Petition for Writ of Certiorari — Goodman v. HBD Industries, Inc. (No. 06-1121)

Supreme Court US.

No. 061121 5FFR2- 2007

f } OP THE Ml FR

In the OFFICE OF THE CLEX

Supreme Court of the Anited States

PHILLIP GOODMAN, SR.,

Petitioner,

v.

HBD INDUSTRIES, INC., et al.,

3 Respondents.

On Petition for a Writ of Certiorari

to the Supreme Court of Tennessee

PETITION FOR WRIT OF CERTIORARI

Davip Harr NELSON Davip H. DuNAWway

Counsel of Record 100 SourH FirtH SrrReer

4 GEORGETOWN GREEN Post OrricE Box 23]

CHARLOTTESVILLE, VA 22901 LAFotterre. TN 37766

(434) 293-5750 LAFOTTETTE: (423) 562-7085

KNOXVILLE: (865) 524-3670

Counsel for Petitioner

Becker Gallagher + Cincmnan, OW + Washington, DLC. + 800.890.5001

i

QUESTION PRESENTED

The petitioner was injured while working in the course of

his employment so as to become entitled to workers’

compensation benefits. For purposes of calculating his

average weekly wage, however, the trial court included days

the petitioner had not worked while on strike. Upon review,

the Tennessee Supreme Court reversed that determination.

The question presented, therefore, is as follows:

Did the Tennessee Supreme Court err as a matter of

federal labor law in failing to find that requiring days lost

while on strike should be excluded from the petitioner’s

average weekly wage calculation?

il

RULE 14.1(b) STATEMENT

A list of all parties to the proceeding in the court whose

judgment is the subject of this petition is as follows:

Petitioner: Phillip Goodman, Sr. (“Mr. Goodman”).

Respondent: HBD Industries, Inc. (““HBD”). Sue Ann

Head, Director of the Division of Workers’ Compensation,

Tennessee Department of Labor and Workforce Development

and the Second Injury Fund were initially parties defendant to

this action; however, Ms. Head and the Second Injury Fund

were dismissed as parties defendant in the chancery court and

thus are not involved in this proceeding.

iil

TABLE OF CONTENTS

Page

GRIST Ps PURECEEIED oe lee pect esas eews 1

PARTIES TO THE PROCEEDINGS ............ il

Tee Ge COREE bo ree a ve ee eb hae ae ili

TAL Gr AUremumnnD ce ce cence receenven V

8 4. ¢ 8 ES rt pe ee rm |

SEP RUE ob. wie ets eo ee ]

CONSTITUTIONAL AND STATUTORY

Pe oo ang a bes ata ee ee ee l

STATEMENT OF THE CASE ..-¢.-cccccvcccess 2

LOWER COURT DECISIONS ................ 5

REASONS FOR GRANTING THE PETITION ...... 6

E,. Reena BEE Sos 2 on eek oe eees eee anes 6

Ii. THE REQUIRED INCLUSION OF DAYS LOST

ON STRIKE FOR PURPOSES OF

CALCULATING PETITIONER’S AVERAGE

WEEKLY WAGE TO DETERMINE HIS

WORKERS’ COMPENSATION BENEFITS

VIOLATES THE NATIONAL LABOR

RELATIONS ACT, 29 U.S.C. §§ 157, 158(a) ... 7

S. Tee 8 ee ees eee eee 7

DB. Pemerai Preemption ... 2. cee ees 8

C. The Tennessee decision violates the NLRA ... 9

ee re ene alia dusted 13

APPENDIX

Appendix A: 11/6/06 Supreme Court of Tennessee

re ere eee la

Appendix B: 10/27/05 Chancery Court of Tennessee

See ee II =k ee ow ee oe ee ea es 16a

Vv

TABLE OF AUTHORITIES

CASES:

Page

Allis-Chalmers Corp. v. Lueck,

471 U.S. 202, 105 S.Ct. 1904,

BP Ree EE. bok tens eee ee bas 8

Brown v. Hotel & Restaurant Employees,

468 U.S. 491, 104 S. Ct. 3179,

ae Gs, We AIO 8. eee se vee wee 9

Gibbons v. Ogden,

22 U.S. (9 Wheat.) 1, 6 L. Ed. 23 (1824) ....... 8

Hartley v. Liberty Mutual Insurance Co..,

197 Tenn. 504, 276 S.W.2d 1 (1954) ....... passim

Hawthorne v. Director, Office of Workers’ Compensation

Programs,

wet F706 S16 (GC. T9RR) ww en ew ens 7

Lingle v. Norge Division of Magic Chef, Inc.,

486 U.S. 399, 108 S.Ct. 1877,

Se ee ee Ds a so oa tee he we 6

Lee v. NLRB,

Sea 8 TOE Ce RO oe ee ee ee 11

Monterey Coal Co. v. Industrial Commission,

79 Ill.2d 334, 403 N.E.2d 263 (1980)... ... 7,9, 10

New York Central R.R. v. White,

243 U.S. 188, 37 S.Ct. 247, 61 L.Ed. 667 (1917) .. 6

vi

NLRB v. Granite State Joint Board., Textile Workers Union,

Local 1029,

409 U.S. 213, 93 S. Ct. 385,

. 5 OR MD edi. os: rere re 11,12

Pattern Makers' League v. NLRB,

473 U.S. 95, 105 S. Ct. 3064,

Or is et ED Gece he eae eee 11

Rakie v. Jefferson & Clearfield Coal & Iron Co.,

262 Pa. 444, 105 A. GSS (ISIS) .. wwe cee 8

United Parcel Service v. District of Columbia Department of

Employment Services,

834 A.2d 868 (D.C.Ct.App. 2003) ............ 8

U.S. CONSTITUTIONAL PROVISIONS

United States Constitution, Article VI ........... 1,8

STATUTES OF THE UNITED STATES:

Oe Ss ee l

MEAS SIR: oo occa ee !

MUSE OIF 3a 134

DONC C Bis i Eee eee 2.3.7

STATE STATUTES:

Tenn. Code Ann. § 50-6-102(3)(A)(repl. vol. 2005) ... 4

RULES OF THE SUPREME COURT:

Supreme Court Rule 13.1

I

PETITION FOR WRIT OF CERTIORARI

Petitioner Phillip Goodman, Sr. respectfully petitions for

a writ of certiorari to review the specified judgment of the

Supreme Court of Tennessee.

