APPEAL DocKET s.s. No. •• B.O. No. 19 b I P Gr 7. ~-:;-

14953 RO 49887

STATE OF MICHIGAN

IN THE CIRCUIT COURT FOR THE COUNTY OF WAYNE

MICHAEL s. BRESHGOLD,

v

M I CH I GAN EMP LO Yf1ENT SEC UR ITY COr-nJ1 ISS I ON ,

APPELLEE·

------------------------~! RoBERT J. PRIMEAU, ATTORNEY ATTORNEY FOR CLAIMANT-APPELLANT

FRANK J. KELLEY, ATTORNEY GENERAL OF THE STATE OF MICHIGAN BY: JoN M· DEHORN CP24790)

ATTORNEY·FOR APPELLEE MICHIGAN EMPLOYMENT SECURITY COMMISSION

0 P I N I 0 N

PROCEEDINGS

JUDGE VICTOR J. BAU~·1 C!-Jo. P-10556)

CIVI L ACTION

l~o. 77-708893-AE

CAPPE.ll.L FROM EMPLOYMENT SEcURITY APPEAL BoARD -CAsE No. UCX-75-14953)

THIS IS AN APPEAL FROM A DECISION OF THE APPEAL BoARD OF THE MICHIGAN EMPLOYMENT SECURITY COMMISSION DENYING UNEMPLOYMENT BENEFITS TO THE CLAIMANT· INITIALLY, THE APPELLANT REQUESTED ORAL ARGUMENT· lATER, BOTH PARTIES WAIVED ORAL ARGUMENT· THE CASE WAS SUBMITTED ON BRIEFS·

FACTS

MICHAELS. BRESHGOLD, THE CLA IMANT AND APPELLANT, WAS DISCHARGED FROM THE UNITED STATES NAVY ON MAY 30, 1975 . HE APPLIED FOR UNEMPLOYMENT COMPENSATION BENEFITS ON JUNE 5J 1975, AND HIS APPLICATION WAS APPROVED· HE ENROLLED IN ScHOOLCRAFT COLLEGE AS A FULL-TIME STUDENT ON SEPTEMBER 2, 1975. FROM JUNE 5 UNTIL SEPTEMBER 6; 1975, HE RECEIVED UNEMPLOYMENT BENEFITS·

ON OCTOBER l, 1975J ADMINISTRATIVE PERSONNEL OF THE MICH IGAN EMPLOYMENT SECURITY [OMM ISS I ON DETERMINED THAT FROt"\ AND AFTER SEPTEfvlBER 2,

1975 (THE DATE BRESHGOLD ENROLLED IN COLLEGE) ~ HE BECAME INELIGIBLE TO KECEIVE UNEMPLOYMENT BENEFITS · THIS RULING WAS MADE ON THE GROUND THAT HE WAS NOT AVAILABLE FOR FULL- TIME EMPLOYMENT AS REQUIRED BY THE MICHIGAN EMPLOYMENT SECURITY ACT · CMCLA 421-1).

BRESHGOLD APPEALED THIS DECISION TO A CoMMISSION REFEREE· AT THE REFEREE's HEARING~ BRESHGOLD WAS THE ONLY WITNESS AND WAS NOT REPRE­SfNTED BY COUNSEL · THE EVIDENCE BEFORE THE REFEREE DISCLOSED THAT BRESHGOLD WAS CARRYING 17 CREDIT HOURS AT ScHOOLCRAFT CO LLEGE · HIS COURSES WERE UNITED STATES HI STORY , ~·lESTERN CIVI LI ZATION, BIOLOGY, ANTHROPOLOGY AND SocIOLOGY·

HIS CLASS SCHEDULE WAS AS FOLLOWS :

MoNDAY, FROM 8 :00 A-M · To 11:00 A. M. AND FROM 1:00 P.M . TO 2:00P.M.;

TuEsDAY, FROM 8:00A -M· To 12:30 P.M. AND FROM 1:00 P.M. TO 3:00P .M. ;

WEDNESDAY~ FROM 8:00A.M. TO 9:00A.M., AND FROM 1:00P-M· TO 2:00P .M.;

