Dow Chemical Co. v. Curtis

Archer, J.

(concurring). The plaintiff-appellant Dow Chemical Company seeks to eliminate charges to its mesc rating account for unemployment benefits paid to striking union workers during the course of a 1974 strike. These benefits were paid to claimants-appellees pursuant to a loophole1 that existed in the labor dispute disqualification provision of the Michigan Employment Security Act, MCL 421.29(8); MSA 17.531(8), prior to its amendment by 1974 PA 104.2

I agree with the majority’s conclusion that 1974 PA 104 operates prospectively and that it governs eligibility for the benefit weeks following its effective date despite claimants’ termination of their *485labor dispute disqualification for prior weeks on the basis of the statute as it existed before amendment. I write separately to emphasize that this result is mandated by the unique statutory scheme embodied in the mesa.

i

The relevant language of the mesa states that an employee is "disqualified [when he is on strike due to a labor dispute] in the establishment in which he is or was last employed . . . .” It is undisputed that the claimants had interim employment other than their employment with Dow. Therefore, these employees were not disqualified under the pre-amendment statute because they were not within the unambiguous statutory language disqualifying only those unemployed due to a labor dispute at their last place of employment. Great Lakes Steel Corp v Employment Security Comm, 381 Mich 249; 161 NW2d 14 (1968).

In Great Lakes Steel, this Court held that a disqualification under § 29(8) of the mesa could be terminated by interim employment of short duration. In the instant case, the courts below uniformly held that the Great Lakes Steel interpretation of § 29(8) was the controlling interpretation of the statute prior to its amendment by 1974 PA 104.3 In addition, each of the courts below has held that the statute should be applied as it existed before the amendment because the 486 claimants filed prior to the effective date of the amendment. The judgment of this Court differs from that reached in the Court of Appeals only with respect to charges to the employer’s rating account for *486weeks following the effective date of the amendment.

ii

The provision governing the effective date of 1974 PA 104 provides:

(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.
This act is ordered to take immediate effect.
Approved May 16, 1974. [1974 PA 104, MCL 421.66; MSA 17.569(16).][4]

There is no indication in this provision that the amendment is to be given retroactive effect. This Court has stated:

The pertinent rule of statutory construction used to determine the effect an amendatory act has on transactions and events completed prior to its enactment is set forth in 1A Sands, Sutherland Statutory Construction (4th ed), §22.36, pp 300-301:
"In accordance with the rule applicable to original acts, it is presumed that provisions added by the amendment affecting substantive rights are intended to operate prospectively. Provisions added by the amendment that affect substantive rights will not be construed to apply to transactions and events completed prior to its enactment unless the legislature has expressed its intent to that effect or such intent is clearly implied by the language of the amendment or by the circumstances surrounding its enactment.” [Emphasis *487added. Hurd v Ford Motor Co, 423 Mich 531, 535; 377 NW2d 300 (1985).]

Also, in Franks v White Pine Copper Div, 422 Mich 636; 375 NW2d 715 (1985), the Court addressed the question of retrospective application of statutory revisions, distinguishing between provisions affecting substantive rights, and those that are merely procedural or remedial in nature.

The Court stated:

