*1
445 Mich MALLEABLE
NEDERHOOD v CADILLAC
IRON COMPANY
ZIMMERMAN v CADILLACMALLEABLE IRON COMPANY
94110,
5,
(Calendar
Argued
Docket Nos.
94299.
October
3-
Nos.
4).
31,
May
Rehearing
Nederhood, post,
Decided
1994.
denied in
1237.
Roger
separately sought
Nederhood and James Zimmerman
disability
allegedly
worker’s
benefits for
that
arose out of and in the course of their
with
Company.
hearing
Cadillac Malleable Iron
A
referee found the
plaintiffs
partially
to have been
disabled at the commencement
union,
of a strike between
Malleable
their
but denied them
during
period
participation
of their
in the strike.
found, however,
wage
The referee
that
loss benefits recom-
menced when an offer
the union to return to work termi-
any
plaintiffs
perform
nated
unreasonable refusal
additionally
favored work. The referee
found that Zimmerman
totally
4,
February
became
disabled on
as a result of a
supervening heart condition unrelated to his favored work. In
separate proceedings,
Compensation Appeal
the Worker’s
findings
respect
Board affirmed the referee’s
to dates of
injury
during
strike,
and the cessation of benefits
but
regard
wage
reversed with
to the
restoration
loss benefits
offer, finding
showing
plaintiffs per-
after the union’s
no
sonally
Appeals,
had offered to return to work. The Court of
Hood, P.J.,
JJ.,
Kaufman,
and Connor and Richard
affirmed
unpublished opinion per
Zimmerman,
in an
curiam. In
it held
applied
legal
the wcab
reasoning
had not
erroneous
determining
plaintiff’s
refusal
strike,
work while on
and not the actions of the union in
striking, provided
denying benefits,
a basis for
and that such
plaintiff’s
forfeiture continued for the duration of the
unwill-
ingness
additionally
to return to work. It
found that Zimmer-
supervening
man’s
eligible
heart attack did not render him
benefits,
willingness
because he failed to communicate his
(Docket
134288).
return to work before the heart attack
No.
In
Nederhood, the
correctly applied
Court held that the wcab had
determining
plaintiff’s
the law in
participation
that the
in the
precluded
strike
during
collection of work loss benefits
pendency
personally
of the strike and that he had not
offered
Malleable
v Cadillac
134290).
(Docket
plaintiffs
to return to favored work
No.
appeal.
separate opinions,
Supreme
Court held:
voluntary
per
A
cessation of favored work
se does
result
*2
Zimmerman,
permanent
wage
In
in a
forfeiture of
loss benefits.
plaintiff’s heart attack while on strike
the occurrence of the
preclude
recovery wage
not
the
of
loss benefits.
does
suspends
Generally, a
of suitable work
benefits for
refusal
However, permanent forfeiture of
the duration of the refusal.
a
is not in accord with a liberal construction of the
Disability Compensation
Worker’s
Act.
proceedings.
Nederhood reversed and remanded for further
Zimmerman reversed.
Brickley
additionally
voluntary
Justice
stated that a
cessa-
striking
by
tion of favored work
should result in a
a
suspension wage
of
loss benefits. Neither a conditional offer to
hiring
by
return
a
union nor the
of
re-
worker’s
placement
by
employer
operate
workers
should
to automat-
However,
ically
striking employee.
restore benefits to the
bene-
employee expresses good-faith
fits should be restored once the
a
willingness
provided
willing-
to return to favored
such
employer
ness is communicated to the
a
within
reasonable
period following
resumption
the cessation of favored work. The
employee’s right
upon
of such an
to benefits
the occasion of a
supervening
employee totally
heart attack that renders the
depend
certainty
disabled should
on the
and extent of the
injury,
length
perform
of the refusal to
favored work before
injury,
and the lack of a causal nexus between the refusal
resulting
of favored work and the
heart attack.
Cavanagh
Boyle, joined by
Justice
Chief Justice
and Justice
concurring
part
dissenting
part,
Mallett,
in
in
addition-
workers,
ally
hiring
permanent replacement
stated that the
of
law, may
employer’s
in fact and in
work to withdraw an
offer
employee’s right
suspended
An
of favored work.
to benefits is
only
long
withholding
voluntary
as
as there is a
If
services.
employer
has revoked the offer of favored work with the
workers,
hiring
replacement
then the refusal work is no
longer
due to
strike.
adoption
The issue of the
of a
time limitation on
reasonable
employee’s ability
right
an
to favored
reestablish
work
properly
disposition
before the Court and its
is unwar-
However, only
ranted.
because three members of the Court
propose
adoption
necessary
of such a limitation is it
oppose
adoption.
The reasonable time limitation would
relieving
present employers
by
with a windfall
them of the
because of in a strike forfeits the only eligible sation. The worker becomes to have benefits good-faith willingness restored when a to resume favored work apply parties. is tendered. Reasonableness must to both A delay accepting favored worker’s unreasonable an offer of liability. Nederhood, favored work relieves the plaintiff present prima appropri- failed to facie case and ately was denied relief. supervening causing A employee’s event cessation of an right long favored work will not terminate the to benefits as as employee’s the event is not under the control. While such an preclude payment compensation, event does not the favored *3 require compensation work doctrine does not to be automati- cally upon happening. revived its A claimant must show that already being performed super- favored work and that a vening independent precluded event its In continuance. Zim- merman, plaintiff the was not entitled to benefits. He was not performing attack, favored work when he suffered the heart voluntarily participating- strike, but was in a and he failed to present despite evidence that he would have returned to work the disability strike and the decertification the union. His is ability irrelevant to his to receive benefits because he would ineligible have been for such benefits if he had not had the heart attack. Levin, writing separately, joined Justice in reversal in Zim-
merman, and would remand with the direction that benefits Nederhood, joined should be awarded to but in remand to provide disposition may a fourth vote for a result in the compensation. award of 418.301(5)(a); 17.237(301)(5)(a), January MCL MSA effective 1982, providing employee that a disabled who refuses a bona employment previous fide offer employer, of reasonable from a employer, through Employment Security another or the Com- good longer mission without and reasonable cause is no entitled any wage during period refusal, loss benefits the of such Nederhood v Cadillac Malleable Brickley, J. perma- inconsistent with the view that such a refusal results compensation nent forfeiture of worker’s benefits. statutory provision That is also inconsistent the view expect employer that because it would be unreasonable to the keep positions open beyond point such that it announced jobs by permanent replacements, would be filled may employer may not recover benefits. While the needs of the justify employer keeping open beyond in not an offer time, participate the need of the in a reasonable may justify during strike a refusal to work a strike. The properly disabled worker is nevertheless disabled and can be refusal, only during period denied benefits of a without cause, good and reasonable of a bona fide offer of reasonable previous employer, employer, from a another through period question the mesc. of such a refusal is a fact, showing and the burden of refusal of work should borne employer mitiga- because the offer favored work is damages. tion of Bott), Spencer, (by Timothy Bott & P.C. J. plaintiff. Vail) (by Fanny L. Russell & Carowitz for the defendant. granted We leave these cases to Compensation Brickley,
determine whether the Worker’s Appeal Appeals Board and the Court of erred in concluding plaintiffs-appellants were dis- qualified receiving from worker’s they partici- benefits because left favored work to pate perma- in a strike that resulted in the use of replacements. deciding issue, nent we must hiring determine whether re- placement obligates workers to renew injured employees, its offer of favored work to its *4 or whether must take action to plaintiff-appellant reinstate benefits. In the case of James fully Zimmerman, who became disabled begun, after the strike had must we determine disability operates whether such total to revive his right to benefits. 445 Mich Opinion by Brickley, striking
We conclude that where a performance voluntarily worker has ceased of fa- work, vored benefits should be restored once the expresses good-faith willingness favored worker provided willing- to return to favored ness is communicated to the within a reasonable time after the cessation of favored automatically work. Such benefits should not upon hiring replace- restored employer. Additionally, ment workers we plaintiff superven- would hold that ing Zimmerman’s totally attack, heart which rendered him dis- right abled, revived his to benefits.
