*1 v ASMUND PARTNERSHIP EMPIRE IRON MINING 1994, 10, Marquette. May at 166041-166053.Submitted Docket Nos. 23, 1995, appeal sought. May to at 9:00 Leave a.m. Decided employees who went on A. and twelve other Donald Asmund Mining Partnership against Empire and Tilden Iron strike Partnership Magnetite a for filed claim each Michigan Employment compensation with the during working two consecutive weeks after Commission ' paid job or relative and that a friend strike in created weekly wages equal greater for the than the benefit to or decision, employment in the strike. a two-to-one involved Employment Security Michigan of Review concluded Board 17.531(8), that, 421.29(8); pursuant to MSA claimants’ MCL disqualifi- dispute employment their labor interim terminated Empire unemployment compensation benefits. Iron from cation Marquette Magnetite appealed Circuit Court in and Tilden court, Quinnell, respect A. claimant. The Edward with to each J., appeals and decision affirmed consolidated Magnetite Empire Iron and Tilden of the board review. Appeals appealed respect to claimant. The Court of each appeals. consolidated the Appeals The Court of held: 421.29(8); dispute disqualification MCL MSA The labor has, 17.531(8) when a worker is terminated faith, employment least two con- at obtained equal weekly wage at a at least secutive weeks and dispute. labor rate for the involved benefit Reversed. 421.29(8); J., dissenting, Neff, that MCL stated 17.531(8) objective provides criteria for termination for two References 2d, Compensation Unemployment 170-175. §§ Am Jur disqualification ap- compensation: dispute Unemployment subsequent employ- striking employee plicable ment who off is laid during period. 61 ALR3d 766. strike disqual- principles pertaining Note.—General Comment unemployment compensation benefits because of ification dispute. 63 ALR3d 88. strike or Empire Iron v Asmund Opinion of the Court dispute disqualification: employment the labor of at least two equal weeks wages consecutive exceeding or benefit rate for the in- dispute, majority improperly volved in the labor and that the *2 subjective has added to the a statute criterion of bona fide employment. Unemployment Compensation — Dispute Disqualification Labor — Employment. — Requalification Bona Fide employee goes against
An employer who on strike does not qualify compensation unemployment for benefits faith, has, employee employ- strike unless obtained ment from another at for least two consecutive weeks wage equals at and or exceeds the benefit rate (MCL 421.29[8]; for the involved in the strike MSA 17.531[8]). Clancey, Graybill Hansen, Chilman, Greenlee, & P.C. W. Scott Chilman and Ronald E. Green- (by lee), Mining for Empire Iron Partnership and Til- Magnetite den Partnership. Bridges Houghton, Hough- & P.A. (by Bruce L.
ton) Engberg Peterson, & Peterson (by John Engberg Higbee), G. and Scott A. for Donald A. Asmund and others. Kelley, Frank J. Thomas L. General, Attorney
Casey, Davidson, and Mark F General, Solicitor General, Assistant Attorney Michigan Employ- ment Security Commission.
Amicus Curiae: Dwight Clark, Klein & Beaumont H Vin- (by Henry, Higgins),
cent, J. Walker and Sean M. Michigan Manufacturers Association. Mackenzie, P.J.,
Before: Neff and R. L. Olzark,* JJ._
* judge, sitting Appeals by assignment. Circuit on the Court of 211 Opinion of the Court pay- cases involve P.J. These MacKenzie, striking em- benefits of ment ployees mining operations. appellant em- The of appeal right ployers court from circuit affirming opinion of the Michi- decisions and order Employment Security gan Board Review disqualified employees striking not were certain from they receiving unemployment because requalified under for benefits Michigan Employment 421.29(8); Act MCL (mesa), 17.531(8), performing "make Michigan The Manufacturers Association work.” aligned with the filed an amicus brief position. has reverse. ers’ employees, United who members are against appel- Union, went on strike Steelworkers lants employers July 31, 1990, to from December they disqualified workers, were As 1990. *3 unemployment receiving benefits under from 29(8) dispute disqualification § forth in set labor the mesa. That subsection states pertinent part:
in disqualified for An individual shall be or in which the individual’s total for week is labor in partial unemployment due to a 421.29(8); .... MSA progress active [MCL 17.531(8).] provides for The the termina- same subsection dispute disqualification under tion of labor 29(8), portion § The relevant certain conditions. Legislature PA when the enacted 1974 added states: disqualification imposed im- An or individual’s posable this shall be terminated under subsection performing employ- services in by the individual’s employer least ment with an in at consecutive period falling wholly within the of the weeks Empire Iron v Asmund Opinion of the Court partial unemployment individual’s the or total due to dispute, by earning addition wages to equal in each of those weeks in an amount poten- or in excess of the individual’s or actual weekly respect tial beneñt rate with to those weeks based on the individual’s employer dispute. the 421.29(8); involved in the [MCL 17.531(8). Emphasis added.] cases, In each of these the claimant worked for employer an strike for two consecutive weeks
