A· D. No . 876-17106-R0-5~539 s. s. No.-8. Q. No-~ b l p (;,- J 0 . 5"~

STATE OF MICHIGAN

IN THE CIRCUIT COURT FOR THE COUNTY OF MUSKEGON

ROXANNE MILLER

APPELLANT

v

SOO COIN WHOLESALE VENDING COMPANY AND MICHIGAN EMPLOYMENT SECURITY COMMISSION

APPELLEES

MICHAEL L· FAYETTE, (P26107) KLEINER AND DEYOUNG

'-· (FOR APPELLANT) FRANK J . KEL LE Y, ATTORNEY GE NERA L JAMES H. WHITE <P22254) AssiSTANT ATTORNEY GENERAL 7310 WooDWARD AvENUE DETROIT, MICHIGAN 48202 (FOR MESC)

CIRCUIT CouRT FILE 78-12255-AE

OPINION

THIS MATTER HAVING BEEN BROUGHT BEFORE THE CoURT ON ORAL ARGUMENT REQUESTED WITH BRIEFS SUBM IT TED, AND ORAL ARGUMENT HAV ING BEEN HEARD ON THE 23RD OF MAY, 1979 ; THIS COURT HAS BEEN ASKED TO REVIEW THE DECISION OF THE EMPLOYMENT SECURITY CoMMISSION BOARD OF REVIEW AND INVOLVES THE SCOPE OF JUDICIAL INQUIRY INTO TESTIMONY ADDUCED BEFORE THE MICHIGAN EMPLOYMENT SECURITY CoMMis­SION, REFEREE SECTION AND ALSO THE MEANING AND APPLICATION OF THE STATUTORY TERM "VOLUNTA RILY LEAV IN G WORK"·

To WHAT EXTENT MAY TH E CIRCUIT COURT PROBE INTO TH E EVIDENCE PRODUCED BEFORE THE MESC REFEREE? WHAT IS MEANT BY THE TERM "VOLUNTARILY LEAVING WORK"? TAKING THE SCOPE OF REVIEW INTO ACCOUNT , ARE THE DECISIONS OF THE EMPLOYMENT SECURITY BoARD OF REV IEW SUPPORTED BY THE EVIDENCE AND THE LAW?

THE STANDARD FOR JUDICIAL REVIEW OF A DECIS ION OF THE MICHIGAN EMPLOYMENT SECURITY COMMISSI ON BOARD OF REVIEW (HEREINAFTER THE BoARD oF REVIEW) APPEARS IN MCLA 421.38j MSA 17.540, WHICH STATES:

(1) THE CIRCUIT COURT· · ·MAY REVIEW QUEs ­TIONS OF FACT AND LAW ON THE RECORD MADE BEFORE THE REFEREE AND THE BOARD OF REVIEW INVOLVED I N IN A FINAL ORDER OR DECISION OF THE BOARD, AN D MAY MAKE FURTHER ORDERS IN RESPECT THERETO AS JUSTICE MAY REQUIRE, BUT THE COURT MAY RE VERSE AN ORDER OR DECISION ONLY IF IT FINDS THAT THE ORDER OR DECISION IS CONTRARY TO THE LAW OR IS NOT sup­PORTED BY COMPETENT, MATERIAL, AND SUBSTANTIAL EVIDENCE ON THE WHOLE RECO RD ·

IT IS CLEAR THAT THIS SECTION COMPLIES WITH THE CONSTITUTIONAL MINIMUM REQUIREMENTS OF CaNST· 1963, ART 3, SECTION 28, WHICH READS:

