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STATE OF MICHIG&~

IN THE CIRCUIT COURT OF THE COUNTY OF 'i\.LLEGA.'I

L. SCOTT MILLER, Appellant

OPINION vs.

File No. 79 1282 AV

HOFFMASTER FARMS and HICHIG~~ EMPLOYMENT SECURITY COMMISSION,

Appellees

I. Facts

This is an appeal taken under MCLA 421.38;MSA 17.540 of a

Michigan Employment Security Commission (hereinafter MESC) deter-

mination. Central ~o an understanding of this case is the following

chronology of events:

August 5, 1974 - Appellant began work for Miles Labo r a­tories;

July 18, 1975 - Appellant laid off by Miles Laboratories due to lack of work;

August 26, 1975- First week of Appellant's unemployment benefits;

December 29, 1975 -Appellant secured part-time work at Hoffmaster Farms. Wages paid at this job were low enough so that unemployment benefits were unaffected;

January 23, 1976 -Last week of Appellant's regular unem­ployment benefits;

January 24, 1976 - First week of extended benefits paid to Appellant under MCLA 421.64;MSA 17.568;

March 15- 27, 1976- Appellant secured a second part-time job with the United States Postal Service as a substitute mail carrier. His combined wage s made him ineligible for ~nemployment benefits for these two weeks .

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April 3, 1976 - Arrellant resumed recetvinP, unemployment benefits;

April 10, 1976 - Appellant quit job at lloffroaster F.nm!; to take a job working for his father-in-Law at J & C Carving. Received unemplO)"JH~nl benefit. !; [or

this weeki

April 17, 1976- Appellant was supposed to start ~o~ork1ng for father-in-law but work never materialized. He was never put on the payroll, nor did he receive any wages for this week . Appell.:;nt received unemployment benefits for this week.

April 20 , 1976 -Appellant hired by General Motors;

June 25, 1976 - Appellant laid off by General Motors due to lack of work;

July 2, 1976 - Apptllant filed for unemploy~ent benefits where it was learned he must requalify due to his voluntary quit without good cause attribu­table to the employing unit of Hoffmaster Farms and to pay restitution for the April 10 and April 17 payments made to him;

July 17, 1976- Appellant fulfilled the certification requirements and began to receive so:; of his entitled benefits, t he other 20% bein~ retained by the State to reduce his indebtednes~ for the improper April payments;

August 9, 1976 - Appellant returned to General Motors where he is currently employed.

For the benefit year 1975-76 the Appellant received ~! payments

of unemployment benefits. This number is two i.n excess of the number

allowed for any single benefit year under the Statute. ,\s a result of

this overpayment, the Appellant owes the State $130.00.

The single I!Klllt important iaau~ in this case is ~o·hethcr Hoff-

mast~r Farm. is an ~ploying unit for purposes of the Act so that when

Appellant voluntarily quit without attributable cause to Hoffmaster

Farms, he was made subject to a 13 week uqualification period i.n

order to receive additional unemployment benefits.

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· ~E C.F '.IICHIGAN

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II. Law

A. Mootness

Appellees have raised · the issue that there is no justiciable

issue presented for the Court. This was not an issue before the MESC and

is first raised by the Appellees in front of this Court. The Appellees

point out that the Appellant has received two payments in excess of the

benefits he was entitled to for one benefit year. See MCLA 421.46;

MSA 17.550 and MCLA 421.27 (d); MSA 17.529 (d). Therefore, even if

the Court rules in the Appellant's favor, he is still indebted to the

MESC for $130. From the record before the Court, it does not appear

that the MESC was concerned with the mootness question as i t processed

the Appellant's appeal.

The Appellant is now before this Court pursuant to }ICLA 421.3f·

MSA 17.540. He is entitled to review of his case to determine whether

the determination by the MESC is supported by the record. The Mcinerney

Spring & Wire Co v MESC decision by the Kent County Circuit Court cited

by the Appellees is distinguishable as in that case the employer and the

MESC as opposing parties admitted the mootness of the case and the indi-

vidual claimant had only filed an appearance. In the present case, the

claimant has diligently prosecuted his appeal and in doing so has shown

his sustained interest in getting a court ruling of the MESC determina-

tion . ·

~1ile another party, one actually deprived of benefits, may

have better standing to present the issue involved in this case, the

claimant should be entitled to a circuit court review of the record,

of both fact and law, pursuantto the Statute so long as there has been

a final order of the Board and the appeal has been brought in the

proper county.

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II

B. Agricultural Labor

A point overlooked is whether a person who performs agricul-

tural labor can be employed by an employing unit. This question ari ses

because the Appellant's job at the Hoffmaster Farms was agricultural

in nature, i.e., care and feeding of a dairy herd. Under HCLA 421.43;

MSA 17.547 the term "employment" is defined so as not to inc l ude

"agricultural labor" as that term is defined in subsection (d) of the

above cited section. However, MCLA 421 . 40;MSA 17.542, defining

"employing unit" does not use the term employment, but only speaks of

providing service. That part of the Act defining employer, being

MCLA 421.41; MSA 17.543 does use the term employment in the following

manner:

"Employer" means any of the following:

(1) [A]n employing unit which has or had in employment 1 or more individuals 20 differ­ent calendar weeks or which paid $1,000 or more in remuneration for employment in a calendar year.

(5) Beginning January 1, 1978, an employing unit which in 20 different calendar weeks employed 10 or more individuals performing agricultural service.

Put simply, an "employer" is an "employing unit" which

engages in "employment". Thus, the employi ng unit must be one which

performs work not exempted by MCLA 421 . 43; MSA 17 . 547 or performs a

service that has been included within the employer definition in order

to be an employer. Therefore, employing units which provide se~ices

exempted as employment can not be employers. The preceding statement

is subject to the limitation contained in MCLA 421.42 (6); MSA 17.545

(6).

