EMPIRE IRON MINING PARTNERSHIP v ORHANEN
EMPIRE IRON MINING PARTNERSHIP v ASMUND
Opinion | Concur in Part, Dissent in Part
Docket Nos. 103269-103271, 103301-103313. Argued January 14,
1997 (Calendar Nos. 4-5). Decided July 29, 1997.
(Orhanen) Marquette Circuit Court, Edward A. Quinnell, J.
Court of Appeals, Neff and R. L. Olzark, JJ., MacKenzie, P.J.,
(Docket Nos. 166054-166056).
(Asmund) Marquette Circuit Court, Edward A. Quinnell, J.
Court of Appeals, MacKenzie, P.J., and R. L. Olzark, J., Neff, J.,
(Docket Nos. 166041-166053).
211 Mich App 130; 535 NW2d 228 (1995).
211 Mich App 118; 535 NW2d 223 (1995).
Michigan Supreme Court
Lansing, Michigan 48909
______________________________________________________________________
Chief Justice
Conrad L. Mallett, Jr.
Justices
James H. Brickley
Michael F. Cavanagh
Patricia J. Boyle
Dorothy Comstock Riley
Elizabeth A. Weaver
Marilyn Kelly
______________________________________________________________________
FILED JULY 29, 1997
EMPIRE IRON MINING PARTNERSHIP, et al,
Plaintiffs-Appellants,
v Nos. 103269-103271
PETER ORHANEN, et al,
Defendants–Appellees,
and
MICHIGAN EMPLOYMENT SECURITIES COMMISSION,
Cross-Appellee.
_______________________________
EMPIRE IRON MINING PARTNERSHIP, et al,
Plaintiffs-Appellees
v Nos. 103301-103313
DONALD A. ASMUND, et al,
Defendants-Appellants.
BEFORE THE ENTIRE BENCH
KELLY, J.
This appeal is a consolidation of two cases. The Court
is asked to determine what statutory requirements a striking
worker must satisfy in order to requalify[1]
for unemployment benefits under the Michigan Employment
Security Act. MCL 421.29(8)(b); MSA 17.531(8)(b). In both
these cases, the Michigan Employment Security Board of Review
found that the sixteen striking employees requalified for
unemployment compensation benefits. They had obtained interim
jobs for a combined period of two weeks or more at statutorily
prescribed wage-rates.
The employers in Orhanen appeal from a decision of
the Court of Appeals that affirmed the Board of Review's grant
of benefits to three employees.[2] Each
employee had requalified by securing interim employment
through a union hiring hall, which included jobs from more
than one employer. The struck employers argue that it was
error to hold that striking employees can earn requalification
wages from multiple employers, as it encourages make-work and
bad-faith interim employment.
In Asmund, employees appeal from a Court of
Appeals decision that the award of unemployment compensation
benefits to them was improper.[3] They
assert that the appellate court erred as a matter of law by
requiring "good faith" employment as a necessary element for
requalification. The thirteen Asmund employees each
worked for only one interim employer. However, the Court of
Appeals found that they did not act in good faith in obtaining
the interim employment.
We affirm the Court of Appeals decision in Orhanen
and reverse the decision in Asmund.
I
Introduction
Eligibility of employees to receive unemployment
compensation benefits and the bases of disqualification for
those benefits are established by the MESA. MCL 421.28; MSA
17.530 and MCL 421.29(8)(b); MSA 17.531(8)(b).[4]
The issues presented on appeal involve the
labor dispute disqualification provision, which states:
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).]
In Orhanen and Asmund, the Court is asked
to consider whether, in amending the disqualification
provision of § 29(8)(b), the Legislature intended (1)
that a requirement of "good faith" be added to the listed
objective criteria, and (2) whether it intended that the
phrase "services in employment with an employer" be construed
as requiring employment with a single employer.
We resolve the issues in favor of the employees. We find
that the Board of Review's interpretations of § 29(8)(b)
are in accord with the underlying purpose of the act itself.
II
The "Good Faith" Criterion Issue
and
The "Single Employer" Issue
Whether interim employment ends disqualification for
unemployment benefits is dependent on the wording of the
statute. Thomas v Employment Security Comm, 356 Mich
665; 97 NW2d 784 (1959). Because of conflicting Court of
Appeals decisions, we are alerted to the fact that the
statutory language of § 29(8)(b) may be subject to
differing interpretations. We note that the plain wording of
the statute does not express a "good faith" requirement. We
note also that the phrase "an employer" may be interpreted in
the plural as well as in the singular. Therefore, we consider
whether "good faith" employment with a single employer was
nonetheless intended by the Legislature.