I A dispute This arose out of a labor strike between defendant-appellee Cadillac Malleable Iron Com- pany plaintiffs- and Local 784 of the of which uaw, appellants, Roger James Zimmerman and Neder- September hood, were 30, 1981, members. On bargaining agreement collective between Cadillac expired, and the union and the union struck on apparent 1, 1981, October when it became that a agreement forthcoming. new time, was not At this approximately thirty-five proposals for a new con- demanding tract were unresolved. Cadillac was twenty-four language changes additional in demanding per contract and the union a $2 employer’s pension month increase contri- bution for current retirees. 7, 1981,
On October Cadillac modified its September proposal and submitted it to the union. These modifications included an extension seniority during layoff thirty-six retention *5 v Cadillac Malleable 239 by Opinion Brickley, J. rejected by months.1 This offer the union and by by 22, was withdrawn Cadillac 1981. October January officially 12, 1982, On in- Cadillac hiring perma- formed the union that it would be replacement January 18, 1982, nent workers. At a bargaining attempted accept session, the union to proposal, 7, 1981, the October and offered ac- cept wages. a dollar an hour cut in in- Cadillac representative formed union proposal withdrawn, October had in- been limiting wages per sisted on hour with no $6 cost-of-living adjustment, limiting and on the num- plant representa- ber of classifications. The union meeting. tive terminated this forty-one forty-two March, 1983, As of re- placement workers had been hired. At the time of approximately eighty strike, workers had been employed by Cadillac. The record is silent with regard plaintiffs’ posi- to whether favored work given permanent replacements. tions had been
B hearing A referee found both Zimmerman and partially Nederhood to have been disabled at the strike, commencement of the but determined that plaintiffs wage were not entitled to loss benefits for period 1, 1981, the January between October participation
18, 1982, because of their wage found, however, a strike.2 The referee January 18, loss benefits recommenced on determining that the union’s “offer to return” to 30, 1981, September proposal provision allowing 1 The contained a seniority during layoff only twenty-four retention months. The provision expired bargaining agreement provided in the collective had seniority during layoff period equal for retention of the for a of time length company. with the 2Although below, these cases were not consolidated both cases were by panel heard the Court of the same referee and were reviewed the same Appeals. Brickley, any unreasonable work on this date terminated by plaintiffs favored work. refusal hearing Additionally, on referee found that plaintiff February 4, 1982, Zimmerman became supervening, totally disabled as a result of his non- work-related heart condition. *6 hearing findings
The wcab affirmed the referee’s respect injury to and the of with benefits dates cessation
during strike, but reversed the refer- plaintiffs to ee’s determination that were entitled wage January 18, of loss benefits as of restoration finding showing 1982, instead that no there was plaintiffs that themselves had offered to return to any hearing.3 work at time before wcab applications appeal Plaintiffs’ for leave to to the Appeals merit, Court of of were denied for lack and we remanded for consideration as on leave granted. Appeals The Court of affirmed deci- Zimmerman, sions of the wcab. it held that the legal applied reasoning wcab had not determining erroneous plaintiff’s that individual refusal perform favored work while his union was on striking, strike, and not the actions of the union provided denying benefits, for basis that such forfeiture continued for the duration of plaintiff’s unwillingness to return to work. In correctly Nederhood, it held that the wcab had applied determining the law in that Nederhood’s participation collecting wage precluded in the strike him from during pendency
loss benefits Appeals the strike. The Court also found that adequately supported the record the board’s hold- ing plaintiffs personally that had offered to return to favored and that the union’s January merely pro- 18, 1982, "offer” was another posal negotiations. in a series of 239;
3 1989 471. WCABO WCABO v Cadillac Malleable Opinion by Brickley, Additionally, Zimmerman, found that plaintiff’s supervening heart did not attack render eligible him benefits he had because failed to willingness return communicate his to work supervening failing attack, before his thus heart establishing meet his burden his entitlement benefits. granted appeal, 1993,
On March we leave to ordering that Zimmerman and Nederhood be sub argued together. mitted 867. 442 Mich
II preliminary par- matter, As a we note dispute plaintiffs per- ties do not were forming favored work at the time the strike.4 parties
Additionally, do not contest before the offer union’s to return work on incorporating 4, 1981, December prestrike under a contract plaintiffs disqualified terms, were from receiving voluntary on the their basis of *7 stemming cessation favored work from their participation in a strike.5 We must now decide the duration of this disqualification._
4Favored work has
defined as
been
by
work offered
to a
worker that was
disabled
capacity
limited or
so as to be within
restricted
the worker’s
perform. [Welch,
Compensation Michigan:
Worker’s
Law &
(rev ed), 10.11, p
Practice
§
10-13.]
by providing
Cadillac accommodated Zimmerman’s limitations
him
room,
weight
work in the core
where the maximum
to be lifted was
pounds.
by assigning
five
Nederhood’s limitations were accommodated
perform.
him unskilled
labor to
common
5See, e.g.,
Co,
172, 188;
Mich
Bower v Whitehall Leather
412
312
(1981) (“interruptions
by voluntary
NW2d 640
of work caused
actions
participate
employee,
of the
strike . . .
as
such
abandonment of work
in a
benefits”); Pigue
v
forfeiture of
General
result[]
(an
(1947)
311;
Corp,
employee
Motors
317 Mich
A
apparent ap-
citation, with
The Bower Court’s
proval,
Aites,
Industries,
7 Pa
Inc v
of PPG
(1973), supports the
588;
engages gambling while at work and is in criminal activities cause, compensa- discharged for that he will not be entitled to earnings. employment loss of His favored tion for the resultant has ceased reason turpitude through and not his own volition and injury. . of his accidental . . through physical inability to It was not caprice employer, ordinary arbitrary dismissal that of the or some cause for was terminated. [Id. 289.] *8 (1953), 192; Chrysler Corp, See also Garrett v 337 Mich NW2d plaintiff permanent a forfeiture resulted when the was dis- where However, charged in neither case did the Court coming to work under the influence of alcohol. for expressly that the forfeiture was state only implicit holding. permanent; it was in the Cadillac Malleable v Opinion by Lkickley, his favored work to a minis- left become ter. Once it became that he unable to evident was living attempted minister, earn a as a he to find light other permanently work. The held court that he had. not leaving
forfeited his benefits fa- The vored work. combination of the claimant’s attempt to find other than as minis- unavailability posi- ter and the of his old favored triggered eligibility tion his for benefits.
