seems anomalous that grocery stores separated by more than twenty miles could be aggregated to trigger WARN's notification requirements. Nonetheless, the interpretative regulations recognize that separate locations may be aggregated if "they are in reasonable geographic proximity." 20 C.F.R. 639.3(i)(3) (1994) (emphasis added). What is "reasonable geographic proximity" would appear to be dependent upon the facts and circumstances of each case.
In this case, the Plaintiffs contend that the interchange of employees among Giant's stores whenever it was appropriate under the collective bargaining agreement governing all Giant facilities compels a determination that the stores in question constitute "facilities or operating units within a 'single site of employment.'" They further argue that "the salient point is not how frequently equipment [or personnel] was interchanged but that such interchange occurred whenever it was necessary. " (Brief in Support of Plaintiffs' Cross-Motion for Partial Summary Judgment (Dkt. Entry #36) at pp. 43-44 n.43.) In support of this argument, Plaintiffs rely heavily upon the fact that the collective bargaining agreement applicable to all Giant facilities (including the five stores in question) purportedly governed such matters as temporary transfers, bumping rights, permanent transfers, and promotional transfers of Giant's unionized employees. Plaintiffs argue that the fact that all Giant facilities constitute a single collective bargaining unit "is substantial, if not conclusive evidence that the facilities at issue constitute a single site of employment." (Id. at p. 26.)
That the stores in question were governed by the same collective bargaining agreement does not appear to be irrelevant. See Jim Walter Resources, Inc., 6 F.3d at 726; Florence Mining Co., 855 F. Supp. at 1480. There are at least two reasons, however, why the existence of a single collective bargaining agreement should not be ascribed the importance that Plaintiffs accord it.
First, the DOL Supplementary Information specifically rejected cross-plant bumping and employee transfers as compelling a determination of a "single site of employment."
54 F.R. 16042, 16050 (1989). Thus, the mere fact that the Giant collective bargaining agreement may have governed such matters as temporary transfers, bumping rights, permanent transfers, and promotional transfers does not remove this case from the general rule that geographically remote facilities are to be treated as separate sites of employment. Cf., Florence Mining, 855 F. Supp. at 1480 (employees' rights to transfer to a separate mine operated by the same employer did not warrant treating the separate mines as a single site of employment).
The second reason for declining to accord substantial weight to the existence of a single collective bargaining agreement is that, contrary to Plaintiffs' assertions, there is no basis for equating a "single bargaining unit" under the National Labor Relations Act, 29 U.S.C. §§ 141, et seq., and a "single site of employment" under WARN. Had congress intended to equate a "bargaining unit" with a "site of employment" it could easily have done so. That neither Congress nor DOL opted to define a "single site of employment" in terms of "bargaining units" under the NLRA militates against a determination that the existence of a single bargaining unit is, standing alone, significant. Moreover, our Court of Appeals, in holding that the six-month limitations period under the NLRA is not applicable to actions under WARN, has recognized substantial differences between the two pieces of labor legislation. See United Steel Workers of America v. Crown Cork & Seal Co., 32 F.3d at 58-59. WARN establishes substantive rights; the NLRA is concerned with the process of collective bargaining. WARN protects both non-union and union workers; the NLRA does not. Id. at 58.
"Any effects WARN has on the collective bargaining process are tangential at best." Id. Thus neither logic nor the policies underlying WARN and the NLRA lead to the conclusion that NLRA concepts should be applied to determine WARN liability.
In arguing that the "salient point" is not the frequency of employee and equipment interchanges, Plaintiffs also regard as significant Giant's purported centralized management and control of the stores in question. Once again, while this fact may be relevant, it does not have the controlling significance that Plaintiffs ascribe to it. DOL'S interpretative regulations acknowledge that "an employer may have one or more sites of employment under common ownership or control. " 20 C.F.R. § 693.3(a)(4) (1994) (emphasis added). As explained in International Union, UMW v. Jim Walter Resources, Inc., 6 F.3d 722, 726 (11th Cir. 1993), the "essence of WARN [is] the day-to-day management and personnel," not "overall corporate management." Thus, contrary to Plaintiffs' assertions, the "salient point" is indeed the frequency of employee and equipment interchange as well as the day-to-day management and operation of each store in question.
