Empire Iron Mining Partnership v. Orhanen

*431Riley, J.

(concurring in part and dissenting in part). Because I believe the statute should be applied as it was written, I respectfully dissent from the majority’s decision in Empire Iron Mining v Orhanen and concur only in the result of the majority in Empire Iron Mining v Asmund. I am convinced that the labor dispute disqualification provision, MCL 421.29(8); MSA 17.531(8), is unambiguous in requiring an employee to find work with a single employer for at least two consecutive weeks at a wage equal to or greater than his weekly benefit rate with his prior employer before requalifying for unemployment compensation benefits. Hence, I would reverse the decisions of the Court of Appeals, the circuit court, and the Board of Review of the Michigan Employment Security Commission in Orhanen and reinstate the mesc’s referee decisions because the three employees, by their own admission, did not work for at least two consecutive weeks with a single employer. In Asmund, I agree with the majority that the statute does not include a good-faith requirement, but I disagree with some of its analysis that suggests that the statute is ambiguous. I agree that this Court should reverse the Court of Appeals decision, but I concur in the result only.

I. EMPIRE IRON MINING v ORHANEN

The rules of statutory construction are well established. This Court begins by examining the language of the statute itself. See Tryc v Michigan Veterans’ Facility, 451 Mich 129, 135; 545 NW2d 642 (1996). Where the language of the statute is unambiguous, the plain meaning reflects the Legislature’s intent and this Court applies the statute as written. Judicial con*432struction is not permitted. Id. Although this Court affords an agency some deference in interpreting a statute that it executes, the agency’s interpretation is not binding on this Court and cannot be used to overcome the statute’s plain meaning. Ludington Service Corp v Acting Ins Comm’r, 444 Mich 481, 505; 511 NW2d 661 (1994). Section 29(8) provides that an employee is disqualified from receiving unemployment compensation benefits during a week in which that employee is unemployed because of a labor dispute. An employee may, however, end this disqualification:

An individual’s disqualification imposed or imposable under this subsection is terminated if the individual performs services in employment with an employer in at least 2 consecutive weeks falling wholly within the period of the individual’s total or partial unemployment due to the labor dispute, and in addition earns wages in each of those weeks in an amount equal to or greater than the individual’s actual or potential weekly benefit rate with respect to those weeks based on the individual’s employment with the employer involved in the labor dispute. [MCL 421.29(8)(b); MSA 17.531(8)(b) (emphasis added).]

The majority concludes that an employee may terminate his disqualification even if he does not work for two consecutive weeks with a single employer. Ante, p 429. The opinion concludes, without expressly stating, that the statute’s language is ambiguous. I disagree with this approach because I believe that the statute, examined by itself, is unambiguous. In using the phrase “with an employer,” the Legislature has required that an employee work for two weeks with a single employer in order to requalify for unemploy*433merit compensation benefits during a labor strike. I see no need for judicial construction.

The majority relies on other sections of the act, specifically MCL 421.20; MSA 17.521 (determining how benefits shall be paid) and MCL 421.50; MSA 17.554 (defining “credit week”), to support its claim that “an employer” in § 29(8) may refer to multiple employers. See ante, pp 426-427. However, the specific sections the majority quotes, which indicate that an employee may receive benefits for a week in which he worked for multiple employers, do not govern the circumstance in which an employee attempts to terminate his disqualification under § 29(8) during a labor strike through interim work. Subsection 29(8) specifically disqualifies an employee for unemployment benefits during a labor dispute and identifies the requirements that he must meet to terminate it. The majority ignores the plain language of § 29(8), which requires that the interim employment be “with an employer,” and instead cites other provisions of the act that do not apply in this circumstance.

The majority secondly examines a foreign jurisdiction’s treatment of a similarly worded statute in support of its conclusion. See ante, pp 427-428, relying on Taminski v Administrator, Unemployment Compensation Act, 168 Conn 324; 362 A2d 868 (1975). Finally, the majority, after its examination of the Connecticut case, relies on the Michigan statutory rule of construction, MCL 8.3b; MSA 2.212(2), for support in reading “an employer” to mean “any number of employers.” MCL 8.3b; MSA 2.212(2) provides in pertinent part:

Every word importing the singular number only may extend to and embrace the plural number, and every word *434importing the plural number may be applied and limited to the singular number. [Emphasis added.]

The majority, by applying this permissive inference to this statute, renders the unambiguous language of the statute ambiguous. The purpose of the statutory rules of construction is to enhance the Court’s ability to interpret the legislative intent when a statute is unclear, not to obscure what is otherwise clear. The Legislature has expressly reserved, under MCL 8.3; MSA 2.212, the application of these statutory rules to cases in which the Legislature’s intent is not manifest, i.e., when the statutory language is ambiguous:

In the construction of the statutes of this state, the rules stated in sections 3a to 3w shall be observed, unless such construction would be inconsistent with the manifest intent of the legislature. [Emphasis added.]

