... 4:-:1srt \f) :"- \,-., s.s. No. OCT Schultz: A.D. No. B u) Dillinger: A.D. No. S.. S. No. B.D. No.

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1 '"""'...,,. -. '.Q - :"- \,-.,,.., \ ( 'J'- '~'- ' Schultz: A.D. No. s.s. No. Dillinger: A.D. No. S.. S. No. B.D. No. S T A T E 0 F M I C H I G A N C 0 U R T 0 F A P P E A L S B u)... 4:-:1srt \f) 77 ' ~,_! C CLARK EQUIPMENT COMPANY, Petitioner-Appellee, v JOHN A. S CH ULTZ and B.W. DILLINGER, OCT Nos , UNPUBLISHED Respondents-Appellants, and MICHIGAN EMPLOYMENT SECURITY C9MMISSION, LEONARD J. SMIT (P25161) Attorney for Appellants Respondent-Appellee. JAMES E. BAIERS (P29733) Attorney for Employer-Appellee FRANK J. KELLEY, Attorney General of the State of Michigan LOUIS J. CARUSO, Solicitor General Counsel of Record By: CATHERINE M. FLEMING (P27050) Assistant Attorney General Attorneys for Appellee Michigan Employment Security Commission Before : Sawyer, P.J., J.B. Sullivan and E.M. Thomas,* JJ. *Recorder's court judge, assignment. sitting on the Court of Appeal s by

2 WP- grnnted leave in these consolidated cases to ~; ",._-~...,.,... determine whp-ther claimants are entitled to unemployment \ '"1~-t ~... ~$ 1 compp-nsation benefits under the Michigan Employment Security Act (Act). MCL ~ ~; MSA et ~ We h6ld that under the facts of this case, claimants are disqualified from receiving benefits because they left their employment voluntarily and without good cause attributable to their employer. Claimants appeal from a circuit court order and opinion which reversed a decision of the Michigan Employment Security Commission Board of Review and held that claimants are not entitled to unemployment compp-nsation benefits because they v0luntnrily retired from their jobs without good causp-.::~ttributable to their employer within the meaning of the Act. MCL (l)(a); MSA 17.53l(l)(a). f.., The undisputed facts are that claimants were employed by Clark Equipment Company (Clark) at the Buchanan plant. Both were eligible for early retirement and because of their seniority, they had certain "bumping rights" which assured them continued employment. The employees at the Buchanan facility, including. claimants, were under a Collective Bargaining Agreement which was sch~rluled to expire on June 17, Prior to that date, there were negotiations between Clark and the claimants' union for an extension of this agreement. The claimants were uncertain about the status of their pension benefits after expiration of the contract and elected to retire on May 31, They then filed for unemployment compensation benefits with the Michigan Employment Security Commission (Commission or MESC). On June 28, 1983, the Commission determined that claimants were disqualified under 29(l)(a). -2-

3 Claimants filed for redetermination and on July 29, 1983, the Commission affirmed the disqualification. Thereafter, claimants appealed to a referee who, on SeptP.mber 19, 1983, affirmed the Commission's decision. They then appealed to the board of review which reversed the referee's decision on February 2, 1984, and held that claimants' retirement from Clark was not voluntary within the meaning of the Act. Clark, in turn, requested a rehearing before the board but was denip.d on June 28, Clark then filed an appeal on September 6, 1984, with the Berrien County Circuit Court. Following a hearing, the circuit court filed an order on Septemb~r 26, 1985, reversing the board's decision as contrary to law and holding once again that claimants were disqualified from receiving ~ unemployment compensation benefits. We agree. The scope of review in these cases is well established. An order of the MESC referee or appeal board will be reversed only if it is contrary to law or unsupported by competent, material, and substantial evidence on the whole record. MCL ; MSA ; Canst 1963, art 6, ~ 28; Watson v Holt Public Schools, 160 Mich App 218, 221; NW2d (1987). If there is no dispute as to underlying facts, questions presented on appeal are to be treated as matters of law. Dow Chemical Co v Curtis, 158 Mich App 34 7, 352; NW2d (1987). The same standard applies to the circuit court's review of the board of review's decisions. Id.; see Farrell v Automobile Club of Michigan, 148 Mich App 165, 168; 383 NW2d 623 (1983).

