*1 No. 30876. Nov. [L.A. 1978.]
JUDSON CORPORATION, STEEL Petitioner, v. WORKERS’ COMPENSATION APPEALS BOARD MAESE, and RALPH Respondents.
Counsel Petitioner. Zonni, & Ben F. Ginocchio and Taylor Taylor McBirnie, J. M. Thomas Charles Lawrence Miyamoto, Swezey, Philip S. Lifton for G. and Respondents. Stanley Raymond Agnew Opinion who
TOBRINER, J. This case the issue whether an presents and, terminates an his ultimately, employ- employee’s rights, ment, of an because of absence from his result job employee’s in unlawful within the industrial has discrimination engaged injury, In of Labor Code section 132a. 1972 the amended meaning Legislature state section 132a to that “It is the declared this provide policy in the there should not be discrimination workers who are case, In the Workers’ course and their the instant scope employment.”1 1Section 132a in full: “It is the declared of this state that there should provides policy not who be discrimination workers are in the course their employment. who or threatens manner discharges, “Any employer discharge, discriminates has filed or known his latter made against any employee Board concluded that the violated this
Compensation Appeals mandate statutory by revoking seniority rights. now decision, seeks review of the board’s that the contending collective the revocation of prevailing bargaining agreement compelled and thus that substantial evidence does employee’s seniority rights, the board’s decision. contentions support Finding employer’s meritless, we affirm the board’s decision.
In 1973 Judson Steel petitioner Corporation employed applicant Ralph A. Maese as a crane On while a box operator. January carrying down wet Maese his and back. He ramp, slipped leg and, thereafter, for several months received reported medical treatment insurer. In 1974 he provided by employer’s April applied for workers’ benefits for his injuries. 19, 1975,
On on direction of his Maese April treating physician, later, returned to work. Two Judson laid off Maese. Judson claims days that a clause of the union contract resulted in the elimination of Maese’s *5 and the termination of his The clause that seniority ensuing job. provides “the continuous service of an and his or her status employee seniority shall be . terminated . . has not work employee performed [w]hen any for the for twelve consecutive months as a result of. . . Company illness or that his termination was the result of injury.”2 Claiming board, intention to file an with the or application because the has appeals employee settlement, or, received a award or rating, because the testified or known employee made his board, intentions to in matter testify to the any is relating appeals guilty misdemeanor and to the Section subject provisions of 4553. advises, directs, insurance “Any carrier who or threatens an insured under reason, cancellation or a raise in or premium for other to discharge employee because the latter has filed or made known his intention to file an with the application board, award, settlement, or because appeals has received a or employee is rating, of a misdemeanor and to guilty subject of Section 4553. provisions under this “Proceedings section for increased in compensation Section board, 4553 are to be instituted filing appropriate petition but such appeals not be commenced more proceedings may than one from the act or year discriminatory date of termination of the board is vested with full employee. power, authority, and determine jurisdiction all the matters try review.” this finally specified section subject only judicial (cid:127)Section 4553 provides that “The amount of pertinent part otherwise compensation recoverable shall be increased one-half where the reason of the employee injured by serious and willful misconduct of of the (a) The following: employer, [K] . . . But managing representative. thousand dollars such such increase of award shall in no event exceed ten [$] ($10,000); with costs and together incident to expenses procurement award not exceed two hundred ($250).” dollars fifty 1, contract in 2Although became effective question its own terms on June termination, more than one month after Maese’s have parties conceded the contract’s for an 132a, Maese filed violation petition discrimination on that award of ground. on at the Rezendes, testified union business hearings Añtone M. agent, on the was job, that when a Judson Maese’s employee petition 12-month extend the union could grace period and the mutually Judson due for absences thereby injury, preserving should Rezendes, “No. injured employee]
seniority. According [the that he be tell the with a doctor company slip, company notify would . . . And then as an company another six months off example. over the one we are mail year us go agreeing stating notify it. There is no letter and that’s we . . And then acknowledge period. was Indeed, absent if he were advised problem.” “want to know that he would Rezendes on the job, emphasized if hurt.” he on the list is not got seniority being kept why employee] [the at work.” “was third in there Maese testified that he Applicant Nevertheless, return to work his Maese’s shop superintendent following I he told me that was laid off me to the office and Daniel Cortez “called of the con- . . . because I lost everything my seniority not work are out . . . reads after twelve months at tract. The contract you were other work.” Cortez Maese’s corroborated testimony: employees for the whole at that time laid off “because there was not work enough crew”; however, off that “had he not Maese’s