Swenson v. Michigan Employment Sec. Commission

Decision Date08 September 1954
Docket NumberNo. 5,5
Citation340 Mich. 430,65 N.W.2d 709
PartiesBessie SWENSON, Aileen I. Langs, and Neva I. Van Syckle, Plaintiffs-Appellees, v. MICHIGAN EMPLOYMENT SECURITY COMMISSION, Defendant-Appellant, and Appeal Board of Michigan Employment Security Commission and Battle Creek Food Company, a Michigan corporation, Defendants.
CourtMichigan Supreme Court

Frank G. Millard, Atty. Gen., Edmund E. Shepherd, Sol. Gen., Lansing, George M. Bourgon, Asst. Atty. Gen., for appellant.

Erwin B. Ellmann, Detroit, B. Morris Pelavin, Flint, William Cohen, Detroit, Leo Pfeffer, New York City, Charles L. Goldstein, Detroit, David E. Utley, Pontiac Gerald A. Lipnik, Ann Arbor, T. George Sternberg, Bay City, amici curiae.

Jennings, Fraser, Parsons & Trebilcock, Lansing, North, Allen & Scatterday, Battle Creek, Archie C. Fraser, Joe C. Foster, Jr., Lansing, of Counsel, for plaintiffs-appellees.

Before The Entire Bench.

BUSHNELL, Justice.

Plaintiffs, Bessie Swenson, Aileen I. Langs and Neva I. Van Syckle, were employed as packers by the Battle Creek Food Company prior to their layoff, due to lack of work. In their applications for unemployment benefits they stated that they could not work from sundown Friday to sundown Saturday, because they were Seventh Day Adventists. As a result of this statement to defendant Michigan Employment Security Commission each received a notice of the commission's holding that they were ineligible for unemployment benefits in that they had failed to establish their availability for work. Notwithstanding that fact that each had been in the employ of two or more Battle Creek concerns without having to work on their Sabbath, they never received any referrals to jobs by the commission.

It should be noted that in the city of Battle Creek there are many Seventh Day Adventists. The record shows that the three employees had worked for a total of 10 Battle Creek employers; that Aileen Langs had worked in that city for a period of 18 years, and that thousands of Seventh Day Adventists similarly situated are able to find full time employment in that community, with apparently no more difficulty than those who are willing to work on Saturdays.

At the consolidated hearing before the referee the claimants who were not represented by counsel were informed that 'the issue, at least the primary issue, is whether or not these claimants may be considered available for full time work as required by section 28(c) of the Act under the facts, with particular reference to the restriction as to Saturday work.' P.A.1936, No 1, Ex.Sess., as amended, C.L.1948, § 421.1 et seq., Stat.Ann. § 17.501 et seq. Considerable testimony was taken and certain exhibits were received. During the hearing one Merle Mills, designated as an elder in claimants' church and their spiritual advisor, made the statement that the Seventh Day Adventists were organized as a religious denomination in 1863 in Battle Creek, and that this Church has practically a million members throughout the world who take the interpretation of the Fourth Commandment quite literally; and it was further claimed by the elder that in the armed forces and in civil defense their members are not 'pressed' to work on Saturdays in order that they might be free to worship on their Sabbath as they desire. To this statement, Pence Wilson, a claims examiner of defendant commission, replied that the Michigan unemployment compensation act 'requires that a person be fully available for work to be eligible for unemployment compensation.' In his reply he referred, without citation, to the socalled Koski case (Ford Motor Company v. Unemployment Compensation Commission, 316 Mich. 468, 25 N.W.2d 586), which the commission deemed applicable and controlling. The parties agreed on the record 'that as far as the calendar, Saturday is accepted by the fundamental precepts of your religion to be the Sabbath day.'

The referee rendered 'Findings of Facts and Reasons' in each case, to the effect that the redetermination of the commission of March 29, 1951, is reversed and set aside, and he held that each claimant had established her availability from the date of filing through the date of hearing (April 9, 1951) and that accordingly a benefit year was established, beginning March 16th in one case and March 19th in the other two, with the holding that claimants would be entitled to benefits for such period 'if otherwise eligible.'

