Dow Chemical Co. v. Curtis

Griffin, J.

In 1974, while on strike against the Dow Chemical Company, 486 of Dow’s employees arranged with other employers to perform interim jobs which lasted, on the average, less than two days, for the purpose of qualifying for unemployment compensation. While the strike was still in progress and claims by the 486 employees for unemployment benefits were pending before the Michigan Employment Security Commission, the *475Legislature amended1 §29(8), the labor dispute disqualification provision of the Michigan Employment Security Act,2 and made clear that similarly situated claimants are ineligible. In this appeal, we are required to decide whether the statutory change is applicable to the 486 claims at issue in this case. Although reclamation of unemployment benefits awarded by the commission and already paid to these employees is now barred by limitations imposed by statute,3 we hold that 1974 PA 104 operates to preclude any charge against Dow’s rating account4 for benefits paid with respect to benefit weeks after the effective date of the amendment, June 9, 1974.

i

The facts are not in dispute. In accordance with the call of their union, United Steel Workers of America, afl-cio-clc, approximately 5,000 hourly workers struck Dow on March 18, 1974, in a dispute over wages and working conditions. During the strike period, which continued until September 9, 1974, none of the employees involved in this appeal resigned from their employment with Dow. Each claimant’s regular work with Dow remained available to him throughout the strike, and each striker retained certain pension rights and seniority status with Dow.

Many of the striking employees, including the 486 involved in this appeal, filed claims for unemployment compensation. Initially, the mesc issued determinations disqualifying all claimants from *476benefits by reason of §29(8) of the act, which at that time (March, 1974) provided:

An individual shall be disqualified for benefits for any week with respect to which his total or partial unemployment is due to a labor dispute in active progress, or to shutdown or start-up operations caused by such labor dispute, in the establishment in which he is or was last employed, or to a labor dispute (other than a lockout) in active progress, or to shutdown or start-up operations caused by such labor dispute, in any other establishment within the United States which is functionally integrated with such establishment and is operated by the same employing unit. No individual shall be disqualified under this subsection 29(8) if he is not involved in such dispute.

Thereafter, upon the advice of their union, the 486 claimants involved in this appeal obtained short-term employment from other employers, and then filed again for unemployment benefits, contending that their brief interim employment had the effect of terminating the § 29(8) labor dispute disqualification.

It is undisputed that the nature and duration of the interim work performed by each of the claimants are accurately described in a summary of cases attached to Dow’s brief on appeal. The summary indicates that the average time worked by the claimants prior to June 9, 1974, the effective date of the amendment of § 29(8), was less than two days; in many instances, claimants worked for only a few hours.5 Although all of the claimants *477received remuneration for work performed, virtually none earned an amount equivalent to their unemployment compensation rate for the week.

As indicated above, while the Dow strike was in progress, the Legislature amended § 29(8) of the mesa6 and thereby added certain criteria to be applied in determining whether subsequent employment operates to terminate the labor dispute disqualification:

An individual’s disqualification imposed or imposable under this subsection shall be terminated by his performing services in employment with an employer in at least 2 consecutive weeks falling wholly within the period of his total or partial unemployment due to the labor dispute, and in addition by earning wages in each of those weeks in an amount equal to or in excess of his actual or potential weekly benefit rate with respect to those weeks based on his employment with the employer involved in the labor dispute.

Accordingly, under the amendment the labor dispute disqualification could be avoided only by working for another employer for at least two consecutive weeks and for wages for each such week equal to or in excess of the actual or potential weekly benefit rate provided by the mesa. Not a single one of the 486 claimants in the instant case fulfilled the requirements of the 1974 amendment either before or after June 9, 1974.

Nevertheless, the mesc determined that the interim employment of the 486 claimants operated to terminate the labor dispute disqualification in each case, that each of the 486 claimants was *478entitled to unemployment benefits, and that corresponding charges should be placed against Dow’s rating account. Dow unsuccessfully challenged each claim by appealing to the mesc Board of Review. The 486 cases were then consolidated in an appeal by Dow in the Midland Circuit Court, which affirmed the board’s decision, and its decision was thereafter affirmed by the Court of Appeals sub nom Dow Chemical Co v Curtis, 158 Mich App 347; 404 NW2d 737 (1987).

The mesc and the courts below refused to apply the 1974 amendment retrospectively. The Court of Appeals stated:

The June 9, 1974, amendment to the statute added a higher standard that a claimant must satisfy in order to terminate the labor dispute disqualification. . . . Applying 1974 PA 104 retroactively to claimants who undertook interim employment prior to June 9, 1974, and who could have shown a termination of the labor dispute disqualification under then-existing 1974 PA 11, would have the effect of diminishing their rights to unemployment benefits. Consequently, the general rule in favor of giving retroactive application to remedial statutes is not applicable. Only a clear statement of legislative intent should justify giving retroactive application to this statute. [Id., pp 357-358.]