such been seniority, off.” would not have been laid work for the twelve months he probably *6 of an accident that Maese “was off work because knowledge Despite Steel,” off Maese occurred at Judson Cortez laid Maese because which to the contract.” “lost seniority automatically according to the case. applicability . (A) . . The “Seniority contract in pertinent part: Section of the provides, [¶] shall not be affected or interrupted continuous service and status of seniority employee illness, absence, or other cause not due the as a result of leaves of layoffs, injury, however, of an of the the continuous service employee act or fault voluntary employee; reasons, unless of or her shall terminated for the and his status be seniority following Union, (6) [¶], ... otherwise: and the determine Company writing, the by agreement (12) for twelve has not work for the Company When performed any illness or injury, the or as a result of consecutive months as result of by layoff Company between The Union, that, the and the Company it understood mutual being agreement in cases of (12) be extended aforementioned twelve consecutive month period may illness and/or injury.” compensable 19, 1975, a joint compro 3On December the workers’ compensation judge approved benefits, without prejudice and Maese’s claim for disability mise release settling is not us. Maese’s discrimination That settlement before petition. 4, 1976,
On November the workers’ found that compensation judge Judson has no made to extend Maese’s 12-month attempt grace period. Moreover, Judson to terminate any way compelled “[was] after his of As the period [Maese’s] temporary disability.” judge “Even under the terms the union contract under explained, which act, it is that the most casual purports] patent [Judson] inquiry by concerned at all for the welfare of would injured employee [its] have disclosed a situation where union would have to an agreed extension of the twelve-month limitation involved. ... It period [¶] . . . the defendant has endeavored to use a appears contract, in a union which was there as a provision provision placed man, shield as a sword to attack protect working very working man whose benefit the was concluded provision placed.” judge that Maese had been “without doubt .. discriminated and as the result which arose out and prejudiced solely occurred course of his and employment,” accordingly Maese’s one-half. compensation by
The Workers’ Board denied reconsideration. Compensation Appeals The board held that . . . no there is evidence that “[although lost his because a workers’ applicant seniority solely filing claim, this is not the criterion Labor Code Section . Here . . was he penalized solely applicant 132[a]. missed more than twelve months work due to an industrial injury. that was one Accordingly, imposed upon applicant that occurred under circumstances Labor Code Section prohibited by 132[a].”
Our review of an award the Workers’ Compensation Appeals whether, Board is confined to the determination under applicable law, award is substantial evidence. principles supported by 627, v. Workmen’s Bd. 1 Cal.3d (LeVesque Comp. App. Code, 463 P.2d As Labor 432]; Lab. subd. (d).) § Cal.Rptr. Code section “The conclusions of the provides, findings on board of fact are conclusive final and are not subject questions *7 review. Such fact shall include ultimate facts and the questions findings “ and conclusions of the board.” Thus if the board’s ‘are findings even inferences which be drawn from evidence supported by may fairly inferences, evidence susceptible though opposing reviewing ” will court not disturb the award.’ v. Ind. Acc. Com. (Riskin 248, 254 Cal.2d P.2d 16].) [144 that, case to
The board found contrary petitioner’s contention, to the union contract did petitioner question require from work. As the board off Maese because of his absence correctly lay held, the union and evidence establishes “that [petitioner] undisputed have contractual provisions consistently interpreted applicable for the and the union to to extend seniority.” agree providing Petitioner offered no the union official’s evidence contravert testimony that it was “standard between and the union procedure” petitioner time absent extend from work without loss cases illness or Yet the fact that compensable injury.4 despite petitioner Maese, of Maese’s its of medical care to aware injury provision through found, as the board “did not to seek an petitioner try agreement it had no would be union and reason to believe that such attempt futile. . . This then is not a situation in which the made a bona fide effort to extend and the union had refused applicant’s seniority Instead the did not even make an and by agree. attempt do so has to be solely failing permitted applicant penalized the amount of time work.” lost from
Substantial evidence thus clearly supports board’s was not to terminate finding petitioner compelled applicant’s and instead eschewed own standard for its seniority rights, procedure absent accumulated On the basis safeguarding employees’ seniority.5 that but for his industrial and forced absence applicant’s showing off, he would not have been laid and in light petitioner’s specious contract, to defend the termination on the of the union attempt ground the board could infer that discriminated reasonably petitioner in violation of section 132a. applicant 4As Antone Rezendes a man is or or hurt on the whatever stated: sick job, “[I]f be,
the case
and the union’s
can extend it mutual
may
by
agreement
company,
okay
us,
between the
and the
do is
if
1,
union.