OPINIONS BELOW

The Scott County (Tennessee) Chancery Court entered an

Order and Judgment in Mr. Goodman’s case on October 27,

2005 (Appendix [“App.”{ B, infra, 16a).The Chancery Court

Order and Judgment was reversed by the Tennessee Supreme

Court in an Opinion filed on November 6, 2006 (App. A,

infra, 1a).

JURISDICTION

The Opinion by the Tennessee Supreme Court was filed

on November 6, 2006. This petition is accordingly filed

within the time allowed by law. Supreme Court Rule 13.1.

Jurisdiction over the appeal is invoked pursuant to 28 U.S.C.

§§ 1257(a), 2101 (d).

CONSTITUTIONAL AND

STATUTORY PROVISIONS

THE CONSTITUTION OF THE UNITED STATES, ARTICLE

VI, PROVIDES IN PERTINENT PART:

This Constitution, and the Laws of the United States

which shall be made in Pursuance thereof ... shail be the

supreme Law of the Land; and the Judges in every State shail

be bound thereby, any Thing in the Constitution or Laws. of

any State to the Contrary notwithstanding.

2

SECTION 7 OF THE NATIONAL LABOR RELATIONS ACT,

29 U.S.C. § 157, PROVIDES:

“Employees shall have the right to self-organization,

to form, join, or assist labor organizations, to bargain

collectively through representatives of their own

choosing, and to engage in other concerted activities

for the purpose of collective bargaining or other

mutual aid or protection, and shall also have the right

to refrain from any or all of such activities except to

the extent that such right may be affected by an

agreement requiring membership in a_ labor “.

organization as a condition of employment as &

authorized in section 8(a)(3).”

SECTION 8(a) OF THE NATIONAL LABOR RELATIONS

ACT, 29 U.S.C. § 158(a) PROVIDES IN PERTINENT PART:

“Unfair labor practices by employer. It shall be an

unfair labor practice for an employer--

(1) to interfere with, restrain, or coerce employees in

the exercise of the rights guaranteed in section 7

(3) by discrimination in regard to hire or tenure of

employment or any term or condition of employment

to encourage or discourage membership in any labor

organization ...”

STATEMENT OF THE CASE

This Petition seeks a review of findings by the Tennessee

Supreme Court that including days lost to a strike in

calculating an employee’s average weekly wage for purposes

of determining workers’ compensation benefits does not

3

violate Sections 7 and 8 of the National Labor Relations Act,

29 U.S.C. §§ 157, 158(a).

Mr. Goodman worked for HBD and its predecessor B.F.

Goodrich for more than 26 years, before he became injured.

Goodman v. HBD Industries, Inc., _S.W.3d , _,

2006 Tenn.App. Lexis 991 at *2 (Tenn., filed November 6,

2006). The injury in question occurred on January 31, 2002,

when Mr. “Goodman was pulling a hose by hand, the hose

got stuck, and he ‘got jerked down [and] to the left real

severely.’” /d. at *3. Mr. Goodman “felt immediate pain in

his back, left leg, neck, and left shoulder [and] reported this

injury to his employer.” /d. at *3.

Mr. Goodman was treated by Edward Kahn, M.D., an

orthopedic surgeon and Lis Bellner, a pain specialist.” /d. at

*3. Dr. Kahn placed Mr. Goodman on significant

restrictions. Jd. at *4. HBD paid temporary benefits on

account of this injury to Mr. Goodman. /d. at *4.

In the Spring of 2001, Mr. Goodman was a member of the

Collective Bargaining Union (“the Union”). /d_at-*2. Mr.

Goodman had testified that “everyone working at the plant

‘had to join the union.’” /d. at *2. In the Spring of 2001, the

Union went out “on strike after HBD refused to bargain with

the union regarding a new contract.” /d. at 2*.

As a member of the Union, Mr. Goodman was required

to abide by the Union’s bylaws. /d. at *2._ Under those

bylaws, all Union members, including Mr. Goodman, were

forbidden to cross the picket line and go to work

notwithstanding the strike. /d. at *2-3. Infact, however,

some unspecified number of employees did cross the picket

line. /d. at 3*. Mr. Goodman was not among them.

4

In addition, HBD hired what politely is known as.

“replacement workers” or strikebreakers-but in common

parlance as scabs-to work in the plant so as to replace the

workers who honored the picket line. /d. at *3. In the event,

the strike lasted 28 weeks, cr until early January 2001, which

is when Mr. Goodman returned to work for the approximate

thirteen months until he suffered the injury in issue. Jd. at *3.

There was never any question in these state court

proceedings as to whether Mr. Goodman was entitled to

workers’ compensation benefits. The sole issue turned on

whether the trial court properly excluded the 28 weeks of the

strike for its calculations of Mr. Goodman’s Average Weekly

Wage (“AWW”). In the 52 weeks prior to his injury, Mr.

Goodman earned $11,651.24, which calculates to an AWW

of $224.06, or a Weekly Compensation Rate (“WCR”), of

$149.38, under the rule of Tenn. Code Ann. § 50-6-102(3)(A)

(repl. vol. 2005). See Goodman v. HBD Industries, Inc.,

supra, _S.W.3dat___, 2006 Tenn.App. Lexis 991 at *4-

+R

The trial court excluded the 28 weeks Mr. Goodman and

his fellow Union members were on strike. /d. at *4. This

entails that Mr. Goodman’s WCR was calculated to be

$388.77, id. at 4*; Order and Judgment § 4 (App. B, infra

17a), instead of the $149.38 that would have been his WCR

had the period of the strike been included in the calculation.

Goodman v. HBD Industries, Inc., supra, __S.W.3dat_,

2006 Tenn.App. Lexis 991 at *4-5.

Again, the question of whether the chancellor properly

excluded the 28-week duration of the strike was the sole issue

on appeal to the Tennessee Supreme Court. In its resolution

of the appeal, that court followed the half-century-old decision

in Hartley v. Liberty Mutual Insurance Co., 197 Tenn. 504,

5

276 S.W.2d 1 (1954), which held that the time spent away

from the job while on strike was a voluntary absence that

should not be excluded when an injured worker’s AWW is

calculated.

