Laya v. Cebar Const. Co.

• Decision Date: 23 October 1980
• Docket Number: Docket No. 45878
• Citation: 101 Mich.App. 26,300 N.W.2d 439
• Parties: David LAYA, Plaintiff-Appellant, v. CEBAR CONSTRUCTION COMPANY, Defendant, and Michigan Employment Security Commission, Defendant-Appellee. 101 Mich.App. 26, 300 N.W.2d 439
• Court: Court of Appeal of Michigan — District of US

Page 439

300 N.W.2d 439

David LAYA, Plaintiff-Appellant, v. CEBAR CONSTRUCTION COMPANY, Defendant and Michigan Employment Security Commission Defendant-Appellee.

Docket No. 45878.

101 Mich.App. 26, 300 N.W.2d 439

Court of Appeals of Michigan.

Oct. 23, 1980.

Released for Publication Jan. 29, 1981.

[101 MICHAPP 28] Frederick B. Gold, Birmingham, for plaintiff-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Shirley A. Palardy, Atty. Atty. Gen., for MESC.

Bruce A. Miller and Renate Klass, Detroit, for UAW.

Before MAHER, P. J., and BRONSON and QUINN, ^* JJ.

BRONSON, Judge.

Plaintiff appeals by right the judgment of the circuit court affirming the determination of various administrative authorities of the Michigan Employment Security Commission (MESC) that plaintiff was disqualified from receiving unemployment benefits under M.C.L. § 421.29(1)(a); M.S.A. § 17.531(1)(a).

The underlying facts are undisputed. Plaintiff, [101 MICHAPP 29] David Laya, a plumber by trade, was living in Warren, Michigan, with his wife and two children when he was laid off in the spring of 1976. He reported to his local union in search of work, but, due to the poor economic conditions then existing, he was told no work was available in the community. He was told, however, that work was available through the union local in Cincinnati, Ohio. Despite the fact that he would have been eligible for unemployment benefits, plaintiff decided to make the trip to Ohio where he took a job with the Cebar Construction Company. Due to the 272-mile distance between his home in Warren and his employment in Ohio, plaintiff was forced to live in Ohio and travel home only on weekends. It soon became apparent that the great distance between home and work was difficult to drive, even on weekends, and was contributing to problems with plaintiff's family life. After 25 days of work, plaintiff quit his job in Ohio and returned home to Warren on April 16, 1976.

Plaintiff applied for unemployment benefits on April 23, 1976, but on May 21, 1976, the MESC issued a determination that he was disqualified from receiving benefits under M.C.L. § 421.29(1)(a); M.S.A. § 17.531(1)(a) because he voluntarily left work in Ohio without good cause attributable to his employer. This decision was affirmed on redetermination by the MESC on June 4, 1976, by a hearing referee on February 9, 1977, by the MESC board of review (one member dissenting) on August 10, 1978, and by the circuit court on April 30, 1979. Because there is no dispute as to the underlying facts, the questions presented are questions of law. Baker v. General Motors Corp., 74 Mich.App. 237, 244-245, fn.2, 254 N.W.2d 45 (1977), lv. gtd. 402 Mich. 828 (1977).

[101 MICHAPP 30] The statutory section under which plaintiff was disqualified provides:

"An individual shall be disqualified for benefits in all cases in which he:

"(a) Has left work voluntarily without good cause attributable to the employer or employing unit." M.C.L. § 421.29(1)(a); M.S.A. § 17.531(1)(a).

Plaintiff claims that, under the circumstances of this case, he did not quit "voluntarily" so that he is not disqualified under the statute. We have found no controlling Michigan authority directly on point, but the Supreme Court's split decision in Lyons v. Employment Security Comm., 363 Mich. 201, 108 N.W.2d 849 (1961), is so factually similar that it warrants detailed consideration.

In Lyons, plaintiff was an auto worker with a home and family in Trenton when he was laid off. After learning that work was available in Indianapolis, plaintiff sought and found employment at an auto plant there. He lived and worked in Indiana during the week and made the 273-mile journey to his family on weekends. After about two and one-half weeks on the job, it became apparent to him that things were not working out. Transportation difficulties developed, the job was not turning out as he had expected, and problems were developing at home. After about two and one-half weeks of attempting to make this plan work, he quit and returned to Trenton.

