Booker v. Employment Security Commission

120 N.W.2d 169, 369 Mich. 547, 1963 Mich. LEXIS 501

Opinions

Black, J.

This case was regularly assigned to former Justice Adams. The opinion, quoted below, was prepared by him and submitted to other members of the Court prior to his leaving the bench. It concludes with devotional address to the principle that the scope of judicial review of administrative decisions is limited according to the views expressed by our majority in Miller v. F. W. Woolworth Co., 359 Mich 342, and in Bedwell v. Employment Security Commission, 367 Mich 415.

Footnotes

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I adopt Justice Adams’ opinion and submit it to the profession as follows:

Plaintiff appeals from a decision of the circuit court affirming decision of the appeal board and the referee that claimant was not entitled to unemployment compensation.

Witness Hildebrandt, a plant protection guard, testified he noticed claimant staggering as he was coming to work. He was about 100 feet away and coming toward the gatehouse on company property when Hildebrandt first noticed him. He stopped claimant and detected the odor of alcohol on his breath. He testified that his eyes were glassy and that he was belligerent and incoherent in his speech. Hildebrandt informed him his condition would not warrant entrance. Claimant’s department was called.

Witness Shier testified that claimant worked under his general supervision on assembly in an area where there were moving machinery and conveyors. After receiving the guard’s call and before going to the gatehouse, Shier checked claimant’s work record. The record showed absenteeism, tardiness, and infractions of company rules for intoxication. It also showed that when last penalized for absenteeism about 6 months earlier claimant was warned he would be discharged upon repetition of such offenses. Shier made up discharge papers to give to claimant if he was in fact under the influence of alcohol. Shier then talked to claimant at the gatehouse, detected the odor of alcohol, noted claimant was incoherent and slurred his talk. Shier concluded that claimant was under the influence of alcohol, unfit to work, and served claimant with the discharge.

Claimant Booker testified that he had had 2 beers earlier in the day. He insisted he was not drunk and denied that he argued with the guard. It is Booker’s claim that when Shier arrived, he tried immediately to serve the discharge without even questioning claimant. When Shier stuck the discharge in claimant’s pocket, claimant pleaded with Shier but Shier just insisted that he was drunk.

Following his discharge, claimant went to the union office and spoke to one Szymanski. Szymanski told claimant he did not look drunk and Szymanski so testified at the hearing. Claimant admitted that he had been warned twice for reporting to work under the influence of alcohol and that he had been penalized previously for tardiness and absenteeism.

It is claimed that Shier improperly testified to matters which were not within his personal knowledge. It is difficult to determine which portions of his testimony were based on personal knowledge, and which portions were based upon the written record of appellant’s past history. However, it is apparent that Shier had personal knowledge of a substantial number of events pertaining to Booker’s history, and error in this regard, if any, was corrected by appellant’s own testimony with regard to his prior record.

Section 29 of the employment security act provides :

“Sec. 29. (1) An individual shall be disqualified for benefits:

“(a) For the duration of his unemployment in all eases where the individual has: (1) left his work voluntarily without good cause attributable to the employer or employing unit, or (2) has been discharged for misconduct connected with his work or for intoxication while at work.” CLS 1956, § 421.29 (Stat Ann 1960 Rev § 17.531).

Plaintiff was not at work when he was discharged, nor does the employer claim Booker was discharged for intoxication while at work. It is the employer’s claim that Booker was discharged because of a long history of absenteeism, tardiness, and intoxication. The question is whether or not such actions constituted “misconduct connected with his work.” The final incident that resulted in claimant’s discharge was one of a series of acts evincing a wilful disregard' of his employer’s interests. Conduct within the statutory meaning of misconduct may consist of a series of incidents as well as a single incident. See controlling opinions of Justices Black and Dethmers in Miller v. F. W. Woolworth Co., 359 Mich 342. The total picture here presented of claimant’s conduct, culminating in his presenting himself for work in an intoxicated condition, supports the finding of the referee and the appeal board that plaintiff was disqualified under the aforesaid language of the statute for “misconduct connected with his work.”

“Our function is exhausted once it is found, as we have found, that the evidentiary record permitted the appeal board to draw such conclusion.” Peaden v. Employment Security Commission, 355 Mich 613, 631. (Quoted with approval in Bedwell v. Employment Security Commission, 367 Mich 415, 422.)

The appeal board’s decision is affirmed, with costs to defendant and appellee.

To same effect, see opinion concurring in reversal, Lyons v. Employment Security Commission, 363 Mich 201, 228.