In petitioner’s view, this practice (which greatly benefits

the employers who urge such practices upon the courts),

violates federal labor law by restraining and coercing

employees like Mr. Goodman in the exercise of their rights

under federal labor law. Under well-settled constitutional

principles as mandated by the Supremacy Clause, federal

labor law preempts the local Tennessee practice of including

days not worked on account of a legal strike in its average

weekly wage calculus. The practice penalizes workers like

Mr. Goodman who exercise their federal right to join a union

and to take part in its activities. For those reasons, Mr.

Goodman respectfully asks that his Petition be granted.

Lower Court Proceedings. The chancery court entered

an order that excluded the period Mr. Goodman had been on

strike from the computation of the petitioner’s average weekly

wage. (App. B, infra, 16a). The order was reversed on appeal

to the Tennessee Supreme Court. (App. A infra., 1a).

The specific portion of the opinion below for which Mr.

Goodman seeks review provided in full as follows:

“C. Does federal labor law preempt Hartley?

Under federal law, employees have the right to

form or join labor organizations as well as strike

against their employer. See 29 U.S.C. §§ 157, 158.

The National Labor Relations Act provides that ‘[iJt

shall be an unfair labor practice for an employer . . .

(1) to interfere with, restrain, or coerce employees in

6

the exercise of the rights guaranteed in [29 U.S.C.

§ 157]? and ‘[i]t shall be an unfair labor practice for

an employer . . . (3) by discrimination in regard to

hire or tenure of employment or any term or condition

of employment to encourage or discourage

membership in any labor organization." 29 U.S.C.

§ 158(a).

“These sections of the Federal law only grant

employees the right to form a union if they so desire.

Although federal law grants employees the right to

form a union, we decline to interpret that right to

extend as far as requiring days lost while on strike to

be excluded from the average weekly wage

calculation.”

Goodman v. HBD Industries, Inc.,supra, __S.W.3dat___,

2006 Tenn.App. Lexis 991 at *16 to *17.

REASONS FOR GRANTING THE PETITION

Jl. INTRODUCTION.

| The Court has, upon review, long found the power of the

States to enact and then to administer workers’ compensation

laws to be constitutional. See, e.g., New York Central R.R. v.

White, 243 U.S. 188, 200-02, 37 S.Ct. 247, 61 L.Ed. 667

(1917). Needless to say, the Court has also long held that the

exercise of that power must be consistent with the superior

demands of federal labor law legislation. See, e.g., Lingle v.

Norge Division of Magic Chef, Inc. , 486 U.S. 399, 108 S.Ct.

1877, 100 L.Ed.2d 410 (1988).

Here, the practice of including the time spent on strike in

the calculation of an injured worker’s AWW 1s at odds with’

7

both the specific terms and the spirit of the National Labor

Relations Act in general and Sections 7 and 8 of that

enactment in particular. The result is that Tennessee

workers—and perhaps workers in other jurisdictions—are

denied their entitlement to workers’ compensation benefits in

a fashion that is directly contrary to the federal labor law

which should be supreme in this matter. Tennessee, in other

words, is not free to reduce benefits in this way

notwithstanding NLRA §§ 7, 8. For those reasons, Mr.

Goodman urges, his petition should be granted.

il. THE REQUIRED INCLUSION OF DAYS LOST ON

STRIKE FOR PURPOSES OF CALCULATING

PETITIONER’S AVERAGE WEEKLY WAGE TO

DETERMINE HIS WORKERS’ COMPENSATION

BENEFITS VIOLATES THE NATIONAL LABOR

RELATIONS ACT, 29 U.S.C. §§ 157, 158(a).

A. Introduction.

The Tennessee court’s reliance on Hartley is at odds with

the philosophy undergirding labor law on both the state and

federal level. Numerous decisions from other jurisdictions

have, for example, rejected the view that time spent on strike

__should be included so as to reduce the worker’s subsequent

workers’ compensation benefits. See, e.g., Monterey Coal

Co. v. Industrial Commission, 79 Ill.2d 334, 403 N.E.2d 263,

265 (1980)(rejecting notion that time spent on strike should

serve to reduce workers’ compensation benefits); Hawthorne

v. Director, Office of Workers’ Compensation Programs, 844

F.2d 318, 320 (6th Cir. 1988) (Longshoreman’s and Harbor

Workers’ Compensation Act Benefits Review Board case;

held on appeal that sum of claimant's earnings "does not

accurately and fairly approximate his annual earning capacity

because it does not take into account time lost in the year

8

prior to the injury on account of a strike"); United Parcel

Service v. District of Columbia Department of Employment

Services, 834 A.2d 868, 873-74 (D.C.Ct.App. 2003)(also

rejecting notion that time spent on strike should serve to

reduce workers’ compensation benefits); Rakie v. Jefferson &

Clearfield Coal & Iron Co., 262 Pa. 444, 105 A. 638, 639

(1918)(where coal mine was closed on account of labor

dispute, employee's "idleness during this period was not due

to any fault of his own" for workers’ compensation purposes).

Thus, even on a state level, the general rule without exception

so far as Mr. Goodman can determine refuses to penalize a

worker’s benefits on account of time spent out on strike. That

practice reflects and may even be a direct reaction to federal

law on this issue for, as we will see below, federal law

mandates this result in any event.

B. Federal Preemption.

There can be no doubt that federal preemption is a

determinative issue in this case. Clearly, "Congress" power

to pre-empt state [or territorial] law is derived from the

Supremacy Clause of Art. VI of the Federal Constitution."

Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 208, 105 S.Ct.

1904, 85 L.Ed.2d 206 (1985), citing Gibbons v. Ogden, 22

U.S. (9 Wheat.) 1, 6 L. Ed. 23 (1824). As this Court has

stated:

These pre-emption principles are no less applicable

in the field of labor law. Section 7 of the NLRA, 49

Stat. 452, as amended, 29 U. S. C. § 157, the

provision involved in this case, neither contains

explicit pre-emptive language nor otherwise indicates

a congressional intent to usurp the entire field of

labor-management relations. See New York Telephone

Co. v. New York State Dept. of Labor, 440 U.S. 519,

9

540 (1979): Garner v. Teamsters, 346 U.S. 485, 488

(1953) ("The national .. . Act. . . leaves much to the

states, though Congress has refrained from telling us

how much"). The Court has, however, frequently

applied traditional pre-emption principles to find state

law barred on the basis of an actual conflict with § 7.

