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12. Misconduct

Benaske v General Telephone Co of Michigan – 12.28

Benaske v General Telephone Co of Michigan
Digest no. 12.28

Section 29(1)(b)

Cite as: Benaske v Gen Tel Co of Michigan, unpublished opinion of the Isabella County Circuit Court, issued March 5, 1980 (Docket No. 79 008439 AE).

Appeal pending: No
Claimant: Raymond O. Benaske
Employer: General Telephone Co.
Docket no.: B77 444 55273
Date of decision: March 5, 1980

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CIRCUIT COURT HOLDING: Where an employer has not proved any connection between a claimant’s work and the actual events resulting in the claimant’s arrest, a charge of off-duty criminal conduct is not misconduct under the Act.

FACTS: A telephone installation and repair worker was discharged five days after he was arrested and charged with a felony, criminal sexual conduct in the third degree. The incident leading to the charge took place after working hours, and in a county outside the claimant’s service area. The claimant later entered a plea of guilty to the misdemeanor or contributing to the delinquency of a minor.

DECISION: The claimant is not disqualified for misconduct.

RATIONALE: “To comply with the intent and language of the Act, the Board must restrict itself to standards that (A) put the burden on the employer to prove (B) a work connection by competent, material and substantial evidence. MESA 38. Standards that demand less or consider extraneous factors are erroneous as a matter of law.

“The evidence does not support a finding that claimant was discharged for ‘misconduct connected with his work.’ Rather, he was discharged for merely having been accused of off-duty misconduct. Nor has the employer proved any connection between the actual events leading to claimant’s arrest and claimant’s work.”

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

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12. Misconduct

General Motors Corp v Belcher – 12.27

General Motors Corp v Belcher
Digest no. 12.27

Section 29(1)(b)

Cite as: General Motors Corp v Belcher, unpublished opinion of the Wayne Circuit Court, issued October 3, 1979 (Docket No. 78-832-459 AE).

Appeal pending: No
Claimant: Frank Belcher
Employer: General Motors Corp.
Docket no.: B77 3823 55598
Date of decision: October 3, 1979

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CIRCUIT COURT HOLDING: A discharge from employment because of false statements to the Commission is not for reasons constituting misconduct connected with work.

FACTS: The Commission imposed the fraud penalty in Section 62(b) of the Act after finding that the claimant had misrepresented his eligibility for benefits by understating his earnings. The employer then discharged the claimant, in keeping with its standard practice in such cases.

DECISION: The claimant is not disqualified for misconduct discharge.

RATIONALE: “[W]e cannot expect the average factory worker, having notice of shop rules, such as shop rule (1) here involved, to understand that his unemployment payments are a result of contributions made by his employer, and that when he gives false information to the unemployment agent, he is ultimately causing detriment to his own employer.

“In sum, Mr. Belcher has already been penalized under Section 62(b) and has made full restitution, and General Motors has experienced minimal detriment. In line with the Douglas [Chrysler Corp v Douglas, Wayne Circuit Court, Case No 101-015, June 6, 1968] decision and those upon which it relied, Mr. Belcher’s discharge was clearly not due to ‘misconduct connected with his work.'”

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

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12. Misconduct

Chrysler Corp v Adams (Woolsey) – 12.26

Chrysler Corp v Adams (Woolsey)
Digest no. 12.26

Section 29(1)(b)

Cite as: Chrysler Corp v Adams, unpublished opinion of the Ingham Circuit Court, issued March 5, 1979 (Docket No. 77-20043 AE).

Appeal pending: No
Claimant: Thomas G. Adams (Woolsey)
Employer: Chrysler Corp.
Docket no.: B73 8026 46162
Date of decision: March 5, 1979

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CIRCUIT COURT HOLDING: Where a supervisor’s use of profanity, racial insults, and the threat of bodily harm, compounded by denial of such conduct, leads to a plant shutdown, the claimant’s resulting discharge is for misconduct.

FACTS: The claimant was a supervisor. In spite of a warning receive after a walkout, the claimant deliberately confronted an employee with profanity, racial insults and the threat of bodily harm. The claimant denied his conduct initially. After employees shut down much of the plant, he admitted the essential details and was discharged.

DECISION: The claimant was discharged for misconduct.

