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. e du/thir dc ir c uit_1998/97Filed 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 distr ict court properly granted summary judgment to the plai ntiff class against the defendants. The district court he ld as a matter of law that the defendants' Chester, Virgini a administrative center was the plaintiffs' "single s ite of employment" under the Worker Adjustment and Retrain ing Notification Act, 29 U.S.C. S 2101(a)(3)(B), and th erefore awarded damages and attorneys' fees to the plaintif fs. We hold that a genuine issue exists as to whether the Chester center was the plaintiffs' "single site of employme nt," 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 o ne hundred former employees of the American Tobacco

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

United States as traveling salespeople. Officially titled Field Sales Representatives ("sales representatives"), th e plaintiffs were each assigned to a geographical district in wh ich they were responsible, along with other sales representa tives, for selling the Company's products to wholesalers and r etailers in that district. Altogether, the Company employed over one thousand sales representatives, located in 150 diff erent districts covering the entire United States. Sales representatives were each provided a company car, a nd 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 representat ive kept in close contact with a district sales manager, who , like the sales representatives, lived and worked in the desi gnated district. Each district sales manager was responsib le for managing the handful of sales representatives assig ned within the district; like the sales representatives , most district sales managers worked from home, and had n o other permanent office. The sales representatives' second significant contact was with the Company's administ rative center in Chester, Virginia. Sales representatives called the Chester center every day to check messages, and als o 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 Brand s, Inc. On that day, the Company summoned the sales representatives to "sales meetings" held across the country. At the "sales meetings," Company officials announce d to the sales representatives that they were being laid off, effective immediately. The sales representatives we re 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.

3The plaintiffs in this action are employees who did not

sign the release form. They brought suit in the Uni ted

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 Adjustmen t and Retraining Notification Act ("WARN"), 29 U.S.C. SS 2101-09, by failing to warn the plaintiffs of their impendin g layoffs.1 Enacted in 1988, WARN requires that employers provi de written notice to those employees who will be subje ct 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 employ ment 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 employe es who are not notified of an impending "mass layoff" to d amages from their former employer in an amount equal to ba ck 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 w as whether the action had resulted in an employment loss of mo re 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 th is action, as all

claims against it were dismissed on December 19, 1995.

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

An employer shall not order a plant closing or mass layoff until the end of a 60-day period after the employe r 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 repres entative at that time,

to each affected employee; and

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

under title III of the Job Training Partnership Ac t) and the chief

elected official of the unit of local government wit hin which such closing

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

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

4September 23, 1996, the district court announced th at it

would treat pending discovery applications as cross motions for summary judgment, focusing on the "sing le site" requirement. The parties responded with both evidence and legal argument attempting to show as a matter o f law that the single site requirement had (or had not) b een satisfied.

The sales representatives argued that they were ent itled to judgment as a matter of law because the Chester, Virginia administrative center was their "single si te of employment." The sales representatives offered stat ements by former employees suggesting that the Chester cen ter was the primary contact point for sales representat ives in the field. According to the statements, sales repre sentatives received their instructions from and reported to th e administrative center in Chester. App. 2208-10; App . 1936. Each sales representative was required to call Ches ter 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 o f notification was the mailing of a letter to local government officia ls the day before the layoffs. The top of the letter reads, "NOTICE REQUI RED UNDER THE

WORKER ADJUSTMENT AND RETRAINING NOTIFICATION ACT." The

letter continues:

This notice is to advise you that The Ameri can Tobacco Company ("American Tobacco") will undertake a layoff at its Administrative

Service Center located at 13203 North Enon C hurch Road, Chester, Virginia, 23831.

While the number of affected employees has not yet been determined, it is expected that the layoff w ill affect approximately 1550 employees at the Chester facility (incl usive of approximately 1200 Field Sales employees, located nationwi de).

American Tobacco will advise affected emplo yees of the layoff commencing January 11, 1995. The date of sep aration may be immediately upon notification to the affecte d employee, or, in some cases, may be at a later date.

App. 1880.

5representatives also communicated with the Chester center

to obtain sales materials, supplies, and other item s they needed to perform their job. App. 2178-79. The sale s representatives argued that they were entitled to j udgment because their affidavits proved that the Chester ce nter was their "single site of employment."

