American Tel. & Tel. Co. v. Michigan Employment Sec. Commission

• Decision Date: 04 October 1965
• Docket Number: Nos. 25-28,s. 25-28
• Citation: 136 N.W.2d 889,376 Mich. 271
• Parties: AMERICAN TELEPHONE AND TELEGRAPH COMPANY, Plaintiff-Appellee, v. MICHIGAN EMPLOYMENT SECURITY COMMISSION, and Appeal Board of Michlgan Employment Security Commission, Defendant-Appellee, and Shirley A. Coleman, Defendant-Appellant. AMERICAN TELEPHONE AND TELEGRAPH COMPANY, Plaintiff-Appellee, v. MICHIGAN EMPLOYMENT SECURITY COMMISSION, and Appeal Board of Michlgan Employment Security Commission, Defendant-Appellee, and Sallie M. Fuller, Defendant-Appellant. AMERICAN TELEPHONE AND TELEGRAPH COMPANY, Plaintiff-Appellee, v. MICHIGAN EMPLOYMENT SECURITY COMMISSION, and Appeal Board of Michigan Employment Security Commission, Defendant-Appellee, and Hazel V. Messer, Defendant-Appellant. AMERICAN TELEPHONE AND TELEGRAPH COMPANY, Plaintiff-Appellee, v. MICHIGAN EMPLOYMENT SECURITY COMMISSION, and Appeal Board of Michlgan Employment Security Commission, Defendant-Appellee, and Mary T. Charboneau, Defendant-Appellant.
• Court: Michigan Supreme Court

Page 889

136 N.W.2d 889

376 Mich. 271

AMERICAN TELEPHONE AND TELEGRAPH COMPANY, Plaintiff-Appellee, v. MICHIGAN EMPLOYMENT SECURITY COMMISSION, and Appeal Board of

Michlgan Employment Security Commission, Defendant-Appellee,

and

Shirley A. Coleman, Defendant-Appellant.

AMERICAN TELEPHONE AND TELEGRAPH COMPANY, Plaintiff-Appellee, v. MICHIGAN EMPLOYMENT SECURITY COMMISSION, and Appeal Board of

Michlgan Employment Security Commission, Defendant-Appellee,

and

Sallie M. Fuller, Defendant-Appellant.

AMERICAN TELEPHONE AND TELEGRAPH COMPANY, Plaintiff-Appellee, v. MICHIGAN EMPLOYMENT SECURITY COMMISSION, and Appeal Board of

Michigan Employment Security Commission, Defendant-Appellee,

and

Hazel V. Messer, Defendant-Appellant.

AMERICAN TELEPHONE AND TELEGRAPH COMPANY, Plaintiff-Appellee, v. MICHIGAN EMPLOYMENT SECURITY COMMISSION, and Appeal Board of

Michlgan Employment Security Commission, Defendant-Appellee,

and

Mary T. Charboneau, Defendant-Appellant.

Nos. 25-28.

Supreme Court of Michigan.

Oct. 4, 1965.

Cross, Wrock, Miller, Vieson & Kelley, Detroit, for appellee.

Zwerdling, Miller, Klimist & Maurer, Detroit, for appellants Shirley A. Coleman, Sallie M. Fuller, Hazel V. Messer and Mary T. Charboneau.

Before the Entite Bench.

O'HARA, Justice.

Appellants here are telephone operators employed or formerly employed by appellee-utiltity. Each asked for and received a maternity leave of absence. In each case it was given for a specified period. Each, at differing times both prior to and upon termination of the leave granted, sought reemployment from appellee. Each was refused reemployment on the ground of lack of work. Each filed for employment security benefits. By administrative determination and redetermination benefits to each were denied. Each appealed to a referee. Different referees reached different conclusions, resulting in affirmance or reversal of the commission. Each claim was appealed to the appeal board. All claimants were granted benefits by the board. The employer appealed all cases to the circuit court of Ingham county. The circuit judge reversed the appeal board in all cases. All claimants are before us as appellants.

The provision of the Michigan employment security act ¹ which controls reads:

'Sec. 29(1) An individual shall be disqualified for benefits:

* * *

* * *

'(d) for the duration of her unemployment when it is found by the commission that total or partial unemployment is due to pregnancy: Provided, That this provision shall not apply to an individual who has received a leave of absence, due to pregnancy, from her employing unit and applies for reinstatement at the termination of such leave but is not reemployed by such employing unit. Leave of absence as used in this section shall mean an authorized absence from employment with an assurance of reemployment by the employing unit.' Claimant-appellants contend that:

(1) The curcuit court exceeded the settled permissible bounds of judicial review of the appeal board's findings.

(2) Each of them received a leave of absence is defined in the statute with an assurance of reemployment.

(3) The appellee-employer acquiesced in the construction of the act which awarded them benefits. The appellee contends that:

(1) The circuit court's finding was well within the scope of judicial review.

(2) Claimant-appellants did not receive a leave of absence with assurance of reemployment within the meaning of the quoted statute.

