Categories
12. Misconduct

Parks v MESC – 12.11

Parks v MESC
Digest no. 12.11

Section 29(1)(b)

Cite as: Parks v MESC, 427 Mich 224 (1986).

Appeal pending: No
Claimant: Anne B. Parks
Employer: Detroit Public Schools
Docket no.: B78 12258 66005
Date of decision: December 26, 1986

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SUPREME COURT HOLDING: An individual whose employment is terminated for failing to pay agency shop fees as required by the applicable collective bargaining agreement is disqualified from receiving unemployment benefits.

FACTS: Claimant’s employment with the Detroit Public Schools was terminated pursuant to the terms of a collective bargaining agreement because she failed to pay agency shop fees to the Detroit Federation of Teachers, the recognized bargaining agent for teachers and counselors. She objected to being “forced” to financially support an organization which conducted activities to which she was opposed.

DECISION: The claimant is disqualified from receiving unemployment benefits.

RATIONALE: A majority of the Court held the claimant is disqualified. A plurality, Justices Brickley and Archer and Chief Justice Williams, concluded the claimant should be disqualified for work-connected misconduct under Section 29(1)(b) as her failure to pay agency shop fees after receiving notice from the employer demonstrated an intentional disregard of the employer’s interests. Two justices, Boyle and Cavanaugh, concluded that the claimant, by failing to pay the shop fees as required by the agreement, had voluntarily left her work without good cause attributable to the employer.

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

Categories
12. Misconduct

Brown v MESC – 12.13

Brown v MESC
Digest no. 12.13

Section 29(1)(b)

Cite as: Brown v MESC, unpublished opinion of the Court of Appeals of Michigan, issued December 17, 1986, (Docket No. B84 06483 97069W).

Appeal pending: No
Claimant: Robert Charles Brown
Employer: Ford Motor Company
Docket no.: B84 06483 97069W
Date of decision: December 17, 1986

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COURT OF APPEALS HOLDING: Leaving work early, like absence, cannot support a finding of misconduct unless the absence is without good cause. Failure to notify the employer of the need to leave early, even where the leaving is for good cause, may constitute misconduct, after similar prior infractions for which discipline has been issued. However, even where there have been similar previous incidents, the circumstances of the final incident must be examined.

FACTS: Claimant knew the employer’s procedure required him to inform a foreman that he was leaving. If that was not possible he was to inform a co-worker. Claimant left his workplace because he was suffering from diarrhea which had caused him to soil himself. Claimant was unable to locate a foreman and failed to notify a co-worker.

After arriving home claimant made one unsuccessful attempt to call the employer. He made no further attempts since his illness largely confined him to the bathroom. Claimant went to his doctor that evening and provided the employer with an excuse from the doctor upon his return to work the following day. Claimant had been disciplined 5 times previously for being absent or leaving work without permission.

DECISION: Claimant’s separation was not for misconduct. Claimant is not disqualified.

RATIONALE: “We note that absences, and by logical extension, leaving work early, cannot support a finding of misconduct unless the absence is without good cause. … We believe that plaintiff’s previous infractions militate in favor of a finding that this inaction bordered on a ‘wilful or wanton disregard for [the] employer’s interests.’ However, we do not believe that the previous infractions are dispositive given the sensitive nature of plaintiff’s circumstances on the particular day in question.”

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

Categories
12. Misconduct

Veteran’s Thrift Stores, Inc v Krause – 12.18

Veteran’s Thrift Stores, Inc v Krause
Digest no. 12.18

Section 29(1)(b)

Cite as: Veterans Thrift Stores, Inc v Krause, 146 Mich App 366 (1985).

Appeal pending: No
Claimant: Jayne A. Krause
Employer: Veterans Thrift Stores, Inc.
Docket no.: B83 15758 93527
Date of decision: October 8, 1985

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COURT OF APPEALS HOLDING: “Once the employer raises the issue of disqualification for misconduct under Section 29(1)(b) and submits evidence of a number of absences which, if unsupported by sufficient reasons, are so excessive as to constitute misconduct within the contemplation of this Section, then the burden is upon the claimant to provide a legitimate explanation for the absences.”

