Judson Steel Corp. v. Workers' Comp. Appeals Bd.

• Decision Date: 21 November 1978
• Citation: 22 Cal.3d 658,586 P.2d 564,150 Cal.Rptr. 250
• Court: California Supreme Court
• Parties: , 586 P.2d 564 JUDSON STEEL CORPORATION, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD and Ralph Maese, Respondents. L.A. 30876.

Page 250

150 Cal.Rptr. 250

22 Cal.3d 658, 586 P.2d 564

JUDSON STEEL CORPORATION, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD and Ralph Maese, Respondents.

L.A. 30876.

Supreme Court of California.

Nov. 21, 1978.

Zonni, Ginocchio & Taylor and Ben F. Taylor, Los Angeles, for petitioner.

Charles Lawrence Swezey, Philip M. Miyamoto, Thomas J. McBirnie, Raymond G. Agnew, San Francisco and Stanley S. Lifton, Beverly Hills, for respondents.

TOBRINER, Justice.

1] This case presents the issue whether an employer who terminates an employee's seniority rights, and, ultimately, his employment, because of the employee's absence from his job as the result of an industrial injury, has engaged in unlawful discrimination within the meaning of Labor Code section 132a. In 1972 the Legislature amended section 132a to provide that "It is the declared policy of this state that there should not be discrimination against workers who are injured in the course and scope of their employment." ¹ In the instant case, the Workers' Compensation Appeals Board concluded that the employer violated this statutory mandate by revoking the employee's seniority rights. The employer now seeks review of the board's decision, contending that the prevailing collective bargaining agreement compelled the revocation of the employee's seniority rights, and thus that substantial evidence does not support the board's decision. Finding the employer's contentions meritless, we affirm the board's decision.

In 1973 petitioner Judson Steel Corporation employed applicant Ralph A. Maese as a crane operator. On January 18, 1974, while carrying a box down a wet ramp, Maese slipped and injured his leg and back. He reported the injury and, for several months thereafter, received medical treatment provided by his employer's insurer. In April 1974 he applied for workers' compensation benefits for his injuries.

On April 19, 1975, on direction of his treating physician, Maese returned to work. Two days later, Judson laid off Maese. Judson claims that a clause of the union contract resulted in the elimination of Maese's seniority and the ensuing termination of his job. The clause provides that "the continuous service of an employee and his or her seniority status shall be terminated . . . (w)hen an employee has not performed any work for the Company for twelve (12) consecutive months as a result of . . . illness or injury." ² Claiming that his termination was the result of discrimination in violation of section 132a, Maese filed a petition for an increased award of compensation on that ground. ³

Antone M. Rezendes, union business agent, testified at the hearings on Maese's petition that when a Judson employee was injured on the job, Judson and the union could mutually extend the 12-month grace period for absences due to injury, thereby preserving an injured employee's seniority. According to Rezendes, "No. 1, (the injured employee) should notify the company with a doctor slip, tell the company that he may be off another six months as an example. . . . And then the company would notify us by mail stating that we are agreeing to go over the one year period. . . . And then we acknowledge the letter and that's it. There is no problem." Indeed, if he were advised that the absent employee was injured on the job, Rezendes emphasized that he would "want to know why (the employee) is not being kept on the seniority list if he got hurt."

Applicant Maese testified that he "was third in seniority there at work." Nevertheless, following Maese's return to work his shop superintendent Daniel Cortez "called me to the office and he told me that I was laid off because I lost my seniority and everything . . . because of the contract. . . . The contract reads after twelve months not at work you are out of work." Cortez corroborated Maese's testimony: other employees were laid off "because there was not enough work at that time for the whole crew"; Maese's seniority, however, was such that "had he not been off work for the twelve months he probably would not have been laid off." Despite his knowledge that Maese "was off work because of an accident which occurred at Judson Steel," Cortez laid off Maese because Maese "lost seniority automatically according to the contract."

