives' primary contact 

within the company was with their district sales managers. 

App. 1226. 

In response to the sales representatives' position that 

Chester was their single site of employment, B&W 

maintained that the Chester center was simply an 

administrative hub through which certain mailings and 

messages authored outside of Chester were sent to the 

sales representatives. Sales representatives were hired, 

trained, and instructed within their district, B&W noted; 

they worked entirely within their district; and they reported 

to their district sales managers within their district. Sales 

representatives did not regularly visit the Chester, Virginia 

center. In fact, named plaintiff Thomas A. Marshall visited 

 6 
the center only twice, on special trips to recognize his 

outstanding sales record, App. 2266, and named plaintiff 

Louis A. Ciarlante never visited Chester at all. App. 2376. 

Accordingly, B&W argued that the districts, rather than the 

Chester center, were the plaintiffs' "single site of 

employment." Because there were fewer than fifty 

employees within each geographic district, B&W claimed 

that its action could not constitute a "mass layoff" under 

29 U.S.C. S 2101(a)(3), and that it was entitled to judgment 

as a matter of law. 

In an order dated November 6, 1996, the district court 

concluded as a matter of law that the Chester center was 

the plaintiffs' single site of employment and entered 

summary judgment in their favor. The district court

reasoned that the voluminous record in the case 

"establishes, without any genuine dispute, that all

instructions, assignments, rules, and orders to the plaintiff 

salesmen emanated from the Chester, Virginia 

headquarters." As a result, the Chester center was the 

plaintiffs' single site of employment. The court recognized 

that the local district sales managers played a role in 

issuing assignments to and receiving reports from the sales 

representatives, but found that the role of the sales 

managers was not significant. "Any contrary view," the 

court explained, "would . . . undermine the purposes of the 

statute. I am confident that Congress did not contemplate 

permitting a company to lay off its entire sales force of 

hundreds of people without being chargeable with having 

achieved a `mass layoff.' "4 

Having found B&W liable, the court next considered the 

damages owed to the sales representatives. The first issue 

was whether the full statutory damage award should be 

reduced by the amount of severance payments that B&W 

had made to the employees following the layoffs. B&W 

contended that the answer was "yes," because 29 U.S.C. 

_________________________________________________________________ 

4. The district court believed that its decision was bolstered by the 

letters 

the Company had sent to local officials on January 10, 1995. See supra 

note 3. The district court opined that the letters "make[ ] clear that the 

defendants themselves had concluded, at the time, that the WARN Act 

did apply to these lay-offs." 

 7 
S 2104(a)(2) directed that damage awards be reduced by 

"any wages paid by the employer to the employee for the 

period of the violations . . . [and] any voluntary and 

unconditional payment by the employer to the employee 

that is not required by any legal obligation." 29 U.S.C. 

S 2104(a)(2). The district court disagreed, holding that the 

damage award should not be reduced because the 

severance pay awards were ERISA payments that B&W was 

legally obligated to pay. 

Second, the court held that the statutory damage award 

of back pay from a sixty day period as directed by 29 U.S.C. 

S 2104(a)(1) was to be calculated based on the pay 

equivalent of sixty actual working days, rather than the 

amount that a salaried employee would earn in a sixty day 

time period. The court thereupon entered an order granting 

summary judgment for the sales representatives. 

B&W responded by submitting a Motion to Alter or 

Amend Judgment and for Reconsideration and 

Clarification. Attached to this motion were additional sworn 

declarations by Company employees. One such employee, 

Kathi Reynolds, stated that when she was a sales 

representative from 1985 to 1989, she sometimes received 

instructions that were mailed through the Chester facility, 

but that in almost every case, the true source of her 

instructions was the Company's executive headquarters in 

either Stamford, Connecticut or Conyers, Georgia. App. 

2462. According to B&W, this affidavit illustrated that the 

district court had misunderstood the plaintiffs' statements 

that the sales representatives had received instructions 

"from" Chester. B&W asked the district court to reconsider 

its decision, in light of the new affidavits and the district 

court's haste in granting summary judgment in favor of the 

sales representatives. 

In a December 18, 1996 order, the district court found 

this argument "disingenuous," and concluded that B&W 

was not entitled to have the court consider the additional 

materials. Citing "an abundance of caution," the court 

nevertheless looked at the new documents, and concluded 

that B&W had presented no triable issues of fact, as the 

motion for reconsideration and new documents "merely 

revisit[ed] arguments previously made and rejected." 

 8 
The court did revise its conclusion concerning damages, 

however. The court held that it had misconstrued the scope 

of United Steelworkers of America v. North Star Steel Co.,5 

F.3d 39 (3d Cir. 1993), and that the North Star case left 

open the question of how to calculate back pay damages 

according to 29 U.S.C. S 2104(a)(1) in the case of salaried 

employees. The district court concluded that the proper 

award of back pay damages for a 60 day period in the case 

of a salaried employee was simply two months's salary. 

On January 28, 1997, the district court entered an order 

calculating a damage award for each of the sales 

representatives in the class of plaintiffs. The total value of 

the judgment was $696,785.44, plus interest from the date 

of the termination. On September 2, 1997, the court

awarded attorney's fees to the plaintiffs pursuant to S 29 

U.S.C. S 2104(a)(6) in the amount of $334,466.30 in fees 

and $26,855.83 in expenses. 

II. 

Summary judgment is appropriate when there are no 

genuine disputes as to any material facts. See Fed. R. Civ. 

P. 56(c). In such a case, a trial is unnecessary because a 

reasonable fact finder could not enter a judgment for the 

nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 

U.S. 242, 248, 106 S. Ct. 2505, 2510 (1986). Accordingly, 

we exercise plenary review, construing all evidence and 

resolving all doubts raised by affidavits, depositions, 

answers to interrogatories, and admissions on file in favor 

of the non-moving party. See SEC v. Hughes Capital Corp., 

124 F.3d 449, 452 (3d Cir. 1997). Our task is to lay out the 

substantive law governing the action, and then in light of 

that law determine whether there is a genuine dispute over 

dispositive facts. See Liberty Lobby, 477 U.S. at 248, 106 S. 

Ct. at 2510. 

III. 

