Section 38
APPEALS, Circuit Court standard of review
CITE AS: Cummings Realty Apartments v Houston, No. 91016 (Mich App February 18, 1988).
Appeal pending: No
Claimant: Everett Houston
Employer: Cummings Realty Apartments
Docket No: B83 09820 91646
COURT OF APPEALS HOLDING: The Circuit Court applied the correct standard of review to review and affirm the decision of the Board of Review.
FACTS: The employee discharged the claimant for intoxication on the job. The Referee held the claimant not disqualified under Section 29(1)(b) because the employer failed to meet its burden of proof since the evidence was conflicting. The Referee also found the claimant not disqualified because the employer had condoned and tolerated claimant's intoxication in the past thereby requiring the employer to warn claimant before discharge. The Board of Review and the Circuit Court affirmed.
DECISION: The claimant is not disqualified under Section 29(1)(b