B Pigue expressly Court did not address this issue the because claimant had returned to fa- upon vored work settlement of the strike. fram- ing issue, however, the Court stated pivotal question plaintiff was whether compensation "during period entitled to of a weight strike . . . .” Id. at 315. While the to be minimal, accorded this is lends credence to the suspension implicit view that is the sanction Pigue. Noteworthy, Pigue also, is that Court permanent neither stated nor intimated that a forfeiture results.
c compensa- Larson, in his treatise on worker’s opines temporary tion, that a forfeiture preferred Although is the sanction. discussed employee misconduct, within the context underlying apply reasons his conclusions equal striking employee. force to Larson states injured employee discharged that an miscon- duct should not suffer a loss of benefits. analogy unemployment He draws an con- discharges text, in which misconduct-based voluntary quitting by imposing are handled *9 234
244 445 Opinion Brickley, J. penalty Likewise, he of a limited number weeks. in the worker’s concludes voluntary penalty of loss of arena, for a cessation should also be limited to a favored work period weeks.8 benefits for a
D grappled Supreme Court has The Minnesota tempo- only a with this issue and determined rary should result. Marsolek forfeiture benefits (Minn, George Co, A v Hormel NW2d 1989). employee, partially case, In a disabled this during Marsolek, terminated for misconduct a was against employer. had threat- strike ened to Marsolek
damage employees injure cars and at- picket plant tempting to cross the line. When the began, reopened after the strike was five months Except for a Marsolek was not invited to return. period following strike, he was three-month employment, find and filed a claim for unable to including compensation benefits, a claim worker’s wages. for lost The court held that discharge suspends an justifiable for misconduct benefits; employee’s right wage injured the loss but suspension wage of entitlement loss benefits lifted it has become demonstrable that will be once employee’s disability is the cause work-related inability find or hold new employee’s of the employment. Such a determination should be upon totality made consideration of the of the including the work search circumstances usual "requirements.” Emphasis at 924. added.] [Id. reaching conclusion, the court noted purpose Compensation Act of the Worker’s Larson, 57.64(a), see, supra, p 1C 10-492.27. But Todd v Hudson § Co, supra, Chrysler Corp, supra Motor Car n 7 and Garrett v n 7 forfeiture). contemplating (seemingly v Cadillac Malleable Brickley, compensate injured employees wage was to loss attributable for a injury. basis, a work On this compensation has been denied where the record only discharge misconduct;9 established but have been awarded where the record evi- yet employ- misconduct, denced showed that injury inability ee’s his find the cause of other work.10
E
Appeals has,
occasions,
The Court of
on several
spoken
on the
issue
forfeiture.
In
App
Co,
v
Hartsell
Richmond Lumber
154 Mich
(1986),
employee
523;
Steward Westran
130 Mich
343
(1983).
plaintiff initially
case,
7
NW2d
In this
9See, e.g., Rodge
Delivery,
(Minn,
v
Van
United
Bus
accepted work, but offer of favored Westran’s assignment, completion he work of his first favored rejected favored work. additional offer of Westran’s pend- compensation was Later, ing, for while his claim reassignment requested plaintiff to fa- plaintiff The Court held vored work. forfeited fusal of favored terminated period during of his re- his benefits forfeiture that such but request upon plaintiff’s re- assignment. the Court A result was reached different Corp,
Appeals Motors in Russell v General (1988). App case, In this 627; 432 Mich General Motors NW2d work on offered Russell favored respond. April April On 18, failed to 1980. Russell hearing 8, 1981, referee concluded Russell’s terminated because of could be Following accept this deci favored work. failure Russell, on sion, fired General Motors attempted accept 1981, Russell October offer of favored Motors re work. When General compensa fused, tion benefits. The Court filed a claim for worker’s Russell offer of held that kept open only *11 for a reason favored work need be permanently time, after which the able right any It should be noted to benefits.11 forfeits permanent from forfeiture did stem that the the rejection employee’s work; of favored initial employee’s triggered by refusal rather, the it was accept time within a reasonable favored work the offer was after made. 1984-2, panel the Russell to Administrative Order No. Pursuant Appeals the decision conflicted with Court of certified that its decision rejected in Hartsell rule laid down
in Hartsell. Russell blanket suspended only right employee’s for the dura to benefits is that tion of the holds that for a reasonable time. This employee’s Russell unreasonable refusal of favored work. only keep open favored work an offer of need holding premised idea that the was on the that, triggered and employee’s the forfeiture unreasonable refusal time, period unreasonable to assume it becomes after a rejected. employee might accept the offer he once v Cadillac Malleable Brickley,
F formulating issue, on our decision we policies underlying must also be mindful of the Disability Compensation Worker’s MCL Act. seq.; seq. 418.101 et MSA et As a 17.237(101) preliminary matter, it must be remembered that designed the act was to be remedial and must not unnecessarily be construed so as to favor denial opined: of benefits. The Bower Court Disability Compensation Workers’ was Act designed help relieve the social and economic by injured difficulties faced workers. As remedial legislation, liberally grant it is construed to rather [Id. deny than benefits. at 191.] It would seem that a forfeiture benefits is not in accord with a liberal construction Disability Compensation of the Worker’s Act.
G Finally, support concept temporary for the of a suspension of benefits can be drawn from an compensation legisla- amendment of the worker’s statutory tion that contains the first the favored work doctrine reference to implemented was progressing.12Despite inap- this case while plicability legislation bar, of this case at ignored formulating policy be cannot to applied provides: in future cases. The statute an employee If receives a bona fide offer previous employment
reasonable from the em- employer, through Michigan ployer, another employment security commission and the em- ployee good refuses that without 17.237(301)(5)(a). 418.301(5)(a); *12 MCL MSA [May- 445 Brickley, cause, considered employee shall be reasonable or herself himself voluntarily removed to have longer entitled to is no the work force and from during the this act wage benefits under any loss 418.301(5)(a); MSA period of such refusal. [MCL 17.237(301)(5)(a). Emphasis added.] this statute of plausible interpretation The only duration of for the suspended will be that benefits em- accept refusal unreasonable employee’s the in- were permanent If forfeiture ployment. pe- "during consequence, phrase, tended refusal,” meaning- would be rendered riod of such less. above, a we would hold
In view of the se does per of favored work cessation voluntary wage loss in forfeiture permanent result a is in accord holding note that benefits. We most of the Larson and espoused by with the views cited,13 what we believe to be represents and cases given policy, a matter approach the better as general, in legislation the worker’s enacted amend- recently more specifically, following the commencement implemented ments benefits, suspension A temporary of this case. forfeiture, comports permanent contrast to a compensation, namely, aims of worker’s the dual rehabilitation, enabling without mitigation a windfall. enjoy
hi unreasonable refusal conclusion Our necessarily work does not cessation compels of benefits permanent forfeiture cause Russell, supra, this conclu is also accord with The decision sion, holding not stem from the forfeiture does if it is read as work, but, instead, follows the initial refusal of favored from accept the favored work within a reason failure of able period. *13 v Cadillac Malleable Opinion by Brickley, J. determination of what operate act acts to re- instate those benefits.
A
This issue was
Court
Ap-
addressed
v
Co,
Chilcote Cadillac Malleable Iron
peals in
App 166;
(1993),14
[P]laintiff, in order to compensa- to be entitled ongoing tion benefits while a strike is he voluntary participant, which is a must show that he employer informed his strikebound of his willingness to return to Working for employer. work for that employers other is not evidence that plaintiff willing is to return to work for his strike- employer. bound at [Id. 171.] essence, the Court assumed the existence of and, offer context, of favored work in this held that had employee the burden of that showing he had informed his employer willingness his return to favored work. Court Appeals also issue addressed this Motors, v supra Russell General when
held point unreason- comes a which it is after [t]here able employee might someday think that such accept spurned. the offer that originally It point company permitted at that that a should disadvantage. to withdraw offer no its fear of [Emphasis added.] 14This case arose out of the same as in case at strike bar. Mich 234 [May- Brickley, in Chilcote the rules announced
We believe Russell strike balance between the best and the striking injured of the interests has been of favored work offer whose of administra- Fairness, well as ease as rejected. work refusing favored tion, party dictates willingness per- proving bears the burden must be willingness and that such such form An employer period. reasonable within a expressed the burden bear continuously have to should not *14 work, nor should of favored initiating a renewal of positions to hold favored be forced employer the open indefinitely. who has then that conclude
We should favored work existing ceased accept or re- willingness good-faith establish in order remains available work that sume favored this Additionally, for benefits. eligibility to restore reason- within a expressed willingness should effective. in order to be period able B support theories advance two Plaintiffs that, under above- even argument their resumption to a rule, are entitled they mentioned argue they plaintiffs Initially, of benefits. to return on willingness requisite expressed 18, 1982, representative the union when January 1981, Cadillac’s October attempted accept withdrawn. offer, already had been an offer that to re- "offer purported this Plaintiffs assert involuntary into transform them operated turn” strikers. to re- union that "offered it
Because this determine whether turn,” must first we Plaintiffs plaintiffs. to the attributed "offer” can be v Cadillac Malleable Brickley, concept argue that sup- "concerted action” conclusion, 159(a) ports and that 29 USC mandates it. representatives;
Exclusive employees’ adjust- grievances ment of sentatives directly Repre- with employer.