The issue in this case is whether the district court was 

correct as a matter of law that the Chester, Virginia 

administrative center was the plaintiffs' "single site of 

 9 
employment" according to 29 U.S.C. S 2101(a)(3).5 The 

WARN act does not define the phrase "single site of

employment." Congress did, however, expressly delegate to 

the Department of Labor the authority to promulgate

regulations interpreting WARN. See 29 U.S.C.S 2107. These 

regulations must be given "controlling weight unless they 

are arbitrary, capricious, or manifestly contrary to the 

statute." Chevron, U.S.A., Inc. v. Natural Resources Defense 

Council, 467 U.S. 837, 843-44, 104 S. Ct. 2778, 2782 

(1984). 

The regulation applicable to this case appears at 20 

C.F.R. S 639.3(i)(6). It states: 

 For workers whose primary duties require travel from 

 point to point, who are outstationed, or whose primary 

 duties involve work outside any of the employer's 

 regular employment sites (e.g., railroad workers, bus 

 drivers, salespersons), the single site of employment to 

 which they are assigned as their home base, from 

 which their work is assigned, or to which they report 

 will be the single site in which they are covered for 

 WARN purposes. 

20 C.F.R. S 639.3(i)(6) (1989). 

This regulation narrows the inquiry considerably: we 

need only consider whether the Chester, Virginia 

administrative center was the site of employment to which 

the sales representatives were assigned as their home base; 

whether the Chester center was the site from which the 

_________________________________________________________________ 

5. 29 U.S.C. S 2101(a)(3) (West Supp. 1998) states:

 [T]he term "mass layoff" means a reduction in force which-- 

 (A) is not the result of a plant closing; and 

 (B) results in an employment loss at the single si te of employment 

 during any 30-day period for-- 

 (i)(I) at least 33 percent of the employees (exclu ding any parttime 

 employees); and 

 (II) at least 50 employees (excluding any part-tim e employees); 

 or 

 (ii) at least 500 employees (excluding any part-time employees)[.] 

 10 
sales representatives' work was assigned; and whether the 

Chester center was the site to which they reported. If any 

one of these three inquiries can be answered in the

affirmative, then the Chester center is a covered "single site 

of employment." See Teamsters Local Union 413 v. Driver's, 

Inc., 101 F.3d 1107, 1110 (6th Cir. 1996) ("This subpart is 

written in the disjunctive: any one of the alternatives may 

qualify as the definition of `single site.' "). Because at least 

fifty employees lost their jobs following the January 11, 

1995 "sales meetings," a determination that Chester is a 

covered site under WARN as a matter of law would lead us 

to affirm the district court's entry of summary judgment in 

favor of the plaintiffs. See 29 U.S.C. S 2101(a)(3)(B)(i). 

However, if we conclude as a matter of law that Chester, 

Virginia was not the site of employment to which the sales 

representatives were assigned as their home base, nor the 

site from which their work was assigned, nor the site to 

which they reported, then the Chester center is not a 

covered WARN site. Because the plaintiffs have not 

indicated the existence of any other covered sites at which 

fifty or more employees lost their jobs on January 11, 1995, 

the conclusion that Chester is not a covered site would lead 

us to reverse the order of the district court and enter 

summary judgment for B&W. 

Finally, if a genuine issue of material fact exists as to 

whether the Chester center is a covered site for WARN 

purposes, then we must reverse the district court's order 

and remand. 

A. 

First we consider whether the Chester, Virginia 

administrative center is "the single site of employment to 

which [the sales representatives] are assigned as their home 

base." 20 C.F.R. S 639.3(i)(6). The underlying facts here are 

undisputed. Sales representatives spent the great majority 

of their time servicing customers within their geographical 

district. They mostly worked out of their cars, and were in 

frequent contact with their district sales managers, who 

lived within their respective districts and also worked from 

their own homes and cars. Sales representatives did not 

 11 
physically visit Chester, Virginia in the normal course of 

business; however, they did telephone the Chester site on 

a daily basis to check messages and complete 

administrative tasks. 

Whether Chester, Virginia was the sales representatives' 

"home base" depends on our legal construction of the term 

"home base" in the Secretary's regulation. B&W argues that 

an employee's assigned "home base" is the place from 

which the employee physically works on a regular basis. 

Under this interpretation, it is argued that the Chester 

center cannot be the sales representatives' home base. In 

contrast, the sales representatives focus less on the 

employee's whereabouts than on the physical location of 

the employer's major contacts with its employees. 

Accordingly, they maintain that an employee's "home base" 

must be a fixed physical building or structure of some kind 

owned by the employer. Because both the sales 

representatives and district sales managers worked from 

their homes and cars, the sales representatives contend 

that the Chester center must by default be considered the 

employees' "home base." 

We agree with B&W that a traveling employee's "home

base" must at a minimum be a location at which the 

employee is physically present at some point during a 

typical business trip. This follows from the text of 20 C.F.R. 

S 639.3(i)(6), which contrasts "the employer's regular 

employment sites" with the site of employment "to which 

[the employees] are assigned as their home base." We think 

that this language cannot be squared with the sales

representatives's interpretation of "home base," as it 

effectively equates "home base" with a "regular employment 

site." In the context of 20 C.F.R. S 639.3(i)(6), we think that 

the term "home base" refers not to the physical base of the 

employer's operations, as the sales representatives would 

have it, but rather to the physical base of the employee. 

Our construction is consistent with both Teamsters Local 

Union 413 v. Driver's, Inc., 101 F.3d 1107, 1110 (6th Cir. 

1996) and Wiltz v. M/G Transport Services, Inc., 128 F.3d 

957, 961-62 (6th Cir. 1997). The plaintiffs in Driver's, Inc. 

were eighty-five truck drivers who had been discharged 

without warning. Although their former employer's 

 12 
management functions were located in Delaware, Ohio, the 

drivers had each been permanently assigned to one of 

eleven different base terminals in six different states. The 

maximum number of employees who were assigned to any 

one base terminal was eighteen, such that the plaintiffs' 

right to recover hinged upon whether the drivers' "single 

site of employment" was the one base terminal to which 

they were each assigned, or rather the amalgamation of all 

eleven terminals. Addressing the question of which site was 

the truckers' "home base," the Sixth Circuit concluded that 

each base terminal provided the plaintiffs' home base 

because it was the physical location where "[e]ach trucker 

starts and ends his or her workweek." Id. at 1110. 