"As a matter of statutory construction, statutes are presumed to operate prospectively unless the contrary intent is clearly manifested.” [Selk v Detroit Plastic Products, 419 Mich 1, 9; 345 NW2d 184 (1984).] "A retrospective law is one which takes away or impairs vested rights acquired under existing laws, or creates a new obligation and imposes a new duty, or attaches a disability with respect to transactions or considerations already past.” [Hughes v Judges’ Retirement Bd, 407 Mich 75, 85; 282 NW2d 160 (1979)].
"Although a statute is not regarded as operating retrospectively merely because it relates to an antecedent event, . . . application of the provisions of § 358 to impose a disability, in the form of a setoff, upon the amount of workers’ compensation time periods prior to the effective date of the legislation in question, is purely retroactive. . . .
An exception to the general rule is recognized where a statute is remedial or procedural in nature. Hansen-Snyder Co v General Motors Corp, 371 Mich 480; 124 NW2d 286 (1963). Thus, statutes which operate in furtherance of a remedy or mode of procedure and which neither create new rights nor destroy, enlarge, or diminish existing rights are generally held to operate retrospectively unless a contrary legislative intention is manifested. . . .
. . . [T]he statute here in question may not be *488regarded as wholly procedural in character. Its effect, if applied, would result in taking from the plaintiff the substantive right to receipt of compensation payments which existed prior to enactment of §358. Consequently, only a clear statement of legislative intent could justify retroactive application.
Nor are we persuaded that § 358 should be applied retroactively because it can be characterized as "remedial.” This Court has been reluctant to apply this exception without extensive exploration of legislative intent. . . . We agree with the Court of Appeals that "[w]hile § 358 is 'remedial’ in the sense that it was adopted to effect a reform which, in the eyes of many, will correct certain injustice in the system, [retroactive application would] also signiúcantly and detrimentally affect the substantive right of certain injured employees to receipt of workers’ compensation beneñts.” [422 Mich 671-673, quoting Franks v White Pine Copper Div, 122 Mich App 177, 186; 332 NW2d 447 (1982). Emphasis added.]

The Court held that under the provisions of § 358 of 1980 PA 357, unemployment compensation benefits paid for weekly periods before the effective date of the statutory amendment were not deductible from workers’ compensation benefits payable for the identical weekly periods. Only those benefits payable after the effective date of the statute were to be reduced by unemployment compensation paid or payable for the same periods.

In the instant case, we are faced with considerations similar to those addressed by the Court in Franks v White Pine Copper Div. The statute in this case cannot easily be characterized as a purely remedial statute. The substantive rights of workers to receive unemployment benefits following requalification are affected by the statutory amendment. Therefore, according to the rationale *489in Franks v White Pine Copper Div, supra, 1974 PA 104 may operate only prospectively.

hi

The Court of Appeals determined that 1974 PA 104 could not be applied to benefits in weeks after the effective date of the amendment because "[t]he events or circumstances which triggered the termination of the claimants’ disqualification under § 29(8) were their employment, prior to June 9, 1974, by employers other than the employer involved in the labor dispute.”5 It found the disqualification inquiry distinguishable from the issue of eligibility under § 28(1) of the mesa. The Court reasoned that eligibility is determined on a week-to-week basis, whereas labor dispute disqualification or termination of such disqualification is a one-time event.

I agree with the majority that 1974 PA 104 must be applied to weeks after June 9, 1974. The relevant issue is the timing of the accrual of an employee’s right to unemployment benefits for a particular week on the basis of eligibility and qualification. That issue is governed by mesa.

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 qualified for benefits. [MCL 421.32(d); MSA 17.534(d).]

This section also authorizes employers to request a redetermination as to eligibility or qualification. *490Upon receipt of a protest or request, the commission

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 .... [id.]

Under MCL 421.32a(l); MSA 17.534(1)(1), the commission is required to review a timely protested "determination” and issue a "redetermination.” Thus, the Court of Appeals erred when it held that no prospective redetermination of qualification or disqualification could occur where such qualification or disqualification took place prior to the effective date of the amendment. The quoted provisions clearly indicate that the Legislature intended that claimants be eligible and qualified for benefits in each week for which they received them.

CONCLUSION

On the basis of statutory and case law existing prior to the effective date of 1974 PA 104, I find that Dow Chemical Company’s striking employees had properly terminated their disqualification by obtaining interim employment. Accordingly, the mesc is entitled to charge Dow Chemical Company’s rating account for charges corresponding to benefits paid prior to the effective date of the amendment. However, 1974 PA 104 is correctly applied to preclude charges to Dow’s mesc rating account for benefits paid to striking workers after the effective date of the amendment.

At the time of the strike, § 29(8) provided as follows:

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 directly involved in such dispute.

The amendment of § 29(8) added more stringent requirements for an employee to terminate a disqualification. The additional language reads as follows:

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.

In dicta, the majority criticizes the analysis and result in Great Lakes Steel. Ante, pp 480-482. In fact, the Great Lakes Steel Court reached the correct result on the basis of the statute as it existed prior to amendment by 1974 PA 104.

The amendment took effect June 9,1974.

158 Mich App 347, 359; 404 NW2d 737 (1987).