designated or purposes selected for the bargaining by of collective employees the majority of the appropriate a unit purposes, for such representatives shall be the exclusive of all employees in purposes such unit for the of collec- bargaining respect tive pay, wages, to rates of hours employment employment, or other conditions of [Emphasis
.... added.] provision This directs bargain with the only majority representative; he cannot bargain with essence, individual employees. separation forbids of the union and its members bargaining table. Applying bar, this to the case at we conclude the union’s "offer to return” should be attrib- uted to the individual In the employees.15 absence any indicating plaintiffs’ evidence to sepa- desire rate themselves from the union’s position, union’s offer should be deemed an offer each *15 member. we must
Accordingly, now determine whether plaintiffs’ the "offer” established willingness to work, return to so a rejection by employer plaintiffs would transform into strik- involuntary ers.
In order to that plaintiffs willing establish were return, they to must show that would have they accepted of any reasonable offer work put favored 15 by that, reinstatement, supported applying This is fact for striking request. request a may need not make an worker individual The group employees. Trinity come from the union on behalf of a of NLRB, (CA Valley 5, 1969). Iron & Steel Co v 410 F2d 1161 Mich 234 by Bkickley, to return by "offer” A conditional Cadillac.16 forth operate into invol- strikers to transform does untary reposition- represents a rather, it strikers; regard ing and to its demands the union with of liability employer analogy for An to concessions.17 striking backpay on this instructive worker is to a issue. obligated employer general, to a is not
In (an employee of injured refuses an offer Pigue, supra who See performing capable physically of is work that benefits). wage loss not entitled to respect argument to their similar have advanced a Plaintiffs 1981, to to return proposal, the union offered in which December expired contract. in the that existed under the same terms work compels Pigue, proposal a re light argue of this Plaintiffs sumption Pigue reasoned: The Court of benefits. employ- plaintiff his have continued at bar could In the case prior as existed conditions the same terms and ment under wages plaintiff incapacity to earn going out on strike. previous injury, by during period his was not occasioned of which he was by of a labor union the intervention but Employment plaintiff under condi- was available for member. position in the existing prior Plaintiff is thus to the strike. tions employment were having until those conditions of modified. overt act refused by any reason did not cease Plaintiffs’ part employer of his upon or because of his injury. 318. inability of his accidental [Id. to work reason Emphasis added.] argument. by plaintiffs’ persuaded are not We implicit support plaintiffs’ that "terms contention no There is hours, wages, Pigue and condi- used in refers conditions” as mandatory subjects essentially employment, are which tions of bargaining. Pigue it meant such to define what failed collective Thus, meaning determined from must be its "terms and conditions.” arose, dispute. namely, a labor the case the context in which hours, employ- wages, and conditions it hold that refers To existing be tantamount time of the strike would at the ment imposing any employer liability whose on worker’s strike, bargaining where the expired employer resulted contract collective agree with the same "terms to a contract refused to essence, negotiat- preclude from would conditions.” striking compensate having ing contract without a more favorable workers. of the to the nature and conditions” refers that "terms We conclude Pigue or the favored work namely, at issue in the clerical work at bar. in the case at issue *16 v Cadillac Malleable Opinion by Bkickley, striking employee backpay. exception for The to striking rule this arises when the worker submits application an unconditional reinstatement job employer rejects. employer’s his triggers refusal reinstate worker the accrual backpay, beginning after the denial of the strik- ing request employee’s for reinstatement.18
Applying bar, the case it is clear that an unconditional offer would have demonstrated plaintiffs’ willingness to return to work. An offer upon employer’s acceptance conditioned certain terms does not. January 18, 1982,
The wcab concluded that the nothing "offer to return” was more than "another proposal very negotiations.”19 lengthy in a series of Support for this conclusion was found the facts attempted accept this "offer” an offer that expressly withdrawn, had been the union’s "offer” writing, practice, was not as had been the ratify the union proposal. not members had voted to such a agree analysis We with the wcab’s of the "offer” plaintiffs’ and conclude that "offer to return” was proposal negotiation merely pro- another in cess. The "offer” did rise not to the level necessary req- unconditional offer uisite to establish the willingness transforming thereby return, plaintiffs involuntary Hence, into strikers. suspension should serve to terminate the benefits.
c Additionally, plaintiffs argue an- that Cadillac’s its nouncement of replacement intention to hire withdrawing workers had the effect of 18 Gorman, Law, 6, 17, p See ch Labor 348. § 1989 WCABO 256. *17 445 234 by Opinion Brickley, J. striking employ- its
its of work from offer favored resumption plaintiffs entitling ees, to of the a thus disagree. benefits. We management by of the use of
The announcement permanent replacements on considerable effect has dispute, particularly dynamics the of a labor striking worker, it that a view of the fact represents to sought only a to the benefits threat possibility by union, of the the but also introduces permanent job favored-work loss. effect on a The quite em- striker, however, Such an is different. of favored ployee, which, most, a sees loss resumption may turn, of work loss result a perform the to favored without need certainly strikers work.20 While favored-work disadvantaged by of the should not be the outcome replacements, they permanent also should use of not position improve the use of as a result of their replacement workers. divergent
Therefore,
the
in view of the
effects of
replacements
injured
permanent
on
versus
use of
striking
noninjured
employees,
the
think that
we
establishing
placing the
of
a
rules
readiness to offer or
the
burden
accept
favored work should
a
as
obtain had there been
volun
same would
tary
work outside a labor
cessation of favored
hiring
replace
dispute;21
we
not believe
do
oper
during
dispute
a
ment workers
labor
should
ate to shift this burden.22
Inc,
159;
Products,
v
285 Mich
See Kolenko United States Rubber
(1938) (an
prove
that
We conclude that failed to indicate individually collectively an offer unconditional during to return to their favored work either the jobs strike or when it was announced their by permanent replacements.26 would filled be Ac- striking employees dynamics of the total number of labor to affect the of a dispute. 23 Boyle opinion, majority’s In her Justice characterizes the conclu being law, hiring sion as that "as matter of the a of replacement workers cannot serve as a withdrawal of favored work.” however, holding, hiring replacement Post at 259. Our workers, is that the of more, without cannot serve as a of work. withdrawal favored footnote, attempt following hiring As we permanent to make clear in the the replacement conjunction employer’s workers an employee’s may operate refusal of an withdrawal offer return to work as a work, thereby resumption triggering benefits. Boyle opinion striking of Justice states that "the workers may permanent replacement this case well have viewed workers as eliminating positions not, . . . their .” Post 262. The at workers did we, speculate; they only nor do have to needed make known that they were employer positions. wished to return their this favored work If offer declined, possible it would then to determine whether the kept positions open period. had for a reasonable 25Specifically, question we need not address the the em whether ployees’ light expressed time, offer to return was within a reasonable employees of our determination that the never offered to return anytime to work at before the of this commencement action. they any subsequently Nor there have is indication that re quested reinstatement. 445 Opinion by Brickley, plaintiff cordingly, was without at least to collect work loss benefits. recourse
IV Zimmerman, the additional we must address supervening, non-work-related whether issue right plaintiff’s operates to reinstate heart attack to We conclude that does. benefits. general previously stated, rule is have
As we employee injured an offer of who refuses that an favored work that physically capa- is performing is not to worker’s com- ble of entitled supra pensation Pigue, 318-319. A See at benefits. supervening corollary to rule events supervening event rule, ing caus- which states will terminate cessation of favored work supervening employee’s right if employee’s control or is event either is within the supra Applying Bower, 188. him. attributable to plaintiff Zimmerman, it is rules undis- these longer puted attack, no that after his heart he was capable performing physically his favored work. capable physically rule, Under Zimmerman supervening But entitled to would be benefits.27 applicable rule to Zimmerman be- events cause is also voluntary the strike was a action on his *19 part. rule, Under that Zimmerman would not be result is entitled to benefits. Because a different they rule, reached under each must be reconciled. preliminary matter, in note that Powell As a we Corp, 332; 279 v Casco Nelmor 406 NW2d (1979), inability that of a this Court held preclude not worker to continue favored work does opinion it states that we We think dissent misreads our when supervening granting Zimmerman events doctrine in misconstrue a clear, opinion Post at 273-274. As we our makes are windfall. supervening granting relief on the of the events Zimmerman basis doctrine. v Cadillac Malleable Brickley, payment inability of benefits where was supervening occasioned a in- non-work-related jury beyond employee’s However, control. we Powell, in case, note that unlike facts in this injured employee performing was favored work supervening, at the time of the non-work-related injury. deciding again issue, this we must bear
mind the remedial nature of the ity Compensation Disabil- Worker’s
ItAct. should liber- be construed ally deny unnecessarily so as not to benefits. When dealing benefits, we an are with issue of must we interpretation awards, favor an rather than denies, benefits.