In Wiltz, the plaintiffs were former crewmen for a towboat 

operator based in Paducah, Kentucky. See Wiltz, 128 F.3d 

at 959. Typically, the crewmen would report to Paducah for 

assignment to the boats, and then embark on a thirty day 

voyage escorting barges throughout the Ohio, Mississippi, 

and Tennessee River Systems, returning in the end to 

Paducah. Following layoffs that prompted a WARN lawsuit, 

the Wiltz court noted (albeit in dicta) that Paducah was the 

crewmen's home base because "80% of the crews physically 

reported to Paducah for assignment to the towboats." Id. at 

962. 

In both Driver's, Inc. and Wiltz, the employees' home 

bases were the sites where they began and ended their 

business trips. Accordingly, these cases are consistent with 

our view that a traveling employee's "home base" must be 

a site that the employee visits during the course of a typical 

business trip. 

Reviewing the record, there is no evidence that any of the 

plaintiffs regularly visited the Chester, Virginia 

administrative center in the ordinary course of their 

business trips. We know that named plaintiff Thomas A. 

Marshall visited the center only twice, on special trips to 

recognize his outstanding sales record, App. 2266, and that 

named plaintiff Louis A. Ciarlante never visited Chester at 

all. App. 2376. From the record as it now stands, we would 

be inclined to hold as a matter of law that Chester is not 

the sales representatives' "home base." However, because 

we are remanding this case to the district court for further 

 13 
factual development, we will not foreclose the factfinder 

below from examining whether the sales representatives 

can prove that some of their number did in fact use the 

Chester center as their "home base" under the legal

standard we have enunciated. 

B. 

We next consider whether the Chester, Virginia 

administrative center was the site "from which [the sales 

representatives'] work [was] assigned." 20 C.F.R. 

S 639.3(i)(6). Our concern here is with the source of the 

"day-to-day" instructions received by the sales 

representatives, notwithstanding "centralized payroll and 

certain other centralized managerial or personnel 

functions." Driver's, Inc., 101 F.3d at 1111 (citing 

International Union, United Mine Workers v. Jim Walter 

Resources, Inc., 6 F.3d 722, 724-26 (11th Cir. 1993)). Given 

the unusual working arrangements that 20 C.F.R. 

S 639.3(i)(6) covers, this legal standard may require a 

developed factual record in order to distinguish the true 

source of the instructions from mere conduits through 

which the instructions passed. We look to the record to 

determine whether a genuine issue of material fact exists as 

to whether the Chester, Virginia center was the source of 

the day-to-day instructions for the sales representatives.6 

The statements offered by the sales representatives

indicate that Chester was the origin of day-to-day 

instructions. Thomas J. Ogorek, who served as a district 

sales manager from August 1993 until January 1995, 

declared that "sales representatives . . . generally received 

instructions and assignments on what to sell our 

customers in letters and memos . . . . [sent] by mail from 

_________________________________________________________________ 

6. Although the district court appears to have considered the documents 

submitted along with B&W's motion for reconsideration, we will respect 

the district court's explicit finding that B&W was not entitled to such 

review. Accordingly, we will limit review to the record as it existed at 

the 

time of the district court's consideration of the cross-motions for 

summary judgment. See DeLong v. Raymond Int'l, Inc., 622 F.2d 1135, 

1140 (3d Cir. 1980). On remand, however, the district court will be able 

to include these additional documents as part of the record. 

 14 
our Chester Office." App. 1936. Similarly, the plaintiffs offer 

the declaration of Marc Lowery, who worked at the Chester 

center from 1986 until 1995. Lowery reported that "[t]he 

Chester office supplied the [daily instruction] information, 

and was the engine for the field's activity. We supplied what 

to do, where to do it, and the materials for doing it." App. 

2217. Lowery reported that it was his responsibility 

 to coordinate and issue, out of the Chester Office, all 

 releases, bulletins and instructions to the field sales 

 organization, including the field sales representatives 

 and the district sales managers. These included the 

 day-to-day instructions, assignments and procedures 

 to be followed by the field sales representatives and 

 district sales managers. 

 . . . . 

 It was through these letters and instructions coming 

 from the Chester Office that field salespersons were 

 told what specific products management wanted them 

 to sell and promote and how they were to do it through 

 specific promotional strategies that they must use. 

App. 2209-10. 

B&W responds with statements indicating that the 

Chester, Virginia site was not the source of day-to-day 

instructions. Central to this response is the statement of 

Randy Groonwald, a former district sales manager from 

Wisconsin, who reported that the sales representatives in 

his district "were assigned work . . . by me . . . [and] were 

not assigned work by anyone in Chester, Virginia." App. 

1018. Groonwald also verified the accuracy of B&W's

representation that instruction and development of sales 

representatives was a district sales manager's primary task, 

and also that it was part of the sales manager's job to 

manage sales productivity and allocate sales efforts. App. 

1017-18; App. 1223. In addition, B&W relies on the 

deposition of named plaintiff Thomas A. Marshall, a former 

sales representative. Marshall was asked, "[d]id you ever 

take any orders from anyone at the administrative center 

down in Chester, Virginia?" His response: "No, I didn't." 

App. 2270. 

 15 
These conflicting statements force us to conclude that 

there is a genuine issue of material fact concerning whether 

the Chester, Virginia center was the location from which 

work was assigned to the sales representatives. If we were 

to credit the statements of Ogorek and Lowery over those of 

Groonwald and Marshall, then we would conclude that

Chester is the location from which work was assigned; if we 

were to credit Groonwald and Marshall over Ogorek and 

Lowery, then we would conclude that it was not. The

summary judgment standard forbids us from making these 

judgments, however. See Liberty Lobby, 477 U.S. at 249 

("[A]t the summary judgment stage the judge's function is 

not himself to weigh the evidence and determine the truth 

of the matter but to determine whether there is a genuine 

issue for trial."). Accordingly, we hold that this is a material 

issue for trial. 

C. 