FACTS: During November 15, 1982, to March 2, 1983, claimant logged six absences due to personal illness and one related to the illness of a relative. With one exception, claimant failed to submit documentation supporting the claimed illnesses.

DECISION: The burden of proof is upon the claimant; therefore, the case is remanded to the Board of Review.

RATIONALE: “The relevant facts are entirely in the hands of the claimant and, for all practical purposes, cannot be discovered by the employer.”

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

Categories
12. Misconduct

Bowns v City of Port Huron – 12.12

Bowns v City of Port Huron
Digest no. 12.12

Section 29(1)(b)

Cite as: Bowns v City of Port Huron, 146 Mich App 69 (1985); lv den 424 Mich 899 (1986).

Appeal pending: No
Claimant: John Bowns
Employer: City of Port Huron
Docket no.: B82 09389 RO1 84805W
Date of decision: October 7, 1985

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COURT OF APPEALS HOLDING: A police officer’s off-duty conduct is sufficiently connected with his employment to justify denial of unemployment benefits.

FACTS: Claimant, a police officer/supervisor, was observed in a bar playing poker and conversing with a known “number’s man” and another person known to be a supplier of football game cards. The bar was being investigated by the Michigan State Police for sports betting, bookmaking and high stakes poker games. Claimant’s attendance at the bar was during his off-duty hours when he was not in uniform, nor carrying his weapon. The employer charged claimant with dereliction of duty for not reporting the activities at the bar.

DECISION: Claimant is disqualified for misconduct.

RATIONALE: Relying on Core v Traverse City, 89 Mich App 492 (1979), the court stated that illegal or improper conduct by employees in positions of public trust may undermine their ability to function in an official capacity and damage the prestige of the public employer. The court also adopted Cerceo v Darby, 281 A2d 251, 255 (1971): ” … We demand from our law enforcement officers, and properly so, adherence to demanding standards which are higher than those applied to many other professions … in both an officer’s private and official lives … ”

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

Categories
12. Misconduct

Helm v University of Michigan – 12.19

Helm v University of Michigan
Digest no. 12.19

Section 29(1)(b)

Cite as: Helm v Univ of Michigan, 147 Mich App 135 (1985).

Appeal pending: No
Claimant: Paul Helm
Employer: University of Michigan
Docket no.: B81 16305 80496
Date of decision: September 20, 1985

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COURT OF APPEALS HOLDING: A therapist’s letter in support of claimant’s testimony is entitled to be given probative effect as “evidence of a type commonly relied upon by reasonably prudent men in the conduct of their affairs.”

FACTS: Claimant, an alcoholic, blacked out during off-duty hours due to drinking and was hospitalized. The claimant’s girl friend notified the employer. The employer’s attempts to speak to the doctor were unsuccessful. Claimant was discharged for not calling in after three days. The employer, at the Referee hearing, submitted a letter purportedly from the therapist, which was not identified as to the author or his/her qualifications. The employer was aware of claimant’s alcoholism.

DECISION: The credibility finding made by the Referee must be “adequately considered” by the Board of Review and the Circuit Court; therefore, the case is remanded to the Board of Review.

RATIONALE: The letter from the therapist was submitted by the employer, not the claimant. The letter was signed by the therapist and written on hospital stationery. No objection was raised to the submission of the letter at the hearing. Even without the letter … plaintiff’s testimony, if believed, constituted proof of his alcoholic blackout.

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

Categories
12. Misconduct

Lovell v Bedell’s Restaurant, Inc – 12.16

Lovell v Bedell’s Restaurant, Inc
Digest no. 12.16

Section 29(1)(b)

Cite as: Lovell v Bedell’s Restaurant, Inc, unpublished opinion of the Court of Appeals, issued March 20, 1985 (Docket No. 74713).