ALL FINAL DECISIONS, FINDINGS, RULINGS AND ORDERS OF ANY ADMINISTRATIVE OFFICER OR AGENCY EXISTING UNDER THE CONSTIT UT ION OR BY LAW WHICH ARE JUDICIAL OR QUASI-JUDICIAL AND EFFECT PRIVATE RIGHTS OR LICENSES, SHALL BE SUBJECT TO DIR ECT REVIEW BY THE COURTS AS PROVIDED BY LAW · THIS REVIEW SHALL INCLUDE, AT A MIN IMUM, THE DETER­MINATION WHETHER SUCH FINAL DECISIONS, FINDINGS, RULINGS, AND ORDERS ARE AUT HOR IZED BY LAWj AND, IN CASES IN WHICH A HEARING IS REQUIRED, WHETHER THE SAME ARE SUPPORTED BY COMPETENT, MATERIAL, AND SUBSTANTIAL EVIDENCE ON THE WHOLE RECORD· ·· •

ANALYSIS OF THESE TWO SECTIONS SUGGEsis THAT RE­VIEW OF THE FACTS PRODUCED AT A HEARING BEFORE THE MESC REFEREE IS NOT ENTIRELY FORECLOSED· A FINAL DECISION MAY BE REVERSED IF IT IS FOUND TO BE CONTRARY TO THE LAW OR NOT SUPPORT ED BY COMPETENT, MATERIAL, AND SUBSTANTIAL EVIDE NCE ON THE WHOLE RE­CORD· KING V CALUMET & HECLA CORP· 43 MICH APP 319 (1972)j BuRRELL v FoRD MoToR Co 24 MicH APP 651 (1970) AFF 'D 386 MicH 486 (1971)j MicHoLAICZIAK v M1cHIGAN EMPLOYMENT SEcURITY CoMMissioN, 40 MicH APP 61 (1972)j SAcKNER PRoDucTs Co v MicHIGAN EMPLOYMENT SEcURITY CoMMISSION, 8 MicH APP 81 Cl967)j LAsHE R v MuELLER BRAss Co 62 MicH APP 171 (1975).

HoWEVER, JUDICIAL REVIEW OF THE BOARD OF REVIEW IS NOT WITHOUT ITS LIMITS· THE CoURT IN WILLIAMS V ARNOLD CLEANERS, INC· 25 MICH APP 672 (1970), DISCUSSED THE PROBLEM:

THE FINAL ISSUE RAIS ED IS WHETHER THERE IS SUFFICIENT EVIDENCE TO SUPPORT A FINDING OF Drs ­CHARGE FOR MISCONDUCT· THE TESTIMO NY WAS CON-

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FLICTING BUT THERE WAS TESTIMONY TO SUPPORT EACH FINDING OF FACT BY THE REFEREE· THE GENERAL SCOPE OF JUDICIAL REVIEW OF FACTUAL FINDINGS OF ADMINis­TRATIVE TRIBUNALS IS THAT THE COURT ON APPEAL WILL NOT SUBSTITUTE ITS JUDGMENT ON THE FACTS FOR THAT OF THE FACT FINDING TRIBUNAL· KNIGHT - MORLEY CoRPORA­TION V EMPLOYMENT SECURITY COMMISS ION; 350 MICH ~(1957); BEDWE~J V EMPLOYMENT SECURITY CoMMISSION; )67 MICH 415 (196 ; DYNAMIC MANUFAC TURERS lN C· V EMP LOYMENT SECURITY CoMMISSION; 369 MICH 5~6 (1963). THE DECISION OF THE APPEAL BoARD WILL ONLY BE OVER­TURNED WHEN IT IS CONTRARY TO THE LAW OR NOT sup­PORTED BY COMPETENT; MATERIAL; AND SUBSTANTIAL EVI ­DENCE ON THE WHOLE RECORD· MCLA 421.38 (STAT ANN 1958 REV SEc 17.540); LINSKI V EMPLOYMENT SECURITY CoMMISSION; 358 MrcH 239 (1959); PEADEN v EMPLoY­MENT SECURITY CoMMISSION; 355 MICH 515 (1959).