THURSDAY, FROM 8:00A-M · TO 12:30 P-M · AND FROM 1 :00 P.M. TO 2:00P-M ·

HE HAD NO CLASSES ON FRIDAY· JUDICIAL NOTICE IS TAKEN THAT HE HAD NO CLASSES ON SATURDAY OR SUNDAY ·

WHILE ATTENDING COLLEGE, BRESHGOLD WAS RECEIVING $270.00 A MONTH FROM VETERANS ADMINISTRATION I~ EDUCATIONAL BENEFITS UNDER THE "G . [. BILL · "

BRESHGOLD TESTIFIED THAT HE WAS AVAILABLE FOR FULL-TIME EMPLOYMENT AND THAT HE WAS ACTIVELY SEEKING WORK· HE TESTIFIED THAT IF A JOB CAME UP HE WOULD .TAKE IT· AE SAID THAT .HE WOULD TRY TO ADJUST HIS SCHEDULE OF COURSES TO FIT IN WITH EMPLOYMENT AND IF THIS PROVED TO BE IMPOSS IBLE THAT HE WOULD GIVE UP SCHOOL IN ORDER TO WORK · · HIS POS n I ON WAS THAT HE WOULD WORK FULL TIME AND GO TO COLLEGE FULL TIME IF THIS COULD BE ARRANGED AND THAT HE HAD DONE SO IN THE PAST· THE TENOR OF HIS TESTIMONY WAS THAT IN ANY EVENT WORK CAME FIRST AND THAT IF HE COULDN'T ATTEND SCHOOL FULL TIME AND WORK FULL TIME 1 HE WOULD WITHDRAW FROM SCHOOL·

BRESHGOLD CALLED THE REFEREE's ATTENTI ON TO A LETTER FROM ScHOoL­CRAFT COLLEGE WHICH SAID THAT HE "MAYBE AB LE TO ADJUST HIS SCHDULE FOR EMPLOY­MENT PURPOSES DEPENDI NG UPON ·THE COURSE AND STAFF SITUATIONS · " HE TESTIFIED THAT THE COURSES HE WAS TAKING WERE GIVEN AT NIGHT AT ONE OF TWO, OR POSSIBLY AT BOTH, CAMPUS LOCATIONS ·

REFEREE's DECISISION

DESPITE BRESHGOLD'S TESTIMONY, THE REFEREE DECIDED THAT HE WAS INELIGIBLE FOR UNEMPLOYMENT COMPENSATION UNDER SECTION 28(1)(c) OF THE EMPLOY­MENT SECURITY AcT CMCLA 421 -28C1)(c)).

PURSUANT TO TH IS SECTION OF THE STATUTE, A PERSON IS ELIGIBLE FOR UNEMPLOYMENT BENEFITS ONLY IF,

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"HE IS ABLE AND AVAILABLE TO PERFORM SUITABLE FULL-TIME WORK OF A CHARACTER WHICH HE IS QUALIFIED TO PERFORM BY PAST EXPERIENCE OR TRAINING~ AND OF A CHARACTER GENERALLY SIMILAR TO WORK FOR WHICH HE HAS -PREVIOUSLY RECEIVED WAGES, AND HE IS AVAILABLE FOR SUCH WORK FULL-TIME~ EITHER AT A LOCALITY AT WHICH HE EARNED WAGES FOR INSURED WORK DURING HIS BASE PERIOD OR AT A LOCALITY WHERE IT IS FOUND BY THE CoMMISSI6N THAT SUCH WORK IS AVAILABLE·"

THE REFEREE FOUND~ INTER ALIA:

"THE CLA IMANT IS PRINCIPALLY AND PRIMARILY AN ENROLLED FULL-TIME STUDENT ~ AND ••· THE CLAIMANT IS, IN FACT, ONLY ENGAGED IN A SEARCH FOR EMPLOYMENT WHEN SUCH SEARCH DOES NOT INTERFERE WITH HIS SCHOOLING ~ AND THE CLAIMANT HAS OTHERWISE CLEARLY ESTABLISHED A REAL UNAVAILABILITY FOR EMPLOY­MENT DURING THE PRINCI PAL PORTI ON OF.THE DAYS MoNDAY THROUGH THURSDAY OF EACH WEEK -- HOURS DURING WHICH HE IS NOT AT THE MOMENT EI THER AVAILABLE FOR WORK OR FREE TO MAKE AN ACTIVE SEARCH· FOR EMPLOYMENT· "

