Postema v Grand Rapids Diecraft Inc – 7.30

Postema v Grand Rapids Diecraft Inc
Digest no. 7.30

Sections 28, 54(b)

Cite as: Postema v Grand Rapids Diecraft Inc, unpublished opinion of the Ottawa Circuit Court, issued September 19, 1996 (Docket No. 95-23141-AA).

Appeal pending: No
Claimant: James Postema
Employer: Grand Rapids Diecraft Inc.
Docket no.: B93-06258-127231W
Date of decision: September 19, 1996

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CIRCUIT COURT HOLDING: Where claimant was primarily engaged in establishing his own business, his mental attitude was not one of genuine attachment to the labor market. Where the claimant only sought work via networking with potential customers and other industry contacts, he was not “seeking work” and was not “available to work.”

FACTS: Claimant was laid off from an executive position in February, 1992. He received regular benefits then extended benefits until December 12, 1992. Claimant started his own tool and die business on August 15 as 51% owner. Corporate status was established week of August 9, 1992. During the first week the business grossed $24,000. After that, expenses exceeded profits. Claimant received no wages. For weeks ending August 29, 1992, and September 5, 1992, claimant failed to report self employment. Thereafter, he reported self employment but zero earnings. For week ending September 12, 1992, claimant reported 70+ hours at his business, but thereafter reported only 20 hours. Claimant sought work primarily through “networking” with contacts who were also potential customers. He never actually filled out any job applications.

DECISION: Claimant ineligible for benefits for period August 9, 1992, through December 12, 1992. Claimant must pay restitution and penalties only for some of the weeks in question as for the most part claimant disclosed his interest in self employment and the nature of his job seeking efforts.

RATIONALE: Claimant’s own testimony demonstrated that he was not diligently searching for employment or truly available for work. “His `mental attitude’ was not that of someone attached to the labor market; rather, it was that of an entrepreneur spending his time and energy trying to make his business successful.”

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

Haberman v The Stroh Brewery Co – 6.01

Haberman v The Stroh Brewery Co
Digest no. 6.01

Section 28(1)(a), 28(1)(c)

Cite as: Haberman v The Stroh Brewery Co, unpublished opinion of the Michigan Employment Security Board of Review, issued June 30, 1981 (Docket No. B77 3056 57623).

Appeal pending: No
Claimant: Charles Haberman
Employer: The Stroh Brewing Company
Docket no.: B77 3056 57623
Date of decision: June 30, 1981

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BOARD OF REVIEW HOLDING: When a seeking work waiver is in effect the fact that a claimant is not actively seeking work cannot be the basis of an adverse finding under the able and available provision.

FACTS: Following a period of light duty work after an injury, the claimant’s employment came to an end because of a mandatory retirement policy. The employer contested claimant’s eligibility for benefits under the able and available provisions of the Act. During the course of the hearing it was established claimant had contacted only three possible employers during 10 months of unemployment. A waiver of the seeking work requirement was in effect during the period in question.

DECISION: The claimant was not ineligible for benefits under Section 28 except for a period he admitted he was not attached to the labor market.

RATIONALE: The entire Board cited Hinga v Brown Co, unpublished opinion of the Court of Appeals of Michigan, issued January 25, 1980 (Docket No. B76 2157 50644) for the principle that a claimant’s failure to seek work cannot be used as a criterion of availability when the seeking work requirement has been waived by the Commission. Three Members of the Board went on to say that the principle of Hinga applies even if the claimant does not have actual knowledge of the waiver.

Digest Author: Board of Review (original digest here)
Digest Updated:
12/91

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

Lothian v Rifkin, Shultz & Kingsley, PC – 6.02

Lothian v Rifkin, Shultz & Kingsley, PC
Digest no. 6.02

Section 28(1)(a)

Cite as: Lothian v Rifkin, Shultz & Kingsley, PC, No. 47129 (Mich App August 18, 1980).

Appeal pending: No
Claimant: Janice Lothian
Employer: Rifkin, Shultz & Kingsley, P.C.
Docket no.: B76 10412 52303
Date of decision: August 18, 1980

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COURT OF APPEALS HOLDING: The claimant failed to establish that she was conducting an exhaustive employment search and was therefore ineligible for unemployment benefits.

FACTS: Claimant had been employed as a legal secretary. During the 12 week period of unemployment, she sought work only a few times, mostly by telephone. She physically visited the offices of prospective employers on only two occasions. Claimant did not seek the assistance of employment agencies and did not use the Detroit Legal News, the publication through which she had obtained her last employment.

DECISION: The claimant was ineligible for unemployment benefits.

RATIONALE: Claimant did not establish that she was genuinely seeking work of a character which she was qualified to perform by past experience and training and for which she had previously received wages.

Digest Author: Board of Review (original digest here)
Digest Updated:
12/91

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

Walls v Career Consultants – 7.09

Walls v Career Consultants
Digest no. 7.09

Section 28(1)(c)

Cite as: Walls v Career Consultants, unpublished opinion of the Kalamazoo Circuit Court, issued April 6, 1978 (Docket No. D 774 00 476 AV).

Appeal pending: No
Claimant: Sharon Walls
Employer: Career Consultants
Docket no.: B76 613 RO 53037
Date of decision: April 6, 1978

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CIRCUIT COURT HOLDING: A seeking work waiver does not excuse a claimant from being available under Section 28(1)(c).

FACTS: Claimant worked for the employer on commission as a placement counselor, finding work for others. After she became pregnant, she started missing work. She quit her employment although she was still physically able to work. Claimant took several Civil Service exams and had registered at a number of places — among them, some temporary agencies like Manpower, and at least one placement agency.

DECISION: Claimant is ineligible for benefits.

RATIONALE: “This Court is unable to see the distinction appellant claims between (a) seeking work and (c) available for work. Certainly they are two separate requirements under the statute and if there was a waiver in effect, as the appellant claims, she probably did not have to seek work under Section 28(1)(c) but the waiver would not excuse her being available under Section 28(1)(c). Since her mental attitude was in issue, this court feels the referee properly considered her seeking work to determine her credibility in saying she was available for work. We cannot look into her mind to see her mental attitude, but her conduct throws some light on her mental attitude.”

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

Dwyer v UCC – 7.04

Dwyer v UCC
Digest no. 7.04

Section 28(1)(c)

Cite as: Dwyer v UCC, 321 Mich 178 (1948).

Appeal pending: No
Claimant: John Dwyer
Employer: Packard Motor Car Co.
Docket no.: B6 18326 5058
Date of decision: May 18, 1948

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SUPREME COURT HOLDING: (1) The claimant has the burden of proof as to eligibility. (2) A person who is genuinely attached to the labor market will make a reasonable attempt to find work.

FACTS: The claimant sought work only 3 or 4 times during 19 months of unemployment. He did not seek police work, which he had performed for 25 years.

DECISION: The claimant is ineligible for benefits.

RATIONALE: “(T)o prevail, the claimant must have sufficient proofs offered in his behalf to establish that he meets the conditions of eligibility. To this extent he has the burden of proof.”

“Whether or not a claimant is in fact available for work depends to a great extent upon his mental attitude, i.e., whether he wants to go to work or is content to remain idle. Indicative of such mental attitude is evidence as to efforts which the person has made in his own behalf to obtain work. A person who is genuinely attached to the labor market and desires employment will make a reasonable attempt to find work and will not wait for a job to seek him out.”

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