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UNITED FOOD & COMMER. WORKERS UNION LOCAL NO. 72 V

January 13, 1995

UNITED FOOD & COMMERCIAL WORKERS UNION LOCAL NUMBER 72, et al., Plaintiffs,
v.
GIANT MARKETS, INC., et al., Defendants,



The opinion of the court was delivered by: THOMAS I. VANASKIE

 This is an action under the Worker Adjustment and Retraining Notification Act ("WARN"), 29 U.S.C. §§ 2101, et seq. This legislation requires, inter alia, that employers of more than 100 persons provide a minimum of sixty (60) days written notice before "the permanent or temporary shutdown of a single site of employment, or one or more facilities or operating units within a single site of employment, if the shutdown results in an employment loss at the single site of employment during any thirty-day period for fifty or more employees excluding any part-time employees." 29 U.S.C. § 2101(a)(2) (emphasis added). "Employers who fail to provide the requisite notice must compensate employees suffering an employment loss for each day of the violation." United Steel Workers of America v. Crown Cork & Seal Co., 32 F.3d 53, 55 (3rd Cir. 1994), cert. granted, 115 S. Ct. 715, 130 L. Ed. 2d 622, 63 USLW 3514 (January 6, 1995).

 Plaintiffs, consisting of the collective bargaining representative of the unionized employees of defendant Giant Markets, Inc. ("Giant"), and several former Giant employees, contend that the closure of five Giant retail outlets incident to the sale of four of those stores to defendant Affiliated Food Distributors, Inc. ("Affiliated Food"), and one of those stores to defendant Town & Country Markets ("Town & Country"), triggered WARN's plant closure notification requirements. Specifically, Plaintiffs contend that the five supermarkets in question constituted "facilities or operating units within a single site of employment.. . ." 29 U.S.C. § 2101 (a)(2) (emphasis added). *fn1"

 Defendants responded to Plaintiffs' original Complaint and Amended Complaint with motions to dismiss supplemented by affidavits and other evidentiary material. *fn2" Defendants requested that, in accordance with F.R.C.P. 12(b), their motions be treated as seeking summary judgment and disposed of as provided in F.R.C.P. 56. Plaintiffs filed a cross-motion for partial summary judgment. The parties' separate motions address the dispositive issue of whether the five separate stores, spanning a distance of more than 50 miles, constitute "facilities or operating units within a single site of employment."

 While Giant argued that resolution of this issue in its favor was appropriate on its summary judgment motion, and advanced arguments as to why the "facts" cited by Plaintiffs in support of their cross-motion were not "material," Giant also opposed Plaintiffs' motion on the ground that "there are genuine disputes over many of the 'material facts' [Plaintiffs] have alleged." (Dkt. Entry #52 at p. 3.) And while Plaintiffs originally maintained that adjudication of the "single site of employment" issue was appropriate on their cross-motion for summary judgment, they subsequently moved for a "continuance" of the summary judgment motions so that they could pursue discovery. (Dkt. Entry #63.) *fn3"

 Essentially, the facts disputed by the parties, and Plaintiffs' proposed discovery, concern such matters as the autonomy of Giant's store managers, the rotation or transfer of Giant employees from one store to another, and the interchange and sharing of equipment and products. In addressing these matters, each party has presented facts applicable to Giant's operations in general. No party has presented facts pertaining to managerial autonomy, employee rotation, and equipment sharing specific to the five stores in question. Because it appears that it is the degree of interrelationship among the multiple workplaces in question that is germane to the "single site of employment" issue and these facts are neither free from dispute nor fully developed, the pending motions will be denied, a discovery schedule established, and this matter listed for trial. *fn4"

 I.

 Giant had been the owner of a substantial chain of grocery stores. At its zenith, Giant had twenty-one stores in operation. (Giant Statement of Material Facts (Dkt. Entry # 21) at P1.) *fn5" By 1993, Giant's business had declined to six groceries stores.