B&W's affidavits and arguments pointed to a differe nt conclusion. According to B&W, it was entitled to ju dgment as a matter of law because the sales representative s' "single site[s] of employment" were the geographical distri cts where they actually worked. B&W maintained that the distr icts were the true hubs of the sales representatives' ac tivities, as the local district sales managers were the emplo yees who directed, managed, and monitored the sales representatives. B&W relied on various sources for support. First, they offered the affidavit of Mr. Randy Groo nwald, a district sales manager from Milwaukee, who stated t hat his sales representatives were assigned work from him, not from Chester, Virginia. Groonwald also reported tha t he was responsible for the day-to-day concerns of his sales representatives, including hiring, training, job pe rformance reviews, and approval of expenses. App. 1017-18. Groonwald's statements were supported by B&W's inte rnal documents, which showed that supervision of sales representatives was the major task of district sale s managers. App. 1223. B&W also relied upon its offic ial job description for the sales representative position, which indicated that the sales representatives' primary c ontact within the company was with their district sales ma nagers. 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 a nd messages authored outside of Chester were sent to t he sales representatives. Sales representatives were h ired, trained, and instructed within their district, B&W noted; they worked entirely within their district; and the y reported to their district sales managers within their distr ict. Sales representatives did not regularly visit the Chester , Virginia center. In fact, named plaintiff Thomas A. Marshall visited

6the center only twice, on special trips to recogniz e his

outstanding sales record, App. 2266, and named plai ntiff Louis A. Ciarlante never visited Chester at all. Ap p. 2376. Accordingly, B&W argued that the districts, rather than the Chester center, were the plaintiffs' "single site o f employment." Because there were fewer than fifty employees within each geographic district, B&W clai med 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 co urt

concluded as a matter of law that the Chester cente r was the plaintiffs' single site of employment and enter ed 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 re cognized that the local district sales managers played a rol e in issuing assignments to and receiving reports from t he sales representatives, but found that the role of the sal es managers was not significant. "Any contrary view," the court explained, "would . . . undermine the purpose s of the statute. I am confident that Congress did not conte mplate permitting a company to lay off its entire sales fo rce of hundreds of people without being chargeable with ha ving achieved a `mass layoff.' "4

Having found B&W liable, the court next considered the damages owed to the sales representatives. The firs t 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 wa s 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, t hat the WARN Act did apply to these lay-offs."

7S 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 employ ee 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 w as legally obligated to pay.

Second, the court held that the statutory damage aw ard 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 tha n the amount that a salaried employee would earn in a six ty day time period. The court thereupon entered an order g ranting 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 additio nal sworn declarations by Company employees. One such employe e, Kathi Reynolds, stated that when she was a sales representative from 1985 to 1989, she sometimes rec eived instructions that were mailed through the Chester f acility, but that in almost every case, the true source of h er instructions was the Company's executive headquarte rs in either Stamford, Connecticut or Conyers, Georgia. A pp. 2462. According to B&W, this affidavit illustrated that the district court had misunderstood the plaintiffs' st atements that the sales representatives had received instruc tions

"from" Chester. B&W asked the district court to rec onsider its decision, in light of the new affidavits and th e district court's haste in granting summary judgment in favor of the sales representatives.

In a December 18, 1996 order, the district court fo und this argument "disingenuous," and concluded that B& W

was not entitled to have the court consider the add itional materials. Citing "an abundance of caution," the co urt nevertheless looked at the new documents, and concl uded that B&W had presented no triable issues of fact, a s the

motion for reconsideration and new documents "merel y revisit[ed] arguments previously made and rejected. "

8The court did revise its conclusion concerning dama ges,

however. The court held that it had misconstrued th e scope of United Steelworkers of America v. North Star Ste el Co.,5 F.3d 39 (3d Cir. 1993), and that the North Star cas e left open the question of how to calculate back pay dama ges according to 29 U.S.C. S 2104(a)(1) in the case of salaried employees. The district court concluded that the pr oper award of back pay damages for a 60 day period in th e case of a salaried employee was simply two months's sala ry.

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 tot al value of the judgment was $696,785.44, plus interest from th e 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 be cause a reasonable fact finder could not enter a judgment f or the nonmoving party. See Anderson v. Liberty Lobby, Inc ., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510 (1986). Accord ingly, we exercise plenary review, construing all evidence and resolving all doubts raised by affidavits, depositi ons, 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 la y out the substantive law governing the action, and then in l ight of that law determine whether there is a genuine dispu te over dispositive facts. See Liberty Lobby, 477 U.S. at 2 48, 106 S.

Ct. at 2510.

III.

