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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2006

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_2167%3A1. Public record. Not legal advice.