Categories
04. Total or Partial Unemployment

Jones v Gateway, Inc – 4.17

Jones v Gateway, Inc
Digest no. 4.17

Section 48

Cite as: Jones v Gateway, Inc, unpublished opinion of the Michigan Employment Security Board of Review, issued February 23, 1983 (Docket No. 1983 BR 86593W).

Appeal pending: No
Claimant: Robert H. Jones
Employer: Gateway, Inc.
Docket no.: B82 18088 86593W
Date of decision: February 23, 1983

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BOARD OF REVIEW HOLDING: Where the claimant has no contractual entitlement to notice, any money paid by the employer upon termination is in the nature of a gift and therefore severance pay, which cannot be considered remuneration for purposes of Section 48.

FACTS: The claimant was employed as an executive director. The claimant received a call from the president of the employer’s executive committee requesting that the claimant submit his resignation the following day. In the ensuing conversation, the claimant requested “severance pay” of 6 months, and the president said he did not anticipate that “severance” would be a problem. Thereafter an executive committee meeting was called and it was agreed to award the claimant a sum equal to three months wages even though the claimant’s employment contract had no provision for notice in advance of discharge, pay in lieu of such notice or any severance arrangement.

DECISION: Claimant is entitled to benefits.

RATIONALE: The claimant had no contractual agreement entitling him to notice or to pay in lieu thereof. Therefore, he had no enforceable right to the money which was paid to him. Consequently, it was in the nature of a gift or bonus and as a result must be considered severance pay.

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

Categories
04. Total or Partial Unemployment

Miko v Wyandotte Cement, Inc – 4.11

Miko v Wyandotte Cement, Inc
Digest no. 4.11

Section 48

Cite as: Miko v Wyandotte Cement, Inc, unpublished opinion of the Wayne Circuit Court, issued February 8, 1983 (Docket No. 82-233794-AE).

Appeal pending: No
Claimant: David Miko
Employer: Wyandotte Cement, Inc.
Docket no.: B81 07873 78457
Date of decision: February 8, 1983

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CIRCUIT COURT HOLDING: A lay-off payment constitutes separation pay and is not remuneration under the Act.

FACTS: The claimant received a lay-off allowance pursuant to the Collective Bargaining Agreement equivalent to one week’s wages.

DECISION: The claimant is eligible for benefits for the period covered by the lay-off allowance.

RATIONALE: “Separation pay may stem from a collective bargaining agreement or an individual contract between the employer and employee,” Gaydos v White Motors Corp, 54 Mich App 143 (1974).

“[B]efore an individual will be deemed to be unemployed, two requirements must be met. First, no service may be performed for the employer and second, no remuneration may be paid. … That [claimant] did not perform any work for his employer is clear; however [claimant] had received an allowance from his employer pursuant to the collective bargaining agreement. The allowance that [claimant] received was labeled lay-off pay.

“Separation pay is not payment for past wages earned, but rather is considered recognition of services rendered. If the allowance was simply remuneration for past services, then a claimant having earned it, would be entitled to it, regardless of the reason for separation.

“[I]t is the court’s opinion that the lay-off payment constituted separation pay and therefore falls within the Section 48 exemptions from remuneration. The payment served as compensation for job loss in recognition of past employment and not as remuneration for past services rendered.”

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

Categories
04. Total or Partial Unemployment

Abbeg v Russell, Burdsall & Ward, Inc – 4.15

Abbeg v Russell, Burdsall & Ward, Inc
Digest no. 4.15

Section 48

Cite as: Abbeg v Russell, Burdsall & Ward, Inc, unpublished opinion of the Branch Circuit Court, issued October 5, 1982 (Docket No. 81-12-581 AE).

Appeal pending: No
Claimant: Clarence Abbeg, et al.
Employer: Russell, Burdsall & Ward, Inc.
Docket no.: B80 18840 75094, et al.
Date of decision: October 5, 1982

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CIRCUIT COURT HOLDING: Where “the employer complies substantially with the requirements contained in Commission Administrative Rule 302, the purpose of the notice is accomplished.”

