Parks v. Employment Sec. Com'n

• Decision Date: 26 December 1986
• Docket Number: Docket Nos. 73010,75474 and 75964
• Citation: 427 Mich. 224,398 N.W.2d 275
• Parties: , 36 Ed. Law Rep. 925 Anne B. PARKS, Plaintiff-Appellant, v. EMPLOYMENT SECURITY COMMISSION and Detroit Public Schools, Defendants-Appellees. CITY OF SAGINAW, a Municipal Corporation, Plaintiff-Appellee, v. Nancy A. LINDQUIST, Claimant and Michigan Employment Security Commission, a Michigan Public Body, jointly and severally, Defendants-Appellants. Sophia DOLCE, Personal Representative of the Estate of Dominick Dolce, Plaintiff-Appellant, v. FORD MOTOR COMPANY and Michigan Employment Security Commission, Defendants-Appellees.
• Court: Michigan Supreme Court

Page 275

398 N.W.2d 275

427 Mich. 224, 36 Ed. Law Rep. 925

Anne B. PARKS, Plaintiff-Appellant, v. EMPLOYMENT SECURITY COMMISSION and Detroit Public Schools,

Defendants-Appellees.

CITY OF SAGINAW, a Municipal Corporation, Plaintiff-Appellee, v. Nancy A. LINDQUIST, Claimant and Michigan Employment

Security Commission, a Michigan Public Body,

jointly and severally, Defendants-Appellants.

Sophia DOLCE, Personal Representative of the Estate of Dominick Dolce, Plaintiff-Appellant, v. FORD MOTOR COMPANY and Michigan Employment Security

Commission, Defendants-Appellees.

Docket Nos. 73010, 75474 and 75964.

Supreme Court of Michigan.

Argued June 5, 1986.

Decided Dec. 26, 1986.

Keller, Thoma, Schwarze, Schwarze, DuBay, Katz, P.C. by David E. Kempner, Detroit, John C. Scully, Nat. Right to Work Legal Defense Foundation, Inc., Springfield, Va., for plaintiff-appellant Anne B. Parks.

Sachs, Nunn, Kates, Kadushin, O'Hare, Helveston & Waldman, P.C. by Mary Ellen Gurewitz, Detroit, for defendant-appellee Detroit Public Schools.

Robert E. Helm, Asst. City Atty., Saginaw, for plaintiff-appellee City of Saginaw.

Peter C. Jensen, Borrello, Thomas & Jensen, P.C., Saginaw, for defendant-appellant Nancy A. Lindquist.

Jordan Rossen, Richard W. McHugh, Detroit, for plaintiff-appellant Sophia Dolce.

Frank J. Kelley, Atty. Gen., State of Mich., Louis J. Caruso, Sol. Gen. by David A. Voges, Asst. Atty. Gen., Detroit, for defendant-appellee Michigan Employment Sec. Com'n.

BRICKLEY, Justice.

In these three consolidated cases we are asked to consider under what circumstances the disqualifying provisions of Sec. 29 of the Michigan Employment Security Act apply so as to disqualify a claimant from receiving unemployment benefits.

Parks

Appellant Anne B. Parks began working for the Detroit Board of Education in 1935. In 1969, the Detroit Federation of Teachers was recognized by the employer as the bargaining unit of the employees. Under the collective bargaining agreement reached between the employer and union, each covered employee was required to pay union membership dues or agency shop service fees. Also, the agreement required the employer, upon notification and request by the union, to notify the employee of termination within sixty days if the dues were not paid. The agreement required the employer to terminate an employee who did not pay the fees within the sixty-day period. Appellant Parks was one of the covered employees, and thus the contract under which she worked required her to pay a service fee. Due to personal beliefs, she objected to the paying of service fees. Along with other employees, she challenged the compulsory service fee in a lawsuit initiated in 1969. In Abood v. Detroit Bd. of Ed., 431 U.S. 209, 239, 97 S.Ct. 1782, 1801, 52 L.Ed.2d 261 (1977), reh den 433 US 915 (1977), the United States Supreme Court held that it is constitutionally permissible to require employees to pay fees for the support of a union's activities in the areas of collective bargaining, contract administration, and grievance adjustment. ¹ After the Abood opinion was issued, appellant did not pay the service fee or any portion thereof to the union. Pursuant to the collective bargaining agreement, the union notified the employer that the fees had not been paid. The employer asked appellant to pay the fee, and, when it was not paid, the union requested that the employer issue a sixty-day termination notice. In 1978, the employer notified appellant that her employment would be terminated on March 11, 1978, unless the fees were paid before then. When the fees were not paid, appellant was discharged on that date.

