Billups v Howell Public Schools – 5.07

Billups v Howell Public Schools
Digest no. 5.07

Section 27(i)

Cite as: Billups v Howard Pub Schools, 167 Mich App 407 (1988).

Appeal pending: No
Claimant: Robert A. Billups, et al.
Employer: Howell Public Schools
Docket no.: B63 06942 R01 95895 et al.
Date of decision: March 22, 1988

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COURT OF APPEALS HOLDING: When non-teachers had a tradition of working from 12-26 thru 1-1 and the collective bargaining agreement provided for a 52 week work year, they had a reasonable expectation to work during that period and the layoffs in question did not occur during an established or customary vacation period under 27(i)(2)(b).

FACTS: The claimants were custodial and maintenance employees. Their unions’ bargaining agreement with the employer provided for work on an hourly basis for 52 weeks per year not including holidays. Their work schedule included the days between Christmas and New Years, spring break, and summer vacation.

The claimants were notified of a 1 week layoff 12-26-82 thru 1-1-83. This had never occurred before during this time and the period was not an established holiday for the claimants although classes were not in session.

DECISION: The school denial period is not applicable. Claimants are entitled to benefits under Section 27(i)(2)(b) of the Act.

RATIONALE: Based upon their previous history and their collective bargaining agreement the claimants had a reasonable expectation of working between 12-26 and 1-1. While school may not have been in session, this is not the determinative factor as to what constitutes an “established and customary vacation period”. Rather it refers to periods where the employees did not traditionally work and did not have a collective bargaining agreement to work.

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

MESC v Falkenstern – 5.15

MESC v Falkenstern
Digest no. 5.15

Section 27(i)

Cite as: MESC v Falkenstern, No. 98730 (Mich App February 23, 1988); lv den 431 Mich 911 (1988).

Appeal pending: No
Claimant: Ann Falkenstern, et al.
Employer: Grand Rapids Public Schools
Docket no.: B81 85301 82424
Date of decision: February 23, 1988

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COURT OF APPEALS HOLDING: In order to impose a school denial period ineligibility upon school district employees who have been given an assurance of employment for the upcoming school year, such assurance must be reasonable in light of the information upon which it was based.

FACTS: In March, 1981 in anticipation of severely strained resources, the employer sent layoff notices to 625 low seniority staff. Afterwards the economic situation worsened, but in June, 1981 letters of reasonable assurance were sent to 266 teachers which stated without explanation “it is anticipated that you will be offered a teacher position for the 1981-82 school year.” In August, some, but not all, the claimants were sent another letter rescinding the earlier assurance of reemployment. Subsequently, the Board of Review held in favor of the claimants on the basis the employer did not have “sufficiently certain budgetary data to offer such assurance”.

DECISION: Claimants did not receive reasonable assurance and are not subject to the school denial period.

RATIONALE: “Although the term ‘reasonable assurance’ does not require a formal written or oral agreement to rehire (Riekse vGrand Rapids Public Schools, 144 Mich App 790, 792; 376 NW2d 194 [1985]), Section 27(i)(1) explicitly states that the assurance must be reasonable. To determine whether the assurance was reasonable, the MESC must necessarily consider the information upon which it was based. The MESC is not required to accept on blind faith any assurance given by a school district to one of its employees. If this were so, the school district could unilaterally render Section 27(i)(1) meaningless and frustrate the underlying purpose of the Michigan Employment Security Act.”

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

Bonnette v West Ottawa Schools – 5.10

Bonnette v West Ottawa Schools
Digest no. 5.10

Section 27(i)

Cite as: Bonnette v West Ottawa Schools, 165 Mich App 460 (1987); lv den 430 Mich 870 (1988).

Appeal pending: No
Claimant: Julie Bonnette, et al.
Employer: West Ottawa Public School
Docket no.: B84 01754 96313
Date of decision: August 27, 1987

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COURT OF APPEALS HOLDING: “Down time” in a school system’s migrant education program does not qualify as a denial period for purposes of Section 27(i) of the Act where the beginning and end of the down time were not fixed in advance, but rather depended on the growing season for crops .