FACTS: The claimants were laid off from August 3 through August 16. The employer had scheduled a plant shut down for this period. “The claimants and their union president were given advance notice by the employer of the intended shutdown and on April 22, 1980, the employer posted notice on the plant’s bulletin board which was followed by the employer’s letter to the union president. … [N]either of the written notices contained any statement regarding any possible effect of the shutdown or payment thereof on the (claimant’s) eligibility for unemployment benefits.”

DECISION: The notice was sufficient to comply with Commission Administrative Rule 302.

RATIONALE: “[T]he employer did comply substantially with the requirements contained in Rule 302 so that the purpose of the notice was accomplished. Written notices failed to mention any possible effect that the August, 1980 shutdown would have on the claimant’s eligibility for unemployment compensation, but in other respects the notice was clear. The dates of shutdown were set forth as was the fact that this was considered a ‘vacation’ shutdown. The letter which the employer sent to the union president further clarified that employees would be required to take vacation during the shutdown to the extent that their vacation had been earned. Further, the employees must have understood the shutdown to be a vacation and circulated a petition of protest which showed they had such understanding.” The payments in question are remuneration under Section 48 of the Act.

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

Categories
04. Total or Partial Unemployment

MESC v Peterson – 4.16

MESC v Peterson
Digest no. 4.16

Section 48

Cite as: MESC v Peterson, unpublished opinion of the Court of Appeals of Michigan, issued September 29, 1982 (Docket No. B78 53074 65751).

Appeal pending: No
Claimant: Doris C. Peterson
Employer: Eastern Michigan University
Docket no.: B78 53074 65751
Date of decision: September 29, 1982

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COURT OF APPEALS HOLDING: Monies given to the claimant by the employer for services which had been voluntarily rendered were not earnings and therefore could not be considered remuneration for purposes of Section 48.

FACTS: The claimant voluntarily agreed to work without pay on a two month research project. Approximately three months after the claimant had performed her voluntary services the employer gave the claimant $2000.00 for her efforts.

DECISION: The claimant was eligible for benefits during the period which she rendered voluntary services since no remuneration had been earned.

RATIONALE: When the claimant agreed to perform the services it was understood they were being provided on a voluntary basis. As a consequence the claimant had no enforceable claim for remuneration and the employer had no obligation to pay. Absent some enforceable claim or obligation monies received for services rendered cannot be considered remuneration for purposes of the MES Act.

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

Categories
04. Total or Partial Unemployment

Blanding v Kelsey Hayes – 4.06

Blanding v Kelsey Hayes
Digest no. 4.06

Section 48

Cite as: Blanding v Kelsey-Hayes Co, No. 80 022124 AE, unpublished opinion of the Wayne County Circuit Court, issued February 18, 1981 (Docket No. 80 022124 AE).

Appeal pending: No
Claimant: James Blanding, et al.
Employer: Kelsey-Hayes Co.
Docket no.: B76 13949(1) 60456 et al.
Date of decision: February 18, 1981

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CIRCUIT COURT HOLDING: Where a contract requires payment of vacation pay in March of each year, and allows designation of a vacation shutdown period, the March payment is not remuneration.

FACTS: The claimants received their vacation pay in March of each year, as specified in the union contract. Section 19 of the contract allowed designation of a vacation shutdown period. “At various times in 1975 and 1976 the management at the three plants invoked the company’s option, as provided in Section 19, to require vacations to be taken during a plant shutdown period.”

DECISION: The payments in question are not remuneration under Section 48 of the Act.

RATIONALE: The Court cited Renown Stove Co v UCC, 328 Mich 436 (1950), and Hubbard v UCC, 328 Mich 444 (1950). “The lesson of the Hubbard and Renown Stovecases is that the questioned payments, being payable at the specific time and without regard to whether vacation time is also taken, do not qualify in the first instance under Section 48 as ‘amounts paid … for a vacation,’ are bonuses instead, and are therefore not subject to the employer’s right of allocation.” “The rationale of the Supreme Court’s interpretation of Section 48 seems clear. Although vacation pay is deemed remuneration, a payment cannot be considered remuneration for the period of unemployment if the employee is entitled to the payment in all events without regard to the period of unemployment.”