APPEAL BoARD ' s DEC ISION

THE MESC APPEAL BoARD AFFIRMED THE REFEREE's DECI SION AS BEING IN CONFORMITY WITH THE LAW AND FACTS· ONE MEMBER OF THE THREE MEMBER APPEAL BoARD DISSENTED ON THE GROUND THAT THERE WAS INSUFFICIENT EVIDENCE IN THE RECORD CONCERNING THE CLAIMANT's EFFORTS TO OBTAIN EMPLOYMENT ~ AS REQU IRED BY SECTIONS 28(l)(A) AND (c) OF THE EMPLOYMENT SECURI TY ACT· THE DISSENTER FAVORED REMAND TO THE REFEREE FOR THE PURPOSE OF RECE IVING "ADDITIONAL COMPETENT EVIDENCE" BEARING ON ELIGIBI LITY UNDER THESE TWO SUBSECTIONS OF THE STATUTE·

THIS COURT AGREES WITH THE DISSENTER FOR REASONS WHICH WILL APPEAR·

IssuE oN APPEAL

THE PARTIES AGREE THAT THE ISSUE BEFORE THIS COURT IS "WHETHER THE CoMMISSION's DEC IS ION THAT THE CLAIMANT WAS NOT ACTIVELY SEEKING ·•· bR AVAILABLE TO PERFORM FULL-TIME WORK IS SUPPORTED BY COMPETENT_MATERIAL AND

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SUBSTANTIAL EVIDENCE ON THE WHOLE RECORD·"

THIS CoURT IS AWARE OF ITS LIMITED SCOPE OF JUDICIAL REVIEW PURSUANT TO SECTION 38 OF THE ACT (MCLA 421-38). THIS STATUTE PROVIDES THAT THE CIRCUIT CoURT "MAY REVIEW QUESTIONS OF FACT AND LAW ON THE RECORD MADE BEFORE THE REFEREE AND [APPEAL BOARD] ···J AND MAY MAKE FURTHER ORDERS IN RESPECT THERETO AS JUSTICE MAY REQUIREJ BUT THE COURT MAY REVERSE AN ORDER OR DECISION ONLY IF IT FINDS THAT THE ORDER OR DECISION IS CONTRARY TO LAW OR IS NOT SUPPORTED BY COMPETENT MATERIAL AND SUBSTANTIAL EVIDENCE ON THE WHOLE RECORD·"

AMONG THE REFEREE1S FINDINGSJ APPROVED BY THE APPEAL BOARDJ

ARE THE FOLLOWING:

ANDJ ALSOJ THAT J

"THE INFORMATION SUPPLIED BY THE CLAIMANT 1 S COLLEGE DID NOT INDICATE EITHER THAT THE COURSES BEING TAKEN BY THE CLAIMANT WERE OFFERED AT VARIOUS HOURSJ OR THAT THE CLAIMANT COULD FREELY ALTER HIS CLASS SCHEDULE TO ACCOMMODATE EMPLOYMENT· IN FACTJ THE OFFICIAL INFORMATION SUPPLIED BY WAY OF LETTER TO THE CLAIMANT AND TO THE COMMISSION INDICATED ONLY A POSSIBILITY THAT IF A CONFLICT AROSEJ THE CLAIMANT COULD ATTEMPTJ ON AN INDIVIDUAL CLASS TO CLASS BASISJ TO WORK OUT SOME ACCOMMODATION AT THE DISCRETION OF THE INDIVIDUAL INSTRuc­TORSJ AND REPORTED FURTHER THAT IF SUCH ACCOMMODATION COULD NOT BE ARRIVED ATJ THE CLAIMANT WOULD BE REQUIRED TO ELECT BETWEEN EMPLOYMENT AND CONTINUANCE OF HIS COLLEGE EDUCATION·H

" THAT IF NO ACCOMMODATION COULD BE INDIVIDUALLY WORKED OUTJ THE CLAIMANT WOULD BE REQUIRED TO WITH­DREW FROM CLASSES·"