(3) It did not acquiesce in a construction of the statute entitling claimant-appellants to benefits.

As previously noted, referees for the commission--lawyers all, who daily hear contested cases under the act--divided as to its construction. Circuit judges, all of whom have had measurable experience in these appeals, were likewise divided. There is no controlling precedent of this Court except as to the varied contentions as to the scope of review. As to this issue we hold that the opinion of Mr. Justice Souris in Wickey v. Employment Security Commission, 369 Mich. 487, 120 N.W.2d 181, controls and we do not find that the trial judge offended against it. In fact, the circuit court demonstrated that he fully apprehended the scope of review in his observation:

'The court does not find any disputed issue here with respect to assurance, but if there are then it must be said that the findings of the appeal board are against the great weight of the veidence.'

Judge Salmon considered the real issue to be construction of the statutory phrase with an assurance of reemployment by the employing unit. He construed it as a matter of law, as was his duty. It is axiomatic that the overriding consideration in this respect is the determination of legislative intent.

'The fundamental rule of construction of statutes is to ascertain and give effect to the intention of the Legislature * * *.' (June v. School District No. 11, Southfield Township, Oakland County, 283 Mich. 533, at p. 543, 278 N.W. 676, at p. 680, 116 A.L.R. 581.)

It is equally as fundamental that in such determination words are given their ordinary meaning. See People v. Powell, 280 Mich. 699, 703, 274 N.W. 372, 111 A.L.R. 721. When the legislature used the phrase 'leave of absence,' we must presume it was used in its normally accepted meaning. It seems to us that 'leave of absence' generally speaking, means a temporary authorized release from one's duty for a stated period with the right of duty to return at the end thereof. It then, as we conclude that is what the phrase connotes in its ordinary meaning, what was the legislative reason for adding 'with an assurance of reemployment by the employing unit?' We look first to the statute itself for any significant language of clarification. We think when the legislature included the admonition 'as used in this section,' it was stating clearly and unequivocally that whatever variations the term might import when used by the military establishment, educational institutions or any other entity which may grant leaves of absence, the phrase 'as used in this section' obligates us to respect the definition specified in the statute. Our coordinate governmental branch tells us that whatever we may think 'leave of absence' means whatever the Marines or the University of Michigan might consider it to be, however one of a hundred and one different employers use the term, or how six different dictionaries may define it, 'leave of absence' as used in this section of the statute 'shall mean an authorized absence from employment with an assurance of reemployment by the employing unit.' We would be hard put to give to the statute any meaning other than that accorded it by the trial judge.

We think it further significant, as did the trial judge, that the collective bargaining agreement between appellants' duly constituted bargaining agent and appellee recites:

'Except as otherwise stated with respect to leaves of absence for union duties and military leaves, the granting of a leave without pay does not include the assurance that an employee's position will be available to him at the termination of his leave. The company may, however, reinstate the employee in the same or similar capacity if such a position is available when the employee's leave is terminated.' (Art. 8, .12) (Emphasis this Court's.)

To this extent then we affirm Judge Salmon's construction of the statute. The variant holdings of the referees, of the appeal board and the different circuit courts of the State are bound hereby. Leave of absence for the purpose of this section of this statute must include in it an affirmative commitment by the employer to reemploy. The commitment in the words of the trial judge must be 'sure, certain and definite.'

We turn now to whether in these cases such 'sure, certain and definite' assurance of reemployment was given. We decline to accept the 'waiver' theory urged by appellants. They contend that because in prior instances they were rehired upon application, and that because certain referee decisions which granted benefits to these claimants and to others simiarly situated went unappealed, appellants thereby acquired some manner of vested right to benefits the instant cases. As noted by appellees in their brief, the facts in the unappealed referee cases might very well have varied from those in the cases at bar, and we may not accept the employer's choice not to appeal them as controlling here. Neither is the 'past practice' of rehiring controlling. In discharge for misconduct cases a course of employer conduct might lull employees into the well-founded belief in and reliance upon an employer's interpretation of what constitutes 'misconduct.' Misconduct is not, as is the involved term here, expressly defined in the statute. Here public policy--the wisdom or efficacy of which cannot be our concern as a Court--imposes a disqualification for benefits when unemployment is 'due to pregnancy.' There follows the statutorily defined exception in cases of authorized leave with assurance of reemployment. Under the test we have heretofore adopted that such assurance be 'sure, certain and definite' an employer option to reemploy, when labor market conditions permit, cannot be held to alter the plain meaning of the statute when it is invoked. The legislature did not inhibit the employer from reemploying an employee granted a maternity leave. It did affirmatively provide for disqualification when her unemployment is due to pregnancy unless the statutory exception obtains.

We must now determine under the interpretation of the statute which we have held reflects the legislative intention, whether there was testimony from which the appeal board could have found as a matter of fact that claimant-appellants received sure, definite and certain assurance of reemployment.

We have combed the record with care. We find abundant testimony that the employer did not advise any claimant-appellant that she would not be reemployed. We find abundant testimony...