His request for unemployment benefits was denied on the basis that he had voluntarily left his Indiana employment without good cause attributable to his employer, and the case eventually reached the Supreme Court. Although the denial of benefits was upheld, the justices split over the [101 MICHAPP 31] grounds of the decision. Three justices, led by Justice Carr, held that benefits were properly denied because the case presented a situation where, as a matter of law, the plaintiff clearly had left his job voluntarily and without good cause attributable to his employer. These justices expressed the opinion that, while plaintiff may have felt his quitting was justifiable, it was nevertheless based on wholly personal considerations which did not render the quit involuntary. Id., 217-227, 108 N.W.2d 849. Two other justices agreed with this result, but refused to view the case as properly presenting a question of law as to whether the plaintiff quit his job voluntarily. They viewed the issue of voluntariness as one of fact which had been decided against the plaintiff by the Employment Security Commission. Since they found record evidence to support such a finding, they held that judicial review was foreclosed. Id., 228-231, 108 N.W.2d 849.

The remaining three justices, in an opinion by Justice Edwards, id., 202-217, 108 N.W.2d 849, agreed with Justice Carr's opinion in treating the issue of voluntariness as a question of law. After examining the facts and the purpose of the employment security act, however, they reached an opposite conclusion and expressed the view that plaintiff had not voluntarily left his employment. These justices noted the lack of a philosophical consensus on the question of whether any human act may be said to be truly voluntary, but, for purposes of the Employment Security Act, they advocated a realistic standard which recognized that the physical distance between home and work, as well as the economic problems in trying to maintain two homes, could render a decision to quit as involuntary as it would be if compelled instead by law, the elements, or a serious illness.

[101 MICHAPP 32] "We hold that the word 'voluntary' as used in section 29(1)(a)(1) must connote a decision based upon a choice between alternatives which ordinary men would find reasonable not mere acquiescence to a result imposed by physical and economic facts utterly beyond the individual's control." Id., 216, 108 N.W.2d 849.

Because there was no majority as to the grounds of decision in Lyons, none of the three opinions is controlling. Negri v. Slotkin, 397 Mich. 105, 109, 244 N.W.2d 98 (1976); People v. Anderson, 389 Mich. 155, 170, 205 N.W.2d 461 (1973). In the face of this precedential void, we adopt the reasoning of Justice Edwards as the most persuasive. Because the factual situation in Lyons, and in the instant case are practically indistinguishable, we adopt his result as well and hold that, as a matter of law, plaintiff did not leave his job "voluntarily". Plaintiff was not faced with a choice between alternatives that ordinary persons would consider reasonable. He could choose to remain in Ohio, hundreds of miles from home, attempting to return on weekends and watching his family deteriorate, or he could quit. Such a choice is the same as no choice at all.

There are many other factors which bolster our conclusion in this regard, and we will devote the remainder of this opinion to their discussion. First, case law has held that even though an employee leaves a job through some act directly traceable to his or her own choice, the leaving is not necessarily "voluntary" under the Employment Security Act. For example, in Larson v. Employment Security Comm., 2 Mich.App. 540, 140 N.W.2d 777 (1966), the plaintiff was injured on the job and received both unemployment compensation and worker's compensation benefits due to the fact that he could no longer perform his job. The employer presented [101 MICHAPP 33] him with a document whereby he resigned his employment in return for a lump-sum settlement of his worker's compensation claim. He testified that he signed the document due to economic pressures, but apparently without regard for its effect on his unemployment compensation. His unemployment benefits were terminated on the basis that he had voluntarily left his employment, but this Court held that the facts of the case did not establish a truly voluntary resignation:

"We do not deny that the claimant undoubtedly knew what he was doing when he signed this instrument, but it is another thing to say that he had a tenable alternative. Signing a settlement agreement under the circumstances in which Paul A. Larson found himself does not equate with leaving work voluntarily.

"Under the facts presented to us, voluntariness under these circumstances comes down to one thing. He may have 'voluntarily' signed the settlement statement, which included the termination of employment, but it does not necessarily follow that he left work 'voluntarily.' " Id., 545, 546, 140 N.W.2d 777.

See also, Thomas v. Employment Security Comm., 356 Mich. 665, 97 N.W.2d 784 (1959) (claimant did not leave work voluntarily where discharged after being incarcerated on way to work because of traffic violation), Copper Range Co. v. Unemployment Compensation Comm., 320 Mich. 460, 31 N.W.2d 692 (1948) (claimants did not leave work voluntarily when they voted to reject wage reduction which employer had made condition of keeping plant open). Accordingly, the fact that the plaintiff in the instant case quit his job in Ohio does not automatically mean that he quit it voluntarily.

Additional support for our conclusion is found in [101 MICHAPP 34] the purpose and structure of the Employment Security Act. It is undisputed that, if plaintiff had simply sat at home and watched television while waiting for work in his own community, he would...