20. Miscellaneous

Waknin v Chamberlain – 20.06

Waknin v Chamberlain
Digest no. 20.06

Cite as: Waknin v Chamberlain, 467 Mich 329 (2002).

Appeal pending: No
Claimant: N/A
Employer: N/A
Docket no.: N/A
Date of decision: November 19, 2002

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SUPREME COURT HOLDING: A criminal conviction after trial is admissible as substantive evidence of conduct at issue in a civil case arising out of the same occurrence.

FACTS: Plaintiff Waknin brought a civil action against defendant Chamberlain for assault and battery. Defendant had been previously convicted of the assault and battery of plaintiff. The circuit court excluded evidence of defendant’s criminal conviction from the civil case on the basis of Wheelock v Eyl, 393 Mich 74 (1974), and MRE 403.

DECISION: The trial court abused its discretion in barring the admission of evidence of the defendant’s conviction by a jury.

RATIONALE: The rule of Wheelock, as it pertains to the use of evidence of a criminal conviction in subsequent civil cases, did not survive the adoption of the Michigan Rules of Evidence. MRE 403 provides that relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Evidence is not inadmissible simply because it is prejudicial. In every case, each party attempts to introduce evidence that causes prejudice to the other party. It is only when unfair prejudice substantially outweighs the probative value of the evidence that the evidence is excluded. In this case, defendant had an opportunity and an incentive to defend himself in the criminal proceeding. That the defendant was found guilty beyond a reasonable doubt, a standard of proof greater than the preponderance of the evidence in the civil case, is highly probative evidence. Accordingly, the probative value of the evidence of the defendant’s conviction was not substantially outweighed by the danger of unfair prejudice.

The Court expressed no opinion regarding whether pleas of nolo contendere are admissible as substantive evidence in subsequent civil proceedings.

Editor’s Note: Also see Section 14 of the MES Act which indicates, in part, that decisions of a court of record which have become final “may be introduced into any proceeding involving a claim for benefits and the facts therein found and the . . .decisions therein made shall be conclusive unless substantial evidence to the contrary is introduced by or on behalf of the claimant.”

Digest Author:  Board of Review (original digest here)
Digest Updated: 1/04

15. Labor Disputes

Alexander v. A.P. Parts Manufacturing Co. – 15.36

Alexander v. A.P. Parts Manufacturing Co.
Digest No. 15.36

Section 421.29(8)

Cite as: Alexander v AP Parts Manufacturing Co., unpublished per curiam opinion of the Court of Appeals, issued February  23, 1996 (Docket No. 168700).

Appeal pending: No
Claimant: David J. Alexander, Louise Anderson, Charles Arndt, Bruce Berthiaume, Wyatt Boyer, Robert Beuchel, Paul Chomas, George Clark, Richard Courtney, Cheryl Dehate, Dean Fenwick, George Fittig, and Jacob Gotfryd
Employer: A.P. Parts Manufacturing Company
Date of decision: February 23, 1996

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HOLDING: Court applied the deferential standard to the decision of the MESC Board of Review. Reversed the Circuit Court opinion and reinstated the MESC Board of Review’s decision. There exists substantial evidence on the whole record to support the board of review’s conclusion that the labor dispute was connected with the lockout. Ruling of the board of review is supported by competent, material, and substantial evidence on the whole record.

FACTS: Employer manufactures parts for the automobile and heavy truck industry and employed approximately 206 union employees and 75 nonunion employees. In October 1989, employer hired 10-12 additional employees and began to operate two shifts .In December 1989 employer issued a “WARN” letter advising its employees that some employees may be laid off if a new collective bargaining agreement was reached on or about February 8, 1990 (the date the then existing one was set to expire). On February 5, 1990, when employer determined it had sufficient inventory in the warehouse, it laid off the 10-12 nonunion employees it had hired in Oct 1989. On February 8, 1990, immediately after union employees rejected the collective bargaining agreement that the employer had proposed, the employer announced that its operation would be shut down for the next two working days due to an “inventory adjustment”. On February 13, 1990 the employer announced a “lockout” that affected all union employees. Claimants immediately began to picket. Union employees rejected a third proposal and employer ended the lockout by notifying its employees to return to work. However, 75 employees were laid off one additional week due to “lack of work”.


  • Determined that claimants were disqualified from receiving unemployment compensation because their temporary unemployment was related to a labor dispute (and the state must remain neutral in labor disputes).
  • In an evidentiary hearing, an MESC referee rejected the employer’s claim that the lockout was related to a labor dispute and hence found that claimants were entitled to unemployment benefits.