THE UNDERLYING REASON FOR LIMITING JUDICIAL REVIEW WAS POINTED OUT BY THE COURT IN SACKNER PRODUJTS1 lNC• V EMPLOY­MENT SECURITY CoMMISSION; 8 MicH APP 81 (1975 :

THE REVIEWING CIRCUIT COURT JUDGE WAS NEVER IN A POSITION TO ACCURATELY ASSESS THE CREDIBILITY OF THE PERSONS WHO TESTIFIED BEFORE THE REFER EE; AND THEREFORE; WAS HANDICAPPED IN ACCORDING THE CLAIM­ANI ' s TEST IMONY A FAIR WEIGHTED VALUE· lT APPEARS THAT THE COURT ASSIGNED NQ WEIGHT TO THE CLAIMAN T'S ACCOUNT OF EVENTS· THE REFEREE--WHO OBSERVED THE WITNESSES AND THEIR DEMEANOR--AND THE APPEAL BOARD OBVIOUSLY CONCLUDED OTHERWISE AND SO DO WE • • • •

THESE LIMITATIONS ON THE COUR T's REVIEWING FUNCTION DO NOT; HOWEVER; PRECLUDE THE CIRCUIT COUR T FROM REVI EWING THE APPEAL BOARD's APPLICATION OF THE LAW OR ITS REASONING PR OC ESS· bRAHAM v FRED SANDERs Co. 11 MrcH APP 361 (1958). WHERE THE FACTS ARE UNDISPUTED; THE COURT MAY REVIEW THE APPEA L BOARD's APPLICATION OF THE LAW· THOMAS V EMPLOYMENT SECURITY CoMMISSION; 355 MicH 665 (1959); LARK IN v BAy CITY ScHooLS; 89 MicH APP 199 (1979); McANALLEN V MICHIGAN EMPLOYMENT SECURITY CorMMISSION; 26 MicH APP 621 (1970).

THE REVIEWING COURT SHOULD TAKE THE WHOLE RECORD INTO CONSIDERATION· CaNST 1963; ART 6; SECTION 28; MCLA 421.38; MSA 17,540; BuRRELL v FoRD Mo ToR Co. 24 MrcH APP 551 (1970) AFF 1 D 38b MICH 486 (1971).

lT SHOULD BE NOTED THAT THE BURDEN OF PROVING Drs­QUALIFICATION IS ON THE EMPLOYER· LYSCAS V CHRYSLER CORP· 76 MrcH APP 55 (1977); LASHER v MuELLER BRAss Co. 62 MicH APP 171 (1975) . THEREFORE; SHOULD THE EMPLOYER FAIL TO CARRY THIS

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'BURDEN) THE EMPLOYEE IS ENTITLED TO UNEMPLOYMENT COMPENSATION• DIEPENHORST V GENERAL ELECTR;c Co. 29 MICH APP 651 (1971)j· FRESTA v MILLER ) 7 MicH APP 8 <1967).

THE MICHIGAN EMPLOYMENT SECURITY AcT) SECTION 29 (1)(A) PROVIDES:

(1) AN INDIVIDUAL SHALL BE DISQUALIFIED FOR BENEFITS IN ALL CASES IN WHICH HE:

(A) HAS LEFT WORK VOLUNTARILY WITHOUT GOOD CAUSE ATTRIBUTABLE TO THE EMPLOYER OR EMPLOYING UNIT· (EMPHASIS SUPPLIED)

lN THIS CASE PRESENTED TO THE CoURT FOR REVIEW) THE ISSUE OF VOLUNTARINESS IS PARAMOUNT· THIS BEING TH E CASE) A WORKING DEFINITION OF THE TERM 0 VOLUNTARY

0J AS IT IS US ED

IN THE STATUTE) IS NEEDED·

BLAcK's LAw DicTIONARY) REviSED 4TH EDITioN) / PP 1746-1747) DEFINES VOLUNTARY AS:

UNCONSTRAINED BY INTERFERENCEj UNIMPELLED BY ANOTHER's INFLUENCEj SPONTANEOUSj ACTI NG OF ONESELFj DONE BY DESIGN OR I NTENT I ONj PU RPO SE) INTENDED· PROCEEDING FROM THE FREE AND UNRE­STRAINED WILL OF THE PERSON· PR ODUCED I N OR BY AN ACT OF CHOICEj RESULTING FROM CHOOSING·

VOLUNTARY ENVISIONS THE EXERCISE OF THE WILL) A DELIBERATE CHOICE BETWEEN TWO OR MORE KNOWN COURSES OF ACTION· RT REALTY, lNC·V DowNEs) 182 NYS2D 79j 14 Misc2D 322.