THERE APPEARS TO BE NO EVIDENCE WHATEVER TO SUPPORT THE FINDING THAT CLAIMANT WOULD BE "REQUIRED TO WITHDRAW·" THE PHRASEJ "WOULD BE REQUIRED TO WITHDRAW FROM CLASSESJ" IS AMBIGUOUS· IF THE PHRASE IS INTENDED TO MEAN THAT THE SCHOOL WOULD REQUIRE BRESHGOLD TO WITHDRAW IF HE WAS UNABLE TO WORK OUT A FULL-TIME CLASS SCHEDULE COMPATIBLE WITH FULL-TIME GAINFUL EMPLOYMENTJ THERE IS NO EVIDENCE WHATEVER TO SUPPORT SUCH A FINDING· liKEWISEJ IF THE PHRASEJ "WOULD BE REQUIR ED TO WITHDRAWJ" IS INTENDED TO MEAN THAT THE CIR­CUMSTANCES OF FULL-TIME EMPLOYMENT WOULD FORCE THE CLAIMANT ON HIS OWN INITIATIVE TO WITHDRAW FROM CLASSESJ THERE IS NO EVIDENCE WHATEVER TO sup­PORT SUCH A FINDING· THE LATTER FINDING WOULD NOT ONLY BE UNSUPPORTED BY EVIDENCE BUT WOULD BE CONTRARY TO THE ONLY EVIDENCE IN THE RECORD·

THE ONLY EVIDENCE IN THE RECORD IS THE TESTIMONY OF THE CLAIMANT THAT IN THE PAST HE HAD WORKED FULL TIME AND ATTENDED SCHOOL FULL TIME·

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ALTHOUGH IT IS TRUE) AS THE REFEREE FOUND) THAT THE IMFORMATION FROM ScHOOLCRAFT COLLEGE "DID NOT INDICATE ••• THAT THE COURSES BEING TAKEN BY THE CLAIMANT WERE OFFERED AT VARIOUS HOURS)" THE FACT IS THAT THE INFOR­MATION FROM THE SCHOOL WAS COMPLETELY SILENT ON THE QUESTION WHETHER THESE COURSES WERE OFFERED AT TIMES OTHER THAN THE TIMES CLAIMANT WAS ATTENDING THEM· MORE IMPORTANTLY) THE ONLY EVIDENCE IN THE RECORD ON THE SUBJECT OF WHEN THESE SUBJECTS WERE OFFERED WAS THE TESTIMONY OF THE CLAIMANT THAT HE HAD CHECKED BEFORE HE ENROLLED) AND THAT THESE CLASStS ARE TAUGHT AT NIGHT AT ONE OR BOTH OF TWO ScHOOLCRAFT CAMPUS LOCATIONS· THUS) THE IMPLICIT FINDING OF THE REFEREE THAT THE CLAIMANT's COURSES WERE NOT OFFERED AT TIMES OTHER THAN IN HIS SCHEDULE IS NOT ONLY UNSUPPORTED BY THE EVIDENCE BUT CONTRARY TO IT·

ALSO) ON THE SUBJECT OF THE POSSIBILITY OF REARRANGING CLAIMANT's CLASS SCHEDULE) THERE IS NO EVIDENCE THAT THE FIVE COURSES TAKEN BY THE CLAIMANT WERE REQUIRED BY COLLEGE RULES OR THAT HE COULD NOT TAKE OTHER COURSES IN THEIR PLACE·

FINALLY) THERE WAS NO EVIDENCE TO REBUT THE CLAIMANT'S TESTIMONY THAT HE WOULD GIVE UP SCHOOL IF NECESSARY IN ORDER TO TAKE FULL-TIME EMPLOY­ME NT· THUS) THE REFEREE MADE FACT FINDINGS ESSENTIAL TO HIS DECISION) WHICH ARE NOT SUPPORTED BY THE EVIDENCE IN THE WHOLE RECORD·

THE REFEREE ALSO FOUND:

"THE CLAIMANT IS ONLY ENGAGED IN SEARCH FOR EMPLOYMENT WHEN THE SEARCH DOES NOT INTERFERE WITH HIS SCHOOLING·"