Finally, we consider whether there is an issue as to 

whether Chester was the site "to which [the sales 

representatives] report[ed]." 20 C.F.R. S 639.3(i)(6). This 

inquiry focuses on the location of the personnel who were 

primarily responsible for reviewing sales reports and other 

information sent by the sales representatives, in order to 

record sales, assess employee performance, develop new 

sales strategies, and the like. 

Reviewing the record, we hold that there is a genuine 

issue of fact concerning whether the Chester center was the 

site to which the sales representatives reported. The 

plaintiffs have offered statements indicating that Chester 

was the primary audience for the sales representatives' 

reports. For example, Mark Lowery reported that "[t]he 

Chester office is where all reported information flowed and 

. . . where it all ended up." App. 2217. Similarly, Thomas 

Ogorek declared that "[f]ield sales representatives . . . 

reported all . . . employment-related information to the 

Chester office." App. 1936. Ogorek acknowledged that 

district sales managers such as himself sometimes played 

a role in the reporting process, but stated that his role was 

secondary: "I would facilitate the Chester office by collecting 

the information and forms from the . . . sales 

 16 
representatives, and [by] then funneling them to the 

Chester office." Id. 

In contrast, B&W has offered statements indicating that 

the sales representatives reported primarily to the district 

sales managers. Plaintiff Thomas A. Marshall indicated at 

his deposition that he submitted all summaries of his sales 

performance to his district sales manager, and that he 

regularly left messages for his district sales manager on the 

manager's voicemail. App. 2267-68. District sales manager 

Randy Groonwald reported that the sales representatives in 

his district "hand-delivered or mailed to me daily call 

summaries detailing their activities [every] week," and that 

they "did not report to anyone in Chester, Virginia." App. 

1018. Groonwald also stated that the company's official job 

description for the sales representative position was 

accurate in its statement of the major contacts that sales 

representatives would have with other company employees. 

App. 1017. The description states that the major contact 

was "[f]requent contact with District Sales Manager to keep 

him/her informed of all developments," and does not

mention contact with the Chester center. App. 1226.

These statements submitted by the sales representatives 

and B&W are in conflict. According to the former, the sales 

representatives reported to the Chester, Virginia 

administrative center; according to the latter, the sales 

representatives reported to their local district sales 

managers. Thus, there is a genuine issue of material fact as 

to whether the Chester site was the location to which the 

sales representatives reported, precluding resolution on 

summary judgment.7 

_________________________________________________________________ 

7. In his dissent, Chief Judge Becker takes issue with our determination 

that the present record presents genuine issues of material fact that 

preclude resolution on summary judgment. According to Chief Judge 

Becker, "th[e] evidence is not in conflict, but instead commands the 

conclusion that the Chester center was the ultimate site from which the 

plaintiffs' work was assigned and to which they reported." Dissenting Op. 

at 26. 

As we see it, Chief Judge Becker's attempt to harmonize statements 

that on their face are in conflict is contrary to our duty to view 

inferences from the underlying facts in the light most favorable to the 

 17 
IV. 

In summary, we conclude that a genuine issue of 

material fact exists as to whether the Chester, Virginia 

administrative center was a "single site of employment" 

according to 20 C.F.R. S 639.3(i)(6) and 29 U.S.C. 

S 2101(a)(3)(B). We will therefore reverse the order of the 

district court granting the sales representatives' motion for 

summary judgment and denying B&W's motion for the 

same, and remand for proceedings consistent with the 

foregoing opinion. 

On remand, the parties and the district court should 

focus attention on the precise questions of whether the 

Chester, Virginia center was the representatives' home 

base, the site from which the sales representatives' work 

was assigned, and the site to which they reported. The 

Company's own actions in characterizing its "notice" sent to 

local government officials as being required under WARN, 

and its suggestion that the sales representatives were 

considered "employees at the Chester facility,"8 will 

undoubtedly be relevant and material to these inquiries, as 

will the Company's conduct on January 11, 1995. 

_________________________________________________________________ 

party opposing summary judgment. See Matsushita Elec. Indus. Co. v. 

Zenith Radio, 475 U.S. 574, 587, 106 S. Ct. 1348, 1356 (1986) (citing 

United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S. Ct. 993, 994 

(1962)). That we might be able to hypothesize a theory that could 

conceivably be consistent with what certain declarants intended to say 

(but did not) is neither our function nor our concern. Rather, our charge 

is to determine whether "the evidence is such that a reasonable jury 

could return a verdict for the nonmoving party." Anderson v. Liberty 

Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510 (1986). We believe 

that the answer to that inquiry is yes, and that it is not our role as an 

appellate court to go further. See Ingersoll-Rand Fin. Corp. v. Anderson, 

921 F.2d 497, 504 (3d Cir. 1990) ("This court is not a factfinding 

tribunal."). 

Upon review of the entire record, we are constrained by our 

established jurisprudence to return this proceeding to the district court 

so that the facts bearing on the "single site" question can be developed 

at trial. 

8. See supra note 3. 

 18 
Given the unorthodox employment arrangements at issue 

in this case, conclusory statements that the plaintiffs were 

or were not assigned work "from" Chester, and that they 

did or did not report "to" Chester, will generally prove 

inadequate. The problem with such statements is that in 

our era of modern telecommunications, it is often necessary 

to distinguish the ultimate origin and destination of 

information from mere conduits through which the 

information has passed. An instruction may originate in 

one location, be routed electronically through another, be 

stored on a machine in a third, and then be received by an 

individual located in a fourth. In an unhelpful sense, it can 

be said that the instruction was assigned "from" any of the 

first three locations, and that it was sent "to" any of the 

latter three. Conclusory statements made in this context 

are likely to interfere with the ability of district courts to 

enter summary judgment, as they will lead to facially 

contradictory factual assertions. To avoid this problem in 

the future, we emphasize that we interpret 20 C.F.R. 

S 639.3(i)(6) to focus not on the formalities of where certain 

machines were located, but rather on where the people 

were who were ultimately responsible for creating and 

receiving the information. On remand, the district court 

should focus its inquiry accordingly. 

V. 