The issue in this case is whether the district cour t was correct as a matter of law that the Chester, Virgin ia administrative center was the plaintiffs' "single s ite of

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

WARN act does not define the phrase "single site of employment." Congress did, however, expressly deleg ate 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 unles s they are arbitrary, capricious, or manifestly contrary t o the statute." Chevron, U.S.A., Inc. v. Natural Resource s Defense Council, 467 U.S. 837, 843-44, 104 S. Ct. 2778, 278 2 (1984).

The regulation applicable to this case appears at 2 0 C.F.R. S 639.3(i)(6). It states:

For workers whose primary duties require tra vel from point to point, who are outstationed, or who se primary duties involve work outside any of the emplo yer's regular employment sites (e.g., railroad wor kers, bus drivers, salespersons), the single site of e mployment to which they are assigned as their home base, from which their work is assigned, or to which th ey report will be the single site in which they are co vered for WARN purposes.

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

This regulation narrows the inquiry considerably: w e need only consider whether the Chester, Virginia administrative center was the site of employment to which the sales representatives were assigned as their ho me base;

whether the Chester center was the site from which the

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

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

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

(B) results in an employment loss at the sin gle 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 pa rt-tim e employees);

or

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

10sales representatives' work was assigned; and wheth er 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. Dr iver's, Inc., 101 F.3d 1107, 1110 (6th Cir. 1996) ("This su bpart is written in the disjunctive: any one of the alternat ives may qualify as the definition of `single site.' "). Bec ause at least fifty employees lost their jobs following the Janua ry 11, 1995 "sales meetings," a determination that Chester is a

covered site under WARN as a matter of law would le ad us to affirm the district court's entry of summary jud gment 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 Che ster, Virginia was not the site of employment to which th e sales representatives were assigned as their home base, n or the site from which their work was assigned, nor the si te 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 w ould lead

us to reverse the order of the district court and e nter 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 WA RN 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 employ ment to which [the sales representatives] are assigned as t heir home base." 20 C.F.R. S 639.3(i)(6). The underlying fact s here are undisputed. Sales representatives spent the great m ajority of their time servicing customers within their geog raphical 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 wo rked from their own homes and cars. Sales representatives did not

11physically visit Chester, Virginia in the normal co urse of

business; however, they did telephone the Chester s ite on a daily basis to check messages and complete

administrative tasks.

Whether Chester, Virginia was the sales representat ives' "home base" depends on our legal construction of th e term "home base" in the Secretary's regulation. B&W argu es that an employee's assigned "home base" is the place fro m which the employee physically works on a regular ba sis. Under this interpretation, it is argued that the Ch ester center cannot be the sales representatives' home ba se. In contrast, the sales representatives focus less on t he employee's whereabouts than on the physical locatio n 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 s ome kind owned by the employer. Because both the sales representatives and district sales managers worked from their homes and cars, the sales representatives con tend that the Chester center must by default be consider ed 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 o f 20 C.F.R. S 639.3(i)(6), which contrasts "the employer's regu lar employment sites" with the site of employment "to w hich [the employees] are assigned as their home base." W e 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 emp loyment site." In the context of 20 C.F.R. S 639.3(i)(6), w e think that the term "home base" refers not to the physical bas e of the employer's operations, as the sales representatives would have it, but rather to the physical base of the emp loyee.

Our construction is consistent with both Teamsters Local Union 413 v. Driver's, Inc., 101 F.3d 1107, 1110 (6 th Cir. 1996) and Wiltz v. M/G Transport Services, Inc., 12 8 F.3d 957, 961-62 (6th Cir. 1997). The plaintiffs in Driv er's, Inc. were eighty-five truck drivers who had been dischar ged without warning. Although their former employer's

12management functions were located in Delaware, Ohio , the

drivers had each been permanently assigned to one o f

eleven different base terminals in six different st ates. The maximum number of employees who were assigned to an y one base terminal was eighteen, such that the plain tiffs' right to recover hinged upon whether the drivers' " single site of employment" was the one base terminal to wh ich 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 conclu ded that each base terminal provided the plaintiffs' home ba se 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 Padu cah for assignment to the boats, and then embark on a thirt y day voyage escorting barges throughout the Ohio, Missis sippi, and Tennessee River Systems, returning in the end t o Paducah. Following layoffs that prompted a WARN law suit, the Wiltz court noted (albeit in dicta) that Paduca h was the crewmen's home base because "80% of the crews physi cally reported to Paducah for assignment to the towboats. " Id. at

962.