We must also consider the extent and circum- disability. stances Zimmerman’s at- heart totally tack has rendered him disabled. We are not presented partial disability with a case of may employ- have little or no effect on the future prospects employee. ment a prevent of an We are faced employee’s injury may situation which the obtaining any employ- him from further ment. A denial of benefits in case work would unquestionable hardship. given
Consideration should also to the extent perform general, of the refusal favored work. In predicated upon a refusal favored work participation perma- in a strike not viewed as a envisage contrast, nent refusal. In we can other original cases where the refusal will be of a more permanent nature.28 The fact that this refusal permanent not intended to be of a nature counsels against denial a of benefits where there is subse- quent non-work-related disability._ example, injured For we can conceive of a situation which an employee refuses favored work and then state moves another country. weigh heavily nature of this refusal would against plaintiff seeking upon superven the occurrence of a ing, injury. non-work-related *20 [May- Mich 234 445 Brickley, not did the heart attack that we note
Finally, work. favored perform to out of the refusal arise employee striking a where the case This is heart attack picketing. while injuries suffered to the work and to unrelated both here was per- to the refusal from did not stem strike favored work. form considerations, we would these the basis of
On attack heart plaintiff’s of the occurrence hold that of recovery preclude does not on strike while conclusion, we reaching this loss benefits. wage nature of worker’s remedial have considered the total extent of certainty compensation, perform of the refusal length disability, attack,29 and the heart the time of work at favored did not heart attack that Zimmerman’s the fact work; favored perform out of his refusal arise his control within event neither supervening awas contrary a note that to him. We attributable nor forfeiture of require a result would cessation original of his on the basis rejected have work, consequence we a favored reasons, hold we would foregoing today. For loss benefits wage Zimmerman is entitled which his 4, 1982, upon the date February as unable physically him attack rendered heart work.30 favored perform
CONCLUSION cessation voluntary hold We would in a striking results aby work longstanding presenting refusal we would caution that in a case We pronounced, injury certain or and an less favored place weight on weight work and less refusal of favored more on the inability physical work. position heart the effects of Zimmerman’s on the dissent’s While point, authority on certainly the lack of in view of defensible attack light receive benefits Zimmerman should we remain convinced of the act. the remedial nature above and of the reasons stated v Cadillac Malleable Opinion by Boyle, J. *21 suspension wage of a loss benefits. Neither condi- by tional offer to return hiring nor a worker’s union the permanent replacement by of workers the employer operates automatically to bene- restore striking employee. However, fits to the expresses employee will be restored once the good-faith willingness a to return to favored provided willingness such is communicated to the period following within reasonable the Additionally, cessation of favored work. we would resumption employee’s hold that right the of such an upon superven- to benefits occasion the of a ing heart attack that such to- renders tally depends certainty disabled on the and extent injury, length of the of the refusal to injury, favored work before the and the lack of a causal nexus between the refusal of favored work resulting and the heart attack.
Accordingly, we would affirm the of the decisions Appeals respect and Court of with wcab findings plaintiffs their not have perform estab- requisite willingness lished the wage work and are therefore not entitled to loss benefits from the commencement of the strike. We respect would reverse decisions with to Zim- merman, who is entitled to work loss benefits from disabling totally the time of his heart attack. (concurring part dissenting Boyle, in in part). reasoning parts I concur in the and result of opinion i and n lead and in the result part separately I iv. write for two reasons. disagree opin-
I with the conclusion of the lead hiring perma- that, law, ion as a matter replacement nent cannot as a workers serve with- I drawal of favored work. would hold hiring permanent replacement may workers employer’s fact and in law work to withdraw an [May- 445 Boyle, J. Therefore, remand I would work. offer of favored opin- this with consistent proceedings further of an disposing reaching I disagree ion. Court, namely, before properly not issue an on time limitation of a reasonable adoption right to fa- his to reestablish ability employee’s and, unwarranted, my is The reach vored work. If there is view, suggested unjustified. the rule provide appears rule that for a justification the settle- delay either employers incentive replacement hire or to ment of a strike the em- made workers, it has not here been it. provide opinion lead should and the ployer, *22 I strike after the four months In March the acknowledged Malleable began, Cadillac hiring per- were it had been workers replacement favored on who had been employees The manent. Cadillac’s have viewed may the strike work before of favored work as a revocation announcement to have proven If could be a revocation positions. to re- be entitled occurred, would employees, for the justification because of benefits sumption available from (voluntary cessation suspension Ante work) 254; to exist. would cease Inc, Products, States Rubber v United Kolenko (1938). Nonfavored-worker 159; 280 NW following unemployed to be presumed are strikers replacements. permanent Lipshu, Stamping v 1; 461 436 Mich Plymouth (1990). distinguishes opinion lead NW2d other strikers be- from strikers favored-worker or pay either must cause From this restrictions. within the worker employ "the concludes opinion the lead distinction establishing the burden placing rules Malleable v Cadillac Opinion by Boyle, accept readiness to offer or favored work should be the same as would obtain had there been a volun- tary cessation of favored work outside a labor dispute plainly, . .. 254. Put Ante at the lead opinion would hold that is on the burden employee to offer to return to work. opinion
While the lead is correct its assertion the effect on favored-worker strikers hiring permanent nonfavored-worker replacements strikers of agree identical, is not I do not hiring that, law, its conclusion as a matter of of such workers can never serve as a de facto employer’s withdrawal of the offer of favored It work. is true that the threat to the latter sought by worker is to the benefits the union and possibility job to the loss. The threat worker, however, to the favored as this case illus- job trates, is the elimination of both the worker’s definitively and benefits until such time as is determined that the strike is over or a reasonable passed.1 Where, here, time has tively as there is a rela- high concentration of favored workers in the dispute protracted, work force and the labor proposed holding opinion, of the lead when com- limitation, bined with the time reasonable would improve employers’ bargaining leverage encourage dispute extension of the labor strikebreaking. *23 Plymouth Stamping Lipshu, question v disqualification provision
was whether the labor of Michigan Employment Security Act, MCL 421.29(8); 17.531(8), applied striking MSA work- permanently replaced. ers who had been In a opinion, plurality four of members the Court held any permanently replaced "that striker who is thereby entitled to from that time forward part See II. 445 Boyle, succeeding again event
unless and until some dispute contribut- renders the labor ing a substantial (opinion unemployment.” Id. at 42 cause of the concurring). My Boyle JJ., own Cavanagh, view that assumption dispute fundamental of the labor [t]he disqualification provision job is that there exists a striking employee voluntarily
from which the absented himself because of a labor which has dispute and to dispute. he will return at the end that When, however, striking employee is notified position that his permanently replaced by assumption has been filled —that he has been another —that longer language no obtains. In the statute, the replaced, the strike. At once the striker has permanently been unemployment his ceases to "due to” juncture, only "substantial contributing cause” of the strik- [citations omitted] unemployment permanent replacement. er’s is his [Id. 38.] Lipshu, striking
Like the workers in workers may in this case replacement well have viewed eliminating posi-
workers as their injured employees’ tions, cause of the might failure to favored work have been voluntary corporate refusal, not but a revoca- position tion. While the nature of a favored work might supposition tenable,2 make this more or less the fact that some favored workers could reason- ably hiring permanent replacements view the as against the end of their counsels adoption suggested by opinion, of the rule the lead require employees attempt which would these jobs they longer return to believe are no available. instance, jobs likely For odd-lot would seem to be less to be filled by permanent replacements. jobs Conversely, happen to fall restrictions, within a favored worker’s particular but would exist absent worker, likely perma seem more to be filled replacement. nent *24 Malleable v Cadillac by Boyle, J. Opinion possible availability of
Mere reliance on the if the offer of favored work is eliminated placing plaintiff justify on the does not a burden asking employer for favored work. In return my view, that, it if the is reasonable to conclude offer of can be shown to have revoked its hiring permanent favored work with the placements, of re- Lipshu, then, as in the cause of a longer unemployment is no due to the worker’s strike.3 in this Cadil-
What is not clear
case is whether
hiring permanent replacement
act of
workers
lac’s
served
wcab held that
its offer of favored work. The
withdraw
hiring
replacement
of
workers
facto withdrawal of favored work.