FACTS: Claimants were employed in a special migrant teaching program operated by employer. The program operated during two segments of the employers academic year. The first part ran from September through October, and the second from March through June.

DECISION: Claimants are not subject to the denial period provisions of Section 27(i) of the Act.

RATIONALE: “In the instant case, the period in question, i.e. the period between the fall and spring segments of the migrant program, while a predictable layoff period because of the history of the program, was not a recess period similar to the recess periods taken for summer vacation for recognized holidays. Rather, the period of unemployment was due to the lack of work resulting from a decrease in the student population. If the migrant population had unexpectedly stayed, West Ottawa would no doubt have continued the employment of Bonnette, Quintalla, and Romos in the program. Thus, we find that even though the period of layoff could be anticipated (since the decrease in the student population could be anticipated) it was not a period established as a customary ‘vacation period’ or holiday recess”.

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

Rogel v Taylor School District – 5.14

Rogel v Taylor School District
Digest no. 5.14

Section 27(i)

Cite as: Rogel v Taylor School Dist, 152 Mich App 418 (1986).

Appeal pending: No
Claimant: Ann Rogel, et al.
Employer: Taylor School District
Docket no.: B81 88405 87051
Date of decision: June 16, 1986

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COURT OF APPEALS HOLDING: The employer cannot unilaterally alter the definition of the academic year set by the terms of a collective bargaining agreement merely for budgeting reasons.

FACTS: Claimants’ union and the employer negotiated a collective bargaining agreement requiring the school year to commence on September 1, 1981. Because of financial problems created by millage defeats, employer postponed the start of the school year until September 28, 1981. The employer continued the school year through June 1982 for a period equal to the time lost at the beginning of the year.

DECISION: Claimants entitled to benefits pursuant to Section 27(i)(1) and (4) when the employer unilaterally delays the start of the academic year for budgetary considerations.

RATIONALE: “Seizing on the phrase ‘as defined by the educational institution,’ the school district now argues that the 1981-1982 school year should be defined under Section 27(i)(4) as beginning on September 28. Acceptance of that argument would mean that a school district could unilaterally change the beginning and ending dates of the school year at any time without its employees being able to collect unemployment benefits. Such an interpretation would defeat the purpose of the MESA, which was intended to soften the economic burden of those who through no fault of their own, find themselves unemployed. See General Motors Corp. v Erves (On Rehearing), 399 Mich 241, 252; 249 NW2d 41 (1976); MCL 421.2; MSA 17.502. The school year was defined by contract as beginning September 1. When claimants did not start work on September 1, their period of unemployment began not in a ‘period between successive academic years,’ but rather during an academic year. The denial period did not apply.”

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

Paynes v Detroit Board of Education – 5.11

Paynes v Detroit Board of Education
Digest no. 5.11

Section 27(i)

Cite as: Paynes v Detroit Board of Ed, 150 Mich App 358 (1986).

Appeal pending: No
Claimant: Linda Paynes & Valerie Whalen
Employer: Detroit Board of Education & School Dist-City of Detroit
Docket no.: B82 18913 86673 & B81 22828 81799
Date of decision: April 7, 1986

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COURT OF APPEALS HOLDING: “Thus, we hold that to be denied unemployment benefits pursuant to MCL 421.27(i)(1)(a); MSA 17.529(i)(1)(a), the school denial period provision, a teacher must be (1) reasonably assured of reemployment the following year in an instructional, research or principal administrative capacity, and (2) the economic terms and conditions of the employment for the following year must be reasonably similar to those in the preceding year.”

FACTS: During the 81-82 school year claimants Whalen and Paynes were both Regular Contract Teachers. Due to economic conditions both were notified they would not be regular teachers the following year. However, applications were provided for regular emergency substitute teacher (RES) positions. An RES is guaranteed employment every day school is open, however, the benefits and wages are substantially less than for contract teachers.

DECISION: Claimant Paynes did not receive reasonable assurance and is not subject to the school denial period. Remanded for additional fact-finding regarding claimant Whalen.