period paid equal was an amount to or respect in excess of his benefit rate with case, In however, those weeks. each allegedly ment was "make work” created solely allowing or friend relative for the requalify the claimant to for § benefits under despite participation his continued in the strike. cases, almost all lasted the and the necessary requalification, two weeks higher wages claimant received than the normally paid for similar work so that the claim- 29(8). wage requirement ant § could meet the A Michigan Employ- two-member ment Board of Review concluded that 29(8), requalified jobs under employees the "make work” chargeable benefits, against appellants’ Michigan Employment Secu- rity employees accounts, Commission while the against appellants. continued their strike The cir- cuit court affirmed. whether, basic issue these cases
enacting requalification 29(8), provision §of payment the of intended to authorize the
unemployment compensation any benefits to striking arranges worker who interim meeting statutory wage require- time and .unemploy- ments, or it whether was intended that paid only ment benefits be to those work- App 118 122 211 Mich op Opinion the Court qualifying is under- ers whose reaching the conclusion faith. taken arranged short-term the claimants who requalified were "make work” period, during the board of the strike imposing majority interpreted an as review objective quiry only appropriate in- in which the test wages paid by necessary were is whether dis- weeks. The for two consecutive an senting analysis defi-
board member found the "make it consider that cient because failed employment designed to circum- sham work” was dispute disqualification, contrary to vent the with the agree policies of the mesa. and dissenting board member. primary goal is to construction
The Legis- give intent of the and effect to the ascertain Farrington Inc, Petroleum, 442 v Total lature. Mich (1993). Legisla- 201, 212; 501 NW2d meaning presumed it have ture intended expressed. plainly Frasier v Model Coverall Ser- vice, 741, 744; Inc, 182 453 NW2d (1990) However, of a stat . if a literal construction produce unjust ute absurd results would policies purposes clearly inconsistent with the depart may statute, court from literal Processing v construction. Rowell Steel (1994). Co, 347, 354; 445 Mich 518 NW2d may legislative history Courts look to history act, of the time as well passed, which the act was for the act and the to ascertain reason provisions.
meaning its Corp Dep’t Div, App Great Lakes Steel Nat'l Steel Labor, 323, 327; 191 Mich NW2d (1991) recog- interpreting . In must be mesa, it those nized that the act is intended involuntarily benefit unemployed. Mo- Baker v General (After Remand), Corp 463, 478; tors *5 Empire 123 Iron v Asmund op Opinion the Court (1984) J.). (opinion by Ryan, NW2d 602 Thus, interpret light courts should the mesa of its providing persons stated of not benefits to "voluntarily” unemployed. who are Id. §29(8)
Before the enactment 1974 of PA respect was silent with which a striker who was to the circumstances under
ineligible
to receive bene-
dispute disqualification
fits under the labor
could
requalify by arranging
employment.
interim
Curtis,
471;
Dow Chemical Co
v
Mich
(1988),
Supreme
NW2d 645
Legislature’s
the
Court discussed the
adding
requalification
reasons
29(8):
provision
§to
The mesc itself deficiency urged adoption this of criteria to measure the nature and extent of services re- quired to dispute disqualifica- terminate the labor Thereafter, Legislature tion. enacted 1974 PA §29(8) 104 which supply objective amended evaluating substantiality criteria for "in- employment.” terim [431 480-482.] point quoted Claimants last sentence as Opinion Court the board adopted by position, for their support court, the circuit review dispute dis- intended two-pronged be terminated once qualification set forth explicitly test objective § —em- consecutive two ployment *6 claimant’s equal to the wages at least weeks and However, been satisfied. rate —has weekly benefit following observation argument overlooks Chemical Court: the Dow annotated by the collection cases As indicated compensation: Labor dis- Unemployment in [Anno: striking applicable to em- pute disqualiñcation as ployee who is laid off employment subsequent 766, period], 61 ALR3d strike in the absence of jurisdictions, even of criteria, dispute disqual- have insisted that not unless new ification is ment terminated good and the former undertaken faith is See, e.g., Hopkins, employment Mark is severed. Comm, 24 Cal 2d Employment Inc California (1944). 744, 748-749; P2d The rationale for 229 is obvious: imposition of such standards open the door to unlim- "To do otherwise would permit any to It would striker obtain ited abuse. it was termi- temporary work and when sort nated to for the loss of the apply for benefits though stoppage job the work temporary even continued. [against employer] the struck still [Alin Comm, 17 Alas Employment v Alaska (1958).] Mich 480-481.] [431 to reasoning directly applicable find this to of 1974 PA was purpose these cases. The arranging workers from sham prevent disqualifi- dodge dispute in order to work Chemical, con- supra. purpose That Dow cation. Empire Iron v Asmund Opinion of the Court . sistent the overall of the mesa involuntarily benefit who those are unem- ployed. supra. wholly Baker, It would be inconsis- goals tent with those hold that necessary did not intend requalify work interim be undertaken faith. As these interpreting requalification demonstrate, cases provisions allowing §of sham to terminate dis- qualification payment unemploy- results in the compensation persons ment benefits to who are voluntarily unemployed, in direct contravention purpose. the mesa’s explained Chemical,
