Losada v. Chrysler Corp., Docket No. 7516

• Decision Date: 25 June 1970
• Docket Number: No. 2,Docket No. 7516,2
• Parties: John LOSADA, Plaintiff-Appellant, v. CHRYSLER CORPORATION and Michigan Employment Security Commission, Defendants-Appellees
• Court: Court of Appeal of Michigan — District of US

Page 844

180 N.W.2d 844

24 Mich.App. 656

John LOSADA, Plaintiff-Appellant, v. CHRYSLER CORPORATION and Michigan Employment Security

Commission, Defendants-Appellees.

Docket No. 7516.

Court of Appeals of Michigan, Division No. 2.

June 25, 1970.

Leave to Appeal Denied Sept. 2, 1970.

Released for Publication Nov. 9, 1970.

A. L. Zwerdling, Zwerdling, Miller, Klimist & Maurer, Detroit, for plaintiff-appellant.

Charles W. Wexler, Detroit, Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., E. J. Setlock, Asst. Atty. Gen., for defendants-appellees.

Before LESINSKI, C.J., and J. H. GILLIS and QUINN, JJ.

QUINN, Judge.

Following the order of remand in Chrysler Corporation v. Losada (1965), 376 Mich. 209, 135 N.W.2d 897, plaintiff's claim for unemployment compensation was allowed by the referee; the appeal board reversed the referee and the circuit court affirmed the appeal board. We review to determine whether the appeal board's decision was authorized by law and was supported by competent, material and substantial evidence on the whole record. Const.1963, art. 6, § 28, Williams v. Lakeland Convalescent Center, Inc. (1966), 4 Mich.App. 477, 145 N.W.2d 272.

The decision of the appeal board was authorized by law if plaintiff was disqualified for benefits under C.L.S.1961, § 421.29(1)(a), (5) (Stat.Ann.1960 Rev. § 17.531(1)(a)(5)). The determination of disqualification requires the application of the statute to the facts involved. The pertinent language of the statute is:

'An individual shall be disqualified for benefits: for the duration of his unemployment in all cases where the individual has failed without good cause to accept suitable work when offered him * * *.'

Section 421.29(1)(a), Supra, defines suitable work as

'An offer of employment in the individual's customary occupation, under the conditions of employment and remuneration substantially equivalent to those under which the individual has been customarily employed in such occupation, shall be deemed suitable work. In determining whether or not any work is suitable for an individual, the commission shall consider the degree of risk involved to his health, safety and morals, his physical fitness and prior training, his experience and prior earnings, his length of unemployment and prospects for securing local work in his customary occupation, and the distance of the available work from his residence.'

Plaintiff was employed by defendant November 29, 1954 as an assembler in the trim department of the assembly division. His employment by defendant continued until April 13, 1960, when he was laid off because of lack of work. During his employment, defendant worked at various nonskilled jobs in the trim department of the Dodge main plant assembly division, and his employment had been reclassified several times. April 13, 1960, plaintiff was classified as a cutter in the trim department with a base pay of $2.52 per hour.

April 15, 1960, defendant offered plaintiff his choice of two jobs, namely: medium press operator at a base pay of $2.32 per hour or as a spot welder at a base pay of $2.37 per hour. (Plaintiff had worked as a welder before his employment with defendant.) Employment was available on these jobs on either the first or second shifts, and the second shift received a five per cent pay premium. Both jobs were in the same plant where plaintiff had been working and both were nonskilled work. Plaintiff's seniority rights and his rights to all fringe benefits would have been transferred with him had he accepted either job. Plaintiff would not have been recalled to his former job from the new job so long as there was work on the latter. If plaintiff had been laid off...