Schontala v Engine Power Components – 7.31

Schontala v Engine Power Components
Digest no. 7.31

Section 28(1)(c)

Cite as: Schontala v Engine Power Components, unpublished opinion of the Ottawa Circuit Court, issued October 27, 1987 (Docket No. 86-8221-AE).

Appeal pending: No
Claimant: Timothy Schontala
Employer: Engine Power Components
Docket no.: B85-11974-101743W
Date of decision: October 27, 1987

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CIRCUIT COURT HOLDING: Where claimant asserted he was available for full time work but showed by his actions that, in fact, he was not, he did not meet the availability requirement for eligibility under Section 28(1)(c).

FACTS: After working full time for the employer for over a year, claimant requested reduction to part-time work so he could return to school. Claimant was granted part-time status but shortly thereafter was laid off due to lack of work for part-time employees. Claimant was attending school and placed numerous applications for part-time work. He applied for benefits while still in school when he could not find any part-time work. Claimant asserted that he would accept full-time employment but Referee did not find his testimony credible.

DECISION: Claimant is ineligible for benefits.

RATIONALE: Determination of genuine attachment to the labor market is made by means of a subjective test which looks at the actions of the individual. In this case, claimant quit his full time employment, requested part-time status, enrolled in school nearly full-time, and subsequently applied for part-time work. See test enunciated in Dwyer v UCC, 321 Mich 178, 189 (1948).

Digest Author: Board of Review (original digest here)
Digest Updated: 7/99

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

Dow Chemical Co v Quinn – 7.02

Dow Chemical Co v Quinn
Digest no. 7.02

Section 28(1)(c)

Cite as: Dow Chemical Co v Quinn, unpublished opinion of the Midland Circuit Court, issued June 10, 1985 (Docket No. 82-001391-AE-G).

Appeal pending: No
Claimant: Wilbur F. Quinn
Employer: Dow Chemical Company
Docket no.: B74 5033(4) 65240
Date of decision: June 10, 1985

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CIRCUIT COURT HOLDING: An unemployment claim does not prove itself. Claimant has the burden to prove eligibility for unemployment compensation.

FACTS: Claimant successfully established the termination of his labor dispute disqualification. However, claimant did not appear at the Referee hearing with regard to his eligibility. The determination and redetermination were in favor of the claimant. The Board of Review remanded for testimony, but once again the claimant failed to appear. The employer argued that the burden of proof is in claimant to affirmatively provide beyond the application itself that he is eligible.

DECISION: Claimant, having failed to meet his burden, should be denied benefits.

RATIONALE: Citing Ashford v Unemployment Compensation Commission, 328 Mich 428 (1950), the court placed the responsibility on claimant to move forward in support of his claim for unemployment benefits. Claimant cannot rely on the determination or redetermination where the Commission had found him entitled to benefits.

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

Chrysler Corp v Sellers – 7.08

Chrysler Corp v Sellers
Digest no. 7.08

Section 28(1)(c)

Cite as: Chrysler Corp v Sellers, 105 Mich App 715 (1981).

Appeal pending: No
Claimant: Woodrow W. Sellers
Docket no.: B76 9783 RM 58420
Employer: Chrysler Corporation
Date of decision: April 22, 1981

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COURT OF APPEALS HOLDING: Where a retired auto worker excludes auto plants from his or her active work search, to avoid further exposure to smoke and dust, but seeks other work which the individual has performed, the claimant is available for work and seeking work.

FACTS: “Prior to working at Chrysler, claimant had acquired work experience as a service station attendant and janitor. After retiring, claimant sought work at service stations, hospitals and small shops or factories, but he did not seek employment in an auto factory because of his previous exposure to smoke and dust at such jobs.” He testified to having sought work three or four times each week.

DECISION: “This case is remanded to the Commission for a hearing at which the claimant’s eligibility for benefits, in relation to his pension, will be determined under MCL 421.27(f); MSA 17.529(f).”

RATIONALE: The Court cited McKentry v ESC, 99 Mich App 277 (1980). “According to McKentry, claimant’s failure to actively seek a job like his last one does not constitute a material restriction of his availability under the Act. Just as the claimant in McKentry did not actively seek employment as a teacher’s aide because it aggravated her physical condition, claimant in the instant case did not actively seek work in a large auto factory because he wished to avoid further exposure to smoke. Viewing the evidence as a whole, we do not find the claimant’s failure to apply for auto plant work so significantly impaired his availability for work as to permit reversal.” “Viewing the evidence in its entirety, we find that the Board of Review’s conclusion regarding the claimant’s efforts to secure employment was based upon competent, material and substantial evidence.”

