Categories
07. Eligibility - Able & Available

Breshgold v MESC – 7.25

Breshgold v MESC
Digest no. 7.25

Section 28(1)(c)

Cite as: Breshgold v MESC, unpublished opinion of the Wayne Circuit Court, issued February 24, 1978 (Docket No. 77-708893-AE).

Appeal pending: No
Claimant: Michael S. Breshgold
Employer: United States Navy
Docket no.: UCX75 14953 RO 49887
Date of decision: February 24, 1978

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CIRCUIT COURT HOLDING: In order to be eligible for unemployment benefits, an individual must be unemployed and make reasonable efforts to find work. An individual need not be idle and is not required to look for work daily for 8 hours a day.

FACTS: Claimant was enrolled as a full time student, taking daytime college courses (17 credits). He asserted he was available for full time work and would rearrange his class schedule or quit school if he found full-time employment. He testified that he had worked full-time and attended school full-time in the past. The Referee found, and the Board of Review majority agreed, that claimant was primarily a student and was not genuinely attached to the labor market because he only searched for employment when this did not interfere with his schooling.

DECISION: Remand for hearing on claimant’s job seeking efforts.

RATIONALE: Where a claimant asserts he is actively seeking work, it is incumbent on the trier of fact to explore those job seeking efforts. Availability cannot be determined solely by the fact that a claimant is pursuing educational goals while unemployed. Attachment to the labor market is largely a function of the individual’s efforts to obtain employment.

Digest Author: Board of Review (original digest here)
Digest Updated: 6/91

Categories
07. Eligibility - Able & Available

Mikolaicziak v MESC – 7.07

Mikolaicziak v MESC
Digest no. 7.07

Section 28(1)(c)

Cite as: Mikolaicziak v MESC, 40 Mich App 61 (1972).

Appeal pending: No
Claimant: Leo J. Mikolaicziak, et al.
Employer: Twin Oaks Golf Club, Inc.
Docket no.: B69 573 37067
Date of decision: April 25, 1972

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COURT OF APPEALS HOLDING: (1) Unpaid service as a corporate officer is not employment. (2) A claimant need not be available for permanent work. (3) Weekly compensation for seasonal work is not an annual salary.

FACTS: Three claimants served as unpaid corporate officers of a golf course. Each owned one-third of the shares of the corporation. All performed manual labor and managerial duties, on a rotating basis, during the ten months of annual operation and maintenance. They were paid weekly for their work during the operating season. The claimants received no compensation in the two remaining months, but were available for temporary work then.

DECISION: The claimants are unemployed and available for work.

RATIONALE: “Since the claimants received absolutely no remuneration or compensation for serving as the corporate officers of the Twin Oaks Golf Club, they were not ’employed’ in such capacities within the meaning of Section 42(1) of the Michigan Employment Security Act. See Great Lakes Steel Corporation v Employment Security Commission, 381 Mich 249 (1968).”

“(R)emuneration was paid to them on a ‘weekly’ basis during the months that the golf course was open to the public.” The Act “. . . does not require an unemployed person to be available for and seek ‘permanent’ full-time work, but rather full-time work.”

Digest Author: Board of Review (original digest here)
Digest Updated:
11/90

Categories
07. Eligibility - Able & Available

Bolles v MESC – 7.01

Bolles v MESC
Digest no. 7.01

Section 28(1)(c)

Cite as: Bolles v MESC, 361 Mich 378 (1960).

Appeal pending: No
Claimant: Lewis F. Bolles
Employer: Continental Motors Corporation
Date of decision: September 16, 1960

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SUPREME COURT HOLDING: “. . . the test properly to be employed is that of genuine attachment to the labor market.”

FACTS: Claimants were laid off by the employer. Each had been trained in watch repair work and each had at one time or another engaged in this occupation. Consequently, they pooled their resources, rented a building, remodeled and redecorated, and opened it for business under the name of Muskegon Jewelers. They advertised and they did what work they could get. It wasn’t much. Each averaged about a dollar a day over the period in question.

During the period of seven weeks’ operation from October 30 through December 17, the period here involved, the claimants reported a total gain each of around $60.00 although some doubt is cast upon the accuracy of such figures as “gain” since additional expenses of almost the same amount had not been included in the computation. During this same period both claimants were actively seeking work in industry; both applied, unsuccessfully, for jobs referred to them by the Employment Security Commission, and both drew their unemployment compensation.

