McManus v. Genesee County Road Commission

Defendant, Genesee County Road Commission, was granted leave to appeal from an order of the prosecuting attorney of Genesee county, which required the reinstatement of plaintiffs Robert Spaleny and Leo McManus to the positions they held prior to their discharge on November 15, 1946. Both Spaleny and McManus were employed by the commission as common laborers and truck drivers, the former on January 21, 1946, and the latter on February 1, 1946, each being an honorably discharged veteran of World War II.

Their dismissal having been protested as contrary to the provisions of 1 Comp. Laws 1929, § 900 et seq., as amended by Act No. 22, Pub. Acts 1944 (1st Ex. Sess.) (Comp. Laws Supp. 1945, § 900 et seq., Stat. Ann. 1946 Cum. Supp. § 4.1221 etseq.), a hearing was held by the prosecuting attorney on December 27, 1946.

The question of the propriety of dismissal of plaintiffs turns on the two reasons given by the commission, (1) that they were hired as temporary employees, and (2) that due to the change of seasons it was necessary to lay off help for which there was no work. The applications for employment which Spaleny and McManus filed contained the following:

"If employed you will be considered as a temporary employee until such time as you have been continuously employed for one year."

Each, however, testified that when employed he discussed this statement with Robert E. Olds, maintenance superintendent of the defendant commission, at which time Olds was informed that neither of them desired temporary work. They claim they were told that if their work was satisfactory they would be given steady employment, and that men hired at that time of year were generally given steady work.

Olds, on the other hand, could not remember exactly what was said and doubted whether he had such a conversation with either of them. He maintained that no one was considered a permanent employee until they had rendered satisfactory service for one year.

The prosecuting attorney in a written opinion which he filed, after quoting extensively from the testimony, concluded as follows:

"The mere saying that an employee is a temporary employee until he has been employed one year does not make him a temporary employee, if as a matter of fact the quality of his work is the real test in determining whether or not his employment is permanent. All through the testimony there runs the thought that these men would not have been discharged had their work been satisfactory. However, the question of incompetency is not before me for consideration. In fact, I am effectually prevented from considering the element of incompetency."

There is included in the record an exhibit which shows that during 1946 the commission hired 51 men, 14 of them were nonveterans, and all of these 14 were employed after the date that plaintiffs began their services. It further indicates that after plaintiffs' dismissal, although no new employees were added to the pay roll, 10 of these 14 nonveterans remained on the pay roll and were doing the same work that had been performed by plaintiffs.

The prosecutor in his findings of fact referred to this situation and stated that he could "arrive at but one conclusion from the information contained in exhibit 3, (sic — meaning presumably exhibit 7) namely: That nonveterans hired after McManus and Spaleny were hired were retained after McManus and Spaleny were discharged and continued to perform similar tasks to those that McManus and Spaleny had been performing." In reaching his conclusion that the discharge of plaintiffs by the commission was a violation of the act he stated as follows:

"I do not believe that the rule laid down in Brand v. CommonCouncil of the City of Detroit, 271 Mich. 221, applies here. If a public employer can employ a veteran to perform a certain type of work and later employ a nonveteran to perform that same type of work and then discharge the veteran on the ground that due to the change of seasons there was no work for him, and still retain the nonveteran as an employee, then the purpose of the veterans' preference act is circumvented, whether intentional or not. If this simple subterfuge can be lawfully invoked by a public employer, at will, then I know of no circumstance or set of circumstances under which the veterans' preference act can be of any benefit whatever to a veteran. I do not believe it is the intent of the veterans' preference act that a position or a job can be abolished in this manner, when the principal result of such a procedure, is to substitute a nonveteran, for a veteran in public employment.

"In Walkling v. Smith, 276 Mich. 193, it is held among other things that ``the veterans' preference act does not regulate terms of employment but relates to the status as established; creating nothing nor prolonging public employment beyond public need.'

"However, on November 15, 1946, there was still public need for employees to do the same type of work McManus and Spaleny had been doing and nonveterans hired after they had been hired were still retained to do this work. Therefore, there was still public need for this type of work."

There is no claim by the commission that plaintiffs were discharged because of incompetency. Even so, by providing a probationary period of one year when employees are hired, the purpose of the veterans' preference act, in absence of a claim of incompetency, could be defeated. The commission relies, among other authorities, on Walkling v. Smith, 276 Mich. 193, in which the Court said:

"Employment, designated temporary in authorization and appointment, and accepted, negatives permanency and reserves the right of determination by the employer as to time of continuance."

However, that case is distinguishable for the reason that in the instant one, according to the facts as found by the prosecutor, plaintiffs did not accept temporary employment. There is competent testimony in the record to support this finding.

Brand v. Common Council of the City of Detroit, 271 Mich. 221, also relied upon by the commission, is a case where the position claimant had been holding, and was competent to hold, was abolished and no new person was appointed in his place. Nor are the conditions imposed by Smith v. FlintCity Commission, 258 Mich. 698, present in the instant case. The positions held by plaintiffs were not abolished, as is evidenced by nonveterans still performing the same work that they had been doing. It also clearly appears that there was no lack of work of the nature being performed by them at the time they were discharged. We do not hold that the commission is to be prevented from "screening" their men, that being essential to efficient operation.

We are constrained, however, to hold, in the absence of any showing of incompetency or lack of work, that the prosecuting attorney of Genesee county reached the proper conclusion under the evidence presented to him, that his order that plaintiffs must be reinstated to the positions they held prior to their discharge should be affirmed. This, however, without costs, no brief having been filed by appellees.