THIS FINDING MAY WELL BE SUPPORTED BY EVIDENCE IN THE RECORD) BUT QUERY ITS LEGAL SIGNIFICANCE· THERE IS NOTHING IN THE MICHIGAN EMPLOYMENT SECURITY AcT) OR IN THE CASE LAW) THAT REQUIRES A PERSON TO BE IDLE IN ORDER TO BE ELI GIBLE FOR UNEMPLOYMENT COMPENSATION· HE MUST BE UNEMPLOYED) BUT NOT NECESSAR I LY IDLE· NoR IS THERE ANY DOCTRINE IN THE CASE LAW OR STATUTE WHICH PROHIBITS A PERSON FROM ENJOYING BOTH EDUCATIONAL AND UNEMPLOYMENT BENEFITS 1/ To BE SURE) FOR ELIGIBILITY FOR UNEMPLOYMENT BENEFITS) A PERSON MUST MAKE A REASONABLE EFFORT To GET woRK· DwYER v UNEMP~OYMENT CaMP· CoMM·J 321 MicH 178. THE REFEREE's FINDING CONCERNI~G BRESHGOLD 1 S JOB HUNTING» PRESENTS THE LEGAL QUESTION WHETHER THESE EFFORTS WERE REASONABLE· THE QUESTION IS A LEGAL ONE BECAUSE THE EVIDENCE IS NOT IN DISPUTE·

THE UNDISPUTED EVIDENCE SHOWS THAT THE CLAIMANT LOOKED FOR WORK ON HIS OFF-DAYS) FRIDAY AND SATURDAY) AND DURING THE TWO TO THREE HOURS AVAIL­ABLE ON AFTERNOONS· MoNDAY THROUGH THURSDAY· THERE IS NO EVIDENCE TO THE CONTRARY AND THIS TESTIMONY OF THE CLAIMANT IS NOT SO INHERENTLY INCREDIBLE THAT IT CAN BE REASONABLY REJECTED·

ASSUMING) FOR THE MOMENT) THAT ON THE FIRST FOUR BUSINESS DAYS IN EACH WEEK THE CLAIMANT LOOKED FOR WORK DURING AFTERNOON PERIODS OF TWO TO THREE HOURS AND THAT HE LOOKED FOR WORK DURING FULL BUSINESS HOURS ON

1/ PERHAPS) THERE SHOULD BE) BUT THIS IS A QUESTION FOR THE LEGISLATIVE BOD IES OF THE STATE AND NATION AND NOT A QUESTION UPON WHICH A TRIAL JUDGE SHOULD "LEGISLATE·"

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FRIDAY AND SATURDAY) WOULD THIS PRECLUDE HIS ELIGIBILITY UNDER EITHER sus­SECTIONS (A) OR (c) OF SECTION 28(1) OF THE AcT? I HAVE SERIOUS DOUBT THAT SUCH JOB SEEKING EFFORTS WOULD BE INSUFFICIENT FOR ELIGIBILITY· I REPEAT THAT THERE IS NOTHING IN THE LAW OF WHICH I AM AWARE REQUIRING A PERSON TO BE SO UNOCCUPIED THAT HE IS ABLE TO DEVOTE FULL TIME (ABOUT EIGHT HOURS A DAY) TO JOB SEEKING· IT WOULD SEEM THAT THE· LAW REQUIRES ONLY REASONABLE EFFORTS TO GET WORK AND TEST THE DEFENDANT's EFFORTS WERE REASONABLE) ACCEPT­TING AS TRUE HIS UNDISPUTED TESTIMONY·

LIKE THE DISSENTING MEMBER OF THE APPEAL BOARD; I AM DISTURBED BY THE DEARTH OF EVIDENCE CONCERNING THE CLAIMANT's JOB SEEKING EFFORTS· THIS SUBJECT RECEIVED ONLY CURSORY COVERAGE IN THE HEARING BEFORE THE REFEREE·

RESPECTING nSECTION 28 ELIGIBILITY)n IT IS CLEAR THAT UNDER sus­SECTIONS (A) AND (c) TO BE ELIGIBLE A PERSON MUST BE ACTIVELY SEEKING WORK· THIS SEEMS TO MEAN THAT THE CLAIMANT MUST 11 MAKE A REASONABLE ATTEMPT TO FIND WORK) AND ··· NOT WAIT FOR A JOB TO SEEK HIM OUT·n (THE QUOTATION IS FROM DwYER v UNEMPLOYMENT CoMPENSATION CoMMISSION; suPRA·

THE EVIDENCE IN THE WHOLE RECORD DOES NOT SUPPORT A FINDING THAT THE CLAIMANT WAS NOT ENGAGED IN REASONABLE ATTEMPTS TO FIND WORK OR THAT HE WAS SIMPLY WAITING FOR A JOB TO SEEK HIM OUT·