This Court upheld the validity of the discharge. Detroit Bd. of Ed. v. Parks, 417 Mich. 268, 335 N.W.2d 641 (1983). Appellant then filed a claim for unemployment benefits. The MESC initial determination was that appellant was not disqualified for benefits due to misconduct. The employer sought redetermination on the ground that claimant voluntarily left her job, but the MESC claims examiner affirmed the original determination, against finding no disqualification for misconduct. The employer then appealed to the referee who reversed and held that

"claimant's separation from her employment was a result of an action instituted by herself and is therefore a voluntary leaving without good cause attributable to the employer."

The referee further found that the disqualification provision of Sec. 29(1)(b) (misconduct) was inapplicable. This decision was affirmed by the board of review. The dissenting board member believed that appellant did not leave her work voluntarily because she was terminated. He also believed appellant was not disqualified for misconduct. In the opinion of the dissenting member, appellant's refusal to pay agency service fees was, at most, a good-faith error in judgment or discretion which does not amount to misconduct under the act.

The circuit court affirmed, agreeing that there was a voluntary leaving because "claimant's loss of prerequisites for continued employment (i.e., the payment of the agency shop fees) was not the result of a negligent act of omission, but rather the product of a voluntary choice with knowledge of the consequences." (Emphasis in the original.) The court thus concluded that the board's findings were supported by competent, material, and substantial evidence. The Court of Appeals, in a brief memorandum opinion, also affirmed on this basis. We granted claimant's application for leave to appeal. 423 Mich. 854 (1985).

Lindquist

Appellant Nancy A. Lindquist was hired by the City of Saginaw on August 23, 1971. On February 5, 1981, she was discharged from her employment by the city because she failed to maintain her permanent bona fide residence within the corporate limits of the City of Saginaw in accord with Chapter 3, Sec. 115 of the Saginaw Administrative Code. Section 115 of the code provides:

"Each city employee shall maintain a permanent and bona fide residence within the corporate limits of the City. Any employee who fails to comply with the provisions of this section shall be deemed to have abandoned such employment and shall thereafter receive no salary or wages from the City."

After being terminated, appellant filed an application for unemployment benefits with the MESC on February 10, 1981. The commission initially determined that she was ineligible for benefits, but upon redetermination ruled that she was not disqualified for misconduct because

"[t]he rule regarding residency bears no relation to the work to be performed and therefore any violation of the rule cannot be considered misconduct in connection with the work.... It is determined that claimant's discharge was for reasons other than misconduct in connection with the work...."

The city then appealed to the referee who made the following findings of fact:

"In January 1981 the employer was notified that the claimant was not complying with Section 115 of the Code. An investigation was conducted. The claimant indicated to the employer that she resided at 3122 Fulton Street, Saginaw, Michigan. The investigation disclosed that on October 21, [1977] the claimant moved from 3717 Huntly Road, Saginaw, Michigan to 3122 Fulton Street, Saginaw, Michigan. Both of these addresses are located within the corporate limits of the City of Saginaw. The investigation also disclosed that the property on Fulton Street in 1977 was owned by a Mr. Carl Brown; that in 1978 the property on Fulton Street was owned by Gladys Brown, and in 1979-1980 the home on Fulton Street was vacant. Later, on the death of Gladys Brown, the property on Fulton Street became the property of Barry Brown. In early February 1981 the property on Fulton Street was placed for sale.

"Four years prior to the time of separation claimant and her husband sold their home. Her husband and children moved to 2657 Birch Point, Lupton, Michigan and claimant began to reside with her aunt at 3122 Fulton Street. The claimant traveled each weeked to Lupton, Michigan and remained with her family. The claimant also went to Lupton during the week in the event of her children's illness or to engage in school or other activities.

"The claimant's aunt died in 1979 and claimant continued to reside at the Fulton Street address to prevent the building from being vandalized. Claimant paid no rent to Mr. Barry Brown, the executor of the estate of Gladys Brown. The claimant received mail at the Fulton Street address. The claimant voted in the City of Saginaw, and on her drivers license she lists the Fulton Street address."

The referee found that appellant was not a resident of Saginaw:

"In this case, the claimant was not a bona fide resident because her address on Fulton Street was not her true home. Her true home was in Lupton, Michigan. It was at her home in Lupton, Michigan that her children and husband lived and where she intended to reside. She only lived in Saginaw for the purpose of being close to work. In addition, her address on Fulton Street was not her fixed home. It was her temporary home while she was away from her true home in Lupton. Her intent was always to return to Lupton. Nor was her home in Saginaw a permanent home. She never intended to remain at that place indefinitely into the future until a new residence was obtained because she already had a residence in Lupton. If the adage is true that 'A person's home is where their heart is,' claimant's home was in Lupton because her heart was always with her husband and children. Also the intent of the claimant was to reside on Fulton Street only in an attempt to meet the requirements of the city charter. The claimant never intended the Fulton Street address to be her permanent address. It was a place to stay while she was away from Lupton. Thus, it was not a bona fide residence."

The referee concluded that appellant was discharged for misconduct connected with her work because she "failed to meet one of the...