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

Heikkinen v Ore-Ida Foods, Inc – 7.10

Heikkinen v Ore-Ida Foods, Inc
Digest no. 7.10

Section 28(1)(c)

Cite as: Heikkinen v Ore-Ida Foods, Inc, unpublished opinion of the Michigan Employment Security Board of Review, issued July 31, 1980 (Docket No. B77 18316 58612).

Appeal pending: No
Claimant: Mabel B. Heikkinen
Employer: Ore-Ida Foods, Inc.
Docket no.: B77 18316 58612
Date of decision: July 31, 1980

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BOARD OF REVIEW HOLDING: (1) Where a redetermination refers only to Section 28(1)(c) of the Act, the Referee may not rule on Section 28(1)(a). (2) Voluntary retirement is not inconsistent with subsequent attachment to the labor market.

FACTS: The Commission found a voluntary retiree ineligible under Section 28(1)(c) of the Act. The claimant testified she would give up her Social Security benefits, and would travel 30-35 miles, for full time work.

“Further, the claimant’s testimony indicates that she was not able to perform the job to which she was last assigned (T, p. 5), however, she is able to do work where she could sit down part of the time (T, p. 10).”

DECISION: The claimant is able and available for work. The finding on seeking work is vacated.

RATIONALE: “[I]t is noted that the referee states (page 2 of his decision) that ‘(I)t is generally conceded that voluntary retirement … discloses a mental attitude inconsistent with … attachment to the labor market.’ This statement appears to be unsupported by the Act or by authority. McKinney (Chrysler Corp.), 1977 AB 53130 (B76-15034).”

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

Doe v Robert Carter Corp – 7.16

Doe v Robert Carter Corp
Digest no. 7.16

Section 28(1)(c)

Cite as: Doe v Robert Carter Corp, unpublished opinion of the Michigan Employment Security Board of Review, issued June 6, 1980 (Docket No. B78 02345 61033).

Appeal pending: No
Claimant: Arvin N. Doe
Employer: Robert Carter Corporation
Docket no.: B78 02345 61033
Date of decision: June 6, 1980

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BOARD OF REVIEW HOLDING: (1) A plumber’s use of union hiring halls satisfies the availability and seeking work provisions of the Act. (2) Travel to a Florida home on a Sunday and Monday, and return travel to a Michigan home on a Friday and Saturday, does not affect the eligibility of a union plumber who contacts hiring halls in both states.

FACTS: Under penalty of a $500.00 union fine, a plumber limited himself to union work, obtained through union hiring halls. He traveled to his Florida home on a Sunday and Monday, contacted three union locals, and later returned to his Michigan home on a Friday and Saturday.

DECISION: The claimant is eligible for benefits.

RATIONALE: “[I]n Lange v Knight Newspapers, Inc, No. 63387 (Wayne Circuit Court, 1967), the court affirmed a unanimous appeal board decision that a claimant had satisfied the eligibility requirements of the MES Act by awaiting a telephone call from his local union for a work assignment where this was the customary way he had obtained employment in the past.”

“Obviously, while Mr. Doe was driving between his two homes he was not instantaneously available for and seeking work. But this is not the end of the analysis. If it were, serious eligibility questions would be posed by sleep, dining out, or going to the movies.”

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

Bateman v Jackson Industrial Manufacturing Co – 7.17

Bateman v Jackson Industrial Manufacturing Co
Digest no. 7.17

Section 28(1)(c)

Cite as: Bateman v Jackson Industrial Manufacturing Co, unpublished opinion of the Kent County Circuit Court, issued May 5, 1980 (Docket No. 80 29462 AE).

Appeal pending: No
Claimant: Robert L. Bateman
Employer: Jackson Industrial Manufacturing Company
Docket no.: B77 10805 RO2 62489
Date of decision: May 5, 1980

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CIRCUIT COURT HOLDING: (1) Where a medical restriction limits an individual to seated work, which the claimant has never performed for wages, the claimant is not able and available for work. (2) Lack of counsel is not good cause for reopening. (3) A late appeal to the Board may be treated as a request for reopening.

FACTS: An equipment painter became medically restricted to seated work, which he had never performed for wages. He appeared before the referee without an attorney. His late appeal to the Board was treated as a request for reopening.

DECISION: The claimant is ineligible for benefits.