Refusing also to apply the amendment to determine benefit eligibility for the weeks after June 9, 1974, the Court of Appeals stated:

Finally, Dow contends that, since eligibility must be determined weekly, mesc erred as a matter of law in failing to redetermine each claimant’s eligibility for the weeks commencing June 9, 1974, the effective date of the statutory amendment. Again, we disagree. [Id., p 359.]

*479On appeal in this Court, Dow again argues that the amendment should be applied to the 486 claims, and that the mesc and the courts below erred as a matter of law in holding to the contrary. Dow maintains that because none of the 486 claimants met the criteria set forth in the 1974 amendment, they were ineligible for any unemployment benefits. In the alternative, Dow argues that the 1974 amendment should determine benefit eligibility for the weeks following its effective date, June 9, 1974.

Unemployment benefits already paid to these claimants cannot now be reclaimed because of a statutory bar. MCL 421.62(a); MSA 17.566(a). However, our decision will determine whether, and to what extent, Dow’s rating account should be charged, pursuant to § 20(a) of the mesa,* 12****7 with approximately $1,500,000 paid out for the 486 claims, a charge that imposes a continuing burden on Dow’s account.

For reasons set forth below, we conclude that 1974 PA 104 governs eligibility with respect to benefit weeks after June 9, 1974, its effective date.8

*480II

1974 PA 104 was enacted to restore the viability of the § 29(8) labor dispute disqualification in the wake of this Court’s interpretation of that section in the context of a 1959 strike. In Great Lakes Steel Corp v Employment Security Comm, 381 Mich 249; 161 NW2d 14 (1968), employees of Great Lakes Steel were involved in a lengthy strike. Some of the employees obtained interim employment during the strike with other employers, from which they were laid off after having worked only "a few days to several weeks.” Id., p 251.

The Great Lakes Court interpreted then § 29 to mean that interim employment of even a very short duration was sufficient to terminate the labor dispute disqualification. The Court held that the only standard to be applied with regard to such interim employment was that the claimants be "employees” of "interim employing units.” Great Lakes, supra, p 254. As indicated by the collection of cases annotated in 61 ALR3d 766,* *9 the majority of jurisdictions, even in the absence of statutory criteria, have insisted that a labor dispute disqualification is not terminated unless the new employment is undertaken in good faith and the former employment is severed. See, e.g., Mark Hopkins, Inc v California Employment Comm, 24 Cal 2d 744, 748-749; 151 P2d 229 (1944). The rationale for imposition of such standards is obvious:

To do otherwise would open the door to unlim*481ited abuse. It would permit a striker to obtain any sort of temporary work and when it was terminated to apply for benefits for the loss of the temporary job even though the work stoppage [against the struck employer] still continued. [Alin v Alaska Employment Security Comm, 17 Alas 607, 615 (1958).]

As the instant case well demonstrates, failure by the Great Lakes Court to interpret § 29 so as to require "bona fide” employment opened the door to artful dodging of the labor dispute disqualification. The mesc itself recognized this deficiency and urged adoption of criteria to measure the nature and extent of services required to terminate the labor dispute disqualification.10 Thereafter, the Legislature enacted 1974 PA 104 which amended *482§29(8) to supply objective criteria for evaluating the substantiality of "interim employment.”

In the absence of any clear indication from the Legislature that retrospective operation was intended, and for reasons set forth below, we conclude that the mesc properly charged Dow’s rating account for benefits paid to these employees with respect to benefit weeks prior to the effective date of the amendment. We also hold that 1974 PA 104 precludes any charge against Dow’s rating account for benefits paid to these employees with respect to benefit weeks after the effective date of the amendment.

MCL 421.32(d); MSA 17.534(d), provides:

The issuance of each benefit check shall be considered a determination by the commission that the claimant receiving the checking [sic] was covered during the compensable period, and eligible and qualiñed for benefits. [Emphasis supplied.]

Section 32(d) authorizes employers to request "a redetermination as to the eligibility or qualification as to that period and a determination as to later weeks and benefits still unpaid as are affected by the protest.” Upon receipt of the challenge to benefits, the mesc

shall investigate and redetermine whether the claimant is eligible and qualified as to that period. If, upon the redetermination, the claimant is found ineligible or not qualified, the commission shall investigate and determine whether the claimant obtained benefits, for 1 or more preceding weeks within the series of consecutive weeks which includes the week covered by the redetermination, improperly as the result of administrative error ....