In both Driver's, Inc. and Wiltz, the employees' ho me bases were the sites where they began and ended the ir business trips. Accordingly, these cases are consis tent with our view that a traveling employee's "home base" mu st be a site that the employee visits during the course o f 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 the ir 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 Ch ester at all. App. 2376. From the record as it now stands, w e would

be inclined to hold as a matter of law that Chester is not the sales representatives' "home base." However, be cause we are remanding this case to the district court fo r further

13factual development, we will not foreclose the fact finder

below from examining whether the sales representati ves 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 payro ll and certain other centralized managerial or personnel functions." Driver's, Inc., 101 F.3d at 1111 (citin g International Union, United Mine Workers v. Jim Wal ter 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 requi re a developed factual record in order to distinguish th e true

source of the instructions from mere conduits throu gh which the instructions passed. We look to the recor d to determine whether a genuine issue of material fact exists as to whether the Chester, Virginia center was the sou rce of the day-to-day instructions for the sales represent atives.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 dis trict sales manager from August 1993 until January 1995, declared that "sales representatives . . . generall y received instructions and assignments on what to sell our customers in letters and memos . . . . [sent] by ma il from

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6. Although the district court appears to have cons idered the documents submitted along with B&W's motion for reconsiderati on, 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 re cord as it existed at

the

time of the district court's consideration of the c ross-motions for summary judgment. See DeLong v. Raymond Int'l, Inc. , 622 F.2d 1135, 1140 (3d Cir. 1980). On remand, however, the distri ct court will be able to include these additional documents as part of th e record.

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

the declaration of Marc Lowery, who worked at the C hester center from 1986 until 1995. Lowery reported that " [t]he Chester office supplied the [daily instruction] inf ormation, and was the engine for the field's activity. We sup plied what to do, where to do it, and the materials for doing it." App. 2217. Lowery reported that it was his responsibilit y

to coordinate and issue, out of the Chester Office, all releases, bulletins and instructions to the field sales organization, including the field sales repr esentatives and the district sales managers. These inclu ded the day-to-day instructions, assignments and pro cedures to be followed by the field sales representa tives and district sales managers.

. . . .

It was through these letters and instructio ns coming from the Chester Office that field salespers ons were told what specific products management wante d them to sell and promote and how they were to do it through specific promotional strategies that they mu st 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 state ment of Randy Groonwald, a former district sales manager fr om Wisconsin, who reported that the sales representati ves 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 prim ary task, and also that it was part of the sales manager's jo b to manage sales productivity and allocate sales effort s. 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 yo u ever take any orders from anyone at the administrative c enter down in Chester, Virginia?" His response: "No, I di dn't." App. 2270.

15These conflicting statements force us to conclude t hat

there is a genuine issue of material fact concernin g 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 assigne d; if we were to credit Groonwald and Marshall over Ogorek a nd Lowery, then we would conclude that it was not. The summary judgment standard forbids us from making th ese judgments, however. See Liberty Lobby, 477 U.S. at 249 ("[A]t the summary judgment stage the judge's funct ion is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a g enuine issue for trial."). Accordingly, we hold that this is a material

issue for trial.

C.

Finally, we consider whether there is an issue as t o 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 wh o were primarily responsible for reviewing sales reports a nd other information sent by the sales representatives, in o rder to record sales, assess employee performance, develop new sales strategies, and the like.

Reviewing the record, we hold that there is a genui ne issue of fact concerning whether the Chester center was the site to which the sales representatives reported. T he plaintiffs have offered statements indicating that Chester was the primary audience for the sales representati ves' reports. For example, Mark Lowery reported that "[t ]he Chester office is where all reported information fl owed and . . . where it all ended up." App. 2217. Similarly, Thomas Ogorek declared that "[f]ield sales representatives

. . . reported all . . . employment-related information t o the Chester office." App. 1936. Ogorek acknowledged tha t district sales managers such as himself sometimes p layed a role in the reporting process, but stated that hi s role was secondary: "I would facilitate the Chester office b y collecting

the information and forms from the . . . sales

16representatives, and [by] then funneling them to th e

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 indica ted at his deposition that he submitted all summaries of h is sales performance to his district sales manager, and that he regularly left messages for his district sales mana ger on the manager's voicemail. App. 2267-68. District sales m anager Randy Groonwald reported that the sales representat ives 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 offi cial job description for the sales representative position w as accurate in its statement of the major contacts tha t sales representatives would have with other company emplo yees. App. 1017. The description states that the major co ntact 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 representat ives and B&W are in conflict. According to the former, t he sales representatives reported to the Chester, Virginia administrative center; according to the latter, the sales representatives reported to their local district sa les managers. Thus, there is a genuine issue of materia l fact as

to whether the Chester site was the location to whi ch the sales representatives reported, precluding resoluti on on summary judgment.7

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7. In his dissent, Chief Judge Becker takes issue w ith 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 ins tead commands the

conclusion that the Chester center was the ultimate site from which the plaintiffs' work was assigned and to which they rep orted." Dissenting Op.

at 26.

