Air Line Pilots v . Pan American CV-02-593-M 01/06/04 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Air Line Pilots Association, International, Plaintiff
v. Civil N o . 02-593-M Opinion N o . 2004 DNH 002 Pan American Airways Corp., Defendant
O R D E R
The Air Line Pilots Association, International (“the
Association”), has sued Pan American Airways Corp. (“Pan A m ” ) ,
under 29 U . S . C . § 2101 et seq. (the “ W A R N Act”) for failing to
provide sixty days notice in advance of implementing a layoff
that occurred between September 5 and October 4 , 2002. Before
the court is plaintiff’s motion for summary judgment, to which
defendant objects. For the reasons given below, plaintiff’s
motion for summary judgment is necessarily denied.
Summary judgment is appropriate when the record reveals “no
genuine issue as to any material fact and . . . the moving party
is entitled to a judgment as a matter of law.” FED. R . CIV. P .
56(c). In defending against a motion for summary judgment, “[t]he non-movant may not rely on allegations in its pleadings,
but must set forth specific facts indicating a genuine issue for
trial.” Geffon v . Micrion Corp., 249 F.3d 2 9 , 34 (1st Cir. 2001)
(citing Lucia v . Prospect S t . High Income Portfolio, Inc., 36
F.3d 1 7 0 , 174 (1st Cir. 1994)). When ruling upon a party’s
motion for summary judgment, the court must “scrutinize the
summary judgment record ‘in the light most hospitable to the
party opposing summary judgment, indulging all reasonable
inferences in that party’s favor.’” Navarro, 261 F.3d at 94
(quoting Griggs-Ryan v . Smith, 904 F.2d 1 1 2 , 115 (1st Cir.
1990)).
Here, on the current record at least, there appear to be
genuine disputes as to material facts. At the outset, the
parties do not agree that the layoffs Pan Am instituted between
September 5 and October 4 , 2002, constituted a “mass layoff”
within the meaning of 29 U.S.C. § 2101(a)(3)(B). To determine
whether there was a mass layoff, it is first necessary to know
how many people Pan Am employed at its Portsmouth, New Hampshire,
facility sixty days prior to the first layoff in the thirty-day
layoff period. And it is necessary to know how many employees
2 were laid off. Plaintiff has not established how many people Pan
Am employed at its Portsmouth facility sixty days before the first layoff.1
However, one question of law can be resolved at this point.
In counting the total number of employees working a t , and the
number of employees laid off from, Pan Am’s Portsmouth site of
employment, flight crew members based at Stanford, Florida, are
not to be counted.
Plaintiff argues to the contrary, in reliance upon Wiltz v .
M/G Transport Services, Inc., 128 F.3d 957 (6th Cir. 1997). In
Wiltz, the court held that a river barge company’s Paducah,
Kentucy, home office was the site of employment for crew members
working on barges that traveled from Pittsburgh to New Orleans.
Id. at 961. The question presented in Wiltz was whether Paducah,
1 Plaintiff concedes that July 7 , 2002, is the correct date for counting Pan Am’s employees for WARN Act purposes. Accordingly, to prevail on summary judgment, plaintiff bears the burden of establishing the number of employees Pan Am had at its Portsmouth facility. It is not enough to argue, as plaintiff does, that if there were a significant difference between the employment figures it referred to in its motion for summary judgment and the actual employment figures, “Pan Am would certainly have said so.” (Reply. B r . in Supp. of Pl.’s Mot. Summ. J. (document n o . 13) at 4.)
3 or the particular barge on which an employee worked, was that
employee’s site of employment. Id. at 960.
Here, however, neither the Association nor Pan Am argues
that a pilot’s site of employment is the plane he or she flies.
Rather, Pan Am argues that the site of employment for pilots and
flight crew members is their home base, in either New Hampshire
or Florida. The facts of this case are analogous to those in
Teamsters Local Union 413 v . Driver’s, Inc., 101 F.3d 1107 (6th
Cir. 1996), in which the court of appeals held that a trucking
company operating trucks from eleven terminals had eleven
different sites of employment with respect to its truck drivers.
The court reached its conclusion despite the fact that “[t]he
drivers at the eleven terminals received their route assignments
from dispatchers located at the PPG Transportation Center in
Delaware, Ohio . . . .” Id. at 1108. In Driver’s, Inc., the
question presented was “whether multiple facilities operated by
the same employer constitute a ‘single site’ under the [WARN]
Act.” Id. at 1109. The question presented here is similar:
whether the site of employment of flight crews based in Florida
and New Hampshire is New Hampshire? Based upon the reasoning of
4 both Driver’s, Inc. and Wiltz, it is not New Hampshire. “In both
Driver’s, Inc. and Wiltz, the employees’ home bases were the
sites where they began and ended their business trips.”
