Flores v. United Air Lines, Inc., 12277

• Decision Date: 14 June 1988
• Docket Number: No. 12277,12277
• Citation: 70 Haw. 1,757 P.2d 641
• Parties: Marie FLORES, Appellant-Appellant, v. UNITED AIR LINES, INC., and Director of the Department of Labor and Industrial Relations, State of Hawaii, Appellees-Appellees.
• Court: Hawaii Supreme Court

Page 641

757 P.2d 641

70 Haw. 1

Marie FLORES, Appellant-Appellant, v. UNITED AIR LINES, INC., and Director of the Department of Labor and Industrial Relations, State of Hawaii Appellees-Appellees.

No. 12277.

Supreme Court of Hawai'i.

June 14, 1988.

Syllabus by the Court

1. The plain language of HRS § 378-32(2) grants an employee who has been discharged because of a work injury first preference of reemployment by his employer in any position he is capable of performing which becomes available after the discharge. The preference is voided only by a provision preventing such reemployment in an applicable collective bargaining agreement or when the discharged employee secures work with another employer.

2. A remedial statute is to be construed liberally in order to accomplish the purpose for which it was enacted.

3. Generally, remedial statutes are those which provide a remedy, or improve or facilitate remedies existing for the enforcement of rights and the redress of injuries.

4. Modern social legislation is generally regarded as being remedial in nature.

Douglas S. Hasegawa, Honolulu, for appellant-appellant.

Frances E. Higa Lum, Deputy Atty. Gen., Dept. of Labor & Indus. Relations, Honolulu, for appellee-appellee Director of Labor.

Before LUM, C.J., and NAKAMURA, PADGETT, HAYASHI and WAKATSUKI, JJ.

NAKAMURA, Justice.

The question in this appeal is whether the State Department of Labor and Industrial Relations could act on the unlawful discharge complaint filed by Marie Flores against her former employer, United Air Lines, Inc. The Circuit Court of the First Circuit agreed with the Director of Labor and Industrial Relations that the department had no jurisdiction over the matter because United was party to a collective bargaining agreement which prevented the continued employment or reemployment of Marie Flores. Upon a review of the record and relevant statutory provisions, we conclude the director and the circuit court erred.

I.

A.

Hawaii Revised Statutes (HRS) § 378-32(2) renders it "unlawful for any employer to suspend, discharge, or discriminate against any of the employer's employees:

....

(2) Solely because the employee has suffered a work injury which arose out of and in the course of the employee's employment with the employer and which is compensable under [the Hawaii Workers' Compensation Law] unless the employee is no longer capable of performing the employee's work as a result of the work injury and the employer has no other available work which the employee is capable of performing."

The subsection further provides that

[a]ny employee who is discharged because of the work injury shall be given first preference of reemployment by the employer in any position which the employee is capable of performing and which becomes available after the discharge and during the period thereafter until the employee secures new employment.

The subsection, however, does

not apply to any employer in whose employment there are less than three employees at the time of the work injury or who is a party to a collective bargaining agreement which prevents the continued employment or reemployment of the injured employee[.]

B.

Marie Flores suffered an injury to her right hand while working as a food service assistant in United's flight kitchen on August 6, 1979. She was disabled as a consequence of the work injury, was treated by a physician of her choosing, and received workers' compensation benefits from her employer through Pacific Insurance Company, who administered United's self-insured compensation plan in Hawaii. The insurance company acknowledged that she sustained a compensable injury and voluntarily paid her benefits. Her recovery from what the insurance company thought was a minor injury was slower than anticipated. Pacific therefore invoked the employer's statutory right to have her examined by a physician of its choice. The consulting physician concluded she was suffering from a carpal tunnel syndrome and recommended surgery to relieve the pain. The prescribed surgical procedure was performed by the physician in January of 1980.

He deemed Mrs. Flores fit for work on July 9, 1980. She returned to work as advised, but was soon sent home because of her complaints of disabling pain. The Workers' Compensation Division of the department then conducted a hearing and determined that Mrs. Flores was still totally disabled for work. The director therefore ordered the resumption of temporary total disability compensation payments to her as of July 14, 1980. Subsequent attempts to afford Mrs. Flores relief from pain through surgery by yet another physician were unsuccessful, and her status for compensation purposes remained as "temporarily totally disabled for work."

