Anderson v. Top O'Michigan Rural Elec. Co.

• Decision Date: 07 October 1982
• Docket Number: Docket No. 56559
• Citation: Anderson v. Top O'Michigan Rural Elec. Co., 324 N.W.2d 603, 118 Mich.App. 275 (Mich. App. 1982)
• Parties: Noah E. ANDERSON, Charles E. Bauman, Joe F. Boynton, Thomas Hennessy, William S. Holland, Merle L. Joles, Larry L. Piper and Michigan Employment Security Commission, Plaintiffs- Appellees, v. TOP O'MICHIGAN RURAL ELECTRIC COMPANY, Defendant-Appellant. 118 Mich.App. 275, 324 N.W.2d 603
• Court: Court of Appeal of Michigan

Page 603

324 N.W.2d 603

Noah E. ANDERSON, Charles E. Bauman, Joe F. Boynton, Thomas Hennessy, William S. Holland, Merle L. Joles Larry L. Piper and Michigan Employment Security Commission Plaintiffs- Appellees, v. TOP O'MICHIGAN RURAL ELECTRIC COMPANY, Defendant-Appellant.

Docket No. 56559.

118 Mich.App. 275, 324 N.W.2d 603

Court of Appeals of Michigan.

Submitted Jan. 14, 1982.

Decided July 20, 1982.

Released for Publication Oct. 7, 1982.

[118 MICHAPP 277] Marston, Sachs, Nunn, Kates, Kadushin & O'Hare, P. C., Detroit, for plaintiffs-appellees.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., and James A. Burns, Asst. Atty. Gen., for Michigan Employment Sec. Com'n.

Stroup & Brown, P. C., Petoskey, for defendant-appellant.

Before HOLBROOK, P. J., and J. H. GILLIS and HOEHN, ^* JJ.

PER CURIAM.

The employer herein, Top O'Michigan Rural Electric Company, appeals a trial court order affirming a determination by the Michigan Employment Security Commission (MESC) that unemployment benefits should be paid to claimants. We affirm.

The claimants were each employed by Top O'Michigan as line trade employees or as field technician employees. These groups constituted separate bargaining units in Local 876 of the International Brotherhood of Electrical Workers (IBEW). The groups were covered by separate collective bargaining agreements, each of which contained a no-strike provision. The agreements were in force at all times relevant hereto.

A third bargaining unit made up of office workers was also a member of Local 876 of the IBEW. [118 MICHAPP 278] On October 19, 1978, the office workers went on strike. Claimants refused to cross the office workers' picket line despite the no-strike provision in their contracts. They had been advised by a union agent that they would be fined a day's wages by their union for each day they crossed the picket line.

When the claimants initially applied for benefits under the Michigan Employment Security Act ¹ (MESA) they were found to be disqualified under Sec. 29(8)(a)(iv) ² because they were involved in a labor dispute in progress.

Claimants thereafter obtained employment with employers other than Top O'Michigan. When claimants were laid off from those jobs they applied for unemployment benefits. At that time the MESC determined that under Sec. 29(8) the prior disqualification had been terminated.

Upon being informed of that by the MESC, Top O'Michigan wrote to claimants stating that their jobs were available to them. Claimants refused that offer to work. The labor dispute was still in progress. The MESC determined that the offer of work was not suitable under Sec. 29(7) of the act. Therefore, claimants were found not to be disqualified by Sec. 29(1)(e) for refusing an offer of suitable work without good cause.

The MESC determination was protested by the employer and, upon appeal to a referee, the decision was reversed. The MESC Board of Review reversed the referee's decision in a 2 to 1 decision. The circuit court affirmed the decision of the Board of Review. This appeal followed.

A decision by the MESC Board of Review will not be overturned by the court unless it is contrary[118 MICHAPP 279] to law or is not supported by competent, material and substantial evidence on the record. M.C.L. Sec. 421.38; M.S.A. Sec. 17.540. Linski v. Employment Security Comm., 358 Mich. 239, 99 N.W.2d 582 (1959). In construing the Michigan Employment Security Act, the act must be given a liberal construction to afford coverage and a strict construction to effect a disqualification. Great Lakes Steel Corp. v. Employment Security Comm., 6 Mich.App. 656, 662, 150 N.W.2d 547 (1967), aff'd 381 Mich. 249, 161 N.W.2d 14 (1968).