 On or about March 24, 1993, Giant sold its store located at 30 Hanover Street, Wilkes-Barre, Pennsylvania (the "Hanover Street Store") to Defendant Town & Country. (Plaintiffs' Statement of Material Facts (Dkt. Entry #34) at P11.) Giant closed the Hanover Street Store on or about April 17, 1993. (Id. at P14.) There were fifteen persons employed at the Hanover Street Store at the time of its closure. (Giant Statement of Material Facts (P21) at P7B.) Pursuant to an agreement dated May 11, 1993, Giant sold four of its remaining five stores to Defendant Affiliated Food. (Plaintiffs' Statement of Material Facts (Dkt. Entry #34) at P13.) The stores sold to Affiliated Food and the number of persons employed at each store were as follows: Honesdale Store 33 employees Route 6 Mall, Honesdale, PA Keyser Oak Store 22 employees Keyser Oak Plaza, Scranton, PA Kingston Store 27 employees 750 Wyoming Ave., Kingston, PA Dunmore Store 18 employees 320 S. Blakely Street, Dunmore, PA

 (Giant Statement of Material Facts (Dkt. Entry #21) at PP2 and 7B.) The Dunmore, Honesdale, Kingston, and Keyser Oak facilities were closed on or about May 12, 1993. (Plaintiffs' Statement of Material Facts (Dkt. Entry #34) at P15.) *fn6"

 The distances between the stores in question varied from 2.8 miles (Dunmore Store to Keyser Oak Store) to 52.1 miles (Honesdale Store to Hanover Street Store.) (Giant Statement of Material Facts (Dkt. Entry #21) at P3.) *fn7" If only the most geographic proximate stores were at issue, the fifty affected employee threshold could not be satisfied. For example, although the Keyser Oak and Dunmore Stores are 2.8 miles apart, collectively they employed only forty persons. Similarly, while the Kingston and Hanover Street Stores were four miles apart, collectively they only employed 42 persons. In order to attain the employee threshold, it is necessary to aggregate stores separated by a distance of at least 20 miles.

 Each of the stores in question was included under a single collective bargaining agreement, with Giant's unionized employees being represented by Local 72. (Plaintiffs' Statement of Material Facts (Dkt. Entry #34) at P18.) Since 1965, the terms and conditions of employment for Giant's unionized employees have been negotiated by Giant's centralized management group, and have not been negotiated by individual store managers. (Id. at P20.) *fn8"

 It is undisputed that Giant is an "employer" as that term is defined in WARN, 29 U.S.C. § 2101(a)(1). (Id. at P3.) It is also undisputed that Giant did not provide sixty-days advance written notice of the closures of the five stores in question. If these five stores are not "facilities or operating units within a single site of employment," then it appears that the requirements of WARN are not implicated. *fn9"

 II.

 "Whether multiple locations constitute a 'single site' under . . . WARN . . . is a legal conclusion to be drawn from the underlying historical facts." Carpenters District Council of New Orleans & Vicinity v. Dillard Department Stores, Inc., 15 F.3d 1275, 1289 (5th Cir.), petition for cert. filed, 62 USLW 3809 (May 20, 1994). The threshold task is to determine what "underlying historical facts" are relevant to a determination of whether geographically separated workplaces can be considered a "single site of employment." The starting point for ascertainment of what underlying facts are material is the language used by Congress in WARN. See United Steel Workers of America v. North Star Steel Co., 5 F.3d 39, 41 (3d Cir. 1993), cert. denied, 127 L. Ed. 2d 380, 114 S. Ct. 1060 (1994).

 The statute does not define the term "single site of employment." Williams v. Phillips Petroleum Co., 23 F.3d 930, 934 (5th Cir.), cert. denied, 130 L. Ed. 2d 497, 115 S. Ct. 582 (1994). If the phrase was applied literally, each of the stores in question would constitute separate sites of employment. Each of the cases that has addressed the issue, however, has recognized that geographically-separate workplaces may constitute a single site of employment, and have resorted to legislative history and interpretative regulations to determine whether the multiple workplaces at issue constituted a single site of employment. See e.g., Williams, 23 F.3d at 934; Carpenters Council, 15 F.3d at 1289; International Union, UMW v. Jim Walter Resources, Inc., 6 F.3d 722, 724-25 (11th Cir. 1993); Florence Mining Co., 855 F. Supp. at 1474-75. These aids to statutory interpretation will also be considered here.

 The House Conference Report for the WARN legislation explained that the phrase "single site of employment" was used "to clarify that geographically separate operations are not to be combined when determining whether the employment threshold for triggering the notice requirement is met." H.R.Conf.Rep. No. 110576, 100th Cong., 2d Sess. 1045 (1988), reprinted in 1988 USCCAN 1547, 2078 (emphasis added). By way of illustration, the House Conference Report stated that "an automobile assembly plant on the east side of town and an ...


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