If employee conduct is protected under § 7, then state

law which interferes with the exercise of these

federally protected rights creates an actual conflict and

is pre-empted by direct operation of the Supremacy

Clause. See, e. g., Nash v. Florida Industrial

Comm'n, 389 U.S. 235, 239-240 (1967) (invalidating

state unemployment compensation law); Bus

Employees v. Missouri, 374 U.S. 74, 81-82 (1963)

(striking down state statute prohibiting peaceful strikes

against public utilities); Bus Employees v. Wisconsin

Board, 340 U.S. 383, 394 (1951) (same); Automobile

Workers v. O'Brien, 339 U.S. 454, 458-459 (1950)

(invalidating state "strike-vote" legislation).

Brown v. Hotel & Restaurant Employees, 468 U.S. 491, 501-

02, 104 S. Ct. 3179, 82 L. Ed. 2d 373 (1984). If, therefore,

the practice decreed in Hartley and followed in Mr.

Goodman’s case violates NLRA §§ 7, 8, it is settled in this

Court that federal law would then preclude the practice on a

state level through application of the doctrine of preemption.

C. The Tennessee decision violates the NLRA.

Those cited decisions precluding the //artley approach

offer strong hints as to why in the end _ federal law is

paramount in this area and why, as a consequence, the

practice of excluding time off for strikes in Tennessee is

violative of that law. As the Illinois court in Monterey

concluded:

10

It is our conclusion that labor disputes such as strikes

should be considered to be unavoidable causes within

the meaning of section 10(b) of the Workmen's

Compensation Act (Ill. Rev. Stat. 1971, ch. 48, par.

138.10(b)). Since there is no clear legislative direction

in the matter, we refuse to confront the individual

employee with the dilemma of choosing between, on

the one hand, participating in a strike and thus risking

a substantial reduction in workmen's compensation

benefits should he be injured within the ensuing year

and, on the other hand, declining to participate in a

strike and thereby facing fines and perhaps expulsion

from the union.

Monterey Coal Co. v. Industrial Commission, supra, 403

N.E.2d at 265. Indeed, it is, in fact, the very act of putting

the worker to the Hobson’s choice of either striking and

potentially losing workers’ compensation benefits or being

fined by his union or perhaps even ejected from its

membership that violates NLRA §§ 7, 8.

In that regard, there is no doubt that, in general terms at

least, a union has the right to fine members who cross the

picket line and work during a strike. A Sixth Circuit case

summarized the Court’s holdings in this area as follows:

Nevertheless, fining a union member is not per se a

violation of the Act. In NLRB v. Allis-Chalmers Mfg.

Co., 388 U.S. 175, 191-93, 87S. Ct. 2001, 18 L. Ed.

2d 1123 (1967), the Court held that a union has the

right to prescribe its own rules respecting the

acquisition or retention of membership, including the

right to impose fines that carry an explicit or implicit

threat of expulsion for nonpayment. In Scofield [v.

Ih

NLRB], 394 U.S.[423] at 430-36 [89 S. Ct. 1154, 22

L. Ed. 2d 385 (1969)], the Court upheld a union rule

assessing fines, enforceable by threat of expulsion or

judicial action, against members who violated a bylaw

limiting the daily wages that members working on an

incentive basis could earn. The bylaw was enacted to

combat the threat of an employer-instituted production

speed-up. The Court recognized that the rule was

applicable only to voluntary union members and that

any union member retained the freedom to resign and

escape the rule. /d. at 435.

Lee v. NLRB, 325 F.3d 749, 755 (6" Cir. 2003).

By forcing all Tennessee union members covered by

workers’ compensation either to cross the picket line or to

risk receiving reduced benefits should they subsequently

suffer an injury on the job, the decision below has violated

NLRA § 7's guarantee that "employees have ‘the right to

refrain from any or all’ concerted activities relating to

collective bargaining or mutual aid and protection, as well as

the right to join a union and participate in those concerted

activities." NLRB v. Granite State Joint Board., Textile

Workers Union, Local 1029, 409 U.S. 213, 216, 93 S. Ct.

385, 34 L. Ed. 2d 422 (1972); cf. Pattern Makers‘ League v.

NLRB, 473 U.S. 95, 104, 105 S. Ct. 3064, 87 L. Ed. 2d 68

(1985)(labor union's constitution barring employees from

resigning during strike violates congressional policy of

voluntary unionism implicit in section 8(a)(3)).

Certainly, as the excerpt from the decision rendered below

reveals, the Tennessee Supreme Court recognized the problem

-at least in theory. See,Goodman v. HBD Industries, Inc.,

supra, S.W.3dat __, 2006 Tenn. App. Lexis 991 at *16.

12

It did not, however, draw the proper conclusion upon its

consideration of that issue. /d. at *16 to *17.

Tennessee is a right-to-work state. There is no question

that it is free to structure its labor relations law in that

fashion. Tennessee is decidedly not free, however, to draw

the conclusion from that permitted arrangement that any

absence from work during a strike is, therefore, necessarily

voluntary for purposes of calculating workers’ compensation

benefits. Such a view ignores the right of the Union to fine or

expel members who cross the picket line even in right-to-work

states. It ignores the strife that crossing the picket line would

engender among fellow workers and union members; in no

way, in view of these realities, could the decision whether or

not to cross the picket line be said to be a purely voluntary

act. The decision to become or not to become a strikebreaker

does not take place in a vacuum; it takes place in the highly-

charged context of union bylaws and fellow employee

relations. The result is that the Tennessee practice of treating

strike-mandated absences from work as voluntary acts

therefore chills the right of Mr. Goodman and others under

the NLRA freely and in a non-coercive manner “to join a

union and participate in those concerted activities." NLRB v.

Granite State Joint Board., Textile Workers Union, Local

1029, supra, 409 U.S. at 216, 93 S. Ct. 385 (1972). For that

reason, Mr. Goodman contends, his petition should be

granted, the decision below should be disapproved, and

Tennessee’s practices in this area should be brought into line

with existing federal standards as embodied in, and mandated

by, the NLRA.

