Bell v. Appeal Bd. of Mich. Employment Sec. Commission, 50

• Decision Date: 06 June 1960
• Docket Number: J,No. 50,50
• Citation: 103 N.W.2d 584,359 Mich. 649
• Parties: Ora H. BELL, Claimant-Appellant, v. APPEAL BOARD OF the MICHIGAN EMPLOYMENT SECURITY COMMISSION, The Michigan Employment Security Commission and McInerney Spring & Wire Company, a Michigan Corporation, Appellees. an. Term.
• Court: Michigan Supreme Court

Page 584

103 N.W.2d 584

359 Mich. 649

Ora H. BELL, Claimant-Appellant, v. APPEAL BOARD OF the MICHIGAN EMPLOYMENT SECURITY COMMISSION The Michigan Employment Security Commission and McInerney Spring & Wire Company, a Michigan Corporation, Appellees.

No. 50, Jan. Term.

Supreme Court of Michigan.

June 6, 1960.

Marcus, Kelman, Loria, McCroskey, & Finucan, Grand Rapids (William G. Reamon, Grand Rapids, of counsel) for claimant-appellant.

Harrington, Waer, Cary & Martin, Grand Rapids, for appellee McInerney Spring & Wire Co.

Before the Entire Bench.

SMITH, Justice.

This case involves a discharge for alleged misconduct. The claimant, appellant herein, applied to the McInerney Spring & Wire Company (hereinafter termed the employer) on October 21, 1957, for employment. At the time he was questioned by both the personnel director and the maintenance engineer respecting his physical condition. This was done because the position of fireman in the boiler room, for which he had applied and for which he was hired, was a position of unusual responsibility, carrying pay at a premium rate. The fact of the matter was that claimant had suffered 'an acute heart attack' some years past. This he did not disclose and, in response to the specific question on the employment application, 'Have you any physical defects?' he answered 'No.' Moreover, because of his physical condition he was under the care of a physician and had been 'given medicine for relaxation.' This medicine, he admitted, had the effect of making him sleepy. On October 22, 1957, claimant commenced work as a fireman. Shortly thereafter, on November 1, he was discharged for sleeping on the job. Subsequently claimant filed an application for benefits under the Michigan employment security act. ¹ In a determination issued pursuant thereto he was advised as follows:

'You admit that you did doze on the job due to the nature of your job; such act of neglect on your part would endanger the safety of your employer's property and employees. As such your separation is held to be for reasons which constitute misconduct in connection with your work. Therefore you are disqualified under the provisions of Section 29(1)(a)(2) of the act from 10/31/57 through the duration of your unemployment.'

A redetermination was requested, resulting in a reversal of the original determination; it in turn was reversed by the referee. The matter then went before the appeal board of the Michigan employment security commission. This board, in affirming the referee, held in part as follows:

'The claimant, who was employed as a boiler tender, was discharged when he was found sleeping by a plant protection man. When the claimant was hired it was stressed that he must be alert and must not drink on the job. In our opinion the action of the claimant in sleeping on the job, especially in view of his duties, constituted misconduct connected with the work. We find the employer has fully met the burden of proof of establishing by a preponderance of the evidence that the claimant was discharged for misconduct connected with his work. It is accordingly our finding that the referee's decision holding that the claimant's separation was under disqualifying circumstances is in accord with and fully supported by the facts and law and cannot be disturbed.'

The circuit court for the county of Kent affirmed the decision of the appeal board, and the matter is before us upon leave granted.

We consider first the assertion that claimant's failure to disclose 'that he had a physical defect at the time of filing the employment application on October 21, 1957,' did not constitute misconduct under section 29(1)(a)(2) of the Michigan employment security act. ² There is no need to pass on the question. Although the employer asserted at the referee's hearing both that claimant was discharged for 'sleeping on the job during working hours' and that 'it was a wilful neglect on the part of the claimant to misrepresent his physical abilities when he sought to obtain a job,' the alleged misrepresentation was not known at the time he was discharged. The discharge, as noted, was for sleeping on the job during working hours and the appeal board, supra, found that such sleeping on the job constituted 'misconduct connected with his work.' It is with this conduct that we are here concerned.

The main thrust of appellant's argument on appeal is that claimant's sleeping was not intentional and thus not misconduct. Reliance is placed upon a quotation from the majority opinion of this Court in Cassar v. Employment Security Commission, 343 Mich. 380, 398, 72 N.W.2d 254, recently overruled in Linski v. Appeal Board of Michigan Employment Security Commission, 358 Mich. 239, 99 N.W.2d 582. Appellant construes the Cassar case to require, for misconduct, 'wrongful intent or evil design * * * which import an exercise of the will.'

The minority opinion in Cassar, supra, however, not relied upon by appellant, rejected the application of a moral criterion to this situation, holding that misconduct, as that term was used in the act, required 'a breach of those standards of conduct reasonably applicable to the industrial task assigned, rather than of those standards of ethics and morals applicable to mankind in general.' Id., 343 Mich. at page 389, 72 N.W.2d at page 264.

Tested by either criterion, however, claimant's position is equally untenable. We may concede that no man in his right mind would 'intend' to fall asleep while on duty in a boiler room. But also we must hold that a man intends the normal consequences of his acts. He cannot deliberately stop eating, as in the device of the so-called hunger strike, and assert that he did not intend to go hungry, nor can he take sleeping pills or other sedatives and urge that he did not intend to go to sleep. Moreover, tested by the 'standards of conduct reasonably applicable to the industrial task assigned' claimant's position is no better. The job for which he was hired was one of great responsibility. The results of a boiler explosion, either to him, as he dozed nearby, or to his fellow workmen, or to the plant itself, we need not describe. Judged by any criterion his act was 'misconduct connected with his work.' ³

Affirmed. The case involving the interpretation and application of statutory provisions of general interest, no costs are allowed.

EDWARDS, KAVANAGH and SOURIS, JJ., concurred with SMITH, J.

BLACK, Justice (concurring in affirmance).

The less written in the course of today's deluge--of unemployment compensation appeals--the better for precedent guidance of those whose task it is to read and construe our overladen and now turbid writings in this field of administrative law (See comment, Miller v. F. W. Woolworth Co., Mich., 102 N.W.2d 728). Here fact and finding disclose without dispute that this claimant slept at his post of vigil, without seeking substitutionary aid, despite the premonitory warnings and symptoms of nature. Such fact and finding amply support the appeal board's determination of statutory misconduct, and so the judicial function is exhausted.

Claimant knew, when he sought and was given the position of fireman in the employer's boiler room, that his primary...