Williams v. Lakeland Convalescent Center, Inc.

• Decision Date: 11 October 1966
• Docket Number: No. 1,No. 968,968,1
• Citation: 4 Mich.App. 477,145 N.W.2d 272
• Parties: Lucille WILLIAMS, Plaintiff and Appellant, v. LAKELAND CONVALESCENT CENTER, INC., and Michigan Employment Security Commission, Defendants and Appellees. Cal
• Court: Court of Appeal of Michigan — District of US

Page 272

145 N.W.2d 272

4 Mich.App. 477

Lucille WILLIAMS, Plaintiff and Appellant, v. LAKELAND CONVALESCENT CENTER, INC., and Michigan Employment Security Commission, Defendants and Appellees.

Cal. No. 968.

Court of Appeals of Michigan, Division No. 1.

Oct. 11, 1966.

James E. Haggerty, Jr., Detroit (Henry Glicman, Detroit, started appeal, but has since retired, turning the matter over to Mr. Haggerty, and is living in Deland, Fla.), for appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, Arthur W. Brown, Asst. Atty. Gen., Detroit, for Employment Security Commission.

Before GILLIS, P.J., and HOLBROOK and McGREGOR, JJ.

HOLBROOK, Judge.

Plaintiff and appellant filed a claim for compensation under the provisions of the Michigan employment security act, ¹ August 29, 1963. On October 2, 1963, the employment security commission issued a determination holding plaintiff was entitled to compensation. Defendants-appellees protested this determination and the commission made a redetermination which affirmed the original finding. A referee affirmed the redetermination on November 29, 1963, and defendants-appellees appealed to the employment security appeal board, which reversed the referee's decision and held the plaintiff was discharged for misconduct connected with her work, and therefore, disqualified from benefits under the act.

Plaintiff appealed to the circuit court for Wayne County and the decision of the appeal board was upheld in the opinion dated May 19, 1965, by the Honorable Neal Fitzgerald. Judgment was entered in accordance with the court's opinion on June 7, 1965, and plaintiff has taken this appeal therefrom.

The pertinent facts appear to be as follows: Plaintiff was employed as a cook from December 16, 1961, to August 19, 1963, for the Lakeland Convalescent Center, Inc., which was engaged in care for the aged. On the latter date plaintiff was discharged for alleged misconduct in connection with her employment. Included in the claimed acts of misconduct was the spreading of slanderous remarks concerning the moral conduct between her employer and an employee. A nurses aide and occasional relief cook testified positively that the plaintiff had told her that her employer and a named employee were having improper relations. Other allegations of improper conduct of plaintiff were permitting other employees to take their breakfast in the kitchen contrary to rules, increasingly inferior cooking, and clocking out early without permission, which was testified to by the hospital administrator. Plaintiff asserts that the reasons set forth by defendant for discharge were used as a pretext to cover up the real reason which she claims was her union organizational activities. The employees of Lakeland Convalescent Center, Inc., held an election on September 20, 1963, to determine if they would be represented in contract negotiations by Local 79, Building Service Employees' International Union, AFL-CIO. The vote was 5 to 3 for the union; subsequently, however, the Michigan labor mediation board set aside the election because plaintiff's union activities had been 'of such a character and nature as to create an atmosphere of confusion or fear of reprisal.'

The Honorable Neal Fitzgerald, Circuit Judge in his opinion stated in part as follows:

'It is the appellant's contention that the real reason for her discharge was because she engaged in union activities. In reaching its conclusion the appeal board overruled the decision of the referee. Counsel for the appellant, in his brief, cites many N.L.R.B. cases to the effect that it is unlawful to discharge an employee for good and sufficient reasons if even a partial reason for the discharge is the engaging of the employee in union activities.

'Sec. 38 of the Michigan employment security act, under which this appeal was instituted, reads as follows:

"The findings of fact made by the appeal board acting within its powers if supported by the great weight of the evidence, shall, in the absence of fraud, be conclusive, but the circuit court of the county, in which the claimant resides or in which the employer's principal place of business in Michigan is located, if no claimant is a party to the case, or the circuit court for the county of Ingham shall have power to review questions of fact and law on the record made before the referee and the appeal board involved in any such final decision, but said court may reverse such decision of said appeal board upon a question of fact only if it finds that said decision of the appeal board is contrary to the great weight of the evidence: * * *'

'From this section it is clear that this court in reviewing the decision of the appeal board may reverse upon a question of fact only if it finds that the...