McArthur v. Borman's Inc.

• Decision Date: 19 July 1993
• Docket Number: Docket Nos. 130656,132072
• Citation: 505 N.W.2d 32,200 Mich.App. 686
• Parties: Robin L. McARTHUR, Plaintiff-Appellee, v. BORMAN'S INC., Defendant-Appellant, and Michigan Employment Security Commission, Defendant-Appellant. Teresa D. NILSSON a/k/a Teresa D. Marcinkowski, Plaintiff-Appellant, v. BORMAN'S INC., Defendant-Appellee, and Michigan Employment Security Commission, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 32

505 N.W.2d 32

200 Mich.App. 686

Robin L. McARTHUR, Plaintiff-Appellee, v. BORMAN'S INC., Defendant-Appellant, and Michigan Employment Security Commission, Defendant-Appellant.

Teresa D. NILSSON a/k/a Teresa D. Marcinkowski, Plaintiff-Appellant, v. BORMAN'S INC., Defendant-Appellee, and Michigan Employment Security Commission, Defendant-Appellee.

Docket Nos. 130656, 132072.

Court of Appeals of Michigan.

Submitted Dec. 2, 1992, at Detroit.

Decided July 19, 1993, at 9:50 a.m.

Released for Publication Sept. 23, 1993.

Richard W. McHugh, Associate Gen. Counsel, Intern. Union, UAW, Detroit, for claimants.

Barris, Sott, Denn & Driker by Elaine Fieldman and Susan L. Mashour, Detroit, for Borman's, Inc.

Before: CORRIGAN, P.J., and WEAVER and CONNOR, JJ.

CORRIGAN, Presiding Judge.

In these consolidated actions for unemployment benefits under the Employment Security Act, M.C.L. § 421.1 et seq.; M.S.A. § 17.501 et seq., claimant Nilsson appeals the decision of the Employment Security Commission, affirmed by the Macomb Circuit Court, denying her claim for unemployment benefits. Defendant Borman's appeals a Wayne Circuit Court order reversing the MESC's denial of unemployment benefits to claimant McArthur. We affirm the order of the Macomb Circuit Court and reverse the order of the Wayne Circuit Court. The agency properly concluded in both cases that claimants voluntarily left their employment without good cause attributable to the employer. M.C.L. § 421.29(1)(a); M.S.A. § 17.531(1)(a). ¹

Claimants were employed as full-time cashiers at Borman's Farmer Jack's supermarkets when the company and claimants' union negotiated a new contract in August 1987. Under the newly executed agreement, Borman's had an option to reduce a portion of the full-time work force to part-time status two years later, in August 1989. The work plan would permit fifty-percent of the cashiers to remain as full-time employees. Eligibility for full-time status was to be determined by seniority. Neither McArthur nor Nilsson had sufficient seniority to guarantee full-time status in August 1989.

The parties did not submit a copy of the collective bargaining agreement defining the buyout offer and work-force changes into the record. However, each claimant's signed buyout agreement was introduced into evidence. It is undisputed that the effective date of the reduction-in-force plan was in August 1989, nearly two years after the buyout agreements were signed.

Under the buyout plan, Borman's offered its cashiers $16,000 to terminate their employment before December 31, 1987. The cashiers could choose either to terminate their employment and receive $16,000 or to continue in their employment subject to the new union contract. Two months after she elected the buyout, McArthur was reduced to part-time status for reasons apparently unrelated to the buyout. Both claimants left defendant's employ on December 19, 1987, and received $16,000 payments. ²

Judicial review of proceedings under the Employment Security Act is narrowly circumscribed. M.C.L. § 421.38(1); M.S.A. § 17.540(1) provides:

The circuit court ... may review questions of fact and law ... but the court may reverse an order or decision only if it finds that the order or decision is contrary to law or is not supported by competent, material, and substantial evidence on the whole record.

Judicial review of factual findings of administrative tribunals is limited. The reviewing court will not substitute its judgment for that of the fact-finding tribunal. Saber v. Capitol Reproductions, Inc., 28 Mich.App. 462, 464, 184 N.W.2d 518 (1970). The MESC Board of Review's decision may be reversed only if the decision is contrary to law or is not supported by competent, material, and substantial evidence. Becotte v. Gwinn Schools, 192 Mich.App. 682, 685, 481 N.W.2d 728 (1992). Substantial evidence is more than a mere scintilla but less than a preponderance of the evidence. Id. We accord due deference to administrative expertise and do not displace an agency's choice between two reasonably different views. MERC v. Detroit Symphony Orchestra, Inc., 393 Mich. 116, 124, 223 N.W.2d 283 (1974) (applying the competent, material, and substantial evidence standard of M.C.L. § 423.23[e]; M.S.A. § 17.454[e]; Senior Accountants, Analysts & Appraisers Ass'n v. Detroit, 184 Mich.App. 551, 557, 459 N.W.2d 15 (1990). Where the underlying facts are undisputed, questions presented on appeal are treated as matters of law. Grand Rapids Public Schools v. Falkenstern, 168 Mich.App. 529, 536, 425 N.W.2d 128 (1988).