IT IS CLEAR FROM THE DECISIONS OF THE HIGHEST COURT OF OUR STATE AND OTHER STATES THAT TO BE AVAILABLE FOR FULL-TIME EMPLOYMENT WITHIN THE MEANING OF SECTION 29(l)(c) OF THE AcT A PERSON MUST BE nACTUALLY AND CUR­RENTLY ATTACHED TO THE LABOR MARKET·n AGA!N 1 THE QUOTATION IS FROM DWYER V UNEMPLOYMENT CoMPENSATION CoMMISSION; SUPRA; AT PAGE 188. IN DwYER; THE MrcHIGAN SuPREME CouRT SAYS:

1

~0 BE AVAILABLE FOR WORK WITHIN THE MEANING OF THE ACT; THE CLAIMANT MUST BE GENUINELY ATTACHED TO THE LABOR MARKET; I·E • ; HE MUST BE DESIROUS TO OBTAIN EMPLOYMENT; AND MUST BE WILLING AND READY TO WORK ··· · THE TEST SUGGESTED IS SUBJECTIVE IN NATURE · WHETHER OR NOT A CLAIMANT IS IN FACT AVA ILABLE FOR WORK DEPENDS TO A GREAT EXTENT UPON HIS MENTAL ATTITUDE 1 I ·E· 1 WHETHER HE WANTS TO GO TO WORK OR IS CONTENT TO REMAIN IDLE· INDICAT IVE OF SUCH MENTAL ATTITUDE IS EVIDENCE AS TO EFFORTS WHICH THE PERSON HAS MADE IN HIS OWN BEHALF TO OBTAIN WORK ·"

IN THE DWYER CASE; THE MICHIGAN SUPREME COURT HELD AGAINST A CLAIMANT WHO ; DURING A 19 MONTH PERIOD OF UNEMPLOYMENT 1 SOUGHT WORK ONLY 3 OR 4 TIMES · THERE; THE COURT REASONED THAT THE UNEMPLOYMENT CoMPENSAT ION CoMMMSS I ON APPEAL BoARD WAS n JUS TI F I ED IN HOLDING THAT PLAINTIFF HAD NOT MADE A REASONABLE ATTEMPT TO KEEP HIMSELF IN THE LABOR MARKET AND) CONSEQ­ENTLY1 WAS NOT AVAILABLE FOR WORK AND NOT ELIGIBLE FOR BENEFITS · "

HOWEVER; THE INSTANT CASE PRESENTS QUITE A DIFFERENT SET OF FACTS· lF 1 INDEED ; ATTACHMENT TO THE LABOR MARKET IS LARGELY A MATTER OF SUBJECTIVE INDIVIDUAL INTENT, WHAT IS THERE IN THE EVIDENCE TO GAINSAY THE

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CLAIMANT ' S EXPRESSED INTENTION TO TAKE WORK "IF A JOB COM ES UP·" HE TESTIFIED, WITHOUT CONTRADICTION, "I'LL TAKE THE JOB, AND DROP OUT OF SCHOOL, IF NECESSARY

IF MY COURSE CANNOT BE CHANGED·"

A TRIER OF FACT, SUCH AS A REFEREE, IS NOT REQUIRED TO ACCEPT A PERSON'S DECLARATION OF INTENT AT FACE VALUE· To DETERMINE INTENT, THE TRIER OF FACT CAN TAKE INTO ACCOUNT ALL OF THE CIRCUMSTANCES HAVING ANY LOGICAL TEN­DENCY TO SHOW WHAT THAT INTENT IS · HoWEVER, ON THE EVIDENCE IN THE RECORD, DIRECT AS WELL AS CIRCUMSTANTIAL, THERE IS NO BASIS FOR FINDING AN INTENT OR ATTITUDE ON BRESHGOLD' S PART INCONSISTENT WITH GENUINE ATTACHMENT TO THE LABOR MARKET·

A MORE CAREFUL EXPLORATION OF BRESHGOLD 1 S JOB HUNTING EFFORTS MIGHT WELL SHOW AN ACTUAL INTENT ON HIS PART DIFFERENT THAN THE ONE CLAIMED BY HIM · LIKE THE APPEAL BoARD DISSENTER, I BELIEVE SUCH AN EXPLORATION WOULD SERVE THE INTERESTS OF JUSTICE·