We begin our analysis by examining the rationale
underlying the MESA. Doing so sharpens our understanding of
the circumstances surrounding its enactment. We review the
prelegislative history and the motivations that induced
enactment. Horack, The disintegration of statutory
construction, 24 Ind L J 335, 338 (1949).
Next, we look to this Court's decisions that touch on the
history and the circumstances surrounding § 29(8)(b).
Dow Chemical Co v Curtis, 431 Mich 471, 480; 430 NW2d
645 (1988); Great Lakes Steel Corp v Employment
Security Comm, 381 Mich 249, 254; 161 NW2d 14
(1968). Throughout our analysis, we bear in mind the
underlying purpose of the act. Dep't of Social Services v
Brewer, 180 Mich App 82, 84; 446 NW2d 593 (1989).
Once we have ascertained the Legislature's intent, we
follow the primary rule of statutory construction for cases
interpreting the MESA: a "liberal" construction to afford
coverage and a "strict" construction to effect
disqualification. See Linski v Employment Security
Comm, 358 Mich 239; 99 NW2d 582 (1959). In order to
comply with the public policy of the act, we recognize that
this primary rule must prevail, despite any other conflicting
rule. People v Russo, 439 Mich 584, 595; 487 NW2d 698
(1992). Other rules of construction serve only
as guides to assist us in determining the intent with a
greater degree of certainty. Nolan v Dep't of Licensing &
Regulation, 151 Mich App 641, 648; 391 NW2d 424 (1986).
We recognize that, as a general rule, deference is given to an
administrative agency's decisions, provided that the agency's
construction is consistent with the purpose and policies of
the statute itself.[5]
A
The MESA was enacted primarily for the benefit of persons
involuntarily unemployed. Its purpose is to lighten the
burden of economic insecurity on those who become unemployed
through no fault of their own. Kalamazoo Tank & Silo Co v
Unemployment Compensation Comm, 324 Mich 101, 107; 36 NW2d
226 (1949). The act specifies:
Economic insecurity due to unemployment is a
serious menace to the health, morals, and welfare
of the people of this state. Involuntary
unemployment is a subject of general interest and
concern which requires action by the legislature to
prevent its spread and to lighten its burden which
so often falls with crushing force upon the
unemployed worker and his family, to the detriment
of the welfare of the people of this state. Social
security requires protection against this hazard of
our economic life. Employers should be encouraged
to provide stable employment. [MCL 421.2; MSA
17.502.]
As the MESA is a remedial statute, it should be liberally
construed to achieve its intended goal. Dudewicz v Norris
Schmid, Inc, 443 Mich 68, 77; 503 NW2d 645 (1993).
The precise language of the act springs from its underlying
policy. The wording expresses our legislators' ideas, which,
taken as a whole, become the basis for legislative
intent. As Justice McAllister stated in his dissent in
Chrysler Corp v Smith, 297 Mich 438, 475; 298 NW 87
(1941):
The purpose of the legislation is to pay
unemployment compensation benefits and to
ameliorate the consequences of widespread
unemployment. Such compensation is payable to
unemployed workers with certain exceptions. To
bring claimants within such exceptions, it is
necessary to strain at the meaning of the language
of the statute and to read into the act exceptions
with regard to "integrated industry," which are not
mentioned anywhere in the legislation. To say the
least, this would result in a narrow rather than a
liberal construction of the meaning of the statute.
It is most salutary, and in this case, in our
opinion, conclusive, to bear in mind that the
purpose of the legislation is to pay unemployment
benefits, and not to refuse them; and a liberal
construction results in the allowance of the claims
rather than their denial.
We cited the McAllister dissent with approval in Park v
Employment Security Comm, 355 Mich 103; 94 NW2d 407
(1959), which overruled Chrysler Corp v Smith, supra.
See also Johnides v St Lawrence Hosp, 184 Mich App 172;
457 NW2d 123 (1990); Wilkerson v Jackson Public
Schools, 170 Mich App 133, 136; 427 NW2d 570
(1988).