Appeals were taken from the referee's decisions to the appeal board, and in each instance a written decision was filed by the appeal board reversing the findings of the referee. The appeal board asserted as controlling the decision in the Koski case and Kut v. Albers Super Markets, Inc., 146 Ohio St. 522, 66 N.E.2d 643, which was also cited in the Koski case.

On application to the circuit court for the county of Calhoun, writs of certiorari issued and the matters were there determined on the record before the referee. The trial judge in a 17-page opinion analyze the situation and the available authorities, resulting in the conclusion that the decision of the appeal board, that claimants had failed to meet the requirements of the act 'because they have limited their availability to work, to other days than their Sabbath, is contrary to law and the great weight of the evidence.' The decisions were reversed and judgments were entered in favor of claimants.

The commission has appealed with the stipulation that the matters may be consolidated here. In the reasons and grounds for appeal the commission asserted that the court erred in applying a religious test to determine unemployment benefit rights, erred in discriminating in favor of those holding conscientious scruples against Saturday work and in failing to maintain the principle of complete separation between the Church and State. These questions seem to have been abandoned in the commission's brief, except insofar as is covered by the question reading:

'Does the Michigan employment security act * * * allow or prescribe the absence or presence of a religious belief as a test for granting or denying unemployment benefits?'

We see no reason for a lengthy discussion of religious and constitutional rights, notwithstanding the helpful brief of amici curiae.

The problem to be solved is clearly and simply stated by the commission as follows:

'Did the appellees prove that they were available to perform, full-time, the pattern of work which existed in the city of Battle Creek at the time they sought benefits?'

'Did each appellee sustain the burden of proof required of her by the seeking work provision of section 28(a) [C.L.S.1952, § 421.28] (Stat.Ann.1953 Cum.Supp. § 17.530) of the Michigan employment security act by establishing that she did seek work during each week for which she sought unemployment?'

We must first determine the controlling nature of the Koski case, 316 Mich. 468, 25 N.W.2d 586, 588. There, claim...

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8 cases
  • Sherbert v. Verner, 526
    • United States
    • U.S. Supreme Court
    • 17 Junio 1963
    ...because of a religious prohibition against Saturday work. E.g., In re Miller, 243 N.C. 509, 91 S.E.2d 241; Swenson v. Michigan Employment Security Comm., 340 Mich. 430, 65 N.W.2d 709; Tary v. Board of Review, 161 Ohio St. 251, 119 N.E.2d 56. Cf. Kut v. Albers Super Markets, Inc., 146 Ohio S......
  • Huntley v. Department of Employment Sec.
    • United States
    • Rhode Island Supreme Court
    • 16 Febrero 1979
    ...Work, 55 Yale L.J. 123, 129-30 (1945); Menard, Refusal of Suitable Work, 55 Yale L.J. 134, 147 (1945). Cf. Swenson v. Employment Security Comm'n, 340 Mich. 430, 65 N.W.2d 709 (1954) (claimant who would not work from sundown Friday to sundown Saturday for Religious reasons held available).1 ......
  • Texas Employment Commission v. Hays, A-8925
    • United States
    • Texas Supreme Court
    • 3 Octubre 1962
    ...643, that a claimant imposing such restrictions was not available for work, but the Michigan court in Swenson v. Michigan Employment Security Commission, 340 Mich. 430, 65 N.W.2d 709, and the North Carolina court in In Matter of Miller, 243 N.C. 509, 91 S.E.2d 241, held claimants eligible f......
  • Sherbert v. Verner
    • United States
    • South Carolina Supreme Court
    • 17 Mayo 1962
    ...directs our attention to the cases of Tary v. Board of Review, 161 Ohio St. 251, 119 N.E.2d 56, and Swenson v. Michigan Unemployment Security Commission, 340 Mich. 430, 65 N.W.2d 709, and asserts that the holding in these cases should be controlling. We cannot agree with this contention for......
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