RATIONALE: “The Board of Review was within its authority in rejecting the so-called Delayed Appeal for lack of jurisdiction because of untimely filing and did properly refer it back to the Referee for a rehearing.”

“The claimant was fully advised of his rights to counsel..”

“[A]fter May 18, 1977 claimant was released and permitted by his doctor to perform ‘seated work only.’ Claimant did not meet the test of able and available for work requirements. The claimant’s testimony at the hearing indicated that all his work experience training and background has been in heavy work active jobs and not seated work.”

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

Winstead v MESC – 7.12

Winstead v MESC
Digest no. 7.12

Section 28(1)(c)

Cite as: Winstead v MESC, unpublished opinion of the Washtenaw County Circuit Court, issued February 19, 1980 (Docket No. 79 17067 AE).

Appeal pending: No
Claimant: Mary Winstead
Employer: N/A
Docket no.: B76 18265 57846, et al.
Date of decision: February 19, 1980

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CIRCUIT COURT HOLDING: Insistence on time off to attend Wednesday night church services does not make a claimant unavailable for work.

FACTS: “In each of these decisions, the Board of Review affirmed decisions of referees which had held, in effect, that Ms. Winstead had not been ‘available to perform suitable full-time work’ within the meaning of the statute by reason of her insistence on attending Wednesday night worship services held by her church.”

DECISION: The claimant is available for work.

RATIONALE: “The MESC decisions below do not square with Sherbert v Vernor, 374 U.S. 398 (1963), and therefore are violative of the First Amendment to the United States Constitution. The decisions are also contrary to Swenson v MESC, 340 Mich 430 (1954), where the Michigan Supreme Court held that Seventh Day Adventists who could not work from sundown Friday to sundown Saturday were ‘available for work’ within the meaning of the statute. The decisions are thus contrary to the law of this state as well as the Constitution of the United States.”

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

Hinga v Brown Co – 7.06

Hinga v Brown Co
Digest no. 7.06

Section 28(1)(c)

Cite as: Hinga v Brown Co, unpublished opinion of the Court of Appeals of Michigan, issued January 25, 1980 (Docket No. B76 2157 50644).

Appeal pending: No
Claimant: Edward G. Hinga
Employer: Brown Company
Docket no.: B76 2157 50644
Date of decision: January 25, 1980

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COURT OF APPEALS HOLDING: Where an individual seeks supervisory and non-union work, but is willing to accept non-supervisory and union work, such preferences do not make the claimant unavailable for work.

FACTS: The claimant had previously worked as an unskilled laborer and as a shipping supervisor. He concentrated his work search on supervisory and non-union positions. The claimant contacted four employers in seven months. A waiver of seeking work was in effect.

DECISION: The claimant was available for work.

RATIONALE: “We hold, after reviewing the record as a whole, that the referee’s conclusion that plaintiff removed himself from the labor market is not supported by competent, material, and substantial evidence. The undisputed evidence showed that while plain tiff preferred supervisory work, he would take other work and while he preferred non-union work, he would accept union work. The referee erred when he held that this removed plaintiff from the labor market.”

“[T]he commission waived the seeking work requirement as to all claimants in Kalamazoo County from 5/25/75 to 7/17/76. Thus, plaintiff was entitled to rely on the representation that he need not seek work in order to be eligible for benefits.”

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

McKentry v MESC – 7.28

McKentry v MESC
Digest no. 7.28

Section 28(1)(c)

Cite as: McKentry v MESC, 99 Mich App 277 (1980).

Appeal pending: No
Claimant: Bessie McKentry, et al.
Employer: Muskegon Area Intermediate School District
Docket no.: 43884
Date of decision: August 11, 1980

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COURT OF APPEALS HOLDING: “A plain reading of the statute does not indicate that a claimant must be able to perform his last job but only that ‘he is able and available to perform full-time work for which has previously received wages.'”

FACTS: The claimant, a teacher aide, was treated for knee trouble.

“[P]laintiff testified that she could not return to work for defendant school district because she could not stand on her feet all day. However, she also testified that there was work which she had performed in the past which she could still do, such as working for the telephone company or for Misco Corporation.”

DECISION: The claimant is eligible for benefits.

RATIONALE: “The lower court and the administrative agency focused on the fact that the plaintiff could not perform the job she last held with defendant school district in determining that plaintiff was not able and available to perform full-time work. A plain reading of the statute does not indicate that a claimant must be able to perform his last job but only that ‘he is able and available to perform full-time work for which he has previously received wages.'”

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