SEVERAL STATES HAVE HAD THE OPPORTUNITY TO DEFIN E THE TERM 0 VOLUNTARILY 0 AS IT IS USED IN THEIR UNEMPLOYMEN T COM­PENSATION ACTS:

PENNSYLVANIA:

"VOLUNTARILY") AS USED IN PROVISIONS OF THE UNEMPLOYMENT COMPENSATION LAW RENDERING AN EM­PLOYEE WHO HAS LEFT WORK 0 VOLUNTARILY 0 INELIGIB LE FOR COMPENSATION) MEANS OF ONE's OWN MOTION OR ACCORD OR ACTING OF ONE's SELF) SO THAT "LEFT WORK ~OLUN TAR ILY" MEANS THAT THE EMPLOYEE LE FT OF HIS OWN MOTION) BEING THE OPPOSIT E OF A DISCHARGE) DISMISSAL) OR LAYOFF BY THE EMPLOYE R) OR OTHER ACTION BY THE EMPLOYER SEVERING RELATIONS WITH THE EMPLOYEE· DEPARTMENT OF LABOR AND INDUSTRY V UNEMPLOYMENT CoMPE~SATION BoARD OF REVIEW) 133 PA SuPER 518 j 3 A2D 2 1 (1958) .

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.... ,_.

IowA:

· THE PROVISION IN THE EMPL OYMENT SEC URITY LAW DISQUALIFYING FOR UNEMPLOYMENT BENEFITS ONE WHO QUITS WORK "VOLUNTARILY" USES QUOTED WORD AS MEAN­ING OF ONE's OWN MOTION OR ACCORD) ACTING OF ONE's SELF AS DISTINGUISHED FROM DISCHARGE) DISMISSAL) OR LAYOFF BY THE EMPLOYER· MoULTON Y IoWA EMPLOYMENT SEcURITY CoMMISSION) 239 IowA 1161; 34 NW2D 211 0 948).

OHIO:

"VoLUNTARILY" MEANS FREELY AND WITHOUT COM­PULSION· AccuRATE EMPLOYME~T SERVICE v RowELL , 126 NELD 81; 69 Ass 452 <19 4 ) .

KENTUCKY:

THE WORD "VOLUNTARILY" AS IS USED IN THE UNEMPLOYMENT COMPENSATION STAT UTE HAS REFERENCE TO THAT WHICH IS FREELY GIVEN AND PROCEEDING FROM ONE's OWN CHOICE OR FULL CONSENT· KENTUCKY UNEM­P~OYMENT INSURANCE CoMMISSION v YouNG ) 589 SW2D 451 (1965).

THERE MAY BE CIRCUMSTANCES WHICH RENDER AN EMPLOYEE's SEEMINGLY VOLUNTARY QUIT INVOLUNTARY· As WAS SA ID BY JUSTICE EDWARDS IN HIS MINORITY OPINION IN LYONS Y EMPLOYMENT SECURITY CoMMISSION) 363 MicH 201 (1961):

WE TAKE IT ALL WOULD CONCEDE THAT A DECISION TO REFUSE TO OR LEAVE WORK COMPELLED BY LAWJ OR BY THE OVERWHELMING FORCE OR HAZARD OF NATUR E) OR THE EQUALLY AWESOME POWER OF SERIOUS ILLNESS) WOULD NOT CONSTITUTE A "voLUNTARY" QUIT· NoR DO WE BELlEY~ THAT A QUIT COMPELLED BY THE IRON HAND OF PHYSICAL AND ECONOMIC CIRCUMSTANCES IS "VOLUNTARY" EITHER·

