Motycka v General Motors Corp – 4.32

Motycka v General Motors Corp
Digest no. 4.32

Section 48

Cite as: Motycka v General Motors Corp, 257 Mich App 578 (2003).

Appeal pending: No
Claimant: Marvin Motycka, et al.
Employer: General Motors Corporation
Docket no.: MUL1999-78153-RM1-155516W
Date of decision: July 17, 2003

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COURT OF APPEALS HOLDING: The phrase “leave of absence” as used in Section 48(3) denotes an authorized temporary release from work.

FACTS: Claimants were on a ‘pre-retirement leave’ for a two-year period as articulated in their collective bargaining agreement due to their plant closing. During the ‘pre-retirement leave,’ the claimants received 85% of their wages, retained health benefits, and accrued service credit towards retirement. At the conclusion of the two-year period, the claimants were required to retire.

DECISION: The claimants were not on a leave absence and were “unemployed.”

RATIONALE: “In American Telephone Co v ESC, 376 Mich 271, 279 (1965), our Supreme Court held that the normally accepted meaning of leave of absence was a temporary authorized release from work. GM suggests that American Telephone, supra, is distinguishable from the instant case because it construes a former section of the MES Act dealing with pregnancy leaves that has since been rescinded. However, GM fails to recognize that the Supreme Court reaffirmed the concept that a leave of absence is a temporary release from work in ESC v Vulcan Forging Co, 375 Mich 374, 379 (1965).” Motycka, at 583. The Court in Vulcan,supra, further held that a “leave of absence” is an “authorized temporary release from work for other an vacation purposes.”Motycka, at 583 quoting Vulcan, supra at 379.

Digest Author: Board of Review (original digest here)
Digest Updated:
11/04

Jackson v. General Motors Corp – 4.31

Jackson v. General Motors Corp
Digest no. 4.31

Sections 44, 48

Cite as: Jackson v General Motors Corp, unpublished opinion of the Wayne Circuit Court, No. 01-119168-AE (July 8, 2002), lv den No. 242842 (Mich App January 13, 2003).

Appeal pending: No
Claimant: Willie Jackson, Jr., et al.
Employer: General Motors Corporation
Docket no.: MUL1999-57622 et al 154957
Date of decision: July 8, 2002

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CIRCUIT COURT HOLDING: Where the source of a one-time payment is a strike resolution agreement, absent which there was no expectation of receiving monies for the relevant period, the payments are bonuses, not wages, and are excluded from “remuneration” under Section 48(2).

FACTS: In August 1998 employees received special payments for the lay-off period of June 28, 1998 through July 3, 1998. Employer paid the monies as part of a strike settlement and attempted to allocate the monies to that period of time. The payments were to compensate employees laid off due to interruption in the flow of parts caused by the labor dispute at the struck facilities.

DECISION: Claimants are eligible for unemployment benefits for the lay-off period.

RATIONALE: Section 44 defines “remuneration” under the MES Act. Section 48(2) has a narrower scope, and addresses how to treat “lost remuneration,” i.e. remuneration that falls outside the course of ordinary pay. Under Section 48(2), bonuses do not qualify as remuneration. The court found the one-time payments were bonuses, not wages, as the source of entitlement was the agreement resolving the strike, and absent the agreement, the claimants had no expectation of receiving monies for the relevant period.

Section 44 speaks to remuneration in general. The court conceded the payments might appear to be “back pay.” However, the court decided that the specific language of Section 44 precluded such a finding in this case.

[NOTES: Section 48(2) was amended effective April 26, 2002, and no longer includes bonuses in its exclusions to remuneration. Section 44(1) was amended effective April 26, 2002, and now includes “back pay” as remuneration.]

Digest Author: Board of Review (original digest here)
Digest Updated:
11/04

Fletcher v Atrex Corp – 4.29

Fletcher v Atrex Corp
Digest no. 4.29

Sections 48, 44

Cite as: Fletcher v Atrex Corp, unpublished opinion of the Macomb Circuit Court, issued October 22, 1997 (Docket No. 96-7137-AE).

Appeal pending: No
Claimants: Clare Fletcher
Employer: Color Custom Compounding, Inc., d/b/a Atrex Corporation
Docket no.: FSC 95-00061-136470W
Date of decision: October 22, 1997

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CIRCUIT COURT HOLDING: Where claimant spent her time performing services, though not paid for those services until after the fact, she was nonetheless employed and received remuneration.