B
In 1968, this Court interpreted § 29(8)(b) of the
MESA, as then worded,[6] to mean that
interim employment of even a short duration was sufficient to
terminate the disqualification. Great Lakes,
supra. The only standard to be applied with
respect to interim employment was that an employee be an
"employee" of "interim employing units."[7]
Id. The question in Great Lakes was whether
the phrase "establishment in which he is or was last employed"
would affect the employees' claims for benefits. Id.
at 253-254. If it does, then a layoff from an interim
employment is not disqualifying under § 29(8)(b).
The Great Lakes Court did not define the necessary
minimum length of interim employment. As a consequence,
employees who had worked a few hours or days were able to
avoid disqualification. Nor did the Great Lakes Court
explicitly interpret § 29(8)(b) as requiring a subjective
criterion of "good faith" employment. Thus, the MESC
urged the Legislature to adopt specific criteria to measure
the nature and extent of services required for
employees to satisfy § 29(8)(b) of the MESA.[8]
After this Court decided Great Lakes, the
Legislature enacted 1974 PA 104, which amended §
29(8)(b).[9] The amendment was accomplished
with an eye toward establishing objective criteria in
evaluating interim employment. It supplied a means to
determine whether employers are entitled to claim the bar of
the disqualification.
The Legislature was aware that the employees in Great
Lakes had obtained interim employment with multiple
employers collectively. In formulating the amendment,
however, the issue whether interim employment with multiple
employers satisfies the statutory requirement was not
addressed. Rather, the Legislature dealt with the nature and
the extent of the employment. It specified the amount of
remuneration that an employee must earn (the nature) and the
minimum period in which an employee must perform an interim
employment (the extent).
In its first opportunity to review the amended language
of § 29(8)(b), the Court in Dow, supra,
traced the history of 1974 PA 104. It identified the
Legislature's underlying intent and goal as being to "restore
the viability" of the labor dispute disqualification provision
of the MESA. The Court found that the Legislature
intended to supply objective, as contrasted with subjective,
criteria for evaluating the substantiality of interim
employment. Dow, supra at 480, 482. It never
addressed the subjective criterion for "good faith"
employment.
The Dow majority's only comment on "good faith"
employment was in reference to the history of the adoption of
1974 PA 104. It noted that a majority of jurisdictions had
insisted that an employee's requalification for unemployment
benefits requires that new employment be undertaken in good
faith after the former employment has been severed.[10]
Id. The purpose was to prevent a
striker from abusing the system by obtaining a make-work
temporary job and then applying for benefits while a strike
was in progress. Id. But the Dow Court was not
persuaded by those standards.
It could have (1) adopted a subjective standard for
determining whether a good-faith effort had been made by an
employee to obtain bona fide employment, or it could have (2)
provided a standard by which to judge whether interim
employment had been taken merely to bypass the labor dispute
disqualification provision. However, it chose to set no
standard for determining an employee's subjective intentions,
holding instead that § 29(8)(b) contained objective
criteria. Id. at 482.[11]
We subscribe to and follow the reasoning of the
Dow Court. We will not judicially legislate by adding
language to the statute. In re Marin, 198 Mich App
560, 564; 499 NW2d 400 (1993).
C
Facts and Application
Empire Iron Mining v Asmund
and
Empire Iron Mining v Orhanen
The sixteen employees in these cases are members of the
United Steelworkers Union. From July 31, 1990, to
December 1, 1990, they engaged in a strike against their
employers, Empire Iron and Tilden Mining Companies. During
the strike, all sixteen obtained interim employment.
In Asmund, the employees obtained interim
employment from one employer, whereas the employees in
Orhanen obtained their interim employment through a
union hiring hall. The jobs secured by the union hiring hall
were from multiple employers.
Nevertheless, in both cases, each employment lasted at
least two consecutive weeks, with each interim employer paying
the employee wages at or above his benefit rate. In time,
when the interim employers laid off or reduced the hours of
the employees, each steelworker applied for unemployment
compensation benefits.
The Michigan Employment Security Commission, having
initially denied each worker's application for benefits,
changed its rulings on redetermination. The mining companies
appealed from that decision to an MESC referee.