As we see it, Chief Judge Becker's attempt to harmo nize statements that on their face are in conflict is contrary to o ur duty to view inferences from the underlying facts in the light m ost favorable to the

17IV.

In summary, we conclude that a genuine issue of material fact exists as to whether the Chester, Vir ginia administrative center was a "single site of employm ent" 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 orde r 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 th e foregoing opinion.

On remand, the parties and the district court shoul d focus attention on the precise questions of whether the Chester, Virginia center was the representatives' h ome 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 w ere considered "employees at the Chester facility,"8 wi ll undoubtedly be relevant and material to these inqui ries, as will the Company's conduct on January 11, 1995.

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party opposing summary judgment. See Matsushita Ele c. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587, 106 S. Ct. 1348, 1 356 (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 the ory that could conceivably be consistent with what certain declara nts intended to say (but did not) is neither our function nor our conce rn. Rather, our charge

is to determine whether "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." An derson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 25 10 (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 F in. Corp. v. Anderson, 921 F.2d 497, 504 (3d Cir. 1990) ("This court is no t a factfinding tribunal.").

Upon review of the entire record, we are constraine d by our established jurisprudence to return this proceeding to the district court so that the facts bearing on the "single site" ques tion can be developed

at trial.

8. See supra note 3.

18Given the unorthodox employment arrangements at iss ue

in this case, conclusory statements that the plaint iffs 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 tha t in our era of modern telecommunications, it is often n ecessary to distinguish the ultimate origin and destination of information from mere conduits through which the information has passed. An instruction may originat e in one location, be routed electronically through anot her, be stored on a machine in a third, and then be receive d by an individual located in a fourth. In an unhelpful sen se, it can be said that the instruction was assigned "from" an y of the first three locations, and that it was sent "to" an y of the latter three. Conclusory statements made in this co ntext are likely to interfere with the ability of distric t courts to enter summary judgment, as they will lead to facial ly contradictory factual assertions. To avoid this pro blem in the future, we emphasize that we interpret 20 C.F.R

. S 639.3(i)(6) to focus not on the formalities of wh ere certain machines were located, but rather on where the peop le were who were ultimately responsible for creating a nd receiving the information. On remand, the district court should focus its inquiry accordingly.

V.

In remanding the "single site" issue to the distric t court, it is not inappropriate for this court to provide g uidance to the district court on the question of damages. See, e.g., Advanced Medical, Inc. v. Arden Med. Sys., Inc., 95 5 F.2d 188, 200 (3d Cir. 1992). In particular, we feel com pelled to consider two questions that were briefed and argued fully before us. These questions are 1) whether the distr ict court erred in holding that the proper baseline measure o f damages was two months' salary, and 2) whether the district court correctly held that the severance pa yments paid by B&W to the sales representatives should not be subtracted from the damage award. Both are legal is sues upon which we exercise plenary review.

19A.

The WARN Act specifies that any employer who violat es 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] t he average regular rate received by such employee duri ng 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 requir es 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 Ste el Co., 5 F.3d 39 (3d Cir. 1993), we interpreted only thefi rst part of this formula.10 In that case, we held that the n umber of days in a given violation period was the number of calendar days in the violation period, rather than the numbe r of actual work days.11 Thus, in a case where there was no

___________________________________________________ ______________

9. This statute provides a starting point because t he resulting figure may then be modified by additional considerations as di rected 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 e mployees under Section 2104(a)(1)(A) of WARN. The district court in terpreted 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 agg rieved employee for any day within the violation period that would n ot have been a regular workday for that employee.

5 F.3d at 41.

11. We recognize that some courts have criticized N orth Star and have rejected its analysis. See Saxion v. Titan-C-Manufa cturing, Inc., 86 F.3d 553, 559 (6th Cir. 1996); Frymire v. Ampex Corp., 6 1 F.3d 757, 772 (10th Cir. 1995); Carpenters District Council v. Di llard 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 Op erating Procedures

9.1.