has to
company
company
notify
thing
letter,
on,
we are aware of what is
send us a
and then we would
it. . . . No.
going
okay
we don’t know who is sick and who is
or
us.
until
nothing
company notifies
When the
notifies the fact that this man is
would like to extend
company
they
time,
us,
no
Put it in
send it
and we will
it.”
problem.
writing,
acknowledge
added.)
(Italics
5Moreover,
it is clear in
event that an
not defend a
employer may
discriminatory
132a,
employment
on the basis of the
practice, proscribed by
provisions
collective
union
a
no more
its members’
bargaining agreement,
may
bargain away
discrimination under the workers’
laws than it
statutory rights against
its members’
sexual or racial
bargain away
statutory
rights
example,
against,
1971)
(4th
discrimination. As the court held in
Cir.
444 F.2d
Robinson
Lorillard Corp.
453],
A.L.R.Fed.
cert. den.
Petitioner board’s decision argues misinterprets the clear of section 132a. Petitioner concedes that section 132a language a declares broad discrimination general policy condemning against who are in workers the course their Petitioner employment. contends, however, that the section those for activities explicitly specifies Thus, which an an may penalize employee. not discriminate for or known against employee filing making board;
intention to file an with the a application appeals receiving rating, settlement; award or or or known his intention to testifying making testify in matter to the board. Because did not any relating petitioner discharge, to or threaten in manner discriminate discharge, any against applicant for activities, Maese in of the enumerated engaging any protected that the board’s of discrimination under section petitioner urges finding 132a cannot stand. 1972,
Prior to section 132a in relevant part “Any who or to or in threatens other discharges, any discharge, manner discriminates the latter has or filed against any employee made known his intention to file an or application complaint board, or because the has testified or made known appeals employee to intention in or held testify investigation proceeding 1972, however, board, is of a misdemeanor.” In guilty Legislature section amended 132a not to for sanctions criminal and the provide 4553, but, a under Code Labor section more payment declare California “that there should importantly, broadly policy not be discrimination who are in the workers course and 1972, 874, 1, of their ch. 1545.) (Stats. § employment.” p. that,
The board in the instant case concluded 132a, intended law amending Legislature change prior which out certain acts for condemnation and singled discriminatory a declare in favor of all discrimination general policy preventing as the board “those injured employees.6 “Consequently,” explained, situations in which an because he was penalized solely on the work because of had lose time from a work job solely 6The board that the presumed legislative intended correctly change language “ result, ‘it seem that produce would essential change change on would indicate statutory part intention phraseology provision of such rather it.’ legislature change meaning interpret than provision (Young 639, 1065].)” (Estate One 1 Cal.(2d) Pac.(2d) Three Oil Royalties, Todd [36 270, (1941) 17 Cal.2d also (1954) 274-275 P.2d Clements v. T. R. Bechtel Co. See [109 913]. 5]; 232-233 P.2d Cal.2d v. Valentine 28 Cal.2d People [273 1].) P.2d
667 in which the situations employer than for (rather example, injury him from being the believes that injury prevents employee’s reasonably the are within manner) his in an scope able to do job appropriate Section Labor Code 132[a].” sanctions section 132a “[a]ny against specifically provides
Although the an as who or threatens to discharge” employee, discharges, employer noted, of the statute are case the board the instant provisions “in 132a further limited to those actions. Section any employers prohibits the industrially employees; manner discriminate]” [to] refers to other in which an section thus may unlawfully ways employer without Since the evidence establishes an question employee. penalize Maese, affected board that loss of adversely applicant within the that as a found loss of seniority penalty operated properly section 132a. of discrimination prohibited by this that if the board follows Petitioner reasoning argues secondly extreme, “in economic considerations spite any logical to a who on the is entitled sustains mandatory job employee reinstatement, be that otherwise the faces as to 132a.” Without expressing opinion imposed by [section] Maese of other than the remedies availability applicant that our we emphasize who in no mandates that an retain all employees holding way it that sustain on the In the instant case both undisputed injuries job. Maese, his his industrial remained despite injury, competent perform was his return. Section and that Maese’s former job position open upon 132a does not the realities doing compel ignore for business by “reemploying” unqualified employees employees whom are no available.7 positions longer on 7Petitioner relies Los Randolph City Angeles Cal.App.3d In for the conclusion that it has not discriminated Maese. applicant Cal.Rptr. 543] work of industrial was absent from for a result Randolph days injuries, commissioners, and, to rule 5.26 board of civil service pursuant city’s “. . . Rule 5.26 in relevant part, extended.