RATIONALE: “An important element in the examination of a misconduct situation is to view the level of responsibility the claimant owes to the employer and what hardship was caused the employer by the claimant’s action. Wickey v Employment Security Commission, 369 Mich 487, 502 (1963). Disqualification for misconduct may be based on one incident or a series of acts that evidence the requisite disregard for the employer’s interest. Booker v Employment Security Commission, 369 Mich 547 (1963); and Giddens v Employment Security Commission, 4 Mich App 526 (1966). Conduct reported after a warning about the continuation of certain acts had constituted misconduct under the ‘last straw’ doctrine. Giddens, supra at 535. Michigan courts have also found misconduct in the use of foul, profane and provocative language. Miller v FW Woolworth, 359 Mich 342 (1960); Carter v Employment Security Commission, 364 Mich 538 (1961).

“Plaintiff was not acting as a ‘reasonable person to great provocation,’ but as the aggressor failed to abide by the higher standard of behavior demanded of management personnel. Furthermore, plaintiff lied to his superiors, which precluded them from averting an unnecessary and harmful plant “shutdown.”

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

Categories
12. Misconduct

Miller v Visiting Nurse Association – 12.29

Miller v Visiting Nurse Association
Digest no. 12.29

Section 29(1)(b)

Cite as: Miller v Visiting Nurse Association, unpublished opinion of the Michigan Employment Security Board of Review, issued July 27, 1978 (Docket No. B76 17052 54236).

Appeal pending: No
Claimant: Linda Miller
Employer: Visiting Nurse Association
Docket no.: B76 17052 54236
Date of decision: July 27, 1978

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BOARD OF REVIEW HOLDING: A discharge in anticipation of voluntary leaving is a non-disqualifying separation.

FACTS: The claimant was employed as a secretary. “On May 11, 1976, the claimant notified her employer that she intended to quit on July 10, 1976. On June 23, 1976, the employer discharged the claimant because of the claimant’s projected leaving.”

DECISION: “It is held that the claimant’s discharge on June 23, 1976 is non-disqualifying under Section 29 of the Act.”

RATIONALE: “Appeal Board precedent on the issue of a discharge in anticipation of a quit is at odds. One view (followed by the Referee in this matter) is that the discharge is disqualifying under Section 29(1)(a). Eg, In re Farmer (Michigan Kitchen Distributors), B72 2870 41782. The other view is that such a discharge is a non-disqualifying separation. Eg, In re Howarth (Falvey Autos, Inc.), B65 3611 34164; In re Terry (Paul’s Steak House), B64 5185 33210. See also Carter’s Hamburgers, Inc. v Employment Security Commission, Case No 316, 234 (Wayne County Cir Ct 1961) and Hubertv Appeal Board, Case No 323, 171 (Wayne County Cir Ct 1962).

“In our opinion, the latter view is correct. Under Section 29(1)(a), a ‘leaving’ must be ‘voluntary’ to be disqualifying. When an employee is discharged for giving notice of an intent to leave his work at a future date, his leaving is involuntary. Absent proof to the contrary, the employee cannot be deemed to have chosen unemployment. Rather, his unemployment is the result of his employer’s judgment about the efficiency of the firm.”

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

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12. Misconduct

Ellison v. MESC – 12.138

Ellison v. MESC
Digest No. 12.138

Section 421.29

Cite as: In the matter of the claim of Ellison, unpublished opinion of the MESC, issued June 6, 1972 (Docket No. B71-1229-40927).

Appeal pending: No
Claimant: Thomas H. Ellison
Employer: Michigan Employment Security Commission
Docket no.: B71-1229-40927
Date of decision: June 6, 1972

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HOLDING: An indefinite suspension of a Claimant is equivalent to a discharge. Claimant’s disqualification for benefits should begin with the week in which the act or discharge which caused the disqualification occurred.

FACTS: This is an appeal from a decision issued on May 1, 1972. Claimant originally appealed a February 23, 1972 holding that Claimant should be disqualified from benefits under Section 29(9) of the Act for the period from December 15, 1971 through December 31, 1971; disqualified from benefits under Section 29(1)(b) of the Act for the week ending on January 1, 1972; and subject to requalification under Section 29(3) of the Act.

DECISION: The Appeal Board affirms the February 23, 1972 holding, except the part of the decision that relates to the disqualification under Section 29(9), as well as the dates of separation and discharge. The Appeal Board modifies the decision to establish that Claimant was given an indefinite suspension for misconduct either directly or indirectly connected with the work, and then discharged on December 31, 1970. Claimant was discharged following his last day of work on December 15, 1970 and is disqualified for benefits for the week ending in December 18, 1970.