The referee held a hearing on each claim and reversed the
MESC's decisions. The steelworkers then appealed to the Board
of Review, which, in turn, reversed the referee's decisions,
finding that each steelworker had met the necessary statutory
requirements for requalification of benefits. MCL
421.29(8)(b); MSA 17.531(8)(b). The circuit court affirmed
the Board of Review. The mining companies then appealed to
the Court of Appeals.
1
The "Good Faith" Criterion Issue
In Asmund, the companies argued that §
29(8)(b) contained an implied subjective criterion that
interim employment be performed in "good faith." The Court of
Appeals agreed.
It reasoned that each interim employment had been "make-
work," created solely for the purpose of allowing the employee
to requalify for benefits. Consequently, each worker was
barred from receiving benefits. Asmund, supra
at 121. The steelworkers appealed to this Court, which
granted leave.
The steelworkers in Asmund argue that the
Legislature achieved its purpose by amending § 29(8)(b).
They contend that only the requirements expressed in the
statute are necessary for requalification. Therefore, they
conclude, nothing more should be required. We agree. We
cannot read requirements into a statute that the Legislature
did not put there.[12]
In defending their position, the mining companies in
Asmund rely on Alin v Alaska Employment
Security Comm, 17 Alas 607, 615 (1958). They advance
Alin as authority for the proposition that a subjective
criterion of "good faith" employment is necessary in
evaluating interim employment.
In Alin, the court was asked to interpret the
phrase "last employed."[13] It explained
the rationale for its conclusion, stating:
Where the act itself, as here, does not define
the meaning of the term "last employed" it would
seem that the commission could properly construe it
to mean in effect "last regularly employed."
To do otherwise would open the door to unlimited
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 still continued.
[Emphasis added.]
The Alin court judicially inserted the word "regularly"
when interpreting "last employed."
Although this Court has not been asked to interpret the
phrase "last employed," the mining companies have nonetheless
asked this Court to follow the Alin court. They seek
judicial imposition of a subjective criterion of "good faith"
when an employee has obtained interim employment during a
labor dispute. We avoid inserting words in statutes unless
necessary to give intelligible meaning or to prevent
absurdity. See McKibbin v Corporation & Securities
Comm, 369 Mich 69; 119 NW2d 557 (1963); Lawrence Baking
Co v Unemployment Compensation Comm, 308 Mich 198; 13 NW2d
260 (1944).
Because of our reluctance to insert words into statutes,
we will not read into § 29(8)(b) a subjective intent
requirement of good faith on the part of employees. Given the
remedial purpose of the MESA and the potential to overload the
system if subjective criteria were adopted, we will not tread
where the Legislature has refused to go. Inquiry into the
subjective elements of an employee's employment is outside the
bounds of the act.[14]
2
The "Single Employer" Issue
In Orhanen, the mining companies argued
that the plain wording of the statute permits consideration of
wages paid by only one employer in determining an employee's
eligibility for benefits. Under the companies' reading of the
statute, then, the steelworkers could not qualify for
benefits. A single employer did not pay them enough wages in
at least two consecutive weeks of interim employment to meet
the requirements of § 29(8)(b).
Employees Peter Orhanen, Gary Pyykkonen, and Dale A.
Toivonen held union millwright cards and secured interim
employment with at least three different companies through
their union hiring hall.[15] The
employments were transient, involving only one or two long
shifts with any one employer. The issue is whether wages paid
to the worker by more than one employer in the qualifying
period can be combined to entitle the worker to unemployment
benefits. We rule that they can.
Initially, the phrase "an employer" suggests that the
plain language of the termination provision requires that
interim employment be with a single employer, only. We cannot
interpret § 29(8)(b) apart from other sections of the
statute "without constant reference to the whole."
Plymouth Stamping v Lipshu, 436 Mich 1, 17; 461 NW2d
859 (1990).
We begin with the requirements that appear in the
statute. They establish that an individual can requalify for
unemployment benefits by (1) performing services in employment
for at least two consecutive weeks, and (2) earning wages each
week equal to or greater than the actual or potential weekly
benefit rate. In defining and calculating the "benefit rate,"
we are required to examine other sections of the act for
guidance.[16] Thus, we review MCL 421.20;
MSA 17.521 and MCL 421.50; MSA 17.554, which set forth the
standard for determining such rate.