ANOTHER MATTER WARRANTS DISCUSSION: AVAI LABILITY OF AN APPLICANT TO WORK ONLY CERTAIN HOURS OR CERTAIN SHIFTS · IT IS TRUE THAT UNDER THE DECISION oF FoRD MoToR Co . v UNEMPLOYMENT CoMPENSATION CoMMissioN, 316 MicH 468, A CLAIMANT WHO LIMITS HIS AVA ILABILITY FOR EMPLOYMENT TO WORK ON A SPECIFIC SHIFT IS NOT AVAILABLE FOR EMPLOYMENT AS REQUIRED BY SECTION 28 OF THE ACT· BuT WHAT IS THERE IN THE EVIDENCE AS DISTINGUISHED FROM PURE CONJECTURE TO SHOW THAT THIS CLAIMANT WAS AVAILABLE TO WORK ONLY AT TIMES WHICH WOU LD NOT INTERFERE WITH HIS FULL-TIME CLASS SCHEDULE? THE ONLY EVIDENCE IN THE RECORD IS TO THE CONTRARY·

IN HANSEN v CoNTINENTAL CAN Co ., 221 NW 2D 670, THE MINNEsoTA SuPREME CoURT HE LD THAT A FULL-TIME COLLEGE STUDENT WAS AVAILABLE FOR WORK FOR PURPOSES OF THE UNEMPLOYMENT COMPENSATION STATUTE· THE COURT HELD THAT THE MINNESOTA STATUTE DID NOT REQUIRE A CLAIMANT TO REMAIN IDLE AND THAT ATTENDING COLLEGE DID NOT NECESSARILY MAKE A PERSON UNAVAILABLE FOR EMPLOYMENT· THE HANSEN CASE CLOSELY PARALLELS THE BRESHGOLD CASE · LIKE BRESHGOLD, HANSEN PLACED NO LIMITS ON HIS AVAILAB ILITY, AND OFFERED TO QUIT SCHOOL IN ORDER TO OBTAIN EMPLOYMENT· A PENNSYLVANIA COURT REACHED ESSENTIALLY THE SAME RESULT IN WILEY V UNEMPLOYMENT CoMPENSATION BoARD oF REVIEW, 171 A 2D 810 (PA SUPER· 1961).

THE CASE AT BAR IS UN LI KE LESTER v CHRYSLER CoRP·, WAYNE CrRcurr CoURT, No. 73 -255528-AE (1974), WHERE THE CLAIMANT TU RNED DOWN AN ASSEMBLY PLANT JOB, SIMILAR TO ONE HE HAD HELD IN THE PAST , AND TESTIFIED THAT HE WAS GOING TO COLLEGE SO THAT HE WOULDN

1T HAVE TO DO SUCH WORK· IN LESTER, THERE WAS ABUNDANT

EVIDENC E TO SUPPORT A FINDING THAT LESTER WAS AVAI LABLE FOR WORK ONLY IF IT WAS COMPATIBLE WITH SCHOOL · IN THE INSTANT CASE, THERE IS NO EVIDENCE THAT THE CLAIMANT

1S ATTACHMENT TO THE LABOR MARKET IS DEPENDENT ON HIS SCHOOL SCHEDULE

OR IS OTHERWISE CONDITIONAL OR EQUIVOCAL·

IN THE INSTANT CASE, HOWEVER, I AM TROUBLED OVER THE CURSORY NATURE OF THE INQUIRY AT THE REFEREE 1 S HEARING INTO BRESHGOLD 1 S JOB-SEEKING EFFORTS· I BELIEVE THAT IN THE INTERESTS OF JUSTICE THERE SHOULD BE A NEW HEARING· AT THE HEARING THE CLAIMANT ' s JOB-SEEKING EFFORTS SHOULD BE THOROUGHLY EXPLORED·

FoR THE REASONS STATED ABOVE JUSTICE REQUIRES THAT THIS CASE BE REMANDED TO A REFEREE OF THE MICHIGAN EMPLOYMENT SECURITY CoMMISSION TO CONDUCT A HEARING IN CONFORMITY WITH THIS OPINION AND DECIS ION ·

DATED AT DETROIT, MICHIGAN, FEBRUARY 24 I 1978.

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Is/ VrcToR J. BAUM, VICTOR J. BAUM, CIRCUI T JUDGE