Bingham v. American Screw Products Co.

Fitzgerald, J.

(concurring). The result achieved by reversing the Court of Appeals in this case is contrary to one of the most basic policies underlying the Michigan Employment Security Act, which is to encourage employers to provide stable em*572ployment. MCLA 421.2; MSA 17.502. To extend benefits to persons who voluntarily leave regular employment in this state to become nonresidents does not encourage stable employment practices and it further reduces funds available to those who are involuntarily unemployed.

We must, however, apply the statute as written. As was said in Thomas v Employment Security Commission, 356 Mich 665, 669; 97 NW2d 784 (1959):

"It is not the proper function of the court to amend the statute to broaden or extend the disqualifications fixed, in plain language, by the legislature. Whether one in claimant’s situation ought to be disqualified is a question of policy for the legislature, not a judicial question to be determined by the court.”

For this reason, I reluctantly concur in reversal of the Court of Appeals.

Lindemer, J., concurred with Fitzgerald, J. Coleman, J.

(to remand). The basic problem is that this unemployment compensation case has been treated as a § 29(l)(d)1 case in the courts below, but this Court has treated it as a § 29(l)(e)2 case. Without adequate supporting facts and relevant findings of law, the nature of the case has been recast by this Court. The assumptions upon which we are asked to decide the case may or may not be valid, but we are not adequately informed.

Therefore, we would remand to the appeal board for a clear determination of whether this is a § 29(1)(d) or a § 29(1)(e) matter and a finding of facts in support of the conclusion.

*573Plaintiff voluntarily quit his job on November 17, 1969. He had come from Pineville, Kentucky and worked for defendant American Screw Products Company for ten months. His reason for going back to his home in Pineville was given as his inability to find suitable housing in Michigan. The employer was without fault.

On December 2, 1969, plaintiff filed a benefit claim. The Michigan Employment Security Commission (MESC) issued a notice of determination holding that plaintiff left his job without good cause. He was disqualified from receiving benefits until after a six weeks requalification period which ended January 10, 1970. On March 9, 1970, the company protested the determination and sent this notice to plaintiff:

"Attached is a copy of a petition which has been filed with the Michigan Employment Security Commission.
"On behalf of American Screw Products Company you are requested to report for work at your scheduled hours in accordance with the notice included in the petition for redetermination which has been sent to the commission.
"The employer expects you to return to work in accordance with this notice and a failure to report for your regular job would indicate that you are not available for suitable work and the act is not intended for the benefit of persons who refuse to accept suitable work or who refuse to accept their regular job.”

Plaintiff failed to respond in any way. MESC reaffirmed its determination on April 5 and the company appealed to a referee who affirmed MESC on September 29, saying:

"The issues involved in this appeal concern whether the claimant failed without good cause to report to his former employer within a reasonable time after notice *574from such employer for an interview concerning available suitable work, coming under the provisions of § 29(l)(d) of the act.
"A further issue concerns whether the claimant was available for work and eligible for benefits in this respect under § 28(l)(c) of the act.”

The referee said the offered work "was not suitable due to the distance from [Bingham’s] residence as provided under § 29(6) of the act and, accordingly, no disqualification is imposed under § 29(1)(d) of the act”. The referee also concluded that "[u]nder the circumstances, and inasmuch as the claimant has not placed any undue restrictions on his availability, the claimant is deemed to have been available for work under § 28(1)(c)”.

The company filed an appeal and the appeal board affirmed on March 24, 1971 by a 2-to-1 vote. The two members said simply that the referee’s decision "is in conformity with the law and facts”.

The company appealed this decision to the Oakland circuit court which reversed. The judge ruled that claimant

"is disqualified from receiving benefits under the act by failing to requalify and by failing to accept suitable employment when offered. I agree with the conclusions of the employer that the stated purpose of the act neither in fact or law would neither be carried out. Neither would be carried out.”

MESC was granted leave to appeal this decision. In an opinion issued November 29, 1974, the Court of Appeals affirmed the circuit court but limited its review to the question of whether Bingham was disqualified under § 29(1)(d). The Court’s analysis led to a conclusion that

"the offer of the same job at the same location that *575claimant voluntarily left without good cause attributable to the employer or employing unit is suitable work within the meaning of § 29(6). Since plaintiff does not claim that the old job was unsuitable for any reason than the distance from the locality in which he presently resides, the work offered was suitable work as a matter of law. Plaintiff did not have 'good cause’ to refuse to report to his former employer and thus he is disqualified under § 29(1)(d) by reason of his failure to report to his former employer upon receiving notice of the availability of his old job.” 57 Mich App 21, 29; 225 NW2d 199 (1974)

A difference in analysis is required between §29(1)(d) matters ("failed without good cause to report * * * for an interview”) and § 29(1)(e) ("failed without good cause to accept suitable work when offered”).

The employer’s March 9 letter appears to be an offer of work but the panels and persons below have labeled it an offer to interview, although sometimes treating it under § 29(l)(e) standards. The result is at best confusing.

Therefore, we would remand to the appeal board for a clear determination of whether this is a § 29(1)(d) or § 29(1)(e) matter. If the former, there should be consideration of whether Bingham had good cause for failing to respond to the March 9 letter. If he claims that the interview would have concerned unsuitable work, the company should be afforded the opportunity to meet its burden of proof. If the latter, there should be consideration of whether the work offered was suitable. A conclusion should be reached by taking into account each factor of § 29(6) individually. This should entail a very careful and specific finding of fact prior to a conclusion of law.

Remand.

MCLA 421.29(1)(d); MSA 17.531(1)(d).

MCLA 421.29(1)(e); MSA 17.531(1)(e).