In remanding the "single site" issue to the district court, 

it is not inappropriate for this court to provide guidance to 

the district court on the question of damages. See, e.g., 

Advanced Medical, Inc. v. Arden Med. Sys., Inc., 955 F.2d 

188, 200 (3d Cir. 1992). In particular, we feel compelled to 

consider two questions that were briefed and argued fully 

before us. These questions are 1) whether the district court 

erred in holding that the proper baseline measure of 

damages was two months' salary, and 2) whether the 

district court correctly held that the severance payments 

paid by B&W to the sales representatives should not be 

subtracted from the damage award. Both are legal issues 

upon which we exercise plenary review. 

 19 
A. 

The WARN Act specifies that any employer who violates 

the Act "shall be liable to each aggrieved employee . . . for 

. . . back pay for each day of violation at a rate of 

compensation not less than the higher of [either] the 

average regular rate received by such employee during the 

last 3 years of the employee's employment [or] the final 

regular rate received by such employee." 29 U.S.C. 

S 2104(a)(1) (West Supp. 1998). This statute requires us to 

establish the number of days in a given violation, and then 

multiply that number by an employee's regular rate of pay 

per day, in order to arrive at a starting point for the damage 

award owed to each aggrieved employee.9 

In United Steelworkers of America v. North Star Steel Co., 

5 F.3d 39 (3d Cir. 1993), we interpreted only thefirst part 

of this formula.10 In that case, we held that the number of 

days in a given violation period was the number of calendar 

days in the violation period, rather than the number of 

actual work days.11 Thus, in a case where there was no 

_________________________________________________________________ 

9. This statute provides a starting point because the resulting figure may 

then be modified by additional considerations as directed by 29 U.S.C. 

S 2104(a)(1)(B) and 29 U.S.C. S 2104(a)(2)-(7). 

10. Judge Seitz, writing for the court, stated the issue in North Star as 

follows: 

 The sole issue appealed by defendant is the number of days for 

 which it must pay damages to its aggrieved employees under Section 

 2104(a)(1)(A) of WARN. The district court interpreted that section 

to 

 require that defendant pay damages for each calendar day within 

 the violation period. Defendant argues that Section 2104(a)(1)(A) 

 does not require it to pay damages to an aggrieved employee for any 

 day within the violation period that would not have been a regular 

 workday for that employee. 

 5 F.3d at 41. 

11. We recognize that some courts have criticized North Star and have 

rejected its analysis. See Saxion v. Titan-C-Manufacturing, Inc., 86 F.3d 

553, 559 (6th Cir. 1996); Frymire v. Ampex Corp., 61 F.3d 757, 772 

(10th Cir. 1995); Carpenters District Council v. Dillard Dept. Stores, 15 

F.3d 1275, 1283-86 (5th Cir. 1994). However, we are bound to adhere to 

our prior precedents. See Third Circuit Internal Operating Procedures 

9.1. 

 20 
warning prior to the plant closing or mass layoff, we have 

held that an employer would be liable for an award covering 

the full 60 day period specified as a maximum violation 

period in the statute, rather than a shorter period. See id. 

at 42-43; 29 U.S.C. S 2104(a)(1). Because the sales

representatives here were obviously given no warning prior 

to their layoffs, an application of North Star to our case 

directs the conclusion that their damages must be 

calculated using a 60 day violation period. 

The next question we must answer is how to determine 

an employee's regular rate of pay per day. Because the 

sales representatives were salaried employees, we must 

determine how to convert the given annual salary rate into 

a daily rate of pay. The parties offer competing 

methodologies. The sales representatives contend that 

under North Star we must divide the annual salary by the 

number of days the sales representatives actually worked in 

a given year. Because the sales representatives were not 

expected to work weekends or holidays, they claim that the 

district court's damage award of two months' salary, by 

eliminating weekends and holidays, represented back pay 

for only about 40 actual working days (60 days minus 

weekends and holidays), rather than the full 60 actual 

working days mandated by North Star. 

B&W disagrees with the sales representatives' approach, 

and insists that the daily rate should be calculated by 

dividing the annual salary of each representative by 365, 

the number of days in a year. According to B&W, North Star 

establishes that the regular daily rate is the pay for each 

actual working day only for hourly employees. Because 

salaried employees such as the sales representatives are 

exempt under the Fair Labor Standards Act and may be 

forced to work overtime and weekends, B&W argues that a 

different approach is warranted in the case of salaried 

employees. 

As an initial matter, we note that our North Star 

precedent was silent as to whether the plaintiffs in that 

case were hourly or salaried employees of North Star Steel 

Company. Indeed, North Star offers no guidance on how to 

convert to a daily rate, either from an annual rate (in the 

case of salaried employees) or from an hourly one (in the 

 21 
case of hourly employees). The North Star court expressly 

declined to address this matter, as the parties in that case 

had stipulated to the daily rate and had asked the court 

only to decide the number of days in the violation period. 

See 5 F.3d at 43, 43 n.7. Thus, the sales representatives 

misconstrue North Star when they claim it supports their 

approach to calculating a daily rate, and B&W does the 

same when it attempts to distinguish it on the basis, 

unstated in the opinion, that the employees in that case 

were paid on an hourly basis. 

After examining the arguments raised by the parties, we 

agree with B&W -- and the district court -- that the proper 

way to convert an annual salary rate into a daily rate is 

simply to divide the annual salary by the number of days 

in a year. We believe that this approach best serves the 

Congressional intent because it reflects the reality that a 

salaried employee is generally hired to perform a particular 

task, regardless (within reason) of the time required to 

complete the task. Indeed, to attempt to measure how 

many days a salaried employee "actually works" in a given 

year is to engage in needless abstraction. What does it 

mean to "work a day"? Has an employee who has opted to 

work twelve hours per day for four days per week worked 

fewer "days" than another who works eight hours per day 

for six days per week? We leave these questions for the 

philosophers. 

Accordingly, we hold that the regular daily rate of a 

salaried employee is the employee's annual salary divided 

by the number of days in a year.12 

B. 

The final issue we address is whether the district court 

correctly held that the severance payments made by B&W 

_________________________________________________________________ 

12. The district court's calculations based on the equivalent of two 

months' salary was almost, but not quite, correct. Because we normally 

base an annual calculation on 365 days, we think it is the better 

practice for the district court to divide an employee's annual salary by 

365, and then multiply that rate by number of the days of the violation 

period. 