Ciarlante v . Brown & Williamson Tobacco Corp., 143 F.3d 139, 147
(3d Cir. 1998). And in each case, the court ruled that the home
base constituted the site of employment for WARN Act purposes as
well. Here, Pan Am flight crew members are based in either
Portsmouth, New Hampshire, or Stanford, Florida, where they take
charge of an aircraft and fly an assigned route. Their work
routinely ends upon return of the aircraft to the home base. As
in Driver’s Inc., a Florida-based pilot’s site of employment is
in Florida – where the scheduled flights routinely begin and end,
and where the pilot is based.
A contrary ruling would be inconsistent with the most
logical reading of the relevant regulation, which provides as
follows:
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
5 will be the single site in which they are covered for WARN purposes.
20 C.F.R. § 639.3(i)(6). Plaintiff argues that under that
regulation Portsmouth is the site of employment for all flight
crew members, because all flight crew assignments and
instructions originate in Portsmouth, without regard to where a
particular flight crew might be based. While § 639.3(i)(6) is
“written in the disjunctive,” Wiltz, 128 F.3d at 9 6 1 , it does not
set out a test that is met by proving any one of its three parts.
Rather, it describes touchstones for the court to consider in
determining, as a matter of law, the site of employment for
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Air Line Pilots v . Pan American CV-02-593-M 01/06/04 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Air Line Pilots Association, International, Plaintiff
v. Civil N o . 02-593-M Opinion N o . 2004 DNH 002 Pan American Airways Corp., Defendant
O R D E R
The Air Line Pilots Association, International (“the
Association”), has sued Pan American Airways Corp. (“Pan A m ” ) ,
under 29 U . S . C . § 2101 et seq. (the “ W A R N Act”) for failing to
provide sixty days notice in advance of implementing a layoff
that occurred between September 5 and October 4 , 2002. Before
the court is plaintiff’s motion for summary judgment, to which
defendant objects. For the reasons given below, plaintiff’s
motion for summary judgment is necessarily denied.
Summary judgment is appropriate when the record reveals “no
genuine issue as to any material fact and . . . the moving party
is entitled to a judgment as a matter of law.” FED. R . CIV. P .
56(c). In defending against a motion for summary judgment, “[t]he non-movant may not rely on allegations in its pleadings,
but must set forth specific facts indicating a genuine issue for
trial.” Geffon v . Micrion Corp., 249 F.3d 2 9 , 34 (1st Cir. 2001)
(citing Lucia v . Prospect S t . High Income Portfolio, Inc., 36
F.3d 1 7 0 , 174 (1st Cir. 1994)). When ruling upon a party’s
motion for summary judgment, the court must “scrutinize the
summary judgment record ‘in the light most hospitable to the
party opposing summary judgment, indulging all reasonable
inferences in that party’s favor.’” Navarro, 261 F.3d at 94
(quoting Griggs-Ryan v . Smith, 904 F.2d 1 1 2 , 115 (1st Cir.
1990)).
Here, on the current record at least, there appear to be
genuine disputes as to material facts. At the outset, the
parties do not agree that the layoffs Pan Am instituted between
September 5 and October 4 , 2002, constituted a “mass layoff”
within the meaning of 29 U.S.C. § 2101(a)(3)(B). To determine
whether there was a mass layoff, it is first necessary to know
how many people Pan Am employed at its Portsmouth, New Hampshire,
facility sixty days prior to the first layoff in the thirty-day
layoff period. And it is necessary to know how many employees
2 were laid off. Plaintiff has not established how many people Pan
Am employed at its Portsmouth facility sixty days before the first layoff.1
However, one question of law can be resolved at this point.
In counting the total number of employees working a t , and the
number of employees laid off from, Pan Am’s Portsmouth site of
employment, flight crew members based at Stanford, Florida, are
not to be counted.
Plaintiff argues to the contrary, in reliance upon Wiltz v .
M/G Transport Services, Inc., 128 F.3d 957 (6th Cir. 1997). In
Wiltz, the court held that a river barge company’s Paducah,
Kentucy, home office was the site of employment for crew members
working on barges that traveled from Pittsburgh to New Orleans.
Id. at 961. The question presented in Wiltz was whether Paducah,
1 Plaintiff concedes that July 7 , 2002, is the correct date for counting Pan Am’s employees for WARN Act purposes. Accordingly, to prevail on summary judgment, plaintiff bears the burden of establishing the number of employees Pan Am had at its Portsmouth facility. It is not enough to argue, as plaintiff does, that if there were a significant difference between the employment figures it referred to in its motion for summary judgment and the actual employment figures, “Pan Am would certainly have said so.” (Reply. B r . in Supp. of Pl.’s Mot. Summ. J. (document n o . 13) at 4.)