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

Categories
04. Total or Partial Unemployment

General Foods Corp v Nelson – 4.12

General Foods Corp v Nelson
Digest no. 4.12

Sections 27(c), 48

Cite as: General Foods Corp v Nelson, unpublished opinion of the Calhoun County Circuit Court, issued June 18, 1980 (Docket No. B78 716 60234).

Appeal pending: No
Claimant: Nella L. Nelson
Employer: General Foods Corporation
Docket no.: B78 716 60234
Date of decision: June 18, 1980

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CIRCUIT COURT HOLDING: Where the lack of a “sufficient method of communication with the company” results in lost remuneration in excess of an individual’s benefit rate, the claimant is ineligible under Section 48 and 28(1)(c) of the Act.

FACTS: A laid-off production worker could have earned $536.00 in two weeks, as a substitute for absentees. She missed the work because she had no telephone and the employer was unsuccessful in efforts to contact her via a relative whose telephone number she had given.

DECISION: The claimant is not eligible for benefits.

RATIONALE: “The Board of Review stated: ‘The employer was not attempting to contact the claimant regarding full-time suitable work.’

“The Board of Review did not define ‘full-time’ work. Obviously 8 hours a day is full-time work that day, 40 hours a week is full-time work that week.

“The Board of Review stated: ‘The MESC Act does not require an employee to be available at a moments notice for emergency call-in work.’

“The Board of Review interpreted the requirements of the act in a different fashion than the Referee, by simply characterizing the practice of the company by the use of terms of disparagement such as ’emergency,’ ‘assistance work’ and ‘moments notice.’ Evidently neither the union nor the employees took exception to this practice.”

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

Categories
04. Total or Partial Unemployment

Turner v Creative Industries of Detroit, Inc – 4.09

Turner v Creative Industries of Detroit, Inc
Digest no. 4.09

Section 48

Cite as: Turner v Creative Industries of Detroit, Inc, unpublished opinion of the Court of Appeals of Michigan, issued April 30, 1980 (No. 44061).

Appeal pending: No
Claimant: Jimmy Turner, et al.
Employer: Creative Industries of Detroit, Inc.
Docket no.: B76 3548 (1) 53458, et al.
Date of decision: April 30, 1980

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COURT OF APPEALS HOLDING: Where holiday pay is distributed in every weekly paycheck, as a percentage of straight time earnings, it is not allocated to the designated holidays.

FACTS: The union contract and a supplemental agreement established a vacation shutdown from December 22 through January 2. “The contract further provided that holiday pay would no longer be distributed to employees at the time of the holiday. Instead, ‘each employee’s weekly paycheck … [would] include an amount equal to 4.2 percent of his straight time hours worked.'”

DECISION: The claimants are eligible for benefits for the vacation shutdown period.

RATIONALE: “In the instant case, both Creative Industries and the Union agreed on the designation of the Christmas season holidays. At issue then is whether holiday payment was ever adequately allocated to those holidays, as required by the statute. See General Motors Corp v Unemployment Compensation Comm, 331 Mich 303 (1951) . “In General Motors Corp, supra at 306-310, the Supreme Court held that holiday pay was remuneration in part where the bargaining parties had allocated funds to a specific day – December 25. In the present case, however, there has been no allocation of holiday pay to anyspecific holiday. Rather, the parties have agreed that each employee will receive 4.2 per cent of his straight time in each paycheck to cover all holidays.”

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

Categories
04. Total or Partial Unemployment

Walters v Kelsey Hayes Wheel Co – 4.08

Walters v Kelsey Hayes Wheel Co
Digest no. 4.08

Section 48

Cite as: Walters v Kelsey Hayes Wheel Co, unpublished opinion of the Wayne Circuit Court, issued January 31, 1980 (Docket No. 74 005517 AE).

Appeal pending: No
Claimant: Johnnie Walters
Employer: Kelsey Hayes Wheel Co.
Docket no.: B73 1040 43943
Date of decision: January 31, 1980

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CIRCUIT COURT HOLDING: Back pay received as the result of a Civil Rights Commission settlement agreement more than one year after benefits are paid, is remuneration under Section 48 of the Act and is good cause for redetermination of the claimant’s eligibility.