Specifically, MCL 421.20(b); MSA 17.521(b) provides in
pertinent part:
If the individual earned credit weeks from
more than 1 employer, a separate determination
shall be made of the amount and duration of
benefits based upon the total credit weeks and
wages earned with each employer.
Finally, in order to establish the meaning of a "credit
week," we rely on MCL 421.50; MSA 17.554. That section not
only defines "credit week," it refers to wages earned from
more than one employer. It states:
(1) If an individual earns wages from more
than 1 employer in a credit week, that week shall
be counted as 1 multiemployer credit week and shall
be governed by the provisions of section 20(e)
. . . .
* * *
[2](a) First, all credit weeks which are not
multiemployer credit weeks and which were earned
with employers not involved in a disqualifying act
or discharge under section 29(1), and all credit
weeks earned with an employer involved in such a
disqualifying act or discharge which were earned
subsequent to the last act or discharge in which
the employer was involved, shall be counted in
inverse order of most recent employment with each
employer. [MCL 421.50(b); MSA 17.554(b).]
Thus, reviewing the statute as a whole, we conclude that
"an employer" may be interpreted as meaning multiple
employers.
Statutes in pari materia are those which
relate to the same person or thing, or the same
class of persons or things, or which have a common
purpose. It is the rule that in construction of a
particular statute, or in the interpretation of its
provisions, all statutes relating to the same
subject, or having the same general purpose, should
be read in connection with it, as together
constituting one law, although enacted at different
times, and containing no reference one to the
other. [Detroit v Michigan Bell, 374 Mich
543, 558; 132 NW2d 660 (1965).]
The rule that statutes that relate to the same subject matter
should be read, construed, and applied together to distill the
Legislature's intention is of paramount importance in this
case.
Next, examining other courts' decisions, we have found
only one that has specifically addressed whether the phrase
"an employer" in a statute refers to more than one employer.
Taminski v Administrator, Unemployment Compensation
Act, 168 Conn 324; 362 A2d 868 (1975). The Connecticut
Supreme Court held in Taminski that wages paid to an
unemployment compensation claimant by more than one employer
may be combined in determining eligibility for unemployment
benefits. Id. at 327. In addition, it ruled that the
word "an" as used in the phrase "an employer" in its statute
is not limited to "one."[17] Id.
The Taminski court stated that its statute did not
support the limited interpretation placed upon it. It
recognized that its statute was remedial in nature, and
therefore, held that its provisions were to be liberally
construed for its beneficiaries in order to achieve its
purpose. Id. We find the Taminski court's
rationale persuasive.
Finally, the Michigan Legislature has provided us with
the necessary rules for making this statutory interpretation.
MCL 8.3 et seq.; MSA 2.212 et
seq. They specify that every word indicating
the singular may extend to the plural, and every word
indicating the plural may be applied to the singular. MCL
8.3b; MSA 2.212(2). See also In re Detroit, 261 Mich
278; 246 NW 51 (1933).
The mining companies urge that the rules, being
permissive in nature, should be applied only where no
rationale exists for restricting or extending the express
wording of the statute. We disagree. To interpret "an
employer" as used in § 29(8)(b) as incorporating the
plural does not produce an absurd result. Rowell v
Security Steel Processing Co, 445 Mich 347; 518 NW2d 409
(1994). Our construction complies with the public policy
underlying the MESA: to protect a diligent worker against the
vicissitudes of unemployment not caused by the worker.[18]
With that in mind, we conclude that workers who obtain
interim employment when unemployed because of a labor dispute
should not be penalized. We decline to interpret the statute
as disallowing requalification because workers took interim
employment from more than one employer. We recognize that (1)
the striker need not sever his ties with his former employer
and (2) the striker's later employment need not be permanent
in nature.[19] These two criteria accord
with the explicit requirements of § 29(8)(b).
Summary
We assume that the Legislature was aware of the
administrative interpretations of the MESA when it amended
§ 29(8)(b).[20] Additionally, we
recognize that the questions presented involve specific
applications of broad statutory terms in proceedings in which
an agency administering the statute made the initial
determination.
We see nothing to require substituting a different
construction from that crafted by the commission entrusted
with the responsibility of administering the statute. We find
that the Board of Review's decisions in Asmund and
Orhanen are not contrary to the intent of the
Legislature and comply with the underlying rationale of the
act itself. Therefore, we affirm the decision of the Court of
Appeals in Orhanen and reverse the decision in
Asmund.