a de
Lipshu
However, it did not have the benefit of the
analysis.4 Moreover,
is not
from the
obvious
opinion whether
the board understood that
hiring
replacements could
serve to
Although
withdraw an offer of favored work.
may
possibility
have considered the
board
rejected
explicit
it, such a decision is not
in the
opinion.
place
wcab also seemed
wcab’s
Neal,
585;
Liberty
App
See
Mutual Ins Co v
Ga
burden of forward and the burden of plaintiff. on the It is likewise unclear where the *25 placed burden would have been had it been under- recognize application stood that this Court would Lipshu striking analysis of the employee. to the favored-work by In the absence of a full evaluation the admin charged implementing agency istrative work compensation inappropriate law, er’s it is to re question hiring perma solve the the whether replacement plaintiff’s nent workers ended volun tary perform refusal I favored work. While acknowledge again analogy between unemployment worker’s benefits and perfect, replacement is important issue is so that the Court should not act development without a full record and discussion holding Lipshu of the rationale and effect of the on favored workers on strike.
I would vacate the decision of the Worker’s
Compensation Appeal Board and remand this case
Compensation Appellate
to the Worker’s
Commis-
assign
magistrate
sion to
the case to a
for further
opinion.
consideration consistent with this
re- On
magistrate
mand,
should be directed to con-
existing
authorized,
sider the
record and be
with-
'
placed upon
This Court accords "deference to the
"construction
statutory provisions by any particular department
government
long period
Ludington
Corp Acting
a
Comm’r of
of time
Service
v
Ins,
(1994).
481, 491;
444 Mich
II employee’s opinion that an observes The lead expressed willingness return to work "should period effec in order to be a reasonable within eit does not decide 250. Becaus Ante at tive.” passed case, in this time has a reasonable whether 25,6 of a reasonable n the discussion ante at unnecessary to it is is dicta. While time limitation opinion,7 question today’s because address adoption my opposition discussed, I state limitation formulated time of the reasonable opinion. the lead *26 judicially doctrine, a created
Favored work is purpose” primary an of which is to allow "[t]he opportunity employer dam to reduce work-loss the employee partially ages by putting back disabled Co, 412 Mich Leather v Whitehall to work. Bower (1981). 640 The favored work 172, 182; 312 NW2d "encourages employee to return the doctrine also productive employment to remain rather than serving function.” idle, also rehabilitative thus merely is However, function the rehabilitative Id. deciding employer whether incidental, each employee favored work. individual to offer an opportunity employee will have an Whether rehabilitate employer. left to his is a decision employee employer any event, owes an compensation he whether minimum level of same performs or remains at favored work home. 6 "[p]laintiff’s work contin refusal of favored held that The wcab hearing, through are ordered.” thus no benefits the date of ued WCABO 471, 488. grant in either case. in the order This issue was not addressed 445 Mich by Boyle, J. surprising opinion
It is therefore the lead "fairness,” ante at re- would determine that quires adoption of the reasonable time limita- employee tion. Fairness is not offended when the away employer’s ability takes to reduce work- compensation er’s the worker refuses favored relieved of its losses that do not exist. While employer
work, obligation pay employee. damages mitigate. There are no is also Fairness by employee’s opportu- not offended loss of an nity existing to rehabilitate. With rehabilitation employer the discretion of an obligation who is under no hardly to offer favored it can argued injured the desire to rehabilitate justifies cutting rights workers off future to work- er’s benefits or favored work. only remaining generalized justification is a require concern that it is somehow unfair to em- ployers ly.” positions open "to hold favored indefinite- However,
Ante at 250. the nature of favored itself, work as described Cadillac Malleable’s attorney rejoinder argument, provides at oral to this the clearest
argument: —By very nature, its favored work is work outside or different from the work that is offered general to the It work force. is work created or established to accommodate an injured employee’s It limitation. can be an ordi- nary job assigned that has been accommodate his limitations. question plaintiffs’
—The here is not whether replaced, preferred favored work was vored work could not have because fa- *27 replaced. It
been especially injured established to accommodate the worker.8 system, employer
Under the current an is re- 8 Welch, Compensation Michigan: See Worker’s in &Law Practice (rev ed), 10.11, p 10-14. § Malleable v Cadillac Opinion by Riley, J. injured employee quired pay worker’s com- an posi- pensation if it does not offer a favored work employee’s Bower, limitations. su- tion within the pra employee made, 182. If an is such offer accept required it or face discontinuation employee Consequently, fails to when an benefits. gains employer himself of favored avail obligation either to it is relieved of the because compensation pay his worker’s instance, him For benefits or to offer favored work. present injured employee him- does not when years, employer to his for ten self obligation gains because he was relieved of an pay or offer favored work for that owed benefits period. limitation would The "reasonable time” by turning present employers with a windfall mitigation judicially created doctrine of into a judicially doctrine of benefit elimination.9 created J., C.J., concurred and Mallett,
Cavanagh, J. Boyle, with (concurring part dissenting
Riley, part). reasoning holdings parts join I in the opinion. However, because I find of the lead i-iii striking fully by that a supervening favored worker disabled entitled to a reinstate- event is not he that he would ment of benefits unless have returned to work but shows supervening
for the separately. event, I write
i purpose of the worker’s act 9Although disagree time limitation rule I reasonable opinion, suggested appropriate the lead I would not foreclose consideration might found that an em circumstances which right reapply ployee had forfeited his for favored work or benefits. is not before us. This issue
268
"is to compensation for disability resulting from injury.” Lynch Briggs v occupational an Mfg Co, (1950). 168, 329 171; Mich 45 20 NW2d furtherance of this basic this Court policy, crafted doctrine, the favored work permits which an em- to offer a ployer partially disabled work employee (at that he is capable of physically performing equal greater or preinjury wages) lieu of provid- ing worker’s compensation benefits. Hood v Wyan- Co, dotte Oil & Fat 190, 272 193; Mich 261 NW 295 (1935); Co, Bower v Whitehall Leather 412 (1981).1 182; NW2d
The primary purpose of the doctrine is that of
mitigation.
