State of Michigan
MESC Documents and Decisions
in Support of Whistleblower,
By Overruling TACOM
DEPARTMENT OF LABOR
MICHIGAN EMPLOYMENT SECURITY COMMISSION
REFEREE DIVISION

DECISION

In the Matter of the Claim of|Employer Involved
|USA TACOM
LEROY J. PLETTEN|Civilian Payroll Sect DRSTA EFPC
8401 18 Mile Road, Apt. 29|28251 Van Dyke
Sterling Heights, MI 48078|Warren, MI 48090
S.S. No. 586-67-6611|Appeal No. B81 09032

REFEREE: MICHAEL BALDWIN

[X] Claimant
appealed Redeterminationof May 11, 1981
on May 11, 1981
[ ] Employer

Hearing(s) held on July 20, 1981, in Sterling Heights, Michigan.

FINDINGS OF FACT AND REASONS

The redetermination issued by the Commission on May 11, 1981, held the claimant ineligible for benefits in respect to the time period from November 30, 1980, through an "indefinite" period of time under Section 48 of the Act. An earlier determination was held affirmed. In essence, the claimant was held to be on a leave of the type recognized by Section 48 of the Act as rendering the individual not an unemployed individual within the meaning of the Michigan Employment Security Act.

At the hearing held in Sterling Heights, Michigan, on July 20, 1981, the following persons appeared:

Leroy Pletten,Claimant
Helen Cochran,Witness Subpoenaed at the Request of the Claimant

Ed. Note: TACOM, for fear of what its own people would admit, refused to allow any to testify! until a year later, in MSPB's proceedings under its control.

The claimant began working for the involved federal entity in August of 1969 and last performed work services for this employer on or about March 17, 1980. The application for unemployment benefits contained within the file [of] items submitted by the Commission to the Referee Division is indicated as being filed on January 2, 1981.

Section 48 of the Act provides, in part, that
"An individual shall not be deemed to be unemployed during any leave of absence from work granted by an employer either at the request of the individual or pursuant to an agreement with his duly authorized bargaining agent, or in accordance with law."
The claimant's literal presentation was, in part, that there is no such employment condition [per TACOM Reg. 600-5.14] as a [forced] leave of absence that was recognized by the federal agency. However, the record does indicate that a federal agency does grant employees absences [they request] from work performance, under certain circumstances, while maintaining the employment relationship and anticipating a resumption of work service performance at a reasonably specific time in the future.

Not all leaves of absence will render an individual not an unemployed individual within the meaning of Section 48 of the Act. There are only three recognized forms or initiating circumstances relative to leaves of absence that are pertinent.

The claimant's testimony was clear that he did not request to be placed on a leave of absence or be removed from work service performance in respect to the time period under consideration. The claimant further stated that he was not of the view that he had a union or labor organization of which he was a member for bargaining purposes with the employer but that, in any event, he had made no request to anyone to act on the claimant's behalf in requesting a leave of absence. There is no indication that any leave of absence that may apply to the claimant was in accordance with the law relative to the pertinent subsection of the state statute.

In terms of Section 48 of the Act, whether or not the claimant is on a leave of absence is somewhat moot under the circumstances as established in the record in that if the claimant is on a leave of absence, it is not of the type recognized in Section 48 of the Act as rendering an individual unentitled to receive unemployment benefits, i.e., a type that would cause the claimant not to be deemed an "unemployed" individual.

DECISION

The redetermination issued by the Commission on May 11, 1981, is hereby reversed. The provisions within Section 48 of the Act pertaining to leaves of absence of a certain type have no application in the instant matter.

Further judgments in respect to this claim are left for future Commission consideration.

    /s/Michael Baldwin
    MICHAEL BALDWIN, REFEREE

Mailed at DETROIT, MICHIGAN JULY 30, 1981

Ed. Note: TACOM Regulation 600-5.14-27 says: "Definition. A temporary non-pay status and absence from duty during regularly scheduled work hours granted/approved at the employee's request."

TACOM Regulation 600-5.14-28.a says: "Supervisors may not direct the use of leave without pay (LWOP). Leave without pay may be charged only upon an employee's request or consent. However, such consent is understood when an employee applies for and is granted another type of leave where leave balance(s) are insufficient to cover. The only exception is when the commander authorizes excused absence for reasons beyond management control and an employee is not eligible for excused absence. (See "Excused Absence," page 23)."

TACOM Regulation 600-5.14-28.d says: "Leave without pay will be granted only when there is reasonable assurance of return to duty after the absence."

5 CFR § 831.1206 (1980) mandated retention "in active duty status until . . . the initial decision of the [OPM] Associate Director for Compensation" pursuant to 5 C.F.R. § 831.1204(b) (1980). Such a decision had not been issued. OPM has never provided one to Pletten.