FACTS: The claimant filed a complaint with the Michigan Civil Rights Commission in July, 1967, following his discharge by the employer. “On September 29, 1972, claimant and employer settled the Civil Rights claim by a stipulation which provided that the employer pay to the claimant back pay totaling $9,897.75.” “On October 30, 1972, employer notified the MESC of the stipulated settlement and requested a redetermination of claimant’s eligibility for benefits.”

DECISION: The back pay is remuneration under the Act.

RATIONALE: “The Commission held that inasmuch as more than one year has elapsed since the time the benefit payments were paid, the Commission lacked jurisdiction to redetermine claimant’s eligibility.

“The Referee reversed the Commission.”

“The transcript of the proceedings before the Referee on February 28, 1973, makes it clear that the settlement of $28,609.31 specifically included $9,897.75 as back pay for the time which claimant had drawn unemployment.”

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

Categories
04. Total or Partial Unemployment

McCaleb v Harbor Industries, Inc – 4.10

McCaleb v Harbor Industries, Inc
Digest no. 4.10

Section 48

Cite as: McCaleb v Harbor Industries, Inc, unpublished opinion of the Court of Appeals of Michigan, issued September 8, 1978 (No. 77-5202).

Appeal pending: No
Claimant: Victor E. McCaleb, et al.
Employer: Harbor Industries, Inc.
Docket no.: B75 15530 50209
Date of decision: September 8, 1978

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COURT OF APPEALS HOLDING: (1) Where contractual specification of vacation procedures includes designation of vacation periods but does not treat the allocation of vacation pay, the employer may allocate such pay as it chooses. (2) Arbitration has no role in the determination of eligibility for benefits.

FACTS: The employer allocated vacation pay to a week in which the claimants were on layoff. A subsequent arbitration decision dealt with the selection of a vacation period.

DECISION: The claimants received remuneration under Section 48 of the Act.

RATIONALE: The Court affirmed the Ottawa Circuit Court, which held: “We interpret Section 10.1 of the Collective Bargaining Agreement as dealing with the scheduling of vacations by the employer, and employee participation in selecting individual vacation periods. Nothing is said about the allocation of vacation pay to any particular period. Neither does the arbitrator’s decision reach such issue. (Properly so, because arbitration has no place in the Michigan system of administrative and judicial determination as to eligibility for statutory employment compensation benefits.) We reject appellant’s request to add contractual language by implication as being without justification, particularly in view of the statutory grant of power to the employer to allocate vacation pay as he chooses in the absence of ‘contractual specification.'”

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

Categories
04. Total or Partial Unemployment

Hayman v S & H Travel Awards – 4.13

Hayman v S & H Travel Awards
Digest no. 4.13

Section 48

Cite as: Hayman v S & H Travel Awards, unpublished opinion of the Oakland Circuit Court, issued May 4, 1976 (Docket No. 75 126038).

Appeal pending: No
Claimant: Judith Hayman
Employer: S & H Travel Awards
Docket no.: B74 11222 46917
Date of decision: May 4, 1976

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CIRCUIT COURT HOLDING: Where an employer customarily asks its employees to leave on their dates of termination, and pays them “severance pay” determined by each person’s salary and seniority, the additional money is not payment in lieu of notice.

FACTS: The Referee stated: “On the date of her dismissal, the claimant received three weeks of vacation and five weeks additional pay which has been considered by the employer to be payment in lieu of notice.”

DECISION: The additional pay is not remuneration under the Act.

RATIONALE: The Court adopted the decision of the Referee, who held: “The testimony indicated that, because of the risk of former employees providing the names of prospective customers to competitors, whenever an employee’s services were no longer needed, they were asked to leave employment on the same date that they were terminated. That is, employees were not given a certain time period as a notice of their termination during which they could seek other work. This being the case, the Referee does not find that the payment of five weeks of wages given to the claimant on her last day of employment could be considered payment in lieu of notice. The only time payment in lieu of notice could be given to an employee would be on occasions when it would be possible for notice to be given.” “In addition, it appears from the testimony that the claimant was advised that the payment she would be receiving would be in the nature of a severance payment.” “It also appears that the amount of the severance pay increased the longer an employee was employed by the company and the greater his or her, salary.”

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