It
allows an
to reduce or
completely
eliminate
payments by
providing work
injured
within the
employee’s
physical
time,
capacity. At the same
it encourages
employee
productive
to return to
idle,
rather
than to remain
serving
thus also
function.[2]
rehabilitative
In accordance
the principles
of mitigation,
"if
able
physically
perform
the favored work”
purely judicial
The favored-work doctrine is a
creation. Fa
vored,
light,
loosely
work can be
defined as less strenuous
post-injury
Wages
may
work.
from favored-work
be used as a
against
employer’s compensation liability,
setoff
418.361(1);
establish an
neither
an
MCL
17.237(361)(1),
wages
MSA
but favored-work
do not
earning capacity,
wages cease,
they
and when such
suspend
compensation.
nor bar
Powell v Casco Nelmor
Corp,
332;
(1979).
406 Mich
In the case at bar
could have continued
employment
his
under the same terms and condi-
3
nothing
logical
The favored work doctrine is
more than the
application
compensation
principle mitigation
of the axiomatic
of
to the worker’s
Campbell noted,
always
scheme.
Justice
has
As
"[i]t
upon any person subjected
injury
been considered incumbent
to use
reasonably
power
such means as are
his
to make the evil conse
Allison,
460,
quences
light
possible.”
as
as
Chandler v
10 Mich
474-
(1862).
O’Dett,
347, 350;
475
also
v
51
16
679
See
Cubit
NW
(1883).
mitigate by
injured party
recovery,
A failure to
bars
"
therefore,
any
damage
'for
item of
which could thus have been
”
Ed,
190,
avoided.’ Shiffer v Gibralter School Dist Bd of
393 Mich
197;
(1974),
McCormick,
33,
quoting
Damages,
p
jurisprudence.
solely
It is not
a "breach of contract” or "com-
doctrine;
part
principle
mercial”
of
much
is
broader
consequences.” [Shiffer, supra
"avoidable
at 197.]
rights protected by
mitigation
just
The
doctrine are not
contracting parties,
litigants,
those of
commercial
tort victims
but, rather,
rights
"Legal
society:
or tortfeasors
and doctrines are
individual loss and
economic welfare and
at
of all
rules
designed
only
prevent
repair
injustice,
protect
but to
and conserve the
prosperity
community.”
of the whole
[Id.
McCormick,
quoting
supra.]
Hence, mitigation
applicable
fully
employment
is
in the
context.
See,
Mills,
347, 358;
e.g.,
Hosiery
McClelland v Climax
252 NY
(1930)
("The
(Cardozo, C.J., concurring)
obligation
of the
NE
master
suffered,
ably,
merely
pay
damages
actually
whatever
have
been
servant,
acting
damages
reason-
these exclude
that a
avoided”).
or
In the favored worker
would have diminished
context, therefore, "interruptions
by voluntary
of work caused
actions
employee,
participate in
of the
strike,
such as abandonment of work to
explanation
failure to return
at the end of a leave of
without
absence,
discharge
restrictions,
notify
failure to
of medical
or
drunkenness,
gambling
because of
results in a forfeiture
(citations omitted).
Bower, supra
of benefits.”
at
tions as existed out on strike. incapacity plaintiff wages during to earn period previous was not occasioned his by injury, by but of a intervention labor union of which plaintiff he was a Employment member. was existing prior available under conditions to the position strike. Plaintiff refused having is thus in the employment until those conditions were modified. by Plaintiff’s did not cease any upon part reason of overt act of his employer or inability because of his to work injury. reason of his accidental upon Decision this case is based the fact that plaintiff work was that employer; available to his plaintiff physically able such work, but declined to do so because a strike called by a labor union of which he was a member. [Id. 318-319.]
The lead opinion would hold that this forfeiture of benefits during a strike is only "temporary *30 suspension of benefits” during the refusal to work. Ante at 248. It also would find that if a worker fails request accept to an offer of favored work time, within a reasonable the forfeiture of benefits Ante at permanent. 250, becomes 255. This is so because employer should not have to continu- "[a]n ously bear the burden of initiating renewal nor should the employer be forced to hold favored positions open indefinitely.” Ante at Hence, 250. opinion lead correctly concludes "that an employee who has ceased to existing favored work should establish a good-faith willingness accept to or resume favored work that remains available in order to restore eligibility benefits. Additionally, willingness should be expressed within period a reasonable in order be effective.” Ante agree. at 250. I
Furthermore, recognized as opinion, the lead the reasonableness standard apply must to both 271 Cadillac Malleable v Riley, parties integrity to maintain the of the favored 248-250, 254. also doctrine. Ante at See work supra Bower, 182-185; v General Motors at Russell Corp, (1988).4 App 627, 738 632; 432 NW2d 172 Mich employee’s
Hence, a favored unreasonable accepting delay relieves an oifer of e.g., supra liability. See, Russell, at an 632.5 4 applied employees A test is to the actions of when reasonableness determining they whether are entitled worker’s Bower, Originally, adopted supra at 182. this Court the results in the
benefits. unjust protect reasonableness doctrine to context workers from of the favored work doctrine: specifically remedy. If the statute Forfeiture is a drastic account,
requires into the the that reasonableness not be taken obey, unjust But in courts must no matter how the result. case, applied, though developed even instant in a the doctrine Therefore, context, statutory judicially one. is a created law, approach consistent with our consider assessment of the to the common we refuse penalty application the harsh forfeiture without an parties’ at reasonableness. 184.] [Id. Appeals has over the reasonableness The Court of divided whether See, e.g., applies employers. to the actions of Hartsell v standard Co, 523, 535-536; App Richmond Lumber 154 Mich 398 NW2d (1986) inapplicable); (holding standard is id. reasonableness (MacKenzie, P.J., dissenting) (approving of reasonableness standard Russell, 632, conduct); employer’s supra Murphy and Derr v for an (1992) Lines, 335; Freight App Motor NW2d (holding evaluated). employer’s actions should be that the reasonableness apply standard to the The better view is reasonableness employers: actions of employee’s It must be remembered that it is the unreason- triggers refusal which the initial forfeiture of benefits. able There comes a that such point to think after which is unreasonable employee might someday accept the offer that was originally spurned. point company It is at that that a should be permitted disadvantage. to withdraw its offer with no fear of [Russell, supra at 632.] *31 5 [corollary] The obvious is that the reasonableness [Bower] employer’s work must of an also be considered awarded. purposes underlying withdrawal of an offer of favored determining in whether benefits should be mitigation I fail to see how the or rehabilitation are served the favored work doctrine 272 445 Mich 234 Riley, J. case,
In the
of these
application
instant
Although
denies
relief.
principles
law,
findings
Court
examine
the wcab’s
may
if
findings
absent
fraud its
of fact are conclusive
competent
on the
any
supports
evidence
record
1963,
6,
28;
findings.
those
Const
art
MCL
§
).6
17.237(861
418.861; MSA
The wcab found that
performing
Nederhood was
favored work and vol
untarily
participate
left that work to
in the strike.