MIC HIGAN COURTS HAVE RECOGNIZED THAT AN EMPLOYEE MAY NOT BE DISQUALIFIED FROM BENEFITS WHERE THE TERMINATION OF EMPLOYMENT IS INVOLUNTARY) AND HAVE DENOUNCED THE DOCTRINE OF "coNSTRUCTIVE VOLUNTARY QUIT"· THE DOCTR I NE HAS BEE N INVOKED IN THOSE SITUATIONS WHERE THE EMPLOYEE WAS PHYSICALLY INCAPABLE OF REACHING THE J OB SITE) WICKEY V EMPLOYMENT SECURITY COMMISSION) 369 MicH 487 (1963); THOMAS v EMPLOYMENT SECURITY CoMMISSION) 356 MICH 665 (1959)) OR WHERE THE EMPLOYEE NEVER REALLY QUIT AT ALLJ BUT WAS TREATED BY THE EMPLOYER AS IF HE HAD VOLUNTARILY QU IT HIS EMPLOYMENT· JENKINS V EMPLOYMENT SECURITY COMMISSION) 354 MicH 379 C1961). SEE ALSO) CoPPER RANGE Co. v UNEMPLOYMENT CoMPENSATION CoMMISSION) 320 MicH 460 (1948).

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THE DECISION OF THE BOARD OF REVIEW RAISES THE QUESTION OF WHETHER THE EMPLOYEE "VOLUNTARILY" LEFT HER EMPLOY­MENT WITHIN THE STATUTORY MEANING OF THAT TERM•

THE ISSUE INVOLVED IN THIS CASE IS WHETHER CLAIMANT "voLUNTAR I LY" LEFT HER JOB AT Sao CorN WHOLESALE VENDING CoMPANY· THE BASIC FACTS ARE NOT IN DISPUTE· AFTER MISSING SEVERAL DAYS OF WORK, CLAIMANT WAS TOLD THAT SHE WOULD HAVE TO BE REPLACED; HOWEVER) SHE COULD RETURN TO TRAIN HER REPLACEMENT AND HELP CATCH UP ON OTHER WORK· CLAIMANT NEVER CAME BACK TO WORK AT Sao CoiN · ON APPEAL FROM A REDETERMINATION OF THE MICHIGAN EM -PLOYMENT SEcURITY CoMMISSION, THE MESC REFEREE AND BOARD oF RE­VIEW CONCLUDED THAT CLAIMANT LEFT WORK VOLUNTARILY WITHOUT GOOD CAUSE, AND WAS THEREFORE DISQUALIFIED FROM RECEIVING ANY UNEM­PLOYMENT COMPENSATION UNDER SECTION 29(1)(A) OF THE MICHIGAN EMPLOYMENT SECURITY ACT · THE ISS UE OF "voLUNTARINESS" IS A CENTRAL MATTER IN RESOLUTION OF THIS CASE · SINCE THE BASIC FACTS ARE NOT IN DISPUTE, THE ISSUE BECOMES ONE OF LAW WHICH IS PROPERLY REVIEWABLE IN CIRCUIT CouRT· THoMAS v MI CHIGAN EMPgOYMENT SECURITY CoMMISSION, 356 MicH 665 (1959); lARKIN v AY CITY ScHooLs, 89 MicH APP 199 (1979); McANALLEN v MIJHIGAN EMPLoY-MENT SECURITY CoMMISSION, 26 MICH APP 621 (1970 ; GRAHAM V FRED SANDERS Co . 11 MicH APP 361 (1968). MoREOVER, THIS CouRT MAY DETERMINE WHETHER THE BOARD'S DECISION IS SUPPORTED BY COM­PETENT) MATERIAL AND SUBSTANTIAL EVIDENCE ON THE WHOLE RECORD· KING V CALUMET & HECLA CoRP· 43 MrcH APP 319 (1972); BURRELL v FoRD MoTOR Co. L4 MicH APP 651 (1970) AFF'D 386 MrcH 4S6 (1971); MIKOLAitZIAK V MICHIGAN EMPLOYMENT SECURITY COMMISSION/ 40 Mi cH APP 61 1972); SAcKNER PRoDucTs Co v MicHIGAN EMPLoY-MENT SEcURITY CoMMISSION, 8 MicH APP 81 (1967); LASHER v MuELLER BRAss Co. 6L MicH APP 171 (1975).