Consequently, I would limit the application of the statutory rules of construction, listed in §§ 3a to 3w, to statutes in which (1) the plain language does not make the Legislature’s intent manifest, or, in other words, the statute is ambiguous or (2) the statute’s language would otherwise create an absurd result. See Crowley, Milner & Co v Macomb Circuit Judge, 239 Mich 605, 615-616; 215 NW 29 (1927) (“The statute [that the singular number may embrace the plural number] is for use and has been employed to avert ridiculous situations” [emphasis added]). The rule of statutory construction in MCL 8.3b; MSA 2.212(2) should not be applied to the unambiguous language of § 29(8) because the plain language does not create an absurd result.

*435The plain meaning of the statute as written is consistent with this Court’s explanation in Dow Chemical Co v Curtis, 431 Mich 471, 481, n 10; 430 NW2d 645 (1988), of the Legislature’s intent in enacting this provision. In Dow, supra at 482, we concluded that the Legislature intended to ensure that there were “objective criteria” for evaluating “the substantiality of ‘interim employment’ ” necessary to requalify an employee for unemployment compensation benefits dining a labor strike. (Emphasis added.) This Court, in Dow, was evaluating the relevant statutory language in § 29(8), which, the Court noted, had been enacted “to restore the viability” of the labor dispute disqualification. Id. at 480. The Legislature was attempting to remedy the deficiency created by this Court in Great Lakes Steel Corp v Employment Security Comm, 381 Mich 249; 161 NW2d 14 (1968), when we interpreted the predecessor of § 29 to allow work of “even a very short duration” to end the labor dispute disqualification. See Dow, supra at 480. Hence, the Legislature adopted the objective criteria outlined in § 29(8). Id. at 481-482.1 See also ante, pp 418-421, for a history of the provision.

*436In the context of the legislative history, the Legislature’s decision in § 29(8) to use the phrase “with an employer” indicates that the Legislature intended to create an objective requirement regarding the nature of the work. The majority fails to provide any explanation for the reason that this critical phrase appears in the statute. The statute also requires that the employee work two weeks with the single employer, these two weeks be consecutive, and the employee earn income equal to, or greater than, his weekly benefit rate with his previpus employer dining that period. By requiring that the employment of two consecutive weeks be with a single employer, this provision furthers the Legislature’s wish to safeguard that any interim work be “substantial[],” see Dow, supra at 482, by ensuring that the employee obtain a stable interim position, and not just makeshift work with various employers for any duration. The requirement that there be only a single employer guarantees that the employee achieved a modest measure of stability in the interim employment before seeking unemployment benefits when that work ceased. Because there is no dispute that these three employees did not work for two weeks with a single employer, I would reinstate the referee decisions that this interim employment did not end the labor dispute disqualification.2

n. EMPIRE IRON MINING v ASMUND

In Asmund, I agree that there is no good-faith requirement in § 29(8). The majority’s analysis, “by examining the rationale underlying the [Michigan *437Employment Security Act],” and by considering the “history and circumstances surrounding § 29(8)(b),” ante, pp 415-416, suggests that the statute’s language is ambiguous. Although the opinion claims that it is only engaging in judicial construction in footnote 12 on page 423 to demonstrate that the plain meaning of the statute will not produce an absurd result, the rest of the opinion’s analysis suggests otherwise. I believe that the statute unambiguously fails to include a good-faith requirement. Hence, I do not think there is any reason to engage in judicial construction. See Tryc, supra at 135. I also agree with the majority that an examination of the legislative history of the statute reveals that the Legislature did not intend to create a good-faith requirement, but instead only established objective criteria. See ante, pp 422-423. This judicial construction is only necessary, in my opinion, for demonstrating that the statute’s plain meaning does not create an absurd result.

In examining the language of § 29(8), I would hold that the statute requires an employee to prove three points before terminating the labor dispute disqualification: he must prove that (1) he has worked for two consecutive weeks, (2) with the same employer, and (3) has earned a wage equal to or greater than the actual or potential benefit rate from his previous employer. For these thirteen employees in Asmund, each employee satisfied the objective criteria of § 29(8) by working for a single employer for two consecutive weeks and, during that period, was paid a greater wage than he was paid by his previous employer. I concur in the majority’s decision to reverse the Court of Appeals decision.

*438m. conclusion

I would reverse the Court of Appeals decision in Orhanen and reinstate the decision of the MESC referee that the three employees did not terminate the labor dispute disqualification under § 29(8) because they failed to work for two consecutive weeks with a single employer. Because I agree that the thirteen employees met the objective criteria of § 29(8), I concur in the majority’s decision in Asmund to reverse the Court of Appeals decision and reinstate the MESC Board of Review’s decision to terminate the labor dispute disqualification.

Brickley and Weaver, JJ., concurred with Riley, J.

The Court in Dow, supra at 481, n 10, noted that the language at issue was taken from a recommendation from the MESC to increase the nature and extent of interim work that terminates the labor dispute disqualification:

“It is therefore recommended that Section 29(8) be amended to provide that a labor dispute disqualification be terminated if an individual performs services in employment with an employer in at least two consecutive weeks falling wholly within the period of his total or partial unemployment due to the labor dispute and if in addition he earns wages in each of such weeks in an amount equal to or in excess of his actual or potential weekly benefit rate with respect to such weeks based on his employment with the employer involved in the labor dispute.” [Emphasis added.]

There is no indication that the MESC Board of Review was relying on a longstanding interpretation of the act in reversing the referee decisions.