FACTS: Claimant had a benefit year in effect in May 1992 when she began performing services for Universal Plastics. At that time, that employer was unable to offer her a paying job. Nonetheless, claimant continued to perform services until she was officially hired there August 1, 1992, at which time she informed the Agency that she was employed. After claimant was hired she was compensated retroactively for the services she performed between May and August 1992. When the Agency became aware of this a determination was issued holding claimant ineligible for the May – August period under Section 48.

DECISION: Claimant is ineligible for benefits for the period May 3, 1992, through July 11, 1992, under Section 48.

RATIONALE: Remuneration is compensation for personal services and is not limited by the statute as to when it is paid – it may be paid after the service is rendered and not in the form of an hourly or weekly rate. The substantial amounts claimant received in addition to her regular wages after she was hired were, in fact, remuneration for services rendered during the period in question.

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

Koehler v General Motors Corp – 7.29

Koehler v General Motors Corp
Digest no. 7.29

Sections 28(1)(c), 48

Cite as: Koehler v General Motors Corp, unpublished opinion of the Oakland Circuit Court, issued May 6, 1997 (Docker No. 96-532329-AE).

Appeal pending: No
Claimant: Carl Koehler
Employer: General Motors Corporation
Docket no.: B94-10946-134361W and FSC94-00569-134392W
Date of decision: May 6, 1997

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CIRCUIT COURT HOLDING: Where a claimant worked full-time for a self-owned business he was not unemployed within the meaning of Section 48 of the MES Act. Moreover, where a claimant is preoccupied with developing his own business, putting in hours equivalent to full-time work, he is not available within the meaning of Section 28(1)(c).

FACTS: The claimant was a part-owner of an irrigation company. While collecting unemployment benefits, the claimant worked for his company in excess of 40 hours per week and received distributions from profits. During this period the claimant sought other work but his efforts were infrequent and indifferent. Claimant did not receive a paycheck from this company but did pay personal expenses out of the business’ account.

DECISION: The claimant was not unemployed within the meaning of Section 48 and was not available within the meaning of Section 28(1)(c). Claimant was properly subject to the penalties for fraud.

RATIONALE: Where the claimant is not ready, willing, able and anxious to resume work in industry, his efforts should be considered startup as opposed to self-help. With respect to availability, the claimant’s indifferent job search efforts established he was not truly attached to the labor market and therefore not available within the meaning of Section 28(1)(c). Claimant’s testimony was inconsistent and self-serving and therefore unreliable. In light of his representations to the Agency that he was not employed and his failure to disclose his connection to or responsibilities with his business, the assessment of penalties and sanctions was correct.

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

Rice v International Health Care Management, Inc – 4.28

Rice v International Health Care Management, Inc
Digest no. 4.28

Section 48

Cite as: Rice v Int’l Health Care Mgt, Inc, unpublished opinion of the Monroe Circuit Court, issued December 30, 1996 (Docket No. 95-3309-AE).

Appeal pending: No
Claimant: Gail Rice
Employer: International Health Care Management, Inc.
Docket no.: B93-06823-R01-128754W
Date of decision: December 30, 1996

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CIRCUIT COURT HOLDING: Where claimant was given choice between a leave of absence and termination after she notified employer of her pregnancy, she did not voluntarily request the leave of absence and was, therefore, unemployed and eligible for benefits under Section 48.

FACTS: Claimant worked for employer as housekeeper, nurse aide, laundress beginning in 1986. Claimant notified employer that she was pregnant and had some medical restrictions. Claimant requested work within her restrictions or light duty work. Employer refused and offered claimant a “voluntary” leave of absence as alternative to termination. Claimant testified her leave was not voluntary, i.e. was not requested by her.

DECISION: Claimant is not ineligible for benefits under Section 48(3).

RATIONALE: Neither the Agency, the Referee, nor the Board of Review addressed the issue of voluntariness. Claimant’s unrebutted sworn testimony was that she accepted a so-called voluntary leave of absence to avoid termination. The record does not support the conclusion that the claimant voluntarily requested a leave of absence. Therefore, the conclusion that she was ineligible for benefits under Section 48(3) was erroneous as a matter of law.