 22 
to the sales representatives pursuant to the Company's 

ERISA plan should not be subtracted from the damage

figures. B&W argues that these payments should have been 

subtracted from the damage figure because they 

constituted "wages" according to 29 U.S.C. S 2104(a)(2)(A).13 

For evidence, B&W points to the fact that the severance 

payments were labeled "salary continuation" payments, and 

that they matched the wages that B&W paid when the sales 

representatives were working. 

We find B&W's argument to be without merit. The 

severance payments made by B&W are not "wages" as 

contemplated by 29 U.S.C. S 2104(a)(2)(A), but rather ERISA 

payments that the company was already legally obligated to 

make regardless of the work the sales representatives 

performed. The fact that these payments happened to be 

labeled "salary continuation" benefits, and that they 

happened to be set at the level of the sales representatives' 

wages, is irrelevant. The payments made by B&W were not 

made in exchange for work that the sales representatives 

would have performed during the period of the violation. 

Accordingly, they are not "wages" according to 29 U.S.C. 

S 2104(a)(2)(A), and the district court was correct in 

refusing to subtract these amounts from the damages

award. See 29 U.S.C. S 2104(a)(1)(B) (expressly including 

_________________________________________________________________ 

13. 29 U.S.C. S 2104(a)(2) (West Supp. 1998) states: 

 The amount for which an employer is liable under paragraph (1) 

 shall be reduced by-- 

 (A) any wages paid by the employer to the employe e for the period 

 of the violation; 

 (B) any voluntary and unconditional payment by th e employer to 

 the employee that is not required by any legal obligation; and 

 (C) any payment by the employer to a third party or trustee (such 

 as premiums for health benefits or payments to a defined 

 contribution pension plan) on behalf of and attributable to the 

 employee for the period of the violation. 

 In addition, any liability incurred under paragraph (1) with 

respect 

 to a defined benefit pension plan may be reduced by crediting the 

 employee with service for all purposes under such a plan for the 

 period of the violation. 

 23 
ERISA benefits in WARN damages calculations); Tobin v. 

Ravenswood Aluminum Corp., 838 F. Supp. 262, 273 n.17 

(S.D.W.Va. 1993). 

If, after remand, the plaintiffs prevail in this action, the 

damages must be calculated accordingly. 

VI. 

We hold that a genuine dispute exists concerning 

whether the Chester, Virginia administrative center is a 

single site of employment covered by WARN. Accordingly, 

we will reverse the January 28, 1997 order of the district 

court entering summary judgment for the plaintiffs, and 

will remand for proceedings consistent with the foregoing 

opinion. As the sales representatives are no longer a 

"prevailing party" according to 29 U.S.C. S 2104(a)(6), we 

must also vacate the order of the district court dated 

September 2, 1997, which had awarded attorney's fees to 

the plaintiff class. 

 24 
BECKER,* Chief Circuit Judge, concurring and dissenting. 

I join in Part V of the majority opinion which provides 

guidance to the district court on the question of damages. 

I also subscribe to the majority's conclusion that the 

determination of plaintiffs' "single site of employment" is 

governed by 20 C.F.R. S 639.3(i)(6). Nonetheless, I am 

constrained to dissent from Parts III and IV of the majority 

opinion since I believe that, under the legal precepts 

announced therein, the Chester center was clearly the 

plaintiffs' single site of employment, and that there is no 

genuine issue of material fact on that question. I would 

therefore affirm the district court's order granting the 

plaintiffs' motion for summary judgment on liability. 

I. 

It will be useful to commence the discussion of the

liability issue by rescribing the guidance that the majority 

imparts to the district court at the close of its liability 

discussion. 

 Given the unorthodox employment arrangements at 

 issue in this case, conclusory statements that the 

 plaintiffs were or were not assigned work "from" 

 Chester, and that they did or did not report "to" 

 Chester, will generally prove inadequate. The problem 

 with such statements is that in our era of modern 

 telecommunications, it is often necessary to distinguish 

 the ultimate origin and destination of information from 

 mere conduits through which the information is 

 passed. 

 * * * 

 To avoid this problem in the future, we emphasize that 

 we interpret 20 C.F.R. S 639.3(i)(6) to focus not on the 

 formalities of where certain machines were located, but 

 rather on where the people were who were ultimately 

 responsible for creating and receiving the information. 

 On remand, the district court should focus its inquiry 

 accordingly. 

_________________________________________________________________ 

*Honorable Edward R. Becker, United States Circuit Judge for the Third 

Circuit, assumed Chief Judge status on February 1, 1998. 

 25 
Maj. Op. at 19 (emphasis added). I agree with the majority 

that in applying 20 C.F.R. S 639.3(i)(6) to this case, a court 

must be careful to distinguish "mere conduits" from those 

people "ultimately responsible for creating and receiving the 

information" from the sales representatives. I dissent 

essentially because I believe that the majority has failed to 

faithfully apply its own precepts. 

If the majority had done so, it would have been compelled 

by the evidence to conclude, as the district court already 

has, that: 

 The record in this case establishes, without any 

 genuine dispute, that all instructions, assignments, 

 rules, and orders to the plaintiff salesmen emanated 

 from the Chester Virginia administrative headquarters. 

 [It is not] significant that, to some extent, specific 

 assignments and instructions were issued by way of 

 the district managers, or that plaintiffs' reports to the 

 administrative headquarters were funneled through 

 their district managers. 

Ciarlante v. Brown & Williamson Tobacco Corp., No. 

CIV.A.95-4646, 1996 WL 65448, *2 (E.D. Pa. Nov. 6, 1996) 

(emphasis added). The highlighted portion of the district 

court opinion reflects the uncontroverted evidence that both 

the sales representatives and the sales managers reported 

back to the Chester center from which they received their 

assignments and from which all of their day to day needs 

were handled. In other words, the evidence shows that the 

sales managers acted as conduits between the Chester 

center and the sales representatives. It is only by ignoring 

this evidence, and hence its own admonition to look to who 

was "ultimately responsible for creating and receiving the 

information", that the majority can conclude that a genuine 

issue of material fact is raised by evidence that the sales 

representatives received instructions from and reported to 

both the Chester center and their sales managers. 