But on March 27, 1980, United placed her on "Extended Illness Status" pursuant to Article XIV of the collective bargaining agreement between itself and the International Association of Machinists and Aerospace Workers, the exclusive bargaining representative "for all classes and grades of Cooks, Bakers, Kitchen Stewards, Pantry Workers, Food Service Assistants, and Food Service Porters employed by the Company." After the abortive return to work in July, United again placed Mrs. Flores on "Extended Illness Status" on August 19, 1980.

In May of 1982, Mrs. Flores' treating physician felt she should "return to light duty with no heavy lifting greater than 20 lbs. as of 6/3/82." United, however, was reluctant to have her return to duty. It referred Mrs. Flores for examination by another physician, whose opinion was that she would not be able to perform the work required of food service assistants. The treating physician therefore recommended the commencement of "the Vocational Rehabilitation process to find her a different kind of job."

On the strength of the medical advice that she could not return to work as a food service assistant, United informed Mrs. Flores on July 16, 1982 that "circumstances [did not] warrant any extension of extended illness status...." And it advised her that "in accordance with Article XIV, Paragraph D of the 1981-83 Agreement between UAL and IAMAW, [she was being] separated from United Airlines effective August 19, 1982." Mrs. Flores and her collective bargaining representative contested the separation by filing a grievance in accord with Article XVII of the collective bargaining agreement. But the grievance was not resolved in their favor; at Step Three of the contractual procedure, United's representative denied the grievance on grounds that "the Company's actions were justified and not inappropriate under the particular circumstances...." ¹

C.

The terminated employee then turned elsewhere for relief, filing a complaint alleging a discharge in violation of HRS § 378-32(2) with the department's Enforcement Division. Though the complaint was filed on August 12, 1982, it was not heard until a year and a half went by. In the meantime, United and Pacific Insurance gave Mrs. Flores notice, in accord with HRS § 386-31(b), of their intention to terminate the payment of compensation on October 11, 1983 because they felt she was "able to resume work." A hearing to determine whether compensation could be cut off was conducted by the Workers' Compensation Division, and the director subsequently ordered that Mrs. Flores "should remain on temporary total disability payments until the doctor rates her condition for permanent disability[.]"

The complaint was set for hearing on March 16, 1984 before the Enforcement Division's hearing officer. But two months before the scheduled hearing, Mrs. Flores' attorney wrote United, asking that she be allowed to exercise "her statutory right [under HRS § 378-32(2) ] to first preference of re-employment in any position here which she is capable of performing and which becomes available." ² The terse response was: "Mrs. Flores is no longer an employee of United Airlines and has exhausted all the remedies under her employment contract."

The hearing officer conducted a full hearing on the discharged employee's complaint and transmitted a recommended decision to the director, which was: "Respondent did not violate HRS Section 378-32 by discharging Complainant from employment." He reasoned that:

The language of Article XIV, D., of the collective bargaining agreement clearly states that the Respondent has the authority to terminate an injured employee at the end of the employee's extended illness status. The facts show that Respondent did discharge Complainant, pursuant to the authority granted to Respondent in the collective bargaining agreement. Therefore, the State Department of Labor does not have jurisdiction over the instant complaint.

Further, even if the State Department of Labor has jurisdiction over the subject complaint, the facts do not support Complainant's allegation that she was able to return to work with Respondent and that Respondent had available work that she can perform.

The findings made by the Disability Compensation Division at the hearing held on October 27, 1983, clearly show that Complainant was totally disabled as a result of her injury of August 6, 1979, and that she was permanently and totally disabled from employment from July 14, 1980 until the Director of Labor deems otherwise.

The director considered the objections raised by Mrs. Flores to the recommended decision, but he adopted the hearing officer's conclusion "that the Department has no jurisdiction over the claim [and did] not reach the merits of the complaint." He reasoned that

Article XIV of the collective bargaining agreement makes it clear that ill or injured employees, including employees injured as a result of employment, are subject to discharge from employment at such time that the employee's extended illness status expires. By virtue of Article XIV, Respondent is prevented from continuing to employ injured employees. Thus, section 378-32(2) would not apply to this case and the...