4 The Legislature's intent in passing the Employment Security Act was to 'safeguard the general welfare by providing relief to those persons able and available to perform work but who, by economic forces beyond their control, are prevented from doing so. MCL 421.2; MSA ; Watson v Murdock's Food, 148 Mich App 802, 805; 385 NW2d 693 (1986}; Parks v MESC, 427 Mich ; NW 2 d ( } To effectuate this policy, the Legislature provided a disqualification provision in 29(l}(a): "(1} An individual shall be disqualified for benefits in the following cases in which the individual: "(a) Left work voluntarily without good cause attributable to the employer or employing unit." It has been held that appellat~. courts should construe the provisions of the Act liberally in order to give effect to this remed ia 1 policy. Parks, supra, 243; L~,;ya v Cebar Construction Co, 101 Mich App 26, 34; 300 NW2d 439 (1980). For the same reason, the disqualification provisions of the Act '. should be narrowly construed by appellate courts. Laya, supra, p 35; Rogel v Taylor School Dist, 152 Mich App 418, 424; 394 NW2d 32 (1986). Claimants contend that under the circumstances of this case, they did not leave Clark "voluntarily." Specifically, they reason that given the uncertainty of whether they would lose al l or a substantial part of their benefits after expiration of the Collective Bargaining Agreement, their decision to retire was reasonable and dictated by "economic facts utterly beyond the individual's control." Hence, they argue that they had no choice and that their decision was not really "voluntary" as contemplated by 29(l)(a). -4-

5 Voluntariness must connote a decision based upon reasonable alternatives not merely acquiescence to a result imposed by physical and economic facts utterly beyond an individual's control. Lyons v Employment Security Comm, 363 Mich 201, 216; 108 NW2d 849 (1961): Laya, supra, 32. Here, claimants were not faced with economic pressures which created untenable alternatives. Cf., Larson v Employment Security Commission, 2, Mich App 540: 140 NW2d 777 (1966): Laya, supra. Rather, they had ' a cho ice bp-tween retiring and taking the substantial pension benefits already negotiated or postponing retirement and taking their chances on newly negotiated pension benefits which might be more or less favorable. The scheduled expiration of the Collective Bargaining Agreement was June 17, however,,., claimants elected to retire on May 31. Although many employees retired effective on the first day of a given month, there was no prohibition against employees retiring on a particular day in the middle of the month. Had claimants waited to make their retire ment effective on June 17, 1983, as did some other employees, they may have been allowed to withdraw their request for retirement. Under these facts we conclude that claimants left Clark vol untarily. We also conclude that claimants' motivation for leaving work did no t constitute "good cause" attributable to the employer or employing unit. Recently, this Court has defined "good cause" under 29(l)(a) to exist "where an employer's action would cause a reasonable, average, and otherwise qualified worker to give up his o r her employment." Warblow v The Kroger Company, 156 Mich App 316, 321: 401 NW2d 361 (1986) citing Carswell v Share House, Inc, 151 Mich App 392, : 390 NW2d 252 (1986). -5-

6 In this case, claimants were not forced into a retirement situation. In making their decision to retire, claimants relied upon information they received from their union but did not seek clarification from Clark as to the company's position regarding the pension plan or what their pension rights would be following expiration of the Collective Bargaining Agreement. In fact, the union representative testified that he never advised claimants to retire. On the contrary, he made it clear to them that they had to make their own decisions in this matter. Although claimants' union representative testified that during the course of negotiations Clark "threatened" to terminate the pension plan, there is no evidence of direct threats made by Clark to either claimant. Similarly, Clark did not suggest to claimants that they must retire; nor did the company induce them to retire either by fear tactics or incentive programs. Based on the foregoing facts, we find that the board's decision finding claimants eligible for unemployment benefits was contrary to law. Although we understand claimants' plight, the language of the statute is clear and we are not at liberty to broaden the scope of the statute by an unwarranted interpretation of the 1 anguage used. Leeseberg v Smith-Jamieson, 149 Mich App 463, 466; 386 NW2d 218 (1986). Accordingly, we hold that the circuit court was correct in determining that claimants left their employment voluntarily without good cause attributable to Clark. Affirmed. /s/ David H. Sawyer /s/ Joseph B. Sullivan /s/ Edward M. Thomas