The only evidence presented by Plaintiffs on the degree of employee transfers and sharing of equipment is found in the Affidavit of Thomas Polacheck, the former manager of the Kingston Store. (Dkt. Entry #37, Exhibit 1.) This evidence is anecdotal in nature and concerns transfers of employees and equipment in general; it is not specific to the stores in question. The Polacheck Affidavit is clearly insufficient to support a conclusion that the sites in question shared the same staff, equipment, and operational purposes.
Giant, in support of its summary judgment motion, presented an Affidavit of its President, Joseph Hodin, which asserts that, during the two years preceding the sale of the stores in question, the percentage of hours worked by Giant employees in stores other than their "home stores," in relation to total hours worked by all Giant employees, was less than 2%. (Dkt. Entry #25, Exhibit "A" at P13.) This "statistical analysis" tends to support a conclusion that the stores did not "share" employees. As Plaintiffs observed, however, Giant did not provide substantiation for its "statistical analysis." (Plaintiffs' Brief in Support of their Cross-Motion for Partial Summary Judgment (Dkt. Entry #36) at p. 39.) Moreover, it appears that Giant's analysis does not take into account permanent transfers, promotional transfers, "bumping" transfers, and employee rotations. (Id. at p. 40.)
Accordingly, the "statistical analysis" presented by Giant is an inadequate basis for a summary judgment ruling.
Giant argues that "it is absurd to imagine that [WARN] compels a finding that five different and distinct grocery stores, separated by as much as fifty miles, each having a separate management structure, each employing its own workforce, each ordering its own groceries, and each housing its own equipment would be considered one 'single site of employment.'" This assertion is undoubtedly correct. There are, however, genuine disputes concerning management structure, workforce, individual store autonomy, and sharing of equipment. Thus, the factual premise for Giant's assertion has not yet been established.
Significantly, neither Giant nor the Plaintiffs have submitted any evidence concerning the extent to which there was employee and equipment interchanges among the stores in question. Assuming, arguendo, that there was extensive employee and equipment sharing between geographically-proximate stores, such as the Dunmore and Keyser Oak Stores, it does not necessarily follow that geographically remote stores, such as the Honesdale Store, should be considered part of a "single site of employment." In other words, if there was little or no interchange of employees and equipment between Honesdale and other Giant Stores, the nearest of which was located more than 30 miles from the Honesdale Store, then the Honesdale Store may fall within the general rule governing geographically-separate workplaces and constitute a "single site of employment."
Since there is no evidentiary record on this important fact, resolution of the "single site of employment" issue on summary judgment motions is inappropriate.
In conclusion, the "underlying historical facts" germane to the question of law presented in this case concern matters such as the movement of employees and equipment among the stores in question. Since these underlying facts are contested, a "continuance" of the summary judgment motions, as requested by Plaintiffs, is inappropriate. Instead, the motion for a continuance will be dismissed and the cross-motions for summary judgment will be denied. An appropriate Order is attached.
Thomas I. Vanaskie
United States District Judge
DATED: January 13, 1995
NOW, THIS 13th DAY OF JANUARY, 1995, for the reasons set forth in the foregoing Memorandum, IT IS HEREBY ORDERED THAT:
1. The Motion of Giant Market, Inc. to Dismiss the Original Complaint (Dkt. Entry #4) is DISMISSED AS MOOT.
2. The Motion of Affiliated Food Distributors, Inc. to Dismiss or, in the Alternative, for Summary Judgment, filed October 29, 1993 (Dkt. Entry #5), is DISMISSED AS MOOT.
3. The Motion of Giant Markets, Inc. to Dismiss, filed on January 7, 1994 (Dkt. Entry #21), is DENIED.
4. The Joint Motion to Dismiss filed January 7, 1994 on behalf of Defendants Affiliated Food Distributors, Inc. and Town & Country Markets (Dkt. Entry #22) is DENIED.
5. Plaintiffs' March 2, 1994 Cross-Motion for Partial Summary Judgment (Dkt. Entry #32) is DENIED.
6. Plaintiffs' Motion for Continuance of the Cross-Motions for Summary Judgment (Dkt. Entry #63) is DISMISSED.
7. This case shall be placed on the June, 1995 trial list.
8. A scheduling conference will be conducted on Monday, January 30, 1995 at 3:30 p.m. This conference may be conducted by telephone.
Thomas I. Vanaskie
United States District Judge