On November 4, 1976, the workers' compensation judge found that Judson has made no attempt to extend Maese's 12-month grace period. Moreover, Judson "(was) not in any way compelled to terminate (Maese's) seniority after his period of temporary disability." As the judge explained, "Even under the terms of the union contract under which (Judson) purport(s) to act, it is patent that the most casual inquiry by an employer concerned at all for the welfare of (its) injured employee would have disclosed a situation where the union would have agreed to an extension of the twelve-month limitation period involved. . . . (P ) It appears . . . that the defendant employer has endeavored to use a provision in a union contract, which provision was placed there as a shield to protect the working man, as a sword to attack the very working man for whose benefit the provision was placed." The judge concluded that Maese had been "without doubt . . . discriminated against and prejudiced solely as the result of an injury which arose out of and occurred in the course of his employment," and accordingly increased Maese's compensation by one-half.

The Workers' Compensation Appeals Board denied reconsideration. The board held that "(a)lthough . . . there is no evidence that the applicant lost his seniority solely because of the filing of a workers' compensation claim, this is not the criterion provided for by Labor Code Section 132(a). . . . Here the applicant was penalized solely because he missed more than twelve months of work due to an industrial injury. Accordingly, the penalty that was imposed upon the applicant was one that occurred under circumstances prohibited by Labor Code Section 132(a)."

2] Our review of an award by the Workers' Compensation Appeals Board is confined to the determination whether, under applicable principles of law, the award is supported by substantial evidence. (LeVesque v. Workmen's Comp. App. Bd. (1970) 1 Cal.3d 627, 637, 83 Cal.Rptr. 208, 463 P.2d 432; Lab.Code, § 5952, subd. (d).) As Labor Code section 5953 provides, "The findings and conclusions of the appeals board on questions of fact are conclusive and final and are not subject to review. Such questions of fact shall include ultimate facts and the findings and conclusions of the appeals board." Thus if the board's findings " 'are supported by inferences which may fairly be drawn from evidence, even though the evidence is susceptible of opposing inferences, the reviewing court will not disturb the award.' " (Riskin v. Ind. Acc. Com. (1943) 23 Cal.2d 248, 254, 144 P.2d 16, 19.)

The board in the present case found that, contrary to petitioner's contention, the union contract in question did not require petitioner to lay off Maese because of his absence from work. As the board correctly held, the undisputed evidence establishes "that the union and (petitioner) have consistently interpreted the applicable contractual provisions as providing for the employer and the union to agree to extend seniority." Petitioner offered no evidence to controvert the union official's testimony that it was "standard procedure" between petitioner and the union to extend time absent from work without loss of seniority in cases of compensable illness or injury. ⁴ Yet despite the fact that petitioner was aware of Maese's injury through its provision of medical care to Maese, as the board found, petitioner "did not try to seek an agreement with the union and it had no reason to believe that such an attempt would be futile. . . . This then is not a situation in which the employer made a bona fide effort to extend applicant's seniority and the union had refused to agree. Instead the employer did not even make an attempt and by failing to do so has permitted applicant to be penalized solely because of the amount of time lost from work."

,4] Substantial evidence thus clearly supports the board's finding that petitioner was not compelled to terminate applicant's seniority rights, and instead eschewed its own standard procedure for safeguarding absent employees' accumulated seniority. ⁵ On the basis of applicant's showing that but for his industrial injury and forced absence he would not have been laid off, and in light of petitioner's specious attempt to defend the termination on the ground of the union contract, the board could reasonably infer that petitioner discriminated against applicant in violation of section 132a.

Petitioner argues first, however, that the board's decision misinterprets the clear language of section 132a. Petitioner concedes that section 132a declares a broad general policy condemning discrimination against workers who are injured in the course of their employment. Petitioner contends, however, that the section explicitly specifies those activities for which an employer may not penalize an employee. Thus, an employer may not discriminate against an employee for filing or making known his intention to file an application with the appeals board; receiving a rating, award or settlement; or testifying or making known his intention to testify in any matter relating to the board. Because petitioner did not discharge, threaten to discharge, or in any manner discriminate against applicant Maese for engaging in any of the enumerated protected activities, petitioner urges that the board's finding of discrimination under section 132a cannot stand.

Prior to 1972, section 132a provided in relevant part that "Any employer who discharges, or threatens to discharge, or in any other manner discriminates against any employee because the latter has filed or made known his intention to file an application or complaint with the appeals board, or because...