The wcab also found that
hiring
defendant’s
replacement workers did not constitute
a de facto withdrawal
of its offer of favored
and that
the union’s proposals
to return to work
tactics,
merely
negotiating
were
not bona fide
offers to return. Similarly, Nederhood
failed to
show that a replacement worker had taken his job,
or that he could not
replace
find
as a
ment worker. To the contrary,
the record reveals
several
former union members became
re
placement
Moveover,
important,
workers.7
most
found
approached
wcab
that Nederhood never
regain
words,
defendant
job
his
other
he
—in
failed to tender an offer to accept
posi-
a favored
deciding,
does,
majority
as the
that an offer of favored work
here,
open
though,
be left
must
without
limit even
as
clearly
returning
worker has
demonstrated utter
disinterest
employer’s workplace.
[Hartsell,
supra
to his
n 4
at 535-536
(Mackenzie,
J., dissenting).]
"6
weigh
weighing
'We do not
the evidence. The
scale is
other
”
and,
balance,
re-weigh.’
hands
even if we think it out of
we cannot
424,
Pulley, supra
quoting Hood, supra
at 194. See also Holden v
Co,
257, 262-263;
(1992);
Motor
Ford
439 Mich
II Nederhood, Like Zimmerman forfeited his enti- participated tlement to benefits when he in the any strike. Zimmerman failed to show evidence that he or the union ever offered to return to Again, Nederhood, work. like Zimmerman present any showing also failed to evidence position replacement his was taken a worker, or that he would have been unable to obtain comparable position. another Hence, Zimmerman is not entitled to benefits. considering
Nevertheless, the "remedial nature compensation, certainty of worker’s of the total and extent
disability, length of the refusal to perform favored work at the time of the heart attack, and the fact that Zimmerman’s heart at- perform tack did not arise out of his refusal contrary favored work [and] that a result would require forfeiture of benefits on original basis of his work,” cessation of favored providing without him a reasonable time within express willingness which to his return, the lead opinion wage would hold that he is "entitled to February upon loss benefits as of 4, 1982, the date physically which his heart attack rendered him unable to favored work.” Ante at 258. opinion’s holding The lead misconstrues the su pervening event doctrine and the worker’s com pensation by granting act Zimmerman a windfall. correctly It *33 continuing ability related work benefits for a ” Corp,
injury.’ 406 Mich Nelmor Powell v Casco (citation (1979) omit 332, 354-355; 279 NW2d added). emphasis Hence, favored work ted; require benefits "not doctrine does upon happening automatically revived to be intervening event which disables nonindustrial employee Rather, . . . .... such a favored-work payment preclude the of com [does] an event Flynn prior injury.” pensation v General for a App Corp, 511, 517; 413 NW2d 162 Mich Motors (1987). Thus, benefits under to obtain supervening doctrine, must show a claimant act already performing favored work he "was that his indepen supervening original employer and to continue.” rendered him unable dent event supra Bower, 187.8 performing however, fa-
Zimmerman,
was not
attack,
suffered the heart
but
work when he
vored
voluntarily participating There is
a strike.
was
have crossed
that Zimmerman would
no evidence
legal
healthy,
picket
line had he
been
time of his
benefits at the
denied Zimmerman
bar
disability.
therefore,
Court,
assume that
must
This
he would not have
without the heart attack
even
the strike continued.
for defendant while
worked
present any
Furthermore,
evi-
he has failed
position
returned to his
that he would have
dence
words,
already performing
In other
"the
independent
original employer
supervening
event
his
him unable to continue.” Id. See also
and a
work for
rendered
supra
Lynch,
at 172.
1994] v Cadillac Malleable
Riley, after the
Thus,
decertification of the union.
Zim-
disability
ability
merman’s
is irrelevant
to his
receive benefits because he would have been ineli-
gible for such benefits if he had not had the heart
upon
attack. Because the burden is
Zimmerman to
show that he is entitled to
such circum-
produce any
stances, and he failed to
evidence that
despite
he would have returned to work
the strike
consequent
union,
decertification of the
Zim-
Pulley
merman is not entitled to benefits.
v De-
Engineering
troit
Co,
&
Machine
378 Mich
(1966);Flynn, supra
425-426;
Labor Relations
321 US
64 S Ct
Griffin, with concurred agree opinion). (separate Levin, I opinion 200, PA that 1981 of the lead author codifying guide doctrine, should the favored work 301(5)(a), opinion, § set forth that decision.2 As legislation, provides if the 1981 added disability employee established, receives and "an employment from a bona fide offer of reasonable a previous employer, through employer, another Michigan employment security commission employee with refuses good cause, shall reasonable out voluntarily removed himself considered to have longer is no the work force and or herself from any wage this act under entitled to during loss benefits period of such refusal.”3 "during period clause, of such re- The last fusal,” that refusal of with the view is inconsistent of worker’s in a forfeiture work results inconsis- This clause is also benefits. that, unrea- because would be tent with the view keep expect those sonable point positions open beyond it announced by permanent replace- jobs filled that the would be they quit the union or cross the union’s decisions unless picket chose Hence, they work and line. did. refused favored Neither decertified, course, either so. once the union was continue to do plaintiff Of regarding inquired failed to do but could have Hence, they length of forfeited their for an unreasonable time. so benefits. *35 January 1982. Effective 2Brickley, J., ante, p 247. 17.237(301)(5)(a). 418.301(5)(a); MSA MCL v Cadillac Malleable Separate Opinion by Levin, may merits,4 Nederhood not recover worker’s com- pensation benefits. employer may justify
While the needs of the the employer keeping open beyond in not offer par- time, reasonable the need of the ticipate may justify in a strike his refusal to work during a strike. The disabled worker is neverthe- legisla- disabled, and, less as set forth the 1981 properly only "during tion, can be denied benefits period good refusal,” of such without cause, reasonable of a bona fide offer of reasonable previous employer, from a another employer, through Michigan Employment Security Commission. "period is, course, of such refusal”
question showing of fact. The burden of refusal of employer work should be borne because the mitigation damages, offer of favored work is in in the form of benefits, worker’s payable by employer. otherwise representative When the union’s offered to re- January, turn the entire work force to work in 1982, that was in effect an offer on behalf of the favored workers to return to work. While the employer obliged accept was not offer, it should not be heard thereafter to assert that a particular injured worker, Nederhood, declined favored work unless it clarifies situation reoffering injured worker, work to the separately apart Nederhood, from whatever going employer on union, between the and the wage employer workers, and other at whatever particular injured chooses to offer the If worker. so, here had done and Nederhood offer, had refused the that, would then be clear after the union’s offer to return the entire work J., Brickley, p 255. ante, *36 445 Mich Separate Opinion Levin, 1982, had in Nederhood January,
force to work work at a definite an offer of favored declined wage. events, on the em- the burden should be all work from and to show refusal of favored
ployer 23, 1982, filed a when Nederhood September after the Bureau of Worker’s petition hearing before filing petition, Compensation. By Disability that he notified the formally Nederhood of worker’s a renewal of seeking payment compen- the worker’s benefits under compensation was, been, have incum- It or should system. sation offset in miti- claiming an employer, bent on this offer, and the on the basis of an gation damages had, to show that of favored availability, strike, negotiations with uncomplicated union, (injured the interests of other workers factors, an offer of other made uninjured), 23, September after work to Nederhood he had turned down the offer. and that in Appeals the Court of I in reversal join stated, also, Zimmerman. I would for the reasons Nederhood Appeals reverse the Court for the of an award entry remand to the wcac Nederhood, who was found compensation the circum- partially disabled. Under have been Neder- three would affirm justices stances that hood the result that Nederhood would remand for compensation, and three would denied provide and remand would proceedings, further on remand opportunity with an benefits, I join recover worker’s remand to the wcac. notes "basic rule of supervening causing ... law is that a event ces employee’s sation of an favored work will not 445 Riley, J. long right as the event as his terminate is not under employee’s attributable control or supra 187. This is so because Bower, him.” " intervening independent, event, fol which '[a]n arising personal injury in the out of and lows justify employment, alone does not course denial, suspension, reduction, increase of dis