DECISION: Claimants were unemployed within the meaning of Section 48 of the Act.

RATIONALE: … all courts would undoubtedly agree that the Act was not intended to place a premium on idleness, to stifle initiative, or to penalize a laid-off worker’s attempt to make his time economically productive. The claimants before us, subsequent to their lay-off, continued seeking work. Each of them accepted referrals to other industrial employment. Each was ready, willing, able, and anxious to continue work in industry. They were genuinely attached to the labor market, neither casually nor as a matter of transition. There meager efforts to augment their unemployment checks did not break their genuine attachment to the labor market.

Digest Author: Board of Review (original digest here)
Digest Updated:
11/90

Categories
07. Eligibility - Able & Available

Spohn v MESC – 7.26

Spohn v MESC
Digest no. 7.26

Section 28(1)(c)

Cite as: Spohn v MESC, 342 Mich 432 (1955).

Appeal pending:
No
Claimant: James N. Spohn
Employer: J.A. Utley Company
Docket no.: B53 1530 15235
Date of decision: June 6, 1955

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HOLDING: Claimant is able and available to perform full time work if the non-union work he rejects would entail the acceptance of substandard wages and conditions.

FACTS: After being laid off, claimant only applied for work at his union hall and the employment security office. Employer’s position was that claimant restricted his availability and was ineligible. There was non-union work advertised. Claimant did not apply if job was non-union. Claimant’s business agent told him he could not take non-union work. The advertisements referred to by the employer required several carpenters to bid on a job and assume the risk that they would earn substandard rates. Claimant’s previous employment had been for fixed wages.

DECISION: Eligibility affirmed.

RATIONALE: The issue was not claimant’s refusal to accept non-union work, but the suitability of the work offered in the ads. The type of commission work offered was unsuitable i.e. “the remuneration … or other conditions … are substantially less favorable to the individual than those prevailing for similar work in the locality.”

Digest Author: Board of Review (view original digest here)
Digest Updated: June 1991

Categories
07. Eligibility - Able & Available

Swenson v MESC – 7.05

Swenson v MESC
Digest no. 7.05

Section 28(1)(c)

Cite as: Swenson v MESC, 340 Mich 430 (1954).

Appeal pending: No
Claimant: Bessie Swenson
Employer: Battle Creek Food Company
Docket no.: B1 1131 13361
Date of decision: September 8, 1954

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SUPREME COURT HOLDING: Claimants are not unavailable for benefits because they cannot work from sundown Friday to sundown Saturday.

FACTS: Claimants, packers for Battle Creek Food Company, were laid off due to lack of work. The Commission denied benefits to Claimants, Seventh Day Adventists, on the basis that they were unavailable for work, since their religion forbid them from working from sundown Friday to sundown Saturday. Claimants had not been offered any employment, and therefore had never refused any.

DECISION: Claimants are eligible for benefits under the availability provision of the MES Act.

RATIONALE: The Supreme Court adopted the reasoning of the trial judge, stating that:

“To exclude such persons would be arbitrary discrimination when there is no sound foundation, in fact, for the distinction, and the purposes of and theory of the act are not thereby served. Seventh Day Adventists, as a matter of fact, do not remove themselves from the labor market by stopping work on sundown Friday and not resuming work until sundown Saturday, as is apparent from the reason that employers do hire them.”

Digest Author: Board of Review (original digest here)
Digest Updated:
11/90

Categories
16. Procedures/Appeals

Ashford v Unemployment Comp. Commission – 7.24

Ashford v Unemployment Comp. Commission
Digest no. 7.24

Sections 28(1)(c), 33

Cite as: Ashford v Unemployment Compensation Commission, 328 Mich 428 (1950).

Appeal pending: No
Claimant: Violet Ashford
Employer: Kelsey Hayes
Date of decision: Sept. 11, 1950

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SUPREME COURT HOLDING: The introduction into evidence of the file materials for a claim for unemployment benefits does not, by itself, operate to prove the claim. The burden of proof is on the party asserting the affirmative of the issue involved.