*483Under § 32a(2), MCL 421.32a(2); MSA 17.534(1)(2), redetermination is authorized for any "good cause” shown. The mesc is required to review a timely protested "determination” and issue a "redetermination.” MCL 421.32a(l); MSA 17.534(1)(1).

Unemployment benefits are a matter of statutory grace. MCL 421.57; MSA 17.561. The mesa is so structured that if the law changes or if facts change an interested party has the right to demand that eligibility or qualification, or both, be determined anew. See §§28, 29 and 32 of mesa; Roman Cleanser Co v Murphy, 386 Mich 698, 705; 194 NW2d 704 (1972); Talley v Unemployment Compensation Div of Industrial Accident Bd, 63 Idaho 644; 124 P2d 784 (1942). In the instant case, Dow, pursuant to § 32(d), timely protested the eligibility and qualification of each employee-claimant for each week of the strike. Although some filed claims for benefits on the basis of interim employment prior to June 9, 1974, and checks were issued prior to that date, the initial determinations did not constitute final adjudications of the rights to unemployment benefits. Claims made for benefit weeks after June 9, 1974, were controlled by the new criteria set forth in the amendment.

We conclude that 1974 PA 104 governs benefit eligibility for the benefit weeks following its effective date, and charges to Dow’s rating account for benefits paid with respect to benefit weeks after June 9, 1974, are precluded in light of the fact that none of the employee-claimants met the new criteria for terminating the labor dispute disqualification.

Accordingly, we reverse the judgment of the Court of Appeals and remand this case to the mesc for entry of an order consistent with, this opinion.

*484Riley, C.J., and Levin and Brickley, JJ., concurred with Griffin, J.

1974 PA 104.

MCL 421.1 et seq.; MSA 17.501 et seq.

MCL 421.62(a); MSA 17.566(a) precludes recovery of improperly paid benefits from an individual more than three years after the date of receipt, except under circumstances that are not applicable.

MCL 421.20(a); MSA 17.521(a).

For example, one employee worked at a concrete business owned by his sister for eight hours at $3.10 per hour, hanging a door; another employee was hired by his brother-in-law to work as a gas station attendant for less than two days at $2.00 per hour; yet another striker accepted five hours of work fixing a fence for his brother-in-law at his restaurant. Other "interim employment” by the *477claimants included unloading a box car for a few hours for a total wage of $23.50, stacking carpet for one day, unloading paneling for a total earning of $16.50, and working for $2.00 per hour for one day at a club at which the claimant was a member.

1974 PA 104.

MCL 421.20(a); MSA 17.521(a).

The effective date of the amendment is explained in another portion of the act:

(1) If this 1974 amendatory act is given immediate effect, the effective date of this amendatory act shall be the first day of the calendar week containing the thirtieth day after it is approved by the governor or becomes law without his approval.
(2) An individual who has a current and unexhausted benefit year on the effective date as provided in subsection (1) shall have his weekly benefit rate and the maximum amount of benefits recomputed in accordance with this amendatory act with respect to any week of unemployment beginning on or after that date on that portion of his benefit rights not exhausted prior to that date but his weekly benefit rate and maximum amount of benefits established and not exhausted prior to the aforementioned effective date shall not be subject to reduction or elimination by the recomputation. [MCL 421.66; MSA 17.569(16).]

*480The mesc determined the effective date of 1974 PA 104 to be June 9,1974.

See anno: Unemployment compensation: Labor dispute disqualiñcation as applicable to striking employee who is laid off subsequent employment during strike period, 61 ALR3d 766.

Commentary submitted by the mesc to the Legislature in connection with SB 741, 1974 PA 104, dated March 15, 1974, included the following:

"In Great Lakes Steel Corporation v Michigan Employment Security Commission (1968), 381 Mich 249, the Supreme Court of Michigan held that a claimant shall be deemed to have terminated a labor dispute disqualification imposed under Section 29(8) by performing services subsequent to the beginning of the labor dispute in employment for remuneration with an employer.
"The Court however made no finding as to what amount of remuneration must be received by the claimant in order to terminate the labor dispute disqualification. However, it appears that in the Great Lakes Steel case that all of the individuals worked with the interim employees [sic] from several days to several weeks and that the amount of remuneration that the individuals received was at least equal to the amount that would have been the individual’s benefit rate in such week of interim employment if he had been eligible and qualified in all respects.
"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 [sic] his employment with the employer involved in the labor dispute.”