probationary period accordingly provides (a) following In shall be computing period excluded:...[¶] probation, and time off vacation absence ... of over seven calendar days, except entire period discriminated rule 5.26 . . .” The claim that over-time. court rejected enumerated in those activities industrially, against employees injured reasoning 201, 204.) (67 discrimination. section 132a claim of provided grounds Cal.App.3d be able test employees’ involves the the court recognition by employers Randolph and is thus distinguishable over a on the period job reasonable performance probationary however, limiting Randolph from the instant case. We language disapprove, 204.) at (67 of section 132a. application Cal.App.3d p. *10 132a, 4553, that section with section Finally, petitioner argues together the of a and therefore must be provides imposition “penalty” strictly note, first, construed and We one cautiously applied. although of function section 132a tobe deter from employers discriminating the statute also serves a remedial against injured industrially employees, function, some to the worker for by providing compensation aggrieved Nevertheless, discrimination .incurred as the result of his injury. even we were if to assume that section 132a envisages imposition section 3202 of Labor Code us to construe the penalty, enjoins workers’ . . laws . with the compensation “liberally purpose extending their benefits for the in the course of their protection persons injured v. Flores 11 (See Workmen’s Bd. (1974) employment.” Comp. Appeals 171, 217, 176 Cal.3d 520 P.2d We have held 1033].) Cal.Rptr. [113 heretofore that the rule of liberal construction all applies aspects law, workers’ v. compensation including “penal” provisions. (Kerley 223, 192, Workmen’s Bd. 4 Cal.3d 227 (1971) Comp. App. Cal.Rptr. [93 481 P.2d see also v. Acc. 241 200]; Davison Industrial Com. (1966) 15, 17-18 Thus we the board’s 76].) Cal.Rptr. Cal.App.2d uphold [50 conclusion in case that an who discriminates present a worker in the course and is scope subject employment of the section 4553. payment prescribed compensation so we section 132a will not
By interpreting only encourage workers, but also secure compensation compliance workers’ laws.8
While ultimate of a statute is an exercise of the interpretation Hotel, Inc. v. 24 (Whitcomb Cal. Com. Cal.2d (1944) power judicial Emp. 753, 233, 757 P.2d A.L.R. 405]), 155 when an administrative agency [151 statute, with a of the its charged enforcing particular interpretation will be accorded will statute courts “and be followed great respect by if not erroneous. Co. v. E. (Bodinson clearly Mfg. [Citations.]” California 8We need not address that in its petitioner’s conclusory argument interpretation section 132a the board has violated the exclusive of the National Labor jurisdiction Board. We Farm Workers Relations stated United Committee Organizing Superior 556, 263, 1215], (1971) Cal.3d 483 P.2d that “the bare assertion Cal.Rptr. Court [94 that certain conduct is within the of the Labor interested party [National a state court of jurisdiction.” Act is insufficient oust Petitioner obviously Relations] the instant case has in fact asserted that a conflict exists between section 132a only barely and “federal law.” Thus we cannot conduct critical . . whether inquiry “[t]he been, court is identical . . . have state that which could controversy presented not, Board,” to the Labor in which case the state’s “exercise of but presented a unfair risk interference with the labor necessarily jurisdiction [would involve] (Sears, of the Board.” Roebuck and Co. v. San District practice jurisdiction Diego County 180, 209, 1745, (1978) 1757-1758].) 436 U.S. L.Ed.2d 98 S.Ct. Council [56 In the case- 935].) 325-326 P.2d 17 Cal.2d Com. has section 132a Board Workers’ interpreted Appeals Compensation workers based all discrimination a policy opposing expressing in the course of been on their employment. having solely seeks to which statute our rule that In object light are of consideration and the evil which it seeks achieve prime prevent *11 45 Cal.2d v. Greco (1955) in statute’s (Freedland. interpretation of P.2d we the board’s conclusion: The 463]), uphold policy [289 laws declare can be which the workers’ compensation protection if not because of the effectuated an employer may discharge employee from his as the of an absence job consequence in the course and of sustained employment. scope
The award is affirmed.