MESC Board of Review:

  • Reversed the decision of the referee two-to-one.
  • Concluded that:
    • (1) employers had “warehoused” its product in order to improve its bargaining position in the event of a labor dispute, and
    • (2) claimants were disqualified from receiving benefits under MCL 421.29(8) because the labor dispute that developed was a substantial contributing factor to the lockout.

Circuit Court

  • Reversed the ruling of the board of review

DECISION: Circuit court erred in reversing the decision of the MESC Board of Review.

RATIONALE: “Substantial evidence” means more than a mere scintilla but less than a preponderance of the evidence. So long as the MESC Board of Review selected between two reasonable positions, the judiciary must accord deference to administrative expertise and refrain from substituting its own judgment for that of the administrative agency. Court applied the deferential standard to the decision of the MESC Board of Review.

Digest author: Katrien Wilmots, Michigan Law, Class of 2017
Digest updated: 3/30/2016

07. Eligibility - Able & Available

Taylor v United States Postal Service – 7.27

Taylor v United States Postal Service
Digest no. 7.27

Section 28(1)(c)

Cite as: Taylor v US Postal Service, 163 Mich App 77 (1987).

Appeal pending: No
Claimant: Geneva Taylor
Employer: United States Postal Service
Docket no.: UCF84 13552 98942W
Date of decision:

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COURT OF APPEALS HOLDING: A claimant must establish she is physically capable of performing work of a type for which she has received wages in the past. Claimant’s unsubstantiated assertion she could perform work permitted by medical restrictions imposed by her physician is insufficient to establish that she is able to work.

FACTS: Claimant worked as a postal carrier until medical restrictions due to pregnancy made her unable to meet the physical demands of that employment. Claimant worked previously as a salesclerk and asserted that she could perform sales work. However, she was restricted from lifting, pushing or pulling anything over 20-25 pounds, sitting more than 2 hours, standing more than 2 hours, excessive bending, stooping or stretching and could perform inside work only. Claimant acknowledged that salespeople usually stand on their feet all day, but opined she could sit or stand.

DECISION: Claimant is not eligible for benefits because she is not able to perform suitable full time work.

RATIONALE: “In this case, it was factually determined that plaintiff was unable to do the work for which she had previously received wages, including both postal-related employment or any type of sales related employment, because of the restrictions imposed by her physician.”

SECONDARY ISSUE: Claimant asserted on appeal that the Referee did not satisfy his duty to assist an unrepresented party. Citing Ackerberg v Grant Community Hospital, 138 Mich App 295 (1984) the Court of Appeals stated: “the failure to raise an issue to the Board of Review precludes raising the issue on review before this court. …as it has been waived.”

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

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

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

12. Misconduct

Countryside Care Center v Chenault – 12.23

Countryside Care Center v Chenault
Digest no. 12.23

Section 29(1)(b)

Cite as: Countryside Care Ctr v Chenault, unpublished opinion of the Jackson Circuit Court, issued April 7, 1983 (Docket No. 83-32410 AE).

Appeal pending: No
Claimant: Marjorie A. Chenault
Employer: Countryside Care Center
Docket no.: B82 05347 84134
Date of decision: April 7, 1983

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CIRCUIT COURT HOLDING: A dissenting opinion from the Board of Review was adopted … ” … sleeping … (w)as, of itself, of a sufficiently serious nature to justify the discharge for misconduct”.

FACTS: The claimant, who worked as a nurses’ aide, was fired for sleeping while on duty. The employer operated a nursing home for the elderly. Employer previously warned the employees that they were not to sleep at work. This was a verbal directive only and was not in writing.

DECISION: The claimant is disqualified under Section 29(1)(b) of the Act.

RATIONALE: The Court adopted the dissenting opinion of a Board of Review member who held:

“Despite claimant’s denial, the record established that the claimant was, in fact, sleeping, and this conduct, without regard to the fact that other employees were also sleeping, was, of itself, of a sufficiently serious nature to justify the imposition of the disqualification provided by the discharge for misconduct section of the Act.”

“Clearly, the claimant’s conduct in this case exhibited the kind of disregard of the employee’s duties and obligations to his employer which are considered misconduct under the definition of Carter v Employment Security Commission, 364 Mich 538 (1961), adopting the definition of misconduct set forth in Boynton Cab Co v Neubeck, 237 Wisc 249 (1941).”

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