13

CONCLUSION

Therefore, and for all the foregoing reasons, petitioner

Phillip Goodman, Sr. respectfully requests that this Court

issue a Writ of Certiorari to the Supreme Court of Tennessee

Respectfully submitted,

PHILLIP GOODMAN, SR.

By counsel

David Hart Nelson

Counsel of Record

4 Georgetown Green

Charlottesville, VA 22901

(434) 293-5750

David H. Dunaway

100 South Fifth Street

Post Office Box 231

LaFollette, TN 37766

LaFollette: (423) 562-7085

Knoxville: (865) 524-3670

Counsel for Petitioners

APPENDIX

la

APPENDIX A

SUPREME COURT OF TENNESSEE

AT KNOXVILLE

September 7, 2006 Session

No. E2005-02661-SC-R3-CV

[Filed November 6, 2006]

PHILLIP GOODMAN, SR. )

)

V. )

)

HBD INDUSTRIES, INC., ET AL. )

a ae )

Direct Appeal from the Chancery Court for Scott County

No. 8843. Billy Joe White, Chancellor

JUDGES: WILLIAM M. BARKER, C.J., delivered the

opinion of the court, in which JANICE M. HOLDER,

CORNELIA A. CLARK, and GARY R. WADE, JJ., and E.

RILEY ANDERSON, SP.J., joined.

The sole issue in this workers’ compensation action is

whether weeks spent absent from work due to a strike are

included when calculating an employee’s average weekly

wage. The employee was on strike for twenty-eight weeks and

had been back at work for less than a month before becoming

injured. The trial court awarded permanent partial disability.

2a

When calculating the weekly benefit, the court excluded from

its calculation of the employee’s average weekly wage those

weeks during which the employee was on strike. On appeal,

the employer argues that the trial court erred in this

calculation. We accepted review before the case was heard or

considered by the Special Workers’ Compensation Appeals

Panel. We hold that the trial court erred in excluding the

weeks spent on strike in determining the employee’s average

weekly wage. Because the employer does not appeal the

compensability of the injury or the extent of disability, we

affirm the trial court’s decision award of benefits, with the

amount of benefits modified to reflect the proper calculation

of the employee’s average weekly wage.

OPINION

I. Factual Background

The Plaintiff, Phillip Goodman (“Goodman”), had worked

for HBD Industries, Inc. (“HBD”) or its predecessor B.F.

Goodrich for approximately twenty-six years before becoming

injured. Goodman was a member of the Collective Bargaining

Union (“the union”) at HBD, and, according to Goodman,

everyone working at the plant “had to join the union.” In the

spring of 2001, the union voted to go out on strike after HBD

refused to bargain with the union regarding a new contract.

Goodman testified that, as a member of the union, he was

required to abide by the union bylaws, which forbid union

members from crossing the picket line to return to work.

However, some employees did cross the picket line and return

to work. HBD also hired a number of replacement workers to

fill in for the striking workers. The strike lasted twenty-eight

weeks, ending in early January 2002.

3a

When Goodman returned to work after the strike, he was

working as a “lead head operator,” responsible for setting up

and running “a medium hose line.” On January 31, 2002,

when Goodman was pulling a hose by hand, the hose got

stuck and he “got jerked down [and] to the left real severely.”

He felt immediate pain in his back, left leg, neck, and left

shoulder. He reported this injury to his employer.

HBD sent Goodman to Dr. Edward Kahn, an orthopedic

surgeon, for treatment. Goodman also received treatment

from Dr. Lisa Bellner, a pain specialist. An MRI revealed a

herniated disc in Goodman’s neck, causing deformity of the

spinal cord and impinging on the nerve root on the left side.

Dr. Kahn opined that this herniated disc was the cause of the

pain in Goodman’s neck, shoulder, and left arm. Goodman

was treated conservatively with medication and physical

therapy. Dr. Kahn opined that when he examined Goodman

on August 27, 2002, Goodman had reached maximum

medical improvement with respect to the neck injury. Dr.

Kahn restricted Goodman to light duty work with occasional

lifting of up to twenty pounds and frequent lifting of up to ten

pounds, with no repetitive bending, stooping, or twisting.

HBD paid temporary workers’ compensation benefits to

Goodman for this neck injury arising out of the January 31,

2002, accident.

Goodman filed a complaint for workers’ compensation

benefits in the Chancery Court for Scott County on April 18,

4a

2002.' A hearing was held on October 11, 2005. The trial

court issued an order on October 27, 2005, finding that

Goodman had been injured within the course and scope of his

employment with HBD and that he had sustained permanent

partial disability to the extent of sixty-six percent to the body

as a whole. The trial court awarded Goodman a lump-sum

judgment totaling $102,529.68, which equaled 264 weeks of

benefits at a rate of $388.77 per week. In the fifty-two weeks

prior to his injury, Goodman had earned $11,651.24. In

calculating Goodman’s weekly compensation rate, the trial

court deducted the twenty-eight weeks during which Goodman

was on strike. Had the court included those weeks in the

calculation, the weekly compensation rate would have been

$149.38.

HBD filed a notice of appeal on November 16, 2005,

challenging the trial court’s computation of Goodman’s

average weekly wage and weekly compensation rate. HBD

did not appeal the finding that the injury was sustained in the

scope and course of employment or the assessment of sixty-

six percent permanent partial disability. We accepted review

before the case was heard or considered by the Special

Workers’ Compensation Appeals Panel.

II. Standard of Review

Our standard of review of factual issues in a workers’

compensation case is de novo upon the record of the trial

court, accompanied by a presumption of correctness of the

' Suit was also filed against Sue Ann Head, Director of the

Division of Workers’ Compensation, Tennessee Department of Labor

and Workforce Development, Second Injury Fund. Sue Ann Head and

the Second Injury Fund were dismissed from the case in chancery court

and are not party to this appeal.

Sa

trial court’s factual findings, unless the preponderance of the

evidence is otherwise. Tenn. Code Ann. § 50-6-225(e)(2)

(2005); see also Rhodes v. Capital City Ins. Co., 154 S.W.3d

43, 46 (Tenn. 2004); Perrin v. Gaylord Entm’t Co., 120

S.W.3d 823, 825 (Tenn. 2003). Conclusions of law are

subject to de novo review without any presumption of

_ correctness. Rhodes, 154 S.W.3d at 46; Perrin, 120 S.W.3d

at 826.