20warning 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 viola tion 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 warnin g prior to their layoffs, an application of North Star to o ur 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 determin e an employee's regular rate of pay per day. Because the sales representatives were salaried employees, we m ust determine how to convert the given annual salary ra te into a daily rate of pay. The parties offer competing methodologies. The sales representatives contend th at under North Star we must divide the annual salary b y the number of days the sales representatives actually w orked in a given year. Because the sales representatives wer e not expected to work weekends or holidays, they claim t hat 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 minu s weekends and holidays), rather than the full 60 act ual working days mandated by North Star.

B&W disagrees with the sales representatives' appro ach, and insists that the daily rate should be calculate d by dividing the annual salary of each representative b y 365, the number of days in a year. According to B&W, Nor th Star establishes that the regular daily rate is the pay for each actual working day only for hourly employees. Becau se salaried employees such as the sales representative s are exempt under the Fair Labor Standards Act and may b e forced to work overtime and weekends, B&W argues th at a different approach is warranted in the case of sala ried employees.

As an initial matter, we note that our North Star precedent was silent as to whether the plaintiffs i n that case were hourly or salaried employees of North Sta r Steel Company. Indeed, North Star offers no guidance on h ow to convert to a daily rate, either from an annual rate (in the case of salaried employees) or from an hourly one ( in the

21case of hourly employees). The North Star court exp ressly

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 represent atives 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 basi s, 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 th e proper way to convert an annual salary rate into a daily r ate is simply to divide the annual salary by the number of days in a year. We believe that this approach best serve s the Congressional intent because it reflects the realit y that a salaried employee is generally hired to perform a p articular task, regardless (within reason) of the time requir ed to complete the task. Indeed, to attempt to measure ho w many days a salaried employee "actually works" in a given year is to engage in needless abstraction. What doe s it mean to "work a day"? Has an employee who has opted to work twelve hours per day for four days per week wo rked 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 d ivided 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

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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 employ ee's annual salary by 365, and then multiply that rate by number of the d ays of the violation period.

22to the sales representatives pursuant to the Compan y'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 sever ance payments were labeled "salary continuation" payment s, 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 rath er ERISA payments that the company was already legally oblig ated to make regardless of the work the sales representativ es performed. The fact that these payments happened to be labeled "salary continuation" benefits, and that th ey happened to be set at the level of the sales repres entatives' wages, is irrelevant. The payments made by B&W were not made in exchange for work that the sales representa tives would have performed during the period of the viola tion. 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 inc luding

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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 e mploye 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 leg al 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 p aragraph (1) with
respect to a defined benefit pension plan may be red uced by crediting the employee with service for all purposes under such a plan for the period of the violation.

23ERISA 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 ac tion, 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. Accordin gly, we will reverse the January 28, 1997 order of the d istrict court entering summary judgment for the plaintiffs, and will remand for proceedings consistent with the for egoing 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 da ted September 2, 1997, which had awarded attorney's fee s to the plaintiff class.

24BECKER,* Chief Circuit Judge, concurring and dissen ting.

I join in Part V of the majority opinion which prov ides guidance to the district court on the question of d amages. I also subscribe to the majority's conclusion that the determination of plaintiffs' "single site of employ ment" 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 prece pts announced therein, the Chester center was clearly t he plaintiffs' single site of employment, and that the re is no genuine issue of material fact on that question. I would therefore affirm the district court's order grantin g the plaintiffs' motion for summary judgment on liabilit y.

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 l iability

discussion.

Given the unorthodox employment arrangements at issue in this case, conclusory statements th at the plaintiffs were or were not assigned work "f rom" Chester, and that they did or did not report "to" Chester, will generally prove inadequate. Th e problem

with such statements is that in our era of m odern telecommunications, it is often necessary to distinguish the ultimate origin and destination of infor mation from mere conduits through which the information is passed.

* * *

To avoid this problem in the future, we emph asize that we interpret 20 C.F.R. S 639.3(i)(6) to focu s not on the

formalities of where certain machines were l ocated, but rather on where the people were who were ult imately responsible for creating and receiving the i nformation. On remand, the district court should focus i ts inquiry accordingly.

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*Honorable Edward R. Becker, United States Circuit Judge for the Third Circuit, assumed Chief Judge status on February 1, 1998.