Section 29(8) of the act, which deals with labor dispute situations, reads, in part:

[118 MICHAPP 280] "An individual shall be disqualified for benefits for a week in which total or partial unemployment is due to a labor dispute in active progress, * * * in the establishment in which the individual is or was last employed * * *. An individual's disqualification imposed or imposable under this subsection shall be terminated by his performing services in employment with an employer in at least 2 consecutive weeks falling wholly within the period of the individual's total or partial unemployment due to the labor dispute, and in addition by earning wages in each of those weeks in an amount equal to or in excess of the individual's actual or potential weekly benefit rate with respect to those weeks based on the individual's employment with the employer involved in the labor dispute * * * " M.C.L. Sec. 421.29(8); M.S.A. Sec. 17.531(8).

It is not disputed that claimants' initial disqualification was proper under the first sentence quoted above. It is also agreed that claimants terminated their labor dispute disqualification in the manner provided in the second sentence. Notwithstanding this, Top O'Michigan contends that when claimants refused its offer of work a new disqualification arose under Sec. 29(1)(e), which reads:

"An individual shall be disqualified for benefits in the following cases in which the individual:

* * *

"Failed without good cause to accept suitable work when offered the individual. * * *" M.C.L. Sec. 421.29(1)(e); M.S.A. Sec. 17.531(1)(e).

The employer cites Dueweke v. Morang Drive Greenhouses, Inc., 411 Mich. 670, 311 N.W.2d 712 (1981), in support of its claim that its offer of claimants' former jobs was an offer of "suitable work" within the meaning of that section.

In Dueweke, the claimant voluntarily terminated his employment with Morang Drive Greenhouses, Inc. He was disqualified from receiving benefits under the MESA because it was determined that he had left his employment without good cause. The claimant thereafter served a six-week requalification period and reapplied for benefits. His former employer reoffered to him the job that he had quit. The offer was refused. The MESC ruled that the claimant was disqualified under Sec. 29(1)(e) of the MESA for refusing to accept suitable work without good cause.

The claimant argued on appeal that once a disqualification has been imposed and a requalification period served, refusal to return to the same job cannot be grounds for disqualification under Sec. 29(1)(e). The Michigan Supreme Court rejected this argument. Instead it held that an offer of former work may constitute suitable work for purposes of Sec. 29(1)(e). The Court found that the record in that case lacked any indication that the MESC had considered the criteria for determining whether the claimant had refused an offer of suitable work. The case was accordingly remanded on those grounds.

Top O'Michigan argues that under Dueweke, the [118 MICHAPP 281] claimants' refusal to return to their former jobs created a new disqualification under Sec. 29(1)(e) for refusal to accept an offer of suitable work. The argument overlooks one glaring dissimilarity between the two cases. That is, the Dueweke case did not involve a labor dispute.

The MESA is very specific with respect to claims for benefits under circumstances involving a labor dispute. While Sec. 29(6) sets forth the general criteria for determining whether work is "suitable", apart from and in addition to this, Sec. 29(7) makes it clear that work available due to a labor dispute is not suitable within the meaning of the act. It states:

"Work shall not be suitable and benefits shall not be denied under this act to an otherwise eligible individual for refusing to accept new work under any of the following conditions: (a) If the position offered is vacant due directly to a strike, lockout, or other labor dispute; * * * " M.C.L. Sec. 421.29(7); M.S.A. Sec. 17.531(7).

Thus, refusal to accept an offer of work from an employer who is involved in a labor dispute will not work a Sec. 29(1)(e) disqualification. The positions offered by the employer in the case at bar were vacant specifically because the claimants were engaged in a sympathy strike. ³ Accordingly, the [118 MICHAPP 282] work offered was not suitable work under Sec. 29(7) and the disqualification of Sec. 29(1)(e) does not apply.

The employer claims that the section defining unsuitable work does not apply to this case because the offer of work made here was not an offer of "new work" as used in that section. Rather, claimants were offered their old jobs under the terms and conditions of a collective bargaining agreement still in force.

To read the act as the employer has done would render wholly ineffective the provision contained in Sec. 29(8) for terminating a labor dispute disqualification. The original text of the act did not include that language. By 1974 P.A. 104, the second sentence of Sec. 29(8) was added. It allows claimants to terminate their Sec. 29(8) disqualification by working for at least two weeks at wages equal to or higher than the wages that would have been obtained from the struck employer.

This Court may not ignore the express language added by the amendment, nor will we read other...