Ii. Analysis

A. Application of Hartley v. Liberty Mut. Ins. Co.

The only issue on appeal is whether the trial court erred

in excluding the twenty-cight weeks during which Goodman

was out on strike when calculating his average weekly wage.

HBD relies on Hartley v. Liberty Mut. Ins. Co., 197 Tenn.

504, 276S.W.2d 1 (Tenn. 1954), to support its argument that

time spent away from work due to a strike is a voluntary

absence and should not be excluded in calculating the weekly

wage. Goodman argues in response that Hartley is no longer

good law, or, in the alternative, Hartley does not apply to the

facts of this case. Specifically, Goodman argues that Hartley

is more than half a century old, “has never been followed, in

Tennessee or anywhere else,” fails to deal with the impact of

federal labor law on the issue at hand, and is “an anomaleus

relic of a prior age that should be given a merciful burial, at

least insofar as the issue in this case is concerned.” We agree

with HBD that Hartley controls the outcome of this case, and,

therefore, the twenty-eight weeks during which Goodman

participated in the strike are to be included when calculating

his average weekly wage.

6a

When calculating the weekly compensation rate, a trial

court must first determine the employee’s average weekly

wage. An employee’s average weekly wage is defined by

Statute:

“Average weekly wages” means the earnings of the

injured employee in the employment in which the

injured employee was working at the time of the

injury during the period of fifty-two (52) weeks

immediately preceding the date of the injury divided

by fifty-two (52); but if the injured employee lost

more than seven (7) days during the period when the

injured employee did not work, although not in the

same week, then the earnings for the remainder of the

fifty-two (52) weeks shall be divided by the number of

weeks remaining after the time so lost has been

deducted[.]

Tenn. Code Ann. § 50-6-102(3)(A) (2005). The compensation

rate is two thirds of that average weekly wage. Tenn. Code

Ann. § 50-6-102(15)(A)(vill) (2005).

Deducting days not worked from the calculation of the

average weekly wage benefits the employee because the

wages for the fifty-two-week period will be divided by a

smaller number of days worked, resulting in a higher average

weekly wage. Goodman earned $11,651.24 in the fifty-two

weeks prior to his injury. If we include the weeks spent on

strike, Goodman’s average weekly wage would equal

$224.06, making the weekly rate of compensation $149.38.

However, the trial court excluded the twenty-eight weeks

7a

spent on strike and awarded Goodman benefits at $388.77 per

week.’

The determination of whether days an employee does not

work should be deducted from the computation of the average

weekly wage 1s dependent upon the facts and circumstances

of each case. Cantrell v. Carrier Corp., 193 S.W.3d 467, 472

(Tenn. 2006). In making this determination, we ask whether

the employee lost time from work due to “the employee’s

voluntary act, or . . . the act and choice of the employer for

{the employer’s] benefit and convenience.” Bryant v.

McAllister, 202 Tenn. 654, 308 S.W.2d 412, 414-15 (Tenn.

1957). Voluntary absences from work are not deducted from

the fifty-two week period. /d.; see also Hartley, 276 S.W.2d

at 3. By contrast, days not worked by an employee must be

deducted from the fifty-two week period if the inability to

work is the result of “sickness, disability, or some other

fortuitous circumstance.” Russell v. Genesco, Inc., 651

S.W.2d 206, 210 (Tenn. 1983). Examples of “fortuitous

circumstances” include the closing of a plant for repairs or a

reduction of work due to an unforeseen shortage of material

or a lack of orders. See Cantrell, 193 S.W.3d at 472 (citing

Hartley, 276 S.W.2d at 4; Bryant, 308 S.W.2d at 413-14).

In Hartley, this Court addressed the exact question we are

faced with today: should the time the employee spent on strike

against the employer be excluded when calculating an

employee’s average weekly wage? 276 S.W.2d at 2-3. The

employee in Hartley had taken part in a sixteen-weck strike

> It is unclear how the trial court arrived at this figure. If the

twenty-eight weeks are excluded, the income of $11,651.24 is

divided by 24 weeks, equaling $485.47, two-thirds of which is

$323.65.

8a

against his employer. /d. at 2. Of those sixteen weeks, the

plant was closed for eight weeks for repairs. /d. After

returning to work, the employee was injured within the course

and scope of his employment. /d. When calculating the

employee’s average weekly wage, the trial court deducted

eight weeks, representing the eight weeks during which the

plant was closed, but included the other eight weeks during

which the employee was on strike. /d. We affirmed, holding

that the trial court correctly deducted the eight weeks for the

plant closure and that the period for the strike could not be

deducted because the employee’s “total earnings for the year

were reduced by his own voluntary act.” /d. at 3.

The average weekly wage of an employee should not,

and is not, decreased for reasons over which he has no

control, such as closing a plant for repairs[,] . . .

occasional suspension of operations due to bad

weather, unforseen shortage of material, lack of

orders, lack of cars, slack season, etc. It is observed

that all of the foregoing are occasions and conditions

resulting in the cessation of operations by the

employer, and should not be considered in determine

the average weekly wage of an injured employee. But

a strike, in which the employee voluntarily

participates, does not fall within the same category.

Id.

Goodman acknowledges that “purely voluntary” absences

from work should be included in the employee’s average

weekly wage calculation. However, he argues that his absence

for work was not voluntary, and, therefore, Hartley should

not apply. Goodman asserts that he was required to join the

union and that, as a member of the union, he was required to

participate in the strike. This assertion is incorrect. First,

9a

Tennessee Code Annotated sections 50-1-201 through 204

prohibit any requirement that an individual join or not join a

union and makes a violation thereof a criminal offense. Thus,

by law, Goodman could not be required to join the union as

a condition to his continued employment with HBD.

Additionally, Goodman acknowledged at trial that, during the

strike, some of the employees chose to cross the picket line

and continue working, and HBD had work available to him.

Therefore, while Goodman might have felt pressured to

participate in the strike, his participation was not required and

was in fact voluntary.

