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Ladd v. Grinnell Corp
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1999 ME 76
Docket:	WCB-98-295	
Argued:	May 4, 1999
Decided:	May 17, 1999

Panel:WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, ALEXANDER, and
CALKINS, JJ.
CHESTER LADD v. GRINNELL CORPORATION and HANOVER INSURANCE CO.
RUDMAN, J.

	[¶1]  Chester Ladd petitions from a decision of the Workers'
Compensation Board denying his petition for restoration.  The Hearing
Officer concluded that the employee's unwillingness to cross a union picket
line could not, as a matter of law, constitute "good and reasonable cause" for
a refusal of an offer of post-injury employment pursuant to 39-A M.R.S.A.
§ 214(1) (Supp. 1998).  We disagree, and remand for a determination of the
reasonableness of Ladd's refusal in light of the facts specific to this case.
	[¶2]  Ladd is a thirty-year member of a national Sprinkler Fitters'
Union.  Ladd suffered a work-related wrist-injury on March 9, 1993, while
employed by the Grinnell Corp. as a sprinkler fitter.  Ladd was given light-
duty work following his injury and received voluntary payments of benefits
until September 1993 when he returned to full-time, light-duty
employment, earning his pre-injury wage.    In April 1994, his union called a
nationwide strike.  Ladd participated in the strike and refused to return to
work.  Grinnell advertised nationally for permanent replacement workers
and has had jobs available for sprinkler fitters since the beginning of the
strike. 
	[¶3]  Ladd's injury prevented him from returning to his former line of
work as a sprinkler fitter for other employers.  He did, however, obtain a
seasonal job as a heavy equipment operator shortly after going out on strike. 
Ladd has continued in this employment on a seasonal basis, and, as of the
date of the hearing in December 1996, had also obtained temporary
employment for the winter months of 1996-1997 doing light assembly
work.    
	[¶4]  In February 1995, roughly ten months after the strike began,
Grinnell made a written offer to Ladd of nonunion reinstatement
employment in his former light-duty position.  Ladd was the only striking
employee to receive such an offer.  Ladd refused the offer, in part, out of
loyalty to his labor union.  Ladd also testified that he would suffer financial
repercussions by breaking the strike, which would include the loss of, or at
least a diminution in, his union health insurance coverage and pension
benefits.
	[¶5]  Ladd filed a petition for restoration seeking partial incapacity
benefits.  The Hearing Officer concluded that the employee's decision to
strike did not constitute a withdrawal from the work-force requiring an
automatic termination of benefits,{1} and that the employer's written offer in
February 1995 was a bona fide offer of reasonable employment pursuant to
section 214(1).  Relying, in part, on Michigan precedent, see, e.g., Pigue v.
General Motors Corp., Oldsmobile Div., 26 N.W.2d 900, 903-04
(Mich. 1947), the Hearing Officer concluded that the employee's
unwillingness to cross a picket line could not, as a matter of law, constitute
good and reasonable cause for refusing the employer's offer.  Examining the
legislative history of section 214, the Hearing Officer stated: "There is no
indication that the Maine Legislature intended to create an exception to an
employee's obligation to accept a bona fide offer of reasonable employment
based on an employee's union membership."  We granted the employee's
petition for appellate review pursuant to 39-A M.R.S.A. § 322 (Supp. 1998).
	[¶6]  Section 214 provides, in pertinent part:
§ 214.  Determination of partial incapacity

	1. Benefit determination.  While the incapacity is partial,
the employer shall pay the injured employee benefits as follows.

	A. If an employee receives a bona fide offer of
reasonable employment from the previous employer or
another employer or through the Bureau of Employment
Services and the employee refuses that employment
without good and reasonable cause, the employee is
considered to have voluntarily withdrawn from the work
force and is no longer entitled to any wage loss benefits
under this Act during the period of the refusal.

. . . .
	