M.C.L. § 421.29(1); M.S.A. § 17.531(1) provides in part:

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

(a) Left work voluntarily without good cause attributable to the employer or employing unit. [Emphasis supplied.]

Two questions invariably arise in cases under § 29(1)(a). The first is whether the claimant left employment voluntarily. If not, the inquiry ends because the disqualification provision of § 29(1)(a) is not applicable. Clarke v. North Detroit General Hosp., 437 Mich. 280, 286, n. 8, 470 N.W.2d 393 (1991). If the claimant's departure is voluntary, the claimant nonetheless may be eligible for benefits if departure was for "good cause attributable to the employer."

A voluntary departure is an intentional act. See Parks v. Employment Security Comm., 427 Mich. 224, 240, 398 N.W.2d 275 (1986) (opinion of Brickley, J.). The state has a substantial interest in reserving unemployment benefits for those who became unemployed "due to forces beyond their control." Id. at 242, 398 N.W.2d 275. "Voluntary" connotes a choice between alternatives that ordinary persons would find reasonable. Clarke, supra; Laya v. Cebar Construction Co., 101 Mich.App. 26, 32, 300 N.W.2d 439 (1980). Unemployment benefits are not designed to protect those who receive large cash settlements following voluntary separations, but to assist those who become unemployed through no fault of their own. In this context, voluntary means that an employee "left work voluntarily ... [and] was not discharged." Copper Range Co. v. Unemployment Compensation Comm., 320 Mich. 460, 469, 31 N.W.2d 692 (1948); see also, Clarke, supra at 282, 284-285, 287, 470 N.W.2d 393. We accept Justice Riley's concurring view that the Clarke majority has defined voluntary leaving as "he left of his own motion; he was not discharged." Id. at 290, 470 N.W.2d 393.

In Tomei v. General Motors Corp., 194 Mich.App. 180, 186, 486 N.W.2d 100 (1992), a plant-closing case, this Court shifted the burden of proof of voluntariness to the employer. In all other cases, the claimant retains the burden of proof. Tomei requires an employer in plant-closing cases to demonstrate that "the options it offered to the claimant were not unreasonable, untenable, or illusory," and that the employer offered choices that are "reasonable, viable, and clearly communicated to the employee." Id. We think that Tomei impermissibly tacked on elements to the statutory test, M.C.L. § 421.29(1)(a); M.S.A. § 17.531(1)(a), and redefined "voluntary leaving" in the context of plant-closing cases. We also question whether Tomei properly shifted the burden of proof, given the Supreme Court's recent interpretation of voluntariness in Clarke.

By its own terms, Tomei, a plant-closing case, does not purport to control this fact pattern--an ongoing business that negotiates a future reduction of its work force with its employees. Hence, we are not bound to follow Tomei pursuant to Administrative Order No. 1990-6.

Applying the Clarke test, each claimant here plainly left work voluntarily. The employer provided a substantial monetary incentive and also made quitting more attractive by the threatened reduction to part-time status. Nonetheless, each claimant could have continued to work for the employer, and each chose not to do so.

Claimants contend that their circumstances satisfied the Tomei standards. We disagree. Neither claimant here was out of work. McArthur had the prospect of two remaining years of full-time employment. During those two years, she might earn more than the $16,000 Borman's offered, while being able to look for another full-time job. Nilsson's reduction to twenty-eight hours a week would have resulted in a long-term earnings decline to $15,000 per year. Nevertheless, this amount still far exceeded the average pay for full-time employment that was reasonably attainable by someone with her training and background. We cannot say in either case that the MESC's decision was not supported by competent, material, and substantial evidence or was contrary to law.

Larson v. Employment Security Comm., 2 Mich.App. 540, 140 N.W.2d 777 (1966), is distinguishable. In that case, this Court found involuntary an employee's resignation from employment and settlement of a workers' compensation claim. He had been forced to stop working because of a disabling injury and was without income. Claimants here did not face the imminent economic compulsion described in Larson. They both had a substantial remaining period of full-time employment and a prospect of continued employment, albeit possibly part-time. Unlike the claimant in Larson, their choice was not between resignation and no income at all. Further, Larson was limited to its own facts in Applegate v. Palladium Publishing Co., 95 Mich.App. 299, 307, n. 3, 290 N.W.2d 128 (1980). We also find Copper Range Co., supra, inapplicable. Those claimants work...