RATIONALE: The court specifically declined to incorporate the “suitability” criteria contained in Section 29(6) and (7) of the MES Act into the school denial provision of Section 27(i). However, the court said, “We agree with the MESC that wage disparity should be considered before denying a teacher unemployment benefits when a contract or reasonable assurance of employment in a instructional, research or principal administrative capacity is proffered for the successive academic year. We also agree … that, for purposes of the school denial period provision, an offer or reasonable assurance to an employee previously employed in either an instructional, research or principal administrative capacity of reemployment for the following academic year in any of these three capacities is adequate with respect to the type of employment. Employment in any of these capacities is legislatively-deemed to be appropriate with respect to the type of proffered employment.”

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

Riekse v Grand Rapids Public Schools – 5.04

Riekse v Grand Rapids Public Schools
Digest no. 5.04

Section 27(i)

Cite as: Riekse v Grand Rapids Pub Schools, 144 Mich App 790 (1985).

Appeal pending: No
Claimant: Nancy Riekse
Employer: Grand Rapids Public Schools
Docket no.: B83 16325 93580W
Date of decision: August 6, 1985

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COURT OF APPEALS HOLDING: If a teacher had a reasonable expectation of re-employment during the next academic year, unemployment compensation may be properly denied.

FACTS: Claimant had been a substitute teacher for the past seven years in the employer’s school system. During the ending school year, claimant had taught 125 days. Claimant received a letter from the employer indicating that, “based upon the best financial data available and a comprehensive analysis of projected staffing needs,” she could be reasonably assured that she would be offered a substitute teaching position during the incoming school year. Claimant returned an application for employment as a substitute and attended an in service meeting for teachers on September 6, 1983.

DECISION: Claimant is ineligible for unemployment benefits.

RATIONALE: Claimant had substantial and reasonable assurance that she would be re-employed. She had been employed as a substitute teacher for seven preceding years. The letter expressly stated claimant was reasonably assured of employment. Claimant had attended in service training. The term reasonable assurance does not require a formal written or oral agreement to rehire.

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

Wisniewski v Bay City Board of Education – 5.09

Wisniewski v Bay City Board of Education
Digest no. 5.09

Section 27(i)

Cite as: Wisniewski v Bay City Board of Ed, unpublished opinion of the Bay Circuit Court, issued June 25, 1984 (Docket No. B81 13659 79554).

Appeal pending: No
Claimant: Debra A. Wisniewski
Employer: Bay City Board of Education
Docket no.: B81 13659 79554
Date of decision: June 25, 1984

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CIRCUIT COURT HOLDING: Reasonable assurance means that the chances ought to be fairly strong that the employee will come back to work.

FACTS: Claimant was informed that during the school year 1981-82, Claimant would perform services for the school district “as needed and when called.” During the school year 1980-81, Claimant had performed “long term subbing” for the school district.

DECISION: Claimant is not subject to the school denial period.

RATIONALE: The school board could have set up a priorities list so that Claimants could have reasonable assurance that they would likely work, especially if the school board adds a statement as to its normal attrition rate or history. “All the employee got was a letter saying she had something which the letter did not provide to her … she had nothing else to go on.” The notice did not give the employee any reasonable assurance.

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

Shane v Charlevoix Emmet Intermediate School District – 5.12

Shane v Charlevoix Emmet Intermediate School District
Digest no. 5.12

Section 27(i)

Cite as: Shane v Charlevoix Emmet Intermediate School Dist, unpublished opinion of the Michigan Employment Security Board of Review, issued October 5, 1983 (Docket No. B81 16581 80508).

Appeal pending: No
Claimant: Carole J. Shane
Employer: Charlevoix Emmet Intermediate School District
Docket no.: B81 16581 80508
Date of decision: October 5, 1983

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BOARD OF REVIEW HOLDING: Once a millage vote has been defeated, the employer must have more than the rescheduling of a second millage vote to support a claim that Claimant has reasonable assurance.

FACTS: Claimant was laid off at the end of the school year. A millage vote was defeated on June 8, 1981. On July 9, 1981, the employer informed the Commission that Claimant did not have reasonable assurance of employment for the fall. On July 14, 1981, the employer sent a “recall” letter to the claimant alleging reasonable assurance because a second millage vote was scheduled for September 8, 1981, which the employer was confident would be successful.

