ANKERSON
v.
EMPLOYMENT SECURITY COMMISSION.
Calendar No. 57, Docket No. 50,372.
Supreme Court of Michigan.
Decided July 13, 1965.Zwerdling, Miller, Klimist & Maurer (A.L. Zwerdling and Nino E. Green, of counsel), for plaintiff.
Dahlberg, Simon, Jayne, Woolfenden & Gawne (Benjamin W. Jayne, of counsel), for defendant company.
T.M. KAVANAGH, C.J.
Plaintiff was employed by the Cone Drive Gears Division, Michigan Tool Company, *128 and was laid off on July 8, 1960, for two weeks by his employer and remained unemployed for that period. Plaintiff was not entitled to any vacation pay under the company-union bargaining agreement because he had been on layoff during 1959 and had not acquired 30 days seniority prior to December 31, 1959.
Plaintiff sought to continue working during the vacation period but was told by his foreman that the men who were to work had already been selected, and that there would be no work available for him. He returned to work on July 25, 1960.
Plaintiff filed a claim July 11, 1960, and certified for weeks ending July 16 and July 23, 1960, with the Michigan employment security commission. The hearing referee and the commission denied his claim. The appeal board of the Michigan employment security commission and the Ingham circuit court affirmed. Plaintiff, on leave granted by this Court, appeals, contending he was eligible for benefits as an unemployed person within the meaning of the Michigan employment security act[1] for the two-week period which his employer designated as a "vacation."
The sole question in this case is whether appellant was eligible for benefits as an unemployed person within the meaning of the Michigan employment security act for the two-week period which his employer and union designated as a compulsory vacation period.
Appellees contend, (1) that the purpose of the said act is to provide relief for people who are out of work through no fault of their own; the fault here is solely that of the claimant; that he, through his lawful and designated agent, negotiated a contract *129 which put him out of work for a two-week period in July; that the claimant's remedy is a change in the contract reducing the eligibility requirements for vacation pay, it is not a petition for unemployment benefits; that legally and morally, he was voluntarily out of work and to permit him to draw unemployment benefits is to make a mockery of the employment security act and of the union contract; (2) that this case is controlled by the case of I.M. Dach Underwear Company v. Employment Security Commission, 347 Mich. 465.
These arguments were discussed and squarely answered by the majority opinion of this Court in Employment Security Commission v. Vulcan Forging Company, 375 Mich. 374, 376, reversing the Dach Case.
Reversed and remanded for entry of order granting unemployment benefits to the appellant. Plaintiff shall have costs.
BLACK, SOURIS, and SMITH, JJ., concurred with T.M. KAVANAGH, C.J.
O'HARA, J. (concurring).
I yield to the majority view and concur with the Chief Justice for the following reasons:
At page 469, in I.M. Dach Underwear Company v. Employment Security Commission, 347 Mich. 465, the following appears:
"The employment security commission denied compensation on the ground that the applicants were on vacation, and, hence, not available for work." (Emphasis supplied.)
Dach has been expressly overruled by a majority of this Court. Hence claimant here must be considered *130 to have met the eligibility requirements of section 28.[1]
This then leaves the question of the legislative intent of section 48[2] to be determined without reference to section 28. I, therefore, agree with Mr. Justice SOURIS' determination of that intent as expressed by him in Vulcan.[3]
I adhere to the view of the waiver theory expressed by the Minnesota Supreme Court[4] as follows (p 62):
"There is an important distinction between an agreement for a leave or vacation shutdown which gives rise to no unemployment compensation benefits and a collusive agreement that unemployment compensation benefits be waived."[5]
My concurrence with the Chief Justice is planted upon the wording of section 48 read independent of and unlimited by our prior interpretation of the eligibility requirements of section 28.
DETHMERS, J. (dissenting).
A reading of the opinion of this Court in Renown Stove Company v. Unemployment Compensation Commission, 328 Mich. 436, the opinions written by Mr. Justice CARR in the cases of I.M. Dach Underwear Company v. Employment Security Commission, 347 Mich. 465, and Malone v. Employment Security Commission, 352 Mich. 472, and that of Mr. Justice O'HARA in Employment Security Commission v. Vulcan Forging Company, 375 Mich. 374, will indicate why I favor affirmance *131 of the circuit court order denying compensation in this case.
The order should be affirmed. Costs to defendants.
KELLY, J., concurred with DETHMERS, J.
ADAMS, J., did not sit.
NOTES
[1] PA 1936 (Ex Sess), No 1 (CL 1948, § 421.1 et seq., as amended [Stat Ann 1960 Rev § 17.501 et seq.]).
[1] CLS 1961, § 421.28 (Stat Ann 1960 Rev § 17.530). REPORTER.
[2] CLS 1961, § 421.48 (Stat Ann 1960 Rev § 17.552). REPORTER.
[3] Employment Security Commission v. Vulcan Forging Company, 375 Mich. 374.
[4] Jackson v. Minneapolis-Honeywell Regulator Company, 234 Minn 52 (47 NW2d 449).
[5] See CL 1948, § 421.31 (Stat Ann 1960 Rev § 17.533). REPORTER.