In this case, the trial court declined to follow Hartley, not

because it did not apply but because the court found it unfair:

“the Court certainly does not wish to diminish what little this

man will get for this injury. Workmans’ [sic] comp pays little

enough as it is, contrary to what our government thinks. The

Court will hold against this [Hartley] rule in every way —

possible.” Goodman agrees that Hartley should be reversed

as it is outdated, unfair, and “has never been followed, in

Tennessee or anywhere else.” We are unpersuaded by

Goodman’s arguments and find no reason to depart from the

long-standing precedent established in Hartley.

Since Hartley, we have not specifically revisited the issue

of whether absence from work due to a strike is to be

included in calculating the average weekly wage. However,

Hartley has been cited with approval several times,

particularly when drawing the distinction between voluntary

and involuntary absences from work. See, e.g., Cantrell, 193

S.W.3d at 472; Bryant, 308 S.W.2d at 414-15. Whether the

decision in Hartley has been followed in other jurisdictions is

not persuasive, given the statutory nature of workers’

compensation law.

10a

Not only have we chosen not to overrule the decision in

Hartley, but the Legislature has also expressed its tacit

acceptance of the decision, in that it has chosen not to

overrule it by statute.

The legislature is presumed to know the interpretation

which courts make of its enactments; the fact that the

legislature has not expressed disapproval of a judicial

construction of a statute is persuasive evidence of

legislative adoption of the judicial construction,

especially where the law is amended in other

particulars, or where the statute is reenacted without

change in the part construed.

Hamby v. McDaniel, 559 S.W.2d 774, 776 (Tenn. 1977)

(citations omitted); see also Biscan v. Brown, 160 S.W.3d

462 (Tenn. 2005) (holding that the legislature is presumed to

know the state of the law).

Because there is no valid reason to overrule Hartley, we

apply the rule from that case and hold that the twenty-eight

weeks during which Goodman was on strike should be

included when calculating his average weekly wage. As such,

his weekly benefit amount is $ 149.38, not the $ 388.77

awarded by the trial court.

B. Calculating benefits under section S50-6-102(3)(B)

In the alternative, Goodman argues that his benefits should

be calculated using the provisions of Tennessee Code

Annotated section 50-6-102(3)(B) because his period of

employment with HBD was less than fifty-two weeks due to

the strike. Tennessee Code Annotated section 50-6-102(3)(B)

provides:

lla

Where the employment prior to the injury extended

over a period of less than fifty-two (52) weeks, the

method of dividing the earnings during that period by

the number of weeks and parts thereof during which

the employee earned wages shall be followed;

provided, that results just and fair to both parties will

thereby be obtained. . . .

By its very terms, this section only applies when an

employee’s “employment prior to the injury extends over a

period of less than fifty-two . . . weeks.” Jd.

Essentially, Goodman argues that the twenty-eight weeks

he spent on strike severed his prior employment relationship

with HBD, and the time after the strike was a new period of

employment. However, Goodman had been employed by

HBD for many years prior to the strike, and he maintained a

continuous employment relationship with HBD

notwithstanding the strike. He then returned to work for HBD

following the strike, evidencing an ongoing employment

relationship despite the period of inactivity. Therefore, section

50-6-102(3)(B) does not apply.

The Workers’ Compensation laws do not permit an

employee to choose the average weekly wage calculation that

yields the highest result. The employee must follow the

sequence outlined in Tennessee Code Annotated section 50-6-

102(3). If the employee is employed for fifty-two weeks prior

to the injury, the employee must use subsection (A). If the

employee was employed for less than fifty-two weeks prior to

the injury, the employee must use subsection (B). Here,

Goodman was employed by HBD for the full fifty-two weeks

prior to his injury. Therefore, subsection (A) applies, and his

income earned during those fifty-two weeks is divided by

fifty-two to arrive at his average weekly wage.

12a

C. Does federal labor law preempt Hartley?

Under federal law, employees have the right to form or

join labor organizations as well as strike against their

employer. See 29 U.S.C. §§ 157, 158. The National Labor

Relations Act provides that “[ijt shall be an unfair labor

practice for an employer . . . (1) to interfere with, restrain, or

coerce employees in the exercise of the rights guaranteed in

{29 U.S.C. § 157]” and “[i]t shall be an unfair labor practice

for an employer . . . (3) by discrimination in regard to hire or

tenure of employment or any term or condition of

employment to encourage or discourage membership in any

labor organization.” 29 U.S.C. § 158(a).

These sections of the Federal law only grant employees

the right to form a union if they so desire. Although federal

law grants employees the right to form a union, we decline to

interpret that right to extend as far as requiring days lost

while on strike to be excluded from the average weekly wage

calculation.

IV. Conclusion

In sum, we reaffirm our prior decision in Hartley and hold

that the twenty-eight weeks that Goodman spent on strike are

to be included when calculating his average weekly wage.

HBD does not appeal the trial court’s finding of sixty-six

percent permanent partial disability. Therefore, we affirm the

trial court’s award of 264 weeks of benefits, payable as one

lump sum, but at a weekly compensation rate of $149.38

instead of $388.77.

13a

Costs of this appeal are taxed to Phillip Goodman, and his

surety, for which execution may issue if necessary.

/s/ re ey

WILLIAM M. BARKER, CHIEF JUSTICE

14a

SUPREME COURT OF TENNESSEE

AT KNOXVILLE

September 7, 2006 Session

No. E2005-02661-SC-R3-CV

[Filed November 6, 2006]

PHILLIP GOODMAN, SR.

)

)

v. )

)

HBD INDUSTRIES, INC., ET AL. )

)

Direct Appeal from the Chancery Court for Scott County

No. 8843. Billy Joe White, Chancellor

JUDGMENT

This case was heard upon the record on appeal from the

Chancery Court for Scott County, and upon consideration of

the record, briefs and arguments of counsel, this Court is of

the opinion that the trial court erred in excluding the weeks

spent on strike in determining the employee's average weekly

wage. Because the employer does not appeal the

compensability of the injury or the extent of disability, we

affirm the trial court's decision award of benefits, with the

amount of benefits modified to reflect the proper calculation

of the employee's average weekly wage.

In accordance with the opinion filed herein, it is,

therefore, ordered and adjudged that the judgment of the

Chancery Court for Scott County is Affirmed as Modified.

15a

This case is remanded to the Chancery Court for Scott County

for execution of judgment and collection of costs.