As
in Dow
PA
was
designed
loophole
.by
close
created
Great
supra, by requiring striking
Steel,
Lakes
workers
to obtain "bona fide” interim
in order
qualified
to become
to receive
com-
pensation. See
R. L. concurred._ Olzark, Commission, Security Michigan Employment We assume cases, questions good faith and of appropriate continuity will hereafter consider part subsequent, employment its administrative as of requalification. determination (dissenting). not The circuit court did J. Neff, affirming of the board the decisions err review' that ceive dispute requalified to re- were the claimants because their labor disqualifications under were terminated Michigan Employment §29(8) Act of the 17.531(8). 421.29(8); I would MCL (mesa), affirm. "make work” who worked involve the so-called These cases of thirteen claimants circumstances employers two weeks at for at least individual for wages high rates their benefit at least as dispute.1 in the involved for The utory engages unnecessary opinion stat- to reach the conclusion construction requirements satisfy jobs not these requalification. did neces- construction is No sary face, is, clear and on its because statute fully supports unambiguous the decisions court. Accord- and the circuit of review the board opinion respectfully ingly, dissent from I respect majority, claimants, to these reverses with which requalification would affirm receive benefits.
A its scheme is a remedial act and The mesa *8 merely question jobs in were It should noted that whether be work,” merely disputed. they "make Whether were "make work” was however, my analysis of this issue. does not alter Empire Iron v Asmund J. by Neff, Dissent safeguard general
intended
welfare. Tomei v
Corp,
App 180, 184;
General Motors
194 Mich
(1992).
interpre-
NW2d
It
entitled
liberal
give
policy.
tation to
effect to its remedial
Wohlert
Special
App
Products,
MESC,
419,
Inc v
202 Mich
(1993);
supra. Disquali-
424;
Tomei,
In Dow
Co v
480;
Chemical
(1988),
Supreme
pointed
employment. thereby sup- The amendment employers a means to determine whether are disqualification. entitled claim the bar of the B purpose achieved its amend- ing require objective that two criteria be met in order to terminate dis- (1) qualification receipt of benefits: the claim- ant have for at consec- must least two (2) weeks, utive have at earned least as much as the benefit rate for dispute. relatively involved These two *9 211 Mich by Neff, J. Dissent clearly requirements succinctly are and minimal nothing more is and statute the established unnecessary Statutory required. is construction unambig- unequivocal language is and because Co, 370, 376; 439 Mich Lorencz Ford Motor uous. (1992). not We cannot and should 483 NW2d requirements not found statute are to the add there. require- holding subjective majority adds a requirements objective statute. to the
ment The require inquiry majority into would their subse- and intentions of workers and motives quent inquiry employers could after such and judged subsequent employment be to be bona the fide disagree. employment. I
c go the statute to determine need not outside is bona fide because whether "employment,” MCL term defines both the statute 421.42(1); 17.545(1), "unem- MSA and the term ployed,” 421.48; The mesa MCL 17.552. applied the definitions to be serves as to determine basis for compliance. Lakes, Great supra; Calhoun, 460; 51 Nordman v (1952). of The claimants have met all NW2d statutory requirements of fide bona any inquiry subjective into the elements ment and clearly outside the bounds of judicial legislation. the statute and amounts to of amending 29(8), chose overcoming adopt objective criteria per- disqualification address pointed potential in the Great ceived for abuse out "good faith”. decision2 reference to Lakes without This case is still law. Empire Iron v Asmund by Neff, Dissent J. just easily adopted subjective It could have approach adopted here of this panel, but chose instead to limit the reach of the disqualification. pointed opinion As out in the strictly court, the circuit the establishment of objective purpose ing large perfectly criteria serves the reasonable good public policy avoiding litigat- unemployment compensation
numbers of disputed questions claims to resolve difficult and subjective intent. Given the remedial *10 potential sys- the statute and the to overload the subjective adopted, if tem that the criteria are I believe going Legisla- errs where the judg- ture has refused to tread. The circuit court ment should be affirmed.