DECISION: Claimant is not subject to the denial period.

RATIONALE: The Commission, a Referee, or the Board itself cannot properly consider evidence as to the mood of voters or gauge electoral probabilities or the reasonableness of ballot proposals … to “go behind” the proposal as it were. Claimant did not have reasonable assurance on July 14, 1981. The decision of the Referee is reversed by a majority of the full Board of Review.

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

Hart v Lansing Community College – 5.06

Hart v Lansing Community College
Digest no. 5.06

Section 27(i)

Cite as: Hart v Lansing Community College, unpublished opinion of the Ingham Circuit Court issued July 29, 1983(Docket No. 82-30514-AE).

Appeal pending: No
Claimant: Bennett W. Hart
Employer: Lansing Community College
Docket no.: B81 00288 76742
Date of decision: July 29, 1983

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CIRCUIT COURT HOLDING: The course of dealing between the parties reflects a mutual understanding that no guarantee of future employment could be made.

FACTS: Claimant was a part time instructor who had worked ten consecutive terms before his courses were cancelled for lack of enrollment. Claimant, as other part time faculty, receives his contract at the commencement of the term when the college is able to determine whether all classes planned for Claimant are going to “go.”

DECISION: Claimant is not eligible for unemployment benefits.

RATIONALE: The Court cited the legislative history on the meaning of the term “reasonable assurance,” as found in US CONG. AND ADMIN. NEWS, 94th Congress, 1976, Vol. 5 at 6036: “For purposes of this provision, the term ‘reasonable assurance’ means a written, verbal or implied agreement that the employee will perform services in the same capacity during the ensuing academic year or term. A contract is intended to include tenure status.” (Emphasis added)

The term “reasonable assurance” must mean something less than a “contract,” if the phrase is to have any legal significance. In this case, the course of dealing between the parties reflects a mutual understanding that no guarantee of future employment could be made. Reasonable assurance of employment is given in that, if a sufficient number of students registered for classes, Appellant would be employed. This is evidenced by publication of Appellant’s name in the schedule book coupled with the consistency of his employment with the college. The Court cited Larkin v Bay City Schools, 89 Mich App 199 (1979) for the legislative policy and Michigan State Employees Association v MESC, 94 Mich App 677 (1980).

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

School District of the Village of Spring Lake, Ottawa County v Bassett – 5.05

School District of the Village of Spring Lake, Ottawa County v Bassett
Digest no. 5.05

Section 27(i)

Cite as: School Dist of the Village of Spring Lake, Ottawa County v Bassett, unpublished opinion of the Ottawa Circuit Court, issued June 10, 1983 (Docket No. 81-5806-AV).

Appeal pending: No
Claimant: Charles Bassett, Deborah L. Boyink, et al.
Employer: Village of Spring Lake
Docket no.: B80 16573 RO1 75319
Date of decision: June 10, 1983

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CIRCUIT COURT HOLDING: As of June 30, 1980, claimants’ employment status was insecure, uncertain and very much in doubt.

FACTS: The school district scheduled a millage vote for June 9, 1980. The millage vote failed. On June 2, 1980,the school district sent a letter to claimant(s) notifying them that they no longer had reasonable assurance of reemployment. A second millage vote was scheduled for August 26, 1980. The school district sent a letter to Claimant(s) on July 7, 1980, extending reasonable assurance based upon the potential passage of the millage.

DECISION: Claimants are eligible for benefits.

RATIONALE: Black’s Law Dictionary defines “assurance” as “a pledge, guarantee, or surety, a representation or declaration tending to inspire full confidence, a making secure.” The record discloses a number of facts that would make claimants insecure regarding their future employment: (1) The first millage vote failed. (2) The Superintendent of Schools prepared a “Tentative Lay-Off Roster-Professional Staff,” which he shared with claimants. The roster stated that the claimants “will in all probability be placed on lay-off status as of June 2, 1980, in anticipation of uncertain employment … ” (3) Claimants’ names were placed in the Board of Education minutes of June 23, 1980 as being those identified for layoff.

The statutory language recited in the July 7, 1981 letter was insufficient to alter … the preceding circumstances.

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