FACTS: Claimant filed for unemployment benefits and the Commission determined she was entitled. The employer appealed to the Referee. The claimant appeared in person, the employer by counsel. Claimant’s file materials were made part of the record over employer’s objections. Employer requested the claimant be questioned as to her eligibility. “[T]he Referee held that, because claimant was not represented by counsel, she might not be permitted to testify unless the employer called her for cross examination under the statute and agreed that her testimony should become the employer’s testimony, binding upon the latter.”

Employer contended claimant had the burden to establish her claim, even if the employer did not offer any evidence in opposition. The Referee held a prima facie case was established by entering claimant’s file into the record, and that the employer, by failing to offer evidence in opposition, had failed to prosecute its appeal, which was dismissed.

DECISION: Dismissal for lack of prosecution was error. Remanded for hearing on the merits.

RATIONALE: “The statute does not provide … a rule that in cases of employer appeals to referee the employer shall be held to have failed to prosecute its appeal unless it assumes the burden of the evidence and proceeds at the very outset to offer proofs in opposition to … the claimant…. [T]he employer was present by counsel who stated its position on the law, … and objected to the referee’s ruling that plaintiff might testify only as employer’s witness. In so doing, the employer did prosecute its appeal.”

“Introduction of that claim … into evidence did not operate to establish it. The claim does not prove itself…. [T]he obligation of the claimants is to establish the truth of their claims by a preponderance of the evidence.”

Digest Author: Board of Review (original digest here)
Digest Updated: 6/91

Categories
07. Eligibility - Able & Available

Dwyer v UCC – 7.04

Dwyer v UCC
Digest no. 7.04

Section 28(1)(c)

Cite as: Dwyer v UCC, 321 Mich 178 (1948).

Appeal pending: No
Claimant: John Dwyer
Employer: Packard Motor Car Co.
Docket no.: B6 18326 5058
Date of decision: May 18, 1948

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SUPREME COURT HOLDING: (1) The claimant has the burden of proof as to eligibility. (2) A person who is genuinely attached to the labor market will make a reasonable attempt to find work.

FACTS: The claimant sought work only 3 or 4 times during 19 months of unemployment. He did not seek police work, which he had performed for 25 years.

DECISION: The claimant is ineligible for benefits.

RATIONALE: “(T)o prevail, the claimant must have sufficient proofs offered in his behalf to establish that he meets the conditions of eligibility. To this extent he has the burden of proof.”

“Whether or not a claimant is in fact available for work depends to a great extent upon his mental attitude, i.e., whether he wants to go to work or is content to remain idle. Indicative of such mental attitude is evidence as to efforts which the person has made in his own behalf to obtain work. A person who is genuinely attached to the labor market and desires employment will make a reasonable attempt to find work and will not wait for a job to seek him out.”

Digest Author: Board of Review (original digest here)
Digest Updated:
11/90

Categories
07. Eligibility - Able & Available

Ford Motor Co v UCC – 7.03

Ford Motor Co v UCC
Digest no. 7.03

Section 28(1)(c)

Cite as: Ford Motor Co v UCC, 316 Mich 468 (1947).

Appeal pending: No
Claimant: Drusilla Koski
Employer: Ford Motor Company
Docket no.: B4 3872 1751
Date of decision: January 6, 1947

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SUPREME COURT HOLDING: “There is nothing in the statute to justify the conclusion that the legislature intended a claimant might limit his employment to certain hours of the day where the work he is qualified to perform is not likewise limited.”

FACTS: A bench hand on the afternoon shift was laid off for lack of work. She limited her availability to her customary shift, because she wished to be home when her two children prepared for school each day.

DECISION: The claimant is ineligible for benefits.

RATIONALE: “It will be noted that [S.] 28(1)(c) of the statute, quoted above in part, contemplates availability for work of the character that a claimant is qualified to perform and further requires availability for full-time work. The central thought in the subdivision has reference to the character of the labor for which a claimant is available. There is nothing in the statute to justify the conclusion that the legislature intended a claimant might limit his employment to certain hours of the day where the work he is qualified to perform is not likewise limited. It may be assumed that, in a so-called ‘around-the-clock’ operation, the work on different shifts does not vary in character. When claimant stated she would not accept work except on the afternoon shift, she clearly made herself unavailable for work of the character that she was qualified to perform.”

Digest Author: Board of Review (original digest here)
Digest Updated:
11/90