Bird, J., Mosk, Newman, J., J., C. and concurred. RICHARDSON, the award of J. dissent. In affirming I respectfully 132a, the errs increased Labor Code section under majority compensation 132a section does in two distinct (1) Contrary majority, respects: authorize an award for acts of discrimination not not such specifically section, event, in in exercise of mentioned that and (2) any employer’s a conferred under union contract contractual freely rights specifically in simulta- favor of union members cannot and reasonably negotiated be an act which would a considered of discrimination penal neously justify ato union member. award of increased compensation state “that there should not be a Section 132a announces general policy and of who are in the course workers discrimination against follows the The section their foregoing immediately employment.” of acts for which an award with a types description language made, discrimination be “against namely, compensation filed known his intention to the latter has or made because any employee board, has or because the file employee application appeals settlement, or, testified or because received award employee rating, matter to the his or made known intentions relating testify 132a discrimination . .” In section board . . prohibits summary, appeals who, redress various has specified ways, sought employee was intended to assure that board. The section before clearly appeals he because would not be his merely employee penalized his to invoke board exercised procedure. right legal case,
In the it Maese was undisputed terminated Judson Steel because absence Corporation lengthy work, from him because to claim workers’ any attempt by Therefore, benefits. that Judson’s conduct assuming nevertheless, Maese was somehow wrongful, conduct terminating would not form the basis for in section special penalties provided As 132a. stated in a recent case “. . . (now disapproved by majority), discrimination, 132a, involves penalized prohibited . . . kind action threatening taking punitive industrially avail themselves their under the injured employees they rights Workers’ Act ... under termination review Compensation Randolph’s absence from work due to industrial does not come within the injury] [for added; reaches of Labor Code section 132a.” (Italics policywise Randolph Los City 543].) Angeles Cal.App.3d Cal.Rptr. *12 event, In it obvious to seems me that Judson’s conduct this case should not “discrimination,” be characterized as even were we reasonably that section 132a and its accept majority’s faulty premise penal award discrimination, kind of and not provisions apply every those acts in that section. As noted specified by majority, that, union contract with Judson unless otherwise mutually Judson, between the union and continuous service agreed and status “shall be terminated” when has failed services for for consecutive months as result perform Maese, course, illness was bound layoff, injury. Employee fully the terms and conditions of this on his behalf by agreement negotiated a union which his interests. Chavez v. (See presumably represented Cal.2d P.2d 801].) Sargent It that Judson terminated Maese its undisputed by exercising contractual to do so under the How does then right foregoing provision. reach its conclusion that Maese’s was majority termination “discrim- that conclusion is based inatory”? Evidently fact that solely upon was not to terminate seniori- “petitioner [employer] compelled applicant’s and instead its eschewed own standard for ty rights, procedure safeguard- absent accumulated italics ing (Ante, employees’ seniority.” p. added.) First,
The not follow does from fact. foregoing legal consequence that Judson assertion was majority’s contractually compelled fire Maese is beside the Judson had a contractual wholly point. right terminate who was absent more than one any employee year. conferred a contract freely negotiated exercise validly right as a be construed cannot between subsequently reasonably parties of termina- Second, contractual Judson’s act. right discriminatory given occasions on some tion, immaterial it is prior unspecified wholly to extend Judson and the union have reasons mutually agreed good such contract The union just the 12-month contemplates expressly period. such failure to reach Judson’s extensions mutual agreement. and, in Maese’s case was a right contractually privileged
agreement under of discrimination basis for a claim could not form the accordingly, Judson’s inaction fact, the record 132a. discloses (In or his Maese, either his who never attributable requested the 12-month union to reach a mutual period.) extending agreement a substantial view, and In arbitrarily imposes unfairly my majority valid no than its Judson for more perfectly exercising upon doing would I a result contractual find such wholly unprecedented, rights. annul the board’s decision.
Clark, J., Manuel, J., concurred.