Appeal pending: No
Claimant: Olga Lovell
Employer: Bedell’s Restaurant, Inc.
Docket no.: B82 03183 RO1 83321
Date of decision: March 20, 1985

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COURT OF APPEALS HOLDING: Plaintiff’s failure to report for work may have been grounds for her dismissal, but it does not amount to misconduct.

FACTS: Plaintiff was a 15-year employee/waitress. Two weeks in advance she became aware that she was scheduled to work New Year’s Eve along with the other waitresses. On December 30, claimant told the employer that she was ill. The employer made it clear to all waitresses that if they did not work New Year’s Eve they would be fired. Claimant called in sick and was discharged. Claimant did not see a doctor.

DECISION: Claimant is not disqualified for misconduct.

RATIONALE: Relying on Linski v ESC, 358 Mich 239 (1959), the Court found that even though there was competent, material and substantial evidence on the whole record to support her refusal to work was motivated more by personal reasons that by illness, “it is clear that whether plaintiff’s actions amounted to misconduct depends upon a finding that she was, in fact, not ill.” The employer did not present evidence to show claimant was not ill. The employer has no right to depend upon a possibly ill employee working.

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

Categories
12. Misconduct

Key State Bank v Adams – 12.09

Key State Bank v Adams
Digest no. 12.09

Section 29(1)(b)

Cite as: Key State Bank v Adams, 138 Mich App 607 (1984); lv den 422 Mich 871 (1985).

Appeal pending: No
Claimant: Georganne Adams
Employer: Key State Bank
Docket No: B82 08965 RO1 85084W
Date of decision: November 5, 1984

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COURT OF APPEALS HOLDING: ” … the Free Exercise Clause of the

First Amendment, US Const, Am I, prevents the state from withholding benefits when the reason for termination of employment is based upon conversion to a religious faith.”

FACTS: The claimant was employed in a position requiring Saturday work. “Subsequent to commencing her employment, and, after working on Saturdays for a period of several months, [claimant] underwent conversion to the Seventh-Day Adventist Church and refused to work on Saturdays any longer.” The employer discharged claimant after attempting in good faith, but without success, to accommodate her religious beliefs.

DECISION: The claimant is not disqualified for misconduct discharge.

RATIONALE: The Court cited Sherbert v Vernier, 374 US 398 (1963) and Thomas v Review Board of the Indiana Employment Security Div, et al, 450 US 707 (1981) as controlling precedents on the issue herein.

In both Sherbert and Thomas “the termination flowed from the fact that the employment once acceptable, became religiously objectionable because of changed conditions … the focus of the Court in Thomas, supra, and Sherbert was not on the conduct of the employers, but on the State’s conditioning receipt of an important benefit upon conduct prescribed by a religious faith or [denial of] such benefit because of conduct mandated by religious belief.”

“The only factual difference between this case and the Supreme Court precedents is that the claimant herein adopted her religious beliefs after gaining employment. We do not accept the view that the First Amendment protects the right to adhere to religious beliefs, but not the right to adopt such beliefs in the first instance or convert from one faith to another.”

“The State may not constitutionally apply the eligibility provision to deny” claimant benefits.

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

Categories
12. Misconduct

Jones v Hackley Hospital – 12.14

Jones v Hackley Hospital
Digest no. 12.14

Section 29(1)(b)

Cite as: Jones v Hackley Hosp, unpublished opinion of the Muskegon Circuit Court, issued  October 2, 1984 (Docket No. 83-17596 AE).

Appeal pending: No
Claimant: Willie Jones, Jr.
Employer: Hackley Hospital
Docket no.: B82 13563 RO1 86935W
Date of decision: October 2, 1984

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CIRCUIT COURT HOLDING: Inability to get to work because of involuntary incarceration does not constitute wilful or wanton misconduct connected with the work.

FACTS: The claimant worked for the employer as a janitor. He was discharged after being absent for three consecutive days without notice to the employer. The claimant was under the constraints of a work release program from the County Jail. His work release privileges were revoked as a result of a complaint filed by his wife. The revocation of the work release privileges prevented the claimant from reporting to work.