As I will show, this evidence is not in conflict, but instead 

commands the conclusion that the Chester center was the 

ultimate site from which the plaintiffs' work was assigned 

and to which they reported. Since I believe that the 

evidence is so clear that the Chester center was the site 

 26 
from which plaintiffs' work was assigned and the site to 

which they reported, I do not deal with whether the Chester 

center was also their "home base" as that phrase is used in 

20 C.F.R. S 639.3(i)(6). 

A. 

I turn first to whether the Chester center was the site 

from "which [the sales representatives'] work [was]

assigned." 20 C.F.R. S 639.3(i)(6). The majority 

acknowledges that there is abundant evidence that Chester 

was the source of plaintiffs' day to day assignments. See 

Maj. Op. at 14-15. However, the majority finds a genuine 

issue of material fact on the basis of two pieces of evidence 

that "conflict" with this view. The first is the statement of 

Randy Groonwald, a former sales manager in Wisconsin, 

that the sales representatives in his district "were assigned 

work . . . by me . . . [and] were not assigned work by 

anyone in Chester, Virginia." App. 1018. The second is the 

following snippet from the deposition of Thomas A. 

Marshall, a named plaintiff, and former sales 

representative: 

 Q. Did you ever take any orders from anyone at the 

 administrative center down in Chester, Virginia? 

 A. No, I didn't. 

App. 2270. 

As I will show, however, Groonwald's statement conflicts 

with the view that Chester was the ultimate source of the 

sales representatives' assignments only if one ignores, as 

the majority apparently has, the uncontroverted evidence 

that the Chester center was the source of assignments for 

both the district sales managers and the sales 

representatives. Marshall's testimony, when placed in 

context, not only does not create a genuine issue of 

material fact, but strongly counsels in favor of summary 

judgment for the plaintiffs. 

1. 

Marc Lowery and Dwight Hughes, former employees at 

the Chester center, described the process by which 

 27 
assignments were distributed to American Tobaccofield 

sales personnel. Lowery declared that: 

 [My job was] to coordinate and issue, out of the 

 Chester office, all releases, bulletins and instructions 

 to the field sales organization, including the field sales 

 representatives and the district sales managers. These 

 included the day-to-day instructions, assignments and 

 procedures to be followed by the field sales

 representatives and district sales managers.

 * * * 

 It was through these letters and instructions coming 

 from the Chester office that field salespersons were told 

 what specific products management wanted them to 

 sell and promote and how they were to do it through 

 specific promotional strategies that they must use. 

 These instructions in the form of "Sales Coverage" 

 letters were regularly issued from the Chester office 

 every five (5) to eight (8) weeks. 

App. 2209-10. (emphasis added). 

Similarly, Hughes stated that: 

 Sales representatives and district sales managers 

 received their instructions and assignments in the form 

 of written memos or letters that we called `field sales 

 information,' `sales campaign,' or `sales coverage' 

 letters. These instructions and assignments were 

 generally issued in mass mailings [from the Chester 

 Office]. 

... 

 [These letters] told the sales representatives and district 

 sales managers what to sell and how to sell it. 

App. 2186. (emphasis added). 

As the foregoing makes clear, Groonwald's statement that 

the sales representatives in his district "were assigned work 

. . . by me . . . [and] were not assigned work by anyone in 

Chester, Virginia" is easily reconciled with the evidence that 

the Chester center was the ultimate source of all of 

plaintiffs' assignments. The fact is that nowhere in 

 28 
Groonwald's affidavit does he contradict the evidence that, 

like all sales mangers, he received the day to day 

assignments that he gave to his sales representatives from 

the Chester office. Thus, at most, Groonwald's affidavit 

indicates that he served as a conduit between Chester and 

his sales representatives. As the majority noted, mere 

conduits must be disregarded in the effort to determine the 

ultimate source of plaintiffs' day to day assignments. 

2. 

The majority also relies on the following portion of 

Thomas Marshall's deposition: 

 Q. Did you ever take any orders from anyone at the 

 administrative center down in Chester, Virginia? 

 A. No, I didn't. 

This excerpt, when returned to its proper context, provides 

no support for remand. 

First, a review of the testimony preceding the excerpt 

makes clear that when Marshall stated that he did not 

receive instructions from anyone at Chester, he simply 

meant that he did not receive instructions from any

particular person at Chester: 

 Q. You didn't answer my question. Who in Chester, 

 Virginia did you report to? 

 A. Well to the company itself. 

 Q. So there is no person that you reported to there? 

 A. There is no person. 

 Q. So you did not have a boss in Chester, Virginia; is 

 that right? 

 A. Well, there's lots of bosses in Chester, Virginia. 

 Q. Was there a particular person, a boss that told you 

 what to do in Chester, Virginia, that you -- 

 A. No. 

 Q. -- can identify today? 

 29 
 A. No. 

App. 2260. 

More fundamentally, the overall content of Marshall's 

testimony unequivocally supports the view that the sales 

representatives received their assignments from the Chester 

center. Nowhere is the imprudence of the majority's reliance 

on Marshall's testimony to preclude summary judgment 

more in evidence then in the following exchange: 

 Q. You make a distinction between supervising and 

 reporting; is that right? 

 A. Yes, I think I do. 

 Q. Now, explain that to me, in your own words. 

 A. Well, I believe that there were supervisors, 

 supervising the sales reps in the field. But I think 

 that the sales reps, we were instructed by the 

 [Chester] office, and the office seemed to have full 

 control of us. Anything we did out there seemed to 

 relate to the office. I could not get hold of Mr. 

 Ogorek [his sales manager] if I wanted to, except 

 on voice mail. 

 Tom Ogorek didn't tell me what to do out there in 

 the field. I was sent a campaign letter from Chester, 

 Virginia stating what I was to do, and how long I 

 was to do it, how much I was to spend, and the 

 brands I was to work. They made the changes in 

 the field. If there was an executive order out there 

 changing our field operation, it came from voice 

 mail. 

App. 2260. (emphasis added) 

In short, none of the evidence relied on by the majority 

conflicts with the view that the ultimate source of the sales 

representatives' assignments was the Chester center. 

B. 