	5. Reasonable employment defined.  "Reasonable
employment," as used in this section, means any work that is
within the employee's capacity to perform that poses no clear
and proximate threat to the employee's health and safety and
that is within a reasonable distance from that employee's
residence.  The employee's capacity to perform may not be
limited to jobs in work suitable to the employee's qualification
and training.
39-A M.R.S.A. § 214.  
	[¶7]  We recently interpreted subsection 214(1) in Thompson v. Claw
Island Foods, 1998 ME 101, ¶¶ 7-19, 713 A.2d 316, 318-21.  As we stated
in Thompson, section 214(1) requires a determination, first, of the
reasonableness of the offer of employment, and, second, of the
reasonableness of the refusal.  1998 ME 101, ¶ 7, 713 A.2d at 318.  While
the term "reasonable employment" is defined in the statute, the
reasonableness of the refusal is left necessarily broad.  We stated: "As always,
the Board must consider all facts relevant to the employee's decision to
decline the job offer."  Id. at ¶ 16, 713 A.2d at 320 (emphasis added).
	[¶8]  Section 214 is based on Michigan law, M.C.L.A.
§§ 418.301(5)(a) & (9) (1998), containing virtually identical language. 
Bureau v. Staffing Network, Inc., 678 A.2d 583, 589-90 (Me. 1996);
L.D. 2464, Statement of Fact (115th Legis. 1991) ("[s]ection 214 is derived
from Michigan § 418.301 and determines the amount of partial benefits that
are due.").  As we stated in Thompson, in cases when an employee relocates
after an injury, the factors listed by the Michigan Supreme Court in Pulver v.
Dundee Cement Co., 515 N.W.2d 728, 735 (Mich. 1994), may be helpful to
the determination of the reasonableness of the refusal.  1998 ME 101, at
¶ 18, 713 A.2d at 320.  The relevant factors include, but are not limited to:
(1) the timing of the offer, (2) if the employee has moved, the
reasons for moving, (3) the diligence of the employee in trying
to return to work, (4) whether the employee has actually
returned to work with some other employer and, (5) whether
the effort, risk, sacrifice or expense is such that a reasonable
person would not accept the offer.
Id. (quoting Pulver, 515 N.W.2d at 735) (footnote omitted).  As we stressed
in Thompson, and the Michigan Court also made clear in Pulver: 
'Not every personal consideration will constitute good and
reasonable cause entitling an employee to continued benefits
after a refusal of an offer of reasonable employment.  It is left to
the sound discretion of the factfinder to carefully examine the
facts and circumstances of each case to determine what is good
and reasonable cause in any given situation.'
Id. at ¶19, 713 A.2d at 320-21 (quoting Pulver, 515 N.W.2d at 735).
	[¶9]  Although Michigan courts have held that the refusal of union
employees to cross a picket line cannot, as a matter of law, constitute "good
and reasonable cause" for refusing an offer of employment, see, e.g.,
Nederhood v. Cadillac Malleable Iron Co., 518 N.W.2d 391 (Mich. 1994);
Bower v. Whitehall Leather Co., 312 N.W.2d 640, 643-44 (Mich. 1981);
Pigue, 26 N.W.2d at 903-04, the Michigan rule is based primarily on
Michigan's common law "favored work" doctrine, and less on statutory
language.  As we stated in Bureau, 678 A.2d at 589-90, "the legislative
history [of subsection 214(1)] does not suggest that the Maine Legislature
intended to adopt Michigan's common law."  Accordingly, we may decline to
follow decisions of Michigan courts interpreting similar statutory language
when those interpretations are based on Michigan common law.
	[¶10]  We agree with the Hearing Officer's observation that there is no
legislative history to suggest that our Legislature intended to create an
exception for striking workers to the general duty of an employee to accept
offers of employment.  We do not, however, find this fact dispositive.  On the
contrary, in our view, it is more telling that nothing in the statute limits the
type of factors that may be considered in the determination of
reasonableness.  The phrase "good and reasonable cause" is broad, and, we
assume, intentionally so, in order to permit the consideration of a broad
spectrum of factors that may arise in the factual context of individual cases.
	[¶11]  Section 214(1), therefore, requires careful consideration of all
the factors relevant to a person's decision to refuse an offer.  The five
nonexclusive factors cited in Thompson may provide a framework for
analyzing the issue, but the Board is not limited to consideration of those
factors.  See Thompson, 1998 ME 101, at ¶ 18, 713 A.2d at 320.  In the
case of a striking employee, additional factors may also include, but are not
limited to (1) the bona fides of the employee's decision not to cross a picket
line, considering, among other things, the length of time that the employee
has belonged to the union, and the employee's position in the union; (2) the
possibility of significant union-imposed penalties, e.g., the loss of union
benefits; (3) the reasonable likelihood of violence, retaliation or other
serious repercussions for crossing a picket line; and (4) the willingness of
the employee to find work through other employers outside the strike.  We
do not endeavor to provide an exhaustive list of factors that may be
applicable in the situation of a strike, or to anticipate all possible
ramifications of crossing a picket line that might weigh in a Hearing
Officer's analysis of reasonableness.  Each case must be decided according to
its own unique facts, and should turn, ultimately, on "whether the effort,
risk, sacrifice or expense is such that a reasonable person would not accept
the offer."  Id. (quoting Pulver, 515 N.W.2d at 735).
	[¶12]  The Hearing Officer in the present case erred in suggesting
that an employee's refusal to cross a picket line could never, as a matter of
law, constitute good and reasonable cause to refuse an offer of reinstatement. 
Accordingly, we remand to the Board for consideration of the
reasonableness of the employee's refusal in light of the unique facts of this
case.
	The entry is:
The decision of the Workers' Compensation Board is
vacated.  Remanded to the Workers' Compensation
Board for further proceedings consistent with the
opinion herein.

Attorney for employee: Jeffrey L. Cohen, Esq,. (orally) McTeague, Higbee, MacAdam, Case, Watson & Cohen, P.A. P O Box 5000 Topsham, ME 04086-5000 Attorney for employer: Stephen W. Moriarty, Esq., (orally) Norman, Hanson & DeTroy, LLC P O Box 4600 Portland, ME 04112-4600
FOOTNOTES******************************** {1} . The Hearing Officer relied on our decision in Bureau v. Staffing Network, Inc., 678 A.2d 583, 589-90 (Me. 1996), in which we held, in part, that an employee's termination for cause does not justify a termination of benefits pursuant to subsection 214(1). Bureau did not involve a striking employee and is therefore distinguishable. The employer has not appealed from this aspect of the Board's decision.