DEPARTMENT OF LABOR
MICHIGAN EMPLOYMENT SECURITY COMMISSION
REFEREE DIVISION

In the Matter of the Claim of|Employer Involved
|USA TACOM
LEROY J. PLETTEN|Civilian Payroll Sect DRSTA EFPC
8401 18 Mile Road, Apt. 29|28251 Van Dyke
Sterling Heights, MI 48078|Warren, MI 48090
S.S. No. 586-67-6611|Appeal No. B81 09032

REFEREE: MICHAEL BALDWIN

ORDER DENYING
APPLICATION FOR REHEARING

This matter came before the Referee upon application of the employer's attorney received on August 19, 1981, for a rehearing by the Referee in respect to the decision dated July 30, 1981, and the Referee having read and considered said application, and having reviewed the record in the matter, is of the opinion that said application should be denied.

IT IS THEREFORE ORDERED that said application shall be and the same is hereby denied.

    /s/Michael Baldwin
    MICHAEL BALDWIN, REFEREE

Mailed at Detroit, Michigan on SEP 02 1981 (Date)

IMPORTANT

This decision will become final unless a written appeal to the Board of Review is received on or before SEP 02 1981 (Date)

To be filed on time, an appeal to the Board of Review must be received by any office of the Commission or the Board on or before the above-indicated date.

Information and/or forms for an appeal to the Board of Review may be obtained from the Board or from any Commission Office.

The Act also permits an order or decision of the Referee to be appealed directly to the appropriate circuit court if all parties agree to do so by written stipulation filed with the Referee.

STATE OF MICHIGAN
EMPLOYMENT SECURITY BOARD OF REVIEW

In the Matter of the Claim of

LEROY J. PLETTEN,Appeal Docket No.
B-81-09032-RO-1-79856
Claimant
Social Security No.
586-67-6611
DEPARTMENT OF THE ARMY,
  
Employer

DECISION OF BOARD OF REVIEW

This case is before the Board of Review on the appeal of the employer [TACOM] from a Referee's order denying a rehearing. The Board finds that the Referee did not abuse his discretion in issuing such order, and such order is hereby affirmed. A copy of said order issued on September 2, 1981 is attached hereto and by this reference made a part hereof.

The Board, having reviewed the Referee's decision in the light of the evidence appearing in the record made prior to the employer's request for a rehearing, is of the opinion that said decision is in conformity with the law and facts and should be affirmed. A copy of said decision issued on July 30, 1981 is attached hereto and by this reference made a part hereof.

The Referee's order denying the employer's request for rehearing is hereby affirmed. The Referee's decision is hereby affirmed.

    /s/Thomas L. Gravelle
    Thomas L. Gravelle, Member


    /s/Harry S. Benjamin, Jr.
    Harry S. Benjamin, Jr., Member
MAILED AT DETROIT, MICHIGAN May 14, 1982

Attachments

This decision will become final unless a written request for rehearing or appeal to the appropriate circuit court is RECEIVED on or before     June 3, 1982

TO PROTECT YOUR RIGHTS
YOU MUST BE ON TIME.

STATE OF MICHIGAN
EMPLOYMENT SECURITY BOARD OF REVIEW

In the Matter of the Claim of

LEROY J. PLETTEN,Appeal Docket No.
B-81-09032-RO-1-79856
Claimant
Social Security No.
586-67-6611
DEPARTMENT OF THE ARMY,
U.S. ARMY TANK AUTOMOTIVE COMMAND,
  
Employer

ORDER DENYING APPLICATION FOR REHEARING

This case is before the Board of Review upon application of the employer for a rehearing by the Board in respect to its decision dated May 14, 1982. The Board of Review, having read and considered said application, and having reviewed the record in the matter, is of the opinion that said application should be denied.

IT IS THEREFORE ORDERED that said application shall be and the same is hereby denied.

    /s/Thomas L. Gravelle
    Thomas L. Gravelle, Member


    /s/Harry S. Benjamin, Jr.
    Harry S. Benjamin, Jr., Member
MAILED AT DETROIT, MICHIGAN June 22, 1982

This order will become final unless a written appeal therefrom is RECEIVED by the clerk of the appropriate circuit court on or before
    July 12, 1982

TO PROTECT YOUR RIGHTS
YOU MUST BE ON TIME.

TACOM feared the integrity of Macomb County Circuit Court, so did NOT dare appeal. It had shot its last wad, and would focus on corrupting the federal review system, and corrupt its officials at MSPB and in the federal courts.

Ed. Note: See also writings in my favor by EEOC, OPM, and USACARA.