3 or the particular barge on which an employee worked, was that
employee’s site of employment. Id. at 960.
Here, however, neither the Association nor Pan Am argues
that a pilot’s site of employment is the plane he or she flies.
Rather, Pan Am argues that the site of employment for pilots and
flight crew members is their home base, in either New Hampshire
or Florida. The facts of this case are analogous to those in
Teamsters Local Union 413 v . Driver’s, Inc., 101 F.3d 1107 (6th
Cir. 1996), in which the court of appeals held that a trucking
company operating trucks from eleven terminals had eleven
different sites of employment with respect to its truck drivers.
The court reached its conclusion despite the fact that “[t]he
drivers at the eleven terminals received their route assignments
from dispatchers located at the PPG Transportation Center in
Delaware, Ohio . . . .” Id. at 1108. In Driver’s, Inc., the
question presented was “whether multiple facilities operated by
the same employer constitute a ‘single site’ under the [WARN]
Act.” Id. at 1109. The question presented here is similar:
whether the site of employment of flight crews based in Florida
and New Hampshire is New Hampshire? Based upon the reasoning of
4 both Driver’s, Inc. and Wiltz, it is not New Hampshire. “In both
Driver’s, Inc. and Wiltz, the employees’ home bases were the
sites where they began and ended their business trips.”
Ciarlante v . Brown & Williamson Tobacco Corp., 143 F.3d 139, 147
(3d Cir. 1998). And in each case, the court ruled that the home
base constituted the site of employment for WARN Act purposes as
well. Here, Pan Am flight crew members are based in either
Portsmouth, New Hampshire, or Stanford, Florida, where they take
charge of an aircraft and fly an assigned route. Their work
routinely ends upon return of the aircraft to the home base. As
in Driver’s Inc., a Florida-based pilot’s site of employment is
in Florida – where the scheduled flights routinely begin and end,
and where the pilot is based.
A contrary ruling would be inconsistent with the most
logical reading of the relevant regulation, which provides as
follows:
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
5 will be the single site in which they are covered for WARN purposes.
20 C.F.R. § 639.3(i)(6). Plaintiff argues that under that
regulation Portsmouth is the site of employment for all flight
crew members, because all flight crew assignments and
instructions originate in Portsmouth, without regard to where a
particular flight crew might be based. While § 639.3(i)(6) is
“written in the disjunctive,” Wiltz, 128 F.3d at 9 6 1 , it does not
set out a test that is met by proving any one of its three parts.
Rather, it describes touchstones for the court to consider in
determining, as a matter of law, the site of employment for
employees who travel as a part of their jobs. See Driver’s,
Inc., 101 F.3d at 1109.
Here, the Florida-based flight crews receive work
assignments from New Hampshire. Thus, each party can meet one of
the three § 639.3(i)(6) factors. The problem, then, lies in
assigning relative weight to the identified factors. The
Driver’s, Inc. court examined the legislative history of the WARN
Act and determined that “geographical considerations are the
strongest factors in determining whether separate facilities
6 owned or operated by the same employer are considered single or
separate sites under the Act.” 101 F.3d at 1110. The structure
of § 639.3(i)(6) itself provides an even stronger basis for
deciding between “home base” and “source of assignments” when
identifying a traveling employee’s site of employment.
To determine a traveling employee’s site of employment, the
court should first determine whether the employee has a home
base. If s o , that is his or her site of employment. If not,
then the site of employment is the place from which his or her
work is assigned. And i f , somehow, an employee has no home base,
and no location qualifies as the place from which work is
routinely assigned, then the employee’s site of employment is the
place to which he or she reports. Here, each flight crew member
has a home base, and, as a matter of law, that home base
constitutes his or her site of employment for WARN purposes.
Because plaintiff has yet to establish the number of workers
employed by Pan Am at its Portsmouth site of employment, and has
not established how many of those employees were laid off,
summary judgment is not available on the record as currently
7 developed. However, it does appear that this matter is amenable
to resolution on summary judgment. The relevant facts related to
employees should be matters of record beyond dispute.
However, another issue of law might need to be decided
before summary judgment may be entered, i.e., the status of
flight crew members who worked less than twenty hours per week.
If plaintiff intends to count those employees, it will be
necessary to establish that they are countable, notwithstanding
hours of work that suggests part-time employment under the
applicable statute.
For the reasons given above, plaintiff’s motion for summary
judgment (document n o . 9 ) is denied.
SO ORDERED.
Steven J. McAuliffe United States District Judge January 6, 2004
cc: Jerry D Anker, Esq. R. Matthew Cairns, Esq. Andrew W . Serell, Esq.