RATIONALE: When an individual is given an indefinite suspension, it is tantamount to a discharge, and the disqualification should begin with the week in which the act or discharge which caused the disqualification occurred. The disqualification will continue until the individual requalifies as provided under Section 29(3) of the Act.

Digest Author: Winne Chen, Michigan Law, Class of 2017
Digest Updated: 1/7/2016

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12. Misconduct

Stratton v Fred Sanders – 12.20

Stratton v Fred Sanders
Digest no. 12.20

Section 29(1)(b)

Cite as: Stratton v Fred Sanders, unpublished opinion of the Wayne Circuit Court, issued December 1, 1965 (Docket No. 20866).

Appeal pending: No
Claimant: Vera Stratton
Employer: Fred Sanders
Docket no.: B63 4573 31639
Date of decision: December 1, 1965

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CIRCUIT COURT HOLDING: The absence of the intent to steal in the mishandling of a small amount of employer’s property prevents the offense “from being misconduct and renders it de minimis.”

FACTS: “[T]he night store manager, Mrs. Langlois, observed a bulge under the pillow on a cot in the employees’ washroom. She lifted the pillow and discovered a purse. Upon opening the purse, four bunches of lollipops, store merchandise, were found in the purse. The purse was identified as claimant’s, and she was questioned as to how she had obtained the lollipops. During the interview, claimant offered to pay for the lollipops. Subsequently, claimant stated that she had purchased the lollipops at another company store.” Following the employer’s review of the matter, claimant was discharged.

DECISION: “[T]here is no unequivocal finding of dishonesty in the handling of the employer’s property. For this reason the case is remanded for a new trial.”

RATIONALE: “When the misconduct charged involves the mishandling of company property of very small value, the legal principle … from a review of all the pertinent cases … is this: For misconduct there must be dishonest handling of the property. Otherwise, the absence of intrinsic gravity in the offense or the absence of serious impact upon the employer prevents the incorrect handling of employer’s property from being misconduct and renders it de minimis.”

“[I]f there is dishonest handling of the employer’s property there is misconduct, no matter how small the amount. The de minimis rule does not mean that a little thievery is all right.”

The factual issue to be decided on remand below is whether there was “a dishonest handling or an innocent mishandling without intent to steal.”

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

Categories
12. Misconduct

Carter v MESC – 12.01

Carter v MESC
Digest no. 12.01

Section 29(1)(b)

Cite as: Carter v MESC, 364 Mich 538 (1961).

Appeal Pending: No
Claimant: Arthur Carter
Employer: Detroit Lead Corporation
Docket no.: B59 2711 23422
Date of decision: November 30, 1961

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SUPREME COURT HOLDING: “[T]he employee’s refusal to carry out a foreman’s order, and his subsequent threat to punch the foreman in the nose” is misconduct.

FACTS: Claimant was employed by the Detroit Lead Corporation. He was assigned to operate a furnace. The claimant refused to obey an order of his foreman to shovel a pile of lead dust (dross) into the furnace and further, threatened to punch the foreman in the nose if the foreman shoveled the dross into the furnace.

DECISION: The claimant is disqualified for misconduct.

RATIONALE: The Court adopted the definition of misconduct set forth in Boynton Cab Company v Neubeck, 237 Wis 249 (1941): “[T]he term ‘misconduct’ … is limited to conduct evincing such wilful or wanton disregard of an employer’s interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations to his employer. On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good-faith errors in judgment or discretion are not to be deemed ‘misconduct’ within the meaning of the statute.”

“[A] refusal of an employee to carry out a reasonable order of his foreman, coupled with a threat to punch him in the nose when the foreman offered to do the work himself, is misconduct within the meaning of the statute. Such a response is both a wilful disregard of the employer’s interests and a deliberate violation of standards of behavior which an employer has a right to expect of his employee.”

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

Categories
12. Misconduct

Bell v MESC – 12.02

Bell v MESC
Digest no. 12.02

Section 29(1)(b)

Cite as: Bell v MESC, 359 Mich 649 (1960).

Appeal pending: No
Claimant: Ora H. Bell
Employer: McInerney Spring & Wire Company
Docket no.: B85 1012 20924
Date of decision: June 6, 1960

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SUPREME COURT HOLDING: Misconduct connected with the work requires “a breach of those standards of conduct reasonably applicable to the industrial task assigned, rather than of those standards of ethics and morals applicable to the industrial task in general.”

