Ellis v. Employment Security Commission , 3 Mich. App. 576 ( 1966 )

J. H. G-illis, J.

The Muskegon circuit court affirmed the decision of the Michigan employment security appeal hoard denying benefits to plaintiff, Esau Ellis, who had been employed by defendant, Campbell, Wyant & Cannon Foundry Co. During his period of employment with the defendant company, the plaintiff was involved in an automobile accident unrelated to his work resulting in his arrest, conviction for driving on a revoked license, and incarceration for 15 days. As a consequence of this imprisonment, it is undisputed that the plaintiff missed 9 consecutive days from his place of employment. The 10th working day was also the last day of plaintiff’s detention. He was released from custody on December 11,1963, at approximately 11 a.m. and reported at the defendant’s plant shortly before noon to determine if “I still had a job.” His supervisor was just leaving for lunch and advised plaintiff he would discuss the problem upon his return. At approximately 1 p.m. the plaintiff was informed that he was discharged for being “absent” from work. Plaintiff’s regular work shift was 6:30 a.m. to 3 p.m.

The circuit court’s affirmance of the appeal board’s denial of benefits was based on PA 1936 (Ex Sess), No 1, § 29m, as added by PA 1963, No 189 (CL 1948, § 421.29m[a] [Stat Ann 1963 Cum Supp § 17.531(1) (a)]). The pertinent provisions of this statute provide:

“(a) If an individual loses his job by reason of being absent from work as a result of a violation of law for which he has been convicted, and sentenced to jail or prison, such individual shall be disqualified for benefits for the week of such loss resulting from detention pursuant to sentence of any court and for the duration of his unemployment thereafter; and any wages earned prior to such loss with the employer involved therein, whether earned during the individual’s base period or within his current benefit year, shall not be used as a basis for computing or paying benefits for any period subsequent to the time said disqualifying loss occurred. * * *

“(d) The provisions of subsections (a) and (b) herein shall not be applicable when the conviction referred to in section 29m has been for a traffic violation that has resulted in an absence of less than 10 consecutive days from his place of employment.”

The decisive issue in this case is whether the plaintiff’s absence from his place of employment was less than 10 consecutive days. This Court agrees with the decision of the circuit court. Plaintiff failed to report for work on the 10th consecutive day but he did report to his place of employment 2 or 3 hours before his shift ended. The record indicates that a collective bargaining agreement required the employer to pay any employee reporting for work a minimum of 4 hours’ wages. Even in the absence of such contract, it is unreasonable to say that by reporting so close to the end of the shift that plaintiff had reported to work on the 10th day.

Affirmed. Costs to appellees.

Fitzgerald, P. J., and Burns, J., concurred.