While a determination that the plaintiffs' work was

assigned from the Chester center is, by itself, a sufficient 

basis on which to affirm the district court, see Maj. Op. at 

 30 
10-11, I also believe that the majority errs in concluding 

that there is a genuine issue of material fact as to whether 

the Chester center was the site to "which [the sales 

representatives] report[ed]." 20 C.F.R.S 639.3(i)(6). The 

majority reaches this conclusion by finding a conflict 

between, for example, the statement of Mark Lowery, who 

worked at the Chester center from 1986 to 1995, that "[t]he 

Chester office is where all reported information flowed and 

. . . where it all ended up" and the statement of Randy 

Groonwald that the sales representatives in his district 

"hand-delivered or mailed to me daily call summaries 

detailing their activities [every] week," and that they "did 

not report to anyone in Chester, Virginia." However, it is 

only by ignoring the import of evidence critical to its inquiry 

-- evidence that the sales representatives reported to 

Chester through the sales managers -- that the majority is 

able to find a conflict between these statements. 

The role of the sales managers in the American Tobacco 

"reporting process", is best summarized by Joseph Pierce, 

the former head of Sales Audit and Analysis for American 

Tobacco: 

 I understand that in earlier years the original expense 

 report forms were mailed directly to the Chester office 

 from the homes of each field sales representative, 

 which resulted in our receiving a thousand or so 

 separate envelopes from all over the country. 

 Eventually, we used the district sales managers to 

 collect the original report forms from the field sales 

 representatives in their group, and the district sales 

 managers would send the originals to the Chester 

 office, which resulted in our receiving only about 150 

 or so envelopes (the number of district sales managers) 

 from fewer locations. 

 In this regard the district sales manager assisted the 

 Chester office, to the extent they eyeballed the forms, 

 unstapled papers, matched the receipts to the proper 

 form, and otherwise organized the paperwork in a form 

 that made it easier for our staff in the Chester office to 

 review and analyze each of the approximately 1,000 

 field sales representative's expense reports and 

 paperwork. Even after we started using the district 

 31 
 sales managers to funnel the paperwork from the field 

 to the Chester Office, it was still the Chester Office 

 which reviewed and analyzed the field sales 

 representatives' expense reports and approved for 

 processing (or disapproved) the reports. 

App. 2202- 03. (emphasis added). 

Pierce's statement is confirmed by other evidence that 

makes clear that all of the plaintiffs' reports (be they sales 

or expense reports) ultimately flowed to the Chester center, 

and that, to the extent that the district sales managers 

helped funnel the information from the field, they were 

assisting and facilitating the work of the Chester center. 

Based on this understanding of the American Tobacco

"reporting process", I believe that there is no genuine issue 

of fact that the sales managers were merely conduits 

through which the plaintiffs reported to the Chester center, 

and thus that the Chester center was the site to which the 

plaintiffs' reported. I would affirm the district court on this 

basis as well.1 

C. 

Out of an abundance of caution, I address the 

contention, raised by the defendants, that the Chester 

center itself was just a conduit since the assignments that 

it sent to the field personnel and the reports that it received 

were passed through it to the executive offices of American 

Tobacco located in Stamford, Connecticut. The majority 

does not focus on this possible view of the evidence and 

instead frames the choice of plaintiffs' single site of 

_________________________________________________________________ 

1. I am not sure what to make of the majority's statement at the outset 

of this section that its "inquiry focuses on the location of the personnel 

who were primarily responsible for reviewing[the plaintiffs' reports]." 

Maj. Op at 16 (emphasis added). While I believe that the personnel at the 

Chester center were both primarily and ultimately responsible for 

reviewing the reports, I am uncertain as to how much of the majority's 

analysis turns on a distinction between these two terms -- or even 

whether the shifting terminology is intentional. At all events, I believe 

that this inconsistency should not affect the majority's instruction to 

the 

district court to focus its inquiry on remand on those "ultimately 

responsible for creating and receiving the information." 

 32 
employment as being between the Chester center and the 

geographical districts in which the plaintiffs' worked. 

However, I address this argument, because the defendants 

may attempt to revive it on remand. 

While there has been insufficient factual development for 

us to determine whether in fact the Stamford office was the 

location "of the people who were ultimately responsible for 

creating and receiving the information" from the plaintiffs, 

I do not believe that such development is necessary to the 

disposition of this case. Even if the defendants were to 

succeed in showing that the Stamford office, rather than 

the Chester center, was the plaintiffs' single site of 

employment, the defendants would still be liable under the 

WARN Act, as a matter of law, since the "mass layoff" 

would still have resulted "in an employment loss at the 

single site of employment . . . for . . . at least 50 

employees." See 29 U.S.C. S 2101(a)(3)(B). 

D. 

Before concluding, I must consider the broader, policybased aspect of the issue. This is the first time that a court 

has been asked to apply 20 C.F.R. S 639.3(i)(6) to determine 

the single site of employment for a geographically dispersed 

workforce that does not physically report to any site of 

employment at any time. Cf. Wiltz v. M/G Transport 

Services, Inc., 128 F.3d 957 (6th Cir. 1997) (issue was 

whether separate towboats on which plaintiffs lived during 

30 day assignments or defendant's main office to which 

over 80% of the crews physically reported for assignments 

to towboats was single site of employment pursuant to 20 

C.F.R. S 639.3(i)(6)); Teamsters Local Union 413 v. Driver's, 

Inc., 101 F.3d 1107 (6th Cir. 1996) (issue was whether 

eleven separate trucking terminals to which plaintiffs 

physically reported could be combined to constitute one 

single site of employment under the Act). 

The majority observes that the employment arrangement 

at issue is "unorthodox." See Maj. Op. at 19. I take this to 

mean that it believes that this case represents something of 

an outlier. I disagree. Rather, I suspect that such situations 

represent the new frontier in WARN Act litigation. In the 

 33 
next decade, technology will permit workers of all types, not 

just salespeople or other mobile workers, to escape the 

physical confines of traditional offices. I acknowledge that 

the majority has recognized the possibility that such 

plaintiffs may prevail within the framework of 20 C.F.R. 

S 639.3(i)(6), hence the remand here for further 

proceedings. However the tenor of the majority opinion, and 

its refusal to affirm the grant of summary judgment for 

plaintiffs on what I believe to be an unequivocal record, 

sends the opposite (and wrong) message and, I think, 

establishes bad precedent. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

 34