Costs of this appeal shall be paid by Phillip Goodman, Sr.

l6a

APPENDIX B

IN THE CHANCERY COURT FOR

SCOTT COUNTY, TENNESSEE

AT HUNTSVILLE

CIVIL ACTION NO. 8843

[Filed October 27, 2005]

PHILLIP GOODMAN, SR..,

Plaintiff,

v.

HBD INDUSTRIES, INC., and

SUE ANN HEAD, DIRECTOR

OF THE DIVISION OF WORKERS’

COMPENSATION, TENNESSEE

DEPARTMENT OF LABOR

AND WORKFORCE DEVELOPMENT,

SECOND INJURY FUND,

Defendants.

a tl

ORDER AND JUDGMENT

This matter came to be heard on the 11th day of October,

2005 before the Honorable Billy Joe White, Chancellor for

the Chancery Court for Scott County, Tennessee at

Huntsville, Tennessee, upon the pleadings, testimony in open

17a

court, and the record as a whole, from all of which the Court

issued an Opinion, a copy of which has been or will be filed

and incorporated by reference herein, and the Court further

finds:

1. That on or about January 31, 2002, while employed in

the course and scope of his employment as a lead operator for

the Defendant, HBD Industries, Inc., the Plaintiff was pulling

a hose from a lapper machine to an extruder machine when he

sustained injuries to his neck.

2. The Court finds that the Defendant, HBD Industries,

Inc., received timely notice of the Plaintiff's injuries.

3. The Court further finds that the Plaintiff's injuries to

his neck are casually related to the Plaintiff's accident which

occurred on or about January 1, 2002.

4. That at the time of the Plaintiff's injuries, the Plaintiff

was making sufficient earnings to entitle the Plaintiff to

workers’ compensation benefits at a workers’ compensation

rate of pay of Three Hundred and Eighty-Eight Dollars and

Thirty-Seven Cents ($388.37) per week.

5. That the proof in this cause, including the medical

evidence, the testimony of the Plaintiff, and the entire record

established that the Plaintiff sustained permanent partial

disability to the extent of sixty-six percent (66%) disability to

the body as a whole.

6. The Court further finds that the Plaintiff is entitled to

disability benefits which accrued since August of 2002, and

that the Plaintiff has a special need to receive his disability

benefits in a lump sum payment and that the Plaintiff can

wisely manage his disability benefits, for which the Plaintiff

18a

is entitled to 4 judgment from the Defendant, HBD Industries,

Inc., for two hundred and sixty-four (264) weeks at the

workers’ compensation rate of pay of Three Hundred and

Eighty-Eight Dollars and Thirty-Seven Cents ($388.37) per

week for a total lump sum in the amount of One Hundred and

Two Thousand, Five Hundred and Twenty-Nine Dollars and

Sixty-Eight Cents ($102,529.68).

7. That the Second Injury Fund should be dismissed.

8. The Court further finds that the Plaintiff has

established a need for future medical treatment related to this

neck.

IT IS THEREFORE ORDERED, ADJUDGED AND

DECREED as follows:

1. That the Defendant, HBD Industries, Inc., shall

furnish such future medical expenses for the Plaintiff's

injuries which he sustained to his neck arising out of and in

the course and scope of the Plaintiff's employment with the

Defender, HBD Industries, Inc., which occurred on or about

January 31, 2002, including medical treatment to the

Plaintiff's neck as otherwise caused by said physical injuries

and as otherwise required and defined by Section 50-6-204 of

the ‘Tennessee Code Annotated.

2. That the Plaintiffs injuries are compensable under the

Tennessee Workers’ Compensation Act. That the Defendant,

Sue Ann Head, Director of the Division of Workers’

Compensation, Tennessee Department of Labor and

Workforce Development, Second Injury Fund, shall be

dismissed.

19a

3. That the Plaintiff shall receive a judgment from the

Defendant, HBD Industries, Inc., in the amount of One

Hundred and Two Thousand, Five Hundred and Twenty-Nine

Dollars and Sixty-Eight Cents ($102,529.68), all of which

shall be paid in one lump sum.

4. That on Motion of the Plaintiff's attorney, David H.

Dunaway, it is ORDERED that the Plaintiff's attorney is

awarded attorney fees and a lien not to exceed twenty percent

(20%) of this judgment or Twenty Thousand, Five Hundred

Dollars and Ninety-Three Cents ($20,505.93).

6. That on Motion of the Plaintiff, and for good cause

shown, it is also ORDERED that payment of Plaintiff's

benefits shall be spread out over his actuarial life, which is

35.57 years or 426.84 months from January 31, 2002, the

date the Plaintiff last worked forward, pursuant to the 1983

Individual Mortality Table VI, Volume 13 of the Tennessee

Code Annotated of the total sum of $102,529.68, which is to

be paid to the Plaintiff, less attorney fees and expenses for a

net sum of $78,358.35 based on 426.84 months life

expectancy, which would represent the amount of $183.58 per

month for the remainder of the Plaintiff's life. Therefore, the

set off for social security or other disability benefits shall be

$183.58 per month.

7. That any discretionary costs shall be addressed by the

filing of further motion of the Plaintiff.

8. The court costs of this case shall be taxed to the

“Defendant, HBD Industries, Inc., in care of its attorney,

David M. Sanders, Spicer, Flynn & Rudstrom, PLLC, 800 S.

Gay Street, Suite 1400, Knoxville, Tennessee 37929, for

which execution may issue if necessary.

20a

ENTER this 26 day of October, 2005.

/s/

CHANCELLOR

APPROVED FOR ENTRY:

/s/

DAVID H. DUNAWAY, BPR 0491

ATTORNEY FOR PLAINTIFF

P. O. Box 231

LaFollette, TN 37766

SPICER, FLYNN & RUDSTROM, PLLC

BY:

DAVID M. SANDERS, BPR

ATTORNEY FOR DEFENDANT

HBD INDUSTRIES, INC.

800 S. Gay Street, Suite 1400

Knoxville, TN 37929

(865) 673-8516

/s/

Alexandra Deas, BPR

Attorney for Defendant, Sue Ann Head

Director of the Division of Workers’

Compensation, Tennessee Department of Labor

and Workforce Development, Second Injury Fund

610 University Avenue, 2™ Floor

Knoxville, Tennessee 37921