FACTS: The claimant was employed as a fireman to work in the employer’s boiler room. “When the claimant was hired, it was stressed that he must be alert and must not drink on the job.” He was discharged after he was found sleeping on the job.

DECISION: The claimant is disqualified for misconduct connected with the work.

RATIONALE: “We may concede that no man in his right mind would ‘intend’ to fall asleep while on duty in a boiler room. But also we must hold that a man intends the normal consequences of his acts . . . Moreover, tested by the ‘standards of conduct reasonably applicable to the industrial task assigned’ claimant’s position is no better. The job for which he was hired was one of great responsibility. The results of a boiler explosion, either to him, as he dozed nearby, or to his fellow workmen, or to the plant itself, we need not describe. Judged by any criterion his act was ‘misconduct connected with his work.'”

“We find the employer has fully met the burden of proof of establishing by a preponderance of the evidence that the claimant was discharged for misconduct connected with his work.”

The Court relied upon Cassar v Employment Security Commission, 343 Mich 380 (1955) in reaching the decision.

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

Categories
12. Misconduct

Miller v F. W. Woolworth Co – 12.03

Miller v F. W. Woolworth Co
Digest no. 12.03

Section 29(1)(b)

Cite as: Miller v F W Woolworth Co, 359 Mich 342 (1960).

Appeal pending: No
Claimant: Mary V. Miller
Employer: F. W. Woolworth Co.
Docket no.: B59 616 22717
Date of decision: April 11, 1960

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SUPREME COURT HOLDING: A claimant’s entitlement to benefits must be decided ” … without regard for the fact or nature of opposition, if any, by the employer or, for that matter, by the commission itself.”

FACTS: The claimant was discharged from her job at a soda fountain. Her supervisor testified that repeated incidents involving insolence and foul language caused her to bring the claimant’s conduct to the attention of the store manager. The manager testified that he was told of the problem by the supervisor, but he took no action on the day of the discussion because he needed the claimant. He added that the claimant treated a customer improperly on the following day, and was discharged after a co-worker told the manager what had happened. The employer’s only evidence of the final occurrence was hearsay.

DECISION: The claimant was discharged for misconduct.

RATIONALE: “There is no solution difficulty in this case once we perceive that Miss Miller has neither sued nor drawn upon her employer as at law; that she has applied to the employment security commission for benefits according to procedures authorized by the statute under which she claims; that the commission itself is designated by the statute as ‘an interested party’ (see sections 36 and 38 of the act, CLS 1956 Sections 421.36, 421.38); that the participant function of the commission is that of statutory administrator of a public trust fund the claimant may or may not have a right to tap depending on administrative appraisal of the whole of the evidence brought before its administrative arms, and that the appeal board (when called upon) is vested with independent duty as well as plenary authority to decide each claimant’s qualification for benefits without regard for the fact or nature of opposition, if any, by the employer or, for that matter, by the commission itself.”

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

Categories
12. Misconduct

Cassar v MESC – 12.04

Cassar v MESC
Digest no. 12.04

Section 29(1)(b)

Cite as: Cassar v MESC, 343 Mich 380 (1955).

Appeal pending: No
Claimant: Francis J. Cassar, et al.
Employer: Precision Manufacturing Co.
Docket no.: B2 5713 14896
Date of decision: October 3, 1955

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SUPREME COURT HOLDING: (1) Participation in an unauthorized work stoppage, in violation of a union contract, is misconduct. (2) Inefficiency is not misconduct, but wilful disregard of an employer’s interest is.

FACTS: All eight claimants took part in an unauthorized work

stoppage precipitated by the discharge of their local union president. They were discharged for refusal to return to work.

DECISION: The claimants were discharged for misconduct.

RATIONALE: The Court adopted the following definition of misconduct from Boynton Cab Co v Neubeck, et al., 237 Wis 249 (1941): “[T]he term ‘misconduct’ … is limited to conduct evincing such wilful or wanton disregard of an employer’s interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligation to his employer. On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good-faith errors in judgment or discretion are not to be deemed ‘misconduct’ within the meaning of the statute.”

The Court stated: “Plaintiffs have barred themselves from receiving what they might have obtained had they refrained from indulging in conduct designed to be prejudicial to the rights of their employer.”

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