The above passages as applied to this case point to the fact

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that an employing unit can be composed of agricultura l labor, but such

a unit, at least during the period that Appellant wor ked for Hof fmaste r

farms, cannot be subject to the terms of MCLA 421.41; MSA 17.543 defin -

ing "employer". However, Hoffmaster Farms was an "employ in ~ un:i t_" for pur

poses of the Act.

C. Employing Unit

MCLA 421.29 (1) (a); MSA 17.531 (1) (a) provides that an

individual is disqualified for benefits in all cases in whi c h he has

left work voluntarily without good cause attributable to the employer

or employing unit .

As defined at MCLA 421. 40; MSA 17.542, an "employing unit" is

any individual or type of organization which has in its employ one or

more individuals performing services for it within t he sta t e. Note

that the word "employ" is used in the definition, rather than " employ-

ment" and that services are performed, rather than employment engaged

in. There would then appear to be little doubt, based on t he sections

of the Act as discussed, that Hoffmaster Farms was at the time of the

Appellant's quitting, an employing unit. That such work was part-

time agricultural labor is of.no significance. Therefore, when the

Appellant voluntarily quit his job with Hoffmaster Farms, he met the

conditions of MCLA 421.29; MSA 17.531 and was thus subject to a disquali-

fication period of thirteen weeks, pursuant to subsection (3) of the

above cited section.

Although a harsh result may obtain, as in this case, in

that a person who quits a part-time job to take a full-time job in

order to cease receiving unemployment benefits, may find themselves

disqualified from benefits if laid off from their new employment

within the first 13 weeks, the Act is the creation of the s t at e

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legislature, and is the product of precise definition of terms

and policy by that body. It is not the function of t he courts to

usurp the legislature when a sympathetic case comes before it. It

should be pointed that MCLA 421.29 (5); MSA 17.531 (5) waives the

disqualification period when an individual leaves an employer, even

though working part-time , to take a full-time job with another

employer. Presumably, because not all employing units are employers,

this waiver is not extended to those individuals who leave an employ-

ing unit to take a job with an employer.

In the past, Nichigan courts have been adament in giving

the terms used in the Employment Security Act their precise defini-

tions , even though the result seems to penalize amibitiousness on the

part of the claiment.

In Lyons v Employment Security Commision, 363 Mich 201 ; 108

NW2d 849 (1961) the Court split three ways but the result was that a

laid off auto worker who managed to secure similiar work in Indianapo-

lis, 273 miles from his Trenton, Michigan home, and who quit after two

and one-half weeks was disqualified from unemployment benefits for his

voluntary quit without good attributable cause to the employer.

In Herren v Employment Security Commission, 3 Mich App 383;

142 NW2d 493 (1966) affirmed by an equally dLv.idedcourt, 380 Mich 240;

156 NW2d 524 (1968) a similar type of result occured . In this case

an engineering employee of Lear Siegler, Inc. in Grand Rapids quit

his employment to take a job with Douglas Aircraft Co. in Florida.

After working 14 weeks in Florida the engineer was laid off. The

Florida Industrial Commission helped the claimant receive unemploy-

ment benefits from Michigan , based on his employment with Lear Sieg-

ler. However, after benefits totalling over $300 had been paid, the

MESC was informed that the claimant had voluntarily left Lear Siegler

without good cause a ttributable to the employer. The claimant was then

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ruled ineligible for benefits and ordered to repay the benefit monies .

The Court of Appeals held that the controlling provision (akin to the

current MCLA 421.29 (5); MSA 17.531 [5)) provided that in order for

there to be no disqualification, a claimant must accept full time

employment with another Michigan employer, as an out-of-s t a te em-

ployer did not qualify under the definition of MCLA 421.41; HSA 17.

543. The Court of Appeals closed their opinion with t wo observations .

First, that although Lyons held that an "employer" included out-of-

state employers, the case was distinguishable because such a reading

was necessary for the purposes of the Act to include out-of-state and

non-subject employers within the state for the purposes of MCLA 421.

29 (1); MSA 17.531 (1). However, the context of the provision in the

instant case did not require such a reading. The second observation

was that though 11present definitions found in the act tend to penalize

am ambitious worker like Herren * * * situations such as occurred

here should be directed to the legislature * * * " for relief and not

the courts.

An equally divided Supreme Court affirmed. The opinion for

affirmance noted that not to allow disqualification of t he employee

when the new employer is not subject to the Act, (as an out- of- state

employer would be) would create a situation where t he i ntent of the

legislature to balance the policy of providing for the mobility of

labor with the object of relieving the burden of the separa t ed or

former employer being charged with all of any benefits paid to the

claimant if laid off by the employer would be undermi ned . See t he

footnote to the opinion for affirmance at 380 Mich 245-246; 156 ~12d

526. The opinon for reversal noted that the policy of labor mobility

was paramount, and that the MESC could t ake into a cco unt benef its

received by a claimant due to employment in other states so that the

term employer as used in the Act did not have to he defined as a

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Michigan employer .

I Therefore, in the presen t case, even though a harsh result

i .i is obtained by the working of the statute , the Appellant was subject

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TE. OF MICHIGAN

JvOICIAL CIRCUIT

"~E A. CORSIGLIA I ;;;CulT JUOGE II ~N. MICHIGAN J9010

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to t he 13 week disqualification for voluntarily quitting his part-

time job with an employing unit to take a full- t ime job with an

employer .

The Michigan Empl oyment Security Commission is a ffirmed.

Dated: January \\ 1980