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

Ciaramitaro v Modern Hard Chrome Service – 4.26

Ciaramitaro v Modern Hard Chrome Service
Digest no. 4.26

Section 48

Cite as: Ciaramitaro v Modern Hard Chrome Service, unpublished opinion of the Macomb Circuit Court, issued November 1, 1996 (Docket No. 96-4644-AE).

Appeal pending: No
Claimant: Sam P. Ciaramitaro
Employer: Modern Hard Chrome Service
Docket no.: B91-12323RR-131804W
Date of decision: November 1, 1996

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CIRCUIT COURT HOLDING: Where claimant involuntarily retired and received a week’s pay for each year he worked for employer, such pay was severance pay and was not remuneration under Section 48.

FACTS: Claimant retired involuntarily on February 2, 1990. As part of the early retirement package claimant received a 34 week “salary continuation” from February 8, 1990 through September 27, 1990. He did not apply for benefits until after those payments ended. The MESC held that the claimant received severance pay which is not remuneration and cannot be used to establish credit weeks.

DECISION: Claimant is ineligible for benefits because he had insufficient credit weeks in the 52 week period preceding his application to establish a claim.

RATIONALE: Claimant failed to prove that he was legally entitled to receive a continuing weekly salary if involuntarily retired. Claimant performed no services in exchange for the monies he received.

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

Smith v Hayes Albion – 4.27

Smith v Hayes Albion
Digest no. 4.27

Section 48

Cite as: Smith v Hayes Albion, 214 Mich App 82 (1995); lv den 453 Mich 912 (1996).

Appeal pending: No
Claimant: Bernard Smith, et al.
Employer: Hayes Albion
Docket no.: B86-11358-111657, et al.
Date of decision: October 20, 1995

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COURT OF APPEALS HOLDING: Where collective bargaining agreement allowed employer to allocate vacation pay to plant shutdown period, vacation payments made were remuneration for the shutdown period and rendered claimants ineligible for benefits.

FACTS: Under 1985 collective bargaining agreement, seniority employees were entitled to vacation or pay in lieu of vacation as specified in Paragraph 90. Paragraph 91 provided that employer could schedule all vacation during a plant shutdown period if certain procedures were followed, such as notification to employees. Pursuant to the contract payments for accrued vacation time were made in February and June, 1986. Employer scheduled a two week shutdown from June 30, 1986, through July 11, 1986. Notices were posted indicating the earned vacation time and pay would be allocated to the shutdown period and that the allocation might render the employees ineligible for unemployment benefits.

DECISION: Claimants are ineligible for benefits under Section 48(2).

RATIONALE: Under Paragraph 90 of the collective bargaining agreement, employees had the option of receiving pay in lieu of vacation. Under Paragraph 91, the employer could allocate vacation pay to plant shutdown period. The fact these provisions appear in separate paragraphs does not mean the payment in lieu of vacation provided for in Paragraph 90 is independent of the period of unemployment (vacation shutdown) provided for in Paragraph 91. Thus the contract did not preclude the employer from designating the vacation pay to the shutdown period. As the employer maintained that discretion, the claimants’ option to take pay in lieu of vacation was extinguished when the employer exercised its Paragraph 91 authority. Therefore the payments were not “bonuses” under Brown v LTV Aerospace Corp, 394 Mich 702 (1975).

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

Kenkel v Tremec Trading Co – 4.30

Kenkel v Tremec Trading Co
Digest no. 4.30

Section 48

Cite as: Kenkel v Tremec Trading Co, unissued opinion of the Oakland County Circuit Court, issued January 30, 1995 (Docket No. 94-476557).

Appeal pending: No
Claimants: Matthew Kenkel
Employer: Tremec Trading Co.
Docket no.: B93-05246-126675W
Date of decision: January 30, 1995

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CIRCUIT COURT HOLDING: Self-employment does not, per se, disqualify an individual from receiving benefits so long as they receive no remuneration and remain genuinely attached to the labor market.

FACTS: Claimant’s job with employer was eliminated in April 1992. At that time, Claimant purchased 50 percent interest in a real estate franchise. Claimant was not involved in day to day running of business, but did assist with long term planning. He received no compensation for services provided. He testified that he was at all times available for and seeking work. Any time he spent at the business was to increase the equity of his holding.