Mallett, C.J., and Cavanagh, and Boyle, JJ., concurred with
Kelly, J.
1 Requalify is a term used throughout the
act. It refers to a process whereby claimants who have
become ineligible for unemployment compensation benefits can
begin receiving them.
2
Empire Iron Mining Partnership v Orhanen, 211 Mich
App 130; 535 NW2d 228 (1995).
3
Empire Iron Mining Partnership v Asmund, 211 Mich
App 118; 535 NW2d 223 (1995).
4
MCL 421.28; MSA 17.530 sets forth the eligibility
conditions for unemployment compensation benefits for an
unemployed individual. MCL 421.29(8)(b); MSA 17.531(8)(b)
sets forth the conditions for disqualification from benefits,
which include participation in a labor dispute in actual
progress.
5
Chevron, USA, Inc v Natural Resources Defense
Council, 467 US 837; 104 S Ct 2778; 81 L Ed 2d 694 (1984);
Ludington Service Corp v Acting Ins Comm'r, 444 Mich
481; 511 NW2d 661 (1994). These cases discuss deference to an
administrative agency's construction of a statute.
6
The pertinent part of § 29(8) read: "(1) An
individual shall be disqualified for benefits: . . . (b) For
any week with respect to which his total or partial
unemployment is due to a stoppage of work existing because of
a labor dispute in the establishment in which he is or was
last employed." (Emphasis added.)
7
MCL 421.40; MSA 17.542 defines employing unit.
8
Commentary submitted by the MESC to the Legislature in
connection with SB 741, 1974 PA 104, dated March 15, 1974,
included this recommendation:
"It is . . . 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."
9
It was further amended by 1994 PA 162 and 1995 PA 25.
However, the Legislature has not changed any of the words and
phrases of § 29(8)(b) since the 1974 amendment.
10
In Michigan, MCL 421.29(5); MSA 17.531(5) addresses the
issue of leaving work to accept permanent full-time work with
another employer.
11
There have been no claims of misrepresentation of facts
in either of these cases. Such claims would be governed by
MCL 421.29(8), 421.54a; MSA 17.531(8), 17.558(1).
12
Judicial construction is usually not permitted where a
statute is clear and unambiguous on its face. However, we
undertake interpretation of the statutory language in this
case to show that a plain reading of the statute will not
produce an absurd result. See McKibbin v Corporation &
Securities Comm, 369 Mich 69; 119 NW2d 557 (1963).
13
The Court in Great Lakes dealt with this issue as
well. However, the Court refused to read "regularly" into the
statute. Rather, the Court held that a claimant's interim
employer became the "establishment in which he is or was last
employed." To hold otherwise, the Court stated, would render
purposeless the disqualifying provisions of § 29(1)(b).
Id. at 253-254.
14
MCL 421.32(a); MSA 17.534(a) and MCL 421.46; MSA 17.550
set forth the steps the commission must follow when an
employee seeks redetermination. The commission has broad
statutory authority in reviewing a claimant's eligibility for
benefits, thus allowing it to consider false statements,
nondisclosures, misrepresentations of material facts, and
fraud. This opinion is not intended to restrict the
commission's statutory authority.
15
We consider employment through a union hiring hall to be
arms-length employment and a legitimate manner of obtaining
interim employment.
16
Moreover, to quote Justice Riley as she correctly stated
in Tryc v Michigan Veterans' Facility, 451 Mich 129,
155; 545 NW2d 642 (1996): "'It is fundamental that adoption of
language requires adoption of construction. Identical
language should certainly receive identical construction when
found in the same act.'"
17
This Court was asked to decide whether the phrase "an
insured" referred to only one or to all insureds in
Allstate Ins Co v Freeman, 432 Mich 656; 443 NW2d 734
(1989). We adopted reasoning enunciated by the Ninth Circuit
in Allstate Ins Co v Gilbert, 852 F2d 449 (CA 9, 1988).
The Gilbert court rejected a plaintiff's argument
that the phrase "'an insured person' connotes the singular,
not the plural . . . ." Id. at 454. By adopting the
Ninth Circuit's logic, we held that "an insured" refers to any
or all insureds, that "an" can connote the plural as well as
the singular. Freeman, supra at 694. Justice
Riley, writing for the majority, stated: "Strong public policy
supports this decision. Adherence to a correct usage of the
English language . . . promotes a uniform, reliable, and
reasonable foundation . . . ." Id. at 699.