THE BURDEN OF PROVING DISQUALIFICATION IS ON THE EMPLOYER AND IF THE EMPLOYER FAILS TO CARRY THIS BURDEN, THE EMPLOYEE IS ENTITLED TO UNEMPLOYMENT COMPENSATION BENEFITS· LYscAs v CHRYS LER CoRP· 76 MicH APP 55 Cl976)i DrEPENHORST v GENERAL ELE~TRIC Co. 29 MicH APP 651 (1971); FRESTA v MILLER, 7 MicH APP 8 C1967).

THE MESC REFEREE DETERMINED THAT CLAIMANT's AB­SENCE FROM SCHEDULED EMPLOYMENT CONSTITUTED A VOLUNTARY LEAVING OF AVAILABLE WORK, AND THE DISQUALIFICATION IMPOSED ON THE CLAIM FILED ON AUGUST 23, 1976, WAS WARRANTED UNDER SECTION 29 (l)(A) OF THE ACT· lN THIS CASE THE EMPLOYER CLEARLY FAILED TO REBUT THE CLAIMANT'S TESTIMONY THAT SHE WAS TOLD SHE WAS GOING TO BE REPLACED· CLAIMANT TESTIFIED THAT SHE DID NOT PLAN TO QUIT; BUT SHE WAS TOLD THAT SHE WAS BEING REPLACED BECAUSE 01F HER ABSENCES FROM WORK• THE MAJORITY OF THE BOARD OF REVIEW: AND REFEREE VEDDER HAVE ATTEMPTED TO CHARACTERIZE CLAIMANT's TERMINATION AS A VOLUNTARY QUIT· THIS IS AKIN TO "coNSTRUCTIVE VOLUNTARY LEAVING" WHICH HAS BEEN REJECTED AND CRITICIZED BY THE MICHIGAN SUPREME COURT· WICKEY v MICHIGAN EMPLOYMENT SECURITY

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COMMISSION, 359 MIC H 487 (1959)i THOMAS V EMPLOYMENT SECURI TY CoMMISSION, 356 MicH 665 Cl959)i JENKINS v EMPLOYMENT SEcURITY CoMMISSION, 354 MicH 379 Cl96l)i CoPPER RANGE Co. v UNEMPLoY­MENT CoMPENSATION CoMMISSION, 320 MicH 460 (1948). MEMBER GREV ELLE OF THE BoARD OF REVIEW RECOGNIZED THE PROBLEM IN HIS DISSENTING OPINION:

THE RECORD, IN MY OPINION, INDICATES THAT CLAIMANT DID NOT QUIT BUT WAS, IN FACT, DISCHARGED BECAUSE OF HER ABSENCES FROM WORK· THE FACT THAT CLAIMANT COULD HAVE TRAINED HER REPLACEMENT DOES NOT CONVERT CLAIMANT's TERMINATION INTO A VOLUNTARY LEAVING···

THE CLAIMANT IN THIS CASE WAS TERMINATED AND, THERE­FORE, HER LEAVING CANNOT BE DESCRIBED AS "VOLUNTARY" · THEREFORE, THE DECISION OF THE BOARD OF REVIEW IS REVERSED ·

HoN· R· MAx DANIELS CP12484) JUDGE OF THE 14TH JUDICIAL CIRCUIT

DATED ____ ~J~U~LY~5~,~1~97~9~------

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