DECISION: Claimant was unemployed within the meaning of Section 48.

RATIONALE: Claimant’s situation was compared and contrasted with that of claimants in Phillips v UCC, 323 Mich 188 (1948) and Bolles v ESC, 361 Mich 378 (1960). Found to be similar to facts of Bolles which enunciated test of whether or not claimant remained genuinely attached to the labor market despite his self-employment. Distinguish from Phillips, because claimant had not returned to a profession in which he had previously worked and he earned no remuneration. Citing Bolles, the court noted the intent of the Act is to foster industry and self-help, not idleness and inactivity.

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

Urban (State of Michigan) – 4.19

Urban (State of Michigan)
Digest no. 4.19

Section 48

Cite as: Urban v Secretary of State, unpublished opinion of the Michigan Employment Security Board of Review, issued August 1, 1986  (Docket No. B85 13293 102223W).

Appeal pending: No
Claimant: Pamela A. Urban
Employer: Secretary of State (State of Michigan)
Docket no.: B85 13293 102223W
Date of decision: August 1, 1986

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BOARD OF REVIEW HOLDING: A “waived rights leave of absence” is not a leave of absence within the meaning of Section 48 of the MES Act.

FACTS: The claimant was a member of the Michigan State Employees Association. The contract executed between that organization and the State of Michigan provided for various types of leaves of absences. Article 16, Section D of that agreement provides that an employee may request a “waived rights leave of absence” of up to one year in those situations when an employee must leave his or her position for reasons beyond his or her control and for which a regular leave of absence is not granted. Employees requesting and granted a “waived rights leave of absence” do not have the right to return to state service at the end of the leave but will have the continuous nature of their service protected provided they return to work prior to the expiration of such leave.

In the instant matter the claimant sought and secured a “waived rights leave of absence”. While on the “waived rights leave of absence” the claimant filed for unemployment benefits. The employer asserted the claimant was ineligible under Section 48(3) of the MES Act which reads “An individual shall not be deemed to be unemployed during any leave of absence from work granted by an employer either at the request of the individual or pursuant to an agreement with the individual’s duly authorized bargaining agent, or in accordance with law.”

DECISION: The claimant is not ineligible for benefits.

RATIONALE: In American Telephone and Telegraph Company v MESC, 376 Mich 271 (1965) the Michigan Supreme Court held that a leave of absence meant a temporary authorized release from one’s duties for a stated period with the right or duty to return at the end of the period. The claimant in this matter had no right to return at the end of the period at issue. Therefore the Board found the claimant was not on a leave of absence as defined in American Telephone and Telegraph and consequently was not ineligible under Section 48(3).

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

Cox v Tri-County Labor Agency – 4.20

Cox v Tri-County Labor Agency
Digest no. 4.20

Section 48, 62

Cite as: Cox v Tri-County Labor Agency, unpublished opinion of the Calhoun Circuit Court, issued March 13, 1986 (Docket No. 85-1861AE).

Appeal pending: No
Claimant: Wayne O. Cox
Employer: Tri-County Labor Agency
Docket no.: B84 06074 97817W, 97818W
Date of decision: March 13, 1986.

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CIRCUIT COURT HOLDING: Receipt of a lump sum settlement of an arbitration award constituted back pay and hence remuneration within the meaning of the MES Act.

FACTS: The claimant was employed as an executive director by the employer until his termination. After his termination an arbitrator issued a decision which reinstated the claimant and ordered the employer to pay the claimant back pay. Shortly after the claimant was reinstated the employer again terminated him. At this point the claimant and the employer negotiated an agreement whereby which the employer paid the claimant a sum in satisfaction of the arbitration award. Claimant was paid unemployment benefits while the arbitration was pending. After claimant received the arbitration settlement the MESC sought restitution of the benefits received.

DECISION: The sum received by the claimant in settlement of the arbitration award included back pay. Thus it constituted remuneration within the meaning of the MES Act and therefore claimant was ineligible for benefits during the relevant period. Restitution was properly ordered.

RATIONALE: The arbitration award specifically indicated the employer would both reinstate the claimant and pay him back wages. The back wages payable to the claimant would have been remuneration. The claimant’s receipt of a sum in lieu of reinstatement and back wages must also be considered remuneration since it was received in satisfaction of the same.

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