18
The MESC itself has interpreted the language of the
statute. In deferring to its decision, we find support in
Unemployment Compensation Comm of Alaska v Aragon, 329
US 143; 67 S Ct 245; 91 L Ed 136 (1946). The United States
Supreme Court held:
To sustain the Commission's application of [a]
statutory term, we need not find that its
construction is the only reasonable one, or even
that it is the result we would have reached had the
question arisen in the first instance in judicial
proceedings. The "reviewing court's function is
limited." [Id. at 153.]
19
Some courts have held that the labor dispute
disqualification imposed by the statute cannot be terminated
by the subsequent acceptance of temporary work; only permanent
employment, accepted with an intent to completely sever the
relationship with the prior employer, will suffice to end the
disqualification. Tri-State Motor Transit Co v Industrial
Comm, Div of Employment Security, 509 SW2d 217 (Mo, 1974);
In re Hatch, 130 Vt 248; 290 A2d 180 (1972); E I Du
Pont de Nemours & Co v Dale, 271 A2d 35 (Del, 1970);
Sprague & Henwood, Inc v Unemployment Compensation Bd of
Review, 207 Pa Super 112; 215 A2d 269 (1965); Labinsky
v Florida Industrial Comm, 167 So 2d 620 (Fla App, 1964);
Alin v Alaska Employment Security Comm, supra;
New Jersey Zinc Co v Bd of Review, 25 NJ 235; 135
A2d 496 (1957); Gentile v Dir of Div of Employment
Security, 329 Mass 500; 109 NE2d 140 (1952); Mark
Hopkins, Inc v California Employment Comm, 24 Cal 2d 744;
151 P2d 229 (1944); Sprague v
MacPherson, 142 Mont 581; 386 P2d 572
(1963).
20
The commentary submitted by the MESC to the Legislature
in connection with the proposed amendment of § 29(8)(b)
stated:
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.
S T A T E O F M I C H I G A N
SUPREME COURT
EMPIRE IRON MINING PARTNERSHIP, et al.,
Plaintiffs-Appellants,
v Nos. 103269-103271
PETER ORHANEN, et al,
Defendants–Appellees,
and
MICHIGAN EMPLOYMENT SECURITIES COMMISSION,
Cross-Appellee.
_______________________________
EMPIRE IRON MINING PARTNERSHIP, et al.,
Plaintiffs-Appellees
v Nos. 103301-103313
DONALD A. ASMUND, et al.,
Defendants-Appellants.
___________________________________
RILEY, 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 majorityþs 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 construction 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 Comm'r Ins, 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. Slip op, p 21. 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
unemployment 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 slip op, pp 18-19.
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 slip op, pp 19-20, 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 importing 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.
The 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 during 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 slip op, pp 7-11, for a history of the provision.
In 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 previous employer during 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]
II. Empire Iron Mining v Asmund
In Asmund, I agree that there is no good-faith
requirement in § 29(8). The majorityþs analysis, "by
examining the rationale underlying the [Michigan Employment
Security Act]," and by considering the "history and
circumstances surrounding § 29(8)(b)," slip op, pp 5-6,
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 14 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 slip op, p 12. 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 majorityþs decision to reverse the Court of Appeals
decision.
III. 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 majorityþs 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.
1
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.]
2
There is no indication that the MESC Board of Review was
relying on a longstanding interpretation of the act in
reversing the referee decisions.
Empire Iron Mining Partnership v Orhanen
Clancey, Hansen, Chilman & Greenlee, P.C. (by
Ronald E. Greenlee and W. Scott Chilman)
[Peninsula Bank Building, 102 South Main Street, Ishpeming, MI
49849], for plaintiff Empire Iron Mining Partnership.
Miller, Cohen, Martens, Ice & Geary, P.C. (by
Stuart M. Israel and Ronald C. Engler) [1400
North Park Plaza, 17117 West Nine Mile Road, Southfield, MI
48075], for the defendants.
Amicus Curiae:
Clark Hill, P.L.C. (by Duane L. Tarnacki
and J. Walker Henry) [1600 First Federal Building,
Detroit, MI 48226], for Michigan Manufacturers Association.