DECISION: The claimant is not disqualified for misconduct discharge.

RATIONALE: “To hold that plaintiff’s [claimant’s] involuntary incarceration constituted misconduct connected with his employment would result in this court agreeing that wilfulness was present, where subject was held against his will, an interesting but illogical proposition. It is only reasonable to conclude that the word ‘connected’ as used in the legislative act, was intended to make a distinction between misconduct with reference to an individual’s private life and misconduct arising during and related to his employment.”

The claimant lost his work release privileges under circumstances which might have been completely beyond his control. “The reason behind the revocation of his work release did not have the slightest connection with his employment.”

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

Categories
12. Misconduct

Christophersen v City of Menominee – 12.07

Christophersen v City of Menominee
Digest no. 12.07

Section 29(1)(b)

Cite as: Christophersen v City of Menominee, 137 Mich App 776 (1984).

Appeal pending: No
Claimant: Warren Christophersen
Employer: City of Menominee
Docket no.: B82 0013 82601
Date of decision: October 1, 1984

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COURT OF APPEALS HOLDING: Misconduct under the statute can be based on a series of incidents which collectively indicate an employee’s wilful disregard of the employer’s interests even though no single incident constitutes misconduct under the statute.

FACTS: Claimant was employed for 16 years by the City of Menominee Police Department as a patrolman, sergeant, and captain. He was discharged as a result of four incidents occurring in 1981, although no single incident rose to the level of misconduct under the statute.

DECISION: The claimant is disqualified for misconduct discharge.

RATIONALE: The Court commented on the definition of misconduct set forth in Giddens v Employment Security Commission, 4 Mich App 526 (1966) and applied the definition therein to the factual situation in the present case.

“This Court interprets the … language of Giddens, … to mean that ‘misconduct’ is established in the series of acts under scrutiny, consideredtogether, evince a wilful disregard of the employer’s interests … To hold otherwise would allow for unemployment compensation under circumstances where an individual engages in an infinite number of work place infractions, thereby causing strife in the work place and justifying discharge. Allowing for compensation under the circumstances is at odds with the declared policy of the MESC to benefit persons unemployed through no fault of their own.”

“[T]here is sufficient, competent, and substantial evidence on the whole record to support the Referee’s decision in determining that the four incidents considered collectively constituted ‘misconduct’ under the statute.”

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

Categories
12. Misconduct

Razmus v Kirkhof Transformer – 12.15

Razmus v Kirkhof Transformer
Digest no. 12.15

Section 29(1)(b)

Cite as: Razmus v Kirkhof Transformer, 137 Mich App 311 (1984).

Appeal pending: No
Claimant: Stanley Razmus
Employer: Kirkhof Transformer
Docket no.: B81 09842 79068
Date of decision: June 22, 1984

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COURT OF APPEALS HOLDING: The violation of an employer’s rules or a provision of the collective bargaining agreement is not, per se, misconduct within the meaning of the statute.

FACTS: The claimant was discharged in accordance with a collective bargaining agreement after claimant committed his third “Group II” violation of shop rules. The Group II violations which justified claimant’s discharge included violations of wasting time, loitering on company property and a violation of the safety rules.

DECISION: The claimant is not disqualified for misconduct discharge.

RATIONALE: “The safety violation, if anything, evinces an intent to further the employer’s interest. Plaintiff removed his safety glasses because they kept falling off and interfering with his helping a new employee. Plaintiff’s first violation occurred when he left for only a few minutes to get a pack of cigarettes from the cafeteria. The third violation occurred when plaintiff left for 20 to 25 minutes to check on the battery in his car. On both occasions, plaintiff left his work station only after he had finished welding and was waiting for the lead to cool. Two other employees verified plaintiff’s assertion that other employees sometimes temporarily left their work station to go to the cafeteria.”

We hold that the three violations which were the basis for plaintiff’s discharge do not constitute misconduct within the meaning of MCL 420.29(1)(b).

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