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

that in applying 20 C.F.R. S 639.3(i)(6) to this ca se, a court must be careful to distinguish "mere conduits" from those people "ultimately responsible for creating and rec eiving the information" from the sales representatives. I diss ent 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 com pelled 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, assi gnments, rules, and orders to the plaintiff salesmen emanated from the Chester Virginia administrative hea dquarters. [It is not] significant that, to some extent , specific assignments and instructions were issued by way of the district managers, or that plaintiffs' r eports to the administrative headquarters were funneled th rough 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 di strict court opinion reflects the uncontroverted evidence that both the sales representatives and the sales managers re ported 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 th at the sales managers acted as conduits between the Cheste r 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 receiv ing the information", that the majority can conclude that a genuine issue of material fact is raised by evidence that t he sales representatives received instructions from and repo rted to both the Chester center and their sales managers.

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

commands the conclusion that the Chester center was the ultimate site from which the plaintiffs' work was a ssigned and to which they reported. Since I believe that th e evidence is so clear that the Chester center was th e site

26from which plaintiffs' work was assigned and the si te 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 C hester was the source of plaintiffs' day to day assignment s. See Maj. Op. at 14-15. However, the majority finds a ge nuine issue of material fact on the basis of two pieces o f evidence

that "conflict" with this view. The first is the st atement of Randy Groonwald, a former sales manager in Wisconsi n, that the sales representatives in his district "wer e 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, Vi rginia?

A. No, I didn't.

App. 2270.

As I will show, however, Groonwald's statement conf licts

with the view that Chester was the ultimate source of the sales representatives' assignments only if one igno res, as the majority apparently has, the uncontroverted evi dence that the Chester center was the source of assignmen ts 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 o f material fact, but strongly counsels in favor of su mmary judgment for the plaintiffs.

1.

Marc Lowery and Dwight Hughes, former employees at the Chester center, described the process by which

27assignments were distributed to American Tobaccofie ld

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 t he field sales representatives and the district sales manag ers. These included the day-to-day instructions, assign ments and procedures to be followed by the field sales representatives and district sales managers.

* * *

It was through these letters and instruction s coming from the Chester office that field salespers ons were told what specific products management wanted the m to sell and promote and how they were to do it through specific promotional strategies that they mu st use.

These instructions in the form of "Sales Cov erage" letters were regularly issued from the Chest er office every five (5) to eight (8) weeks.

App. 2209-10. (emphasis added).

Similarly, Hughes stated that:

Sales representatives and district sales man agers received their instructions and assignments in the form
of written memos or letters that we called ` field sales information,' `sales campaign,' or `sales co verage' letters. These instructions and assignments were generally issued in mass mailings [from the Chester Office].

...

[These letters] told the sales representativ es 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 ass igned work . . . by me . . . [and] were not assigned work by a nyone in Chester, Virginia" is easily reconciled with the ev idence that

the Chester center was the ultimate source of all o f plaintiffs' assignments. The fact is that nowhere i n

28Groonwald's affidavit does he contradict the eviden ce that,

like all sales mangers, he received the day to day assignments that he gave to his sales representativ es from the Chester office. Thus, at most, Groonwald's affi davit

indicates that he served as a conduit between Chest er and his sales representatives. As the majority noted, m ere conduits must be disregarded in the effort to deter mine the ultimate source of plaintiffs' day to day assignmen ts.

2.

The majority also relies on the following portion o f Thomas Marshall's deposition:

Q. Did you ever take any orders from anyone at the administrative center down in Chester, Vi rginia?

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 exce rpt

makes clear that when Marshall stated that he did n ot receive instructions from anyone at Chester, he sim ply meant that he did not receive instructions from any particular person at Chester:

Q. You didn't answer my question. Who in Che ster, Virginia did you report to?

A. Well to the company itself.

Q. So there is no person that you reported t o there?

A. There is no person.

Q. So you did not have a boss in Chester, Vi rginia; is that right?

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

Q. Was there a particular person, a boss tha t told you what to do in Chester, Virginia, that you --

A. No.

Q. -- can identify today?

29A. 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 judgmen t more in evidence then in the following exchange:

Q. You make a distinction between supervisin g and reporting; is that right?

A. Yes, I think I do.

Q. Now, explain that to me, in your own word s.

A. Well, I believe that there were superviso rs, supervising the sales reps in the field. But I think that the sales reps, we were instructed b y the [Chester] office, and the office seemed t o have full control of us. Anything we did out there seemed to relate to the office. I could not get hol d 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 f rom Chester, Virginia stating what I was to do, and ho w long I was to do it, how much I was to spend, an d the brands I was to work. They made the chang es in

the field. If there was an executive orde r out there changing our field operation, it came fro m voice

mail.

App. 2260. (emphasis added)

In short, none of the evidence relied on by the maj ority

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 s ufficient basis on which to affirm the district court, see Ma j. Op. at

3010-11, I also believe that the majority errs in con cluding

that there is a genuine issue of material fact as t o whether the Chester center was the site to "which [the sale s representatives] report[ed]." 20 C.F.R.S 639.3(i)(6 ). The majority reaches this conclusion by finding a confl ict between, for example, the statement of Mark Lowery, who worked at the Chester center from 1986 to 1995, tha t "[t]he Chester office is where all reported information fl owed and . . . where it all ended up" and the statement of R andy Groonwald that the sales representatives in his dis trict "hand-delivered or mailed to me daily call summarie s 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 majo rity is

able to find a conflict between these statements.

The role of the sales managers in the American Toba cco "reporting process", is best summarized by Joseph P ierce, the former head of Sales Audit and Analysis for Ame rican

Tobacco:

I understand that in earlier years the origi nal expense report forms were mailed directly to the Che ster office from the homes of each field sales represent ative, which resulted in our receiving a thousand o r so separate envelopes from all over the country

. Eventually, we used the district sales manag ers to collect the original report forms from the f ield sales representatives in their group, and the dist rict sales managers would send the originals to the Che ster office, which resulted in our receiving only about 150 or so envelopes (the number of district sale s managers)

from fewer locations.

In this regard the district sales manager as sisted the Chester office, to the extent they eyeballed the forms, unstapled papers, matched the receipts to th e proper form, and otherwise organized the paperwork in a form

that made it easier for our staff in the Che ster 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 d istrict

31sales managers to funnel the paperwork from the field

to the Chester Office, it was still the Ches ter Office which reviewed and analyzed the field sales representatives' expense reports and approve d for processing (or disapproved) the reports.

App. 2202- 03. (emphasis added).

Pierce's statement is confirmed by other evidence t hat makes clear that all of the plaintiffs' reports (be they sales or expense reports) ultimately flowed to the Cheste r center, and that, to the extent that the district sales man agers 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 gen uine issue of fact that the sales managers were merely conduit s through which the plaintiffs reported to the Cheste r center,

and thus that the Chester center was the site to wh ich the plaintiffs' reported. I would affirm the district c ourt on this

basis as well.1

C.

Out of an abundance of caution, I address the contention, raised by the defendants, that the Ches ter center itself was just a conduit since the assignme nts 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 major ity does not focus on this possible view of the evidenc e and instead frames the choice of plaintiffs' single sit e of

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1. I am not sure what to make of the majority's sta tement at the outset of this section that its "inquiry focuses on the lo cation of the personnel who were primarily responsible for reviewing[the pl aintiffs' reports]." Maj. Op at 16 (emphasis added). While I believe tha t the personnel at the Chester center were both primarily and ultimately r esponsible for reviewing the reports, I am uncertain as to how muc h of the majority's analysis turns on a distinction between these two t erms -- or even whether the shifting terminology is intentional. At all events, I believe that this inconsistency should not affect the major ity's instruction to

the district court to focus its inquiry on remand on th ose "ultimately responsible for creating and receiving the informat ion."

32employment as being between the Chester center and the

geographical districts in which the plaintiffs' wor ked. However, I address this argument, because the defen dants may attempt to revive it on remand.

While there has been insufficient factual developme nt for

us to determine whether in fact the Stamford office was the location "of the people who were ultimately respons ible for creating and receiving the information" from the pl aintiffs, I do not believe that such development is necessary to the disposition of this case. Even if the defendants we re 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 un der the WARN Act, as a matter of law, since the "mass layof f" 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, pol icybased aspect of the issue. This is the first time t hat 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 si te 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 wh ich over 80% of the crews physically reported for assig nments 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 whet her eleven separate trucking terminals to which plainti ffs physically reported could be combined to constitute one single site of employment under the Act).

The majority observes that the employment arrangeme nt at issue is "unorthodox." See Maj. Op. at 19. I tak e this to mean that it believes that this case represents som ething of an outlier. I disagree. Rather, I suspect that such situations represent the new frontier in WARN Act litigation. In the

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

just salespeople or other mobile workers, to escape the physical confines of traditional offices. I acknowl edge that the majority has recognized the possibility that su ch 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 opin ion, and its refusal to affirm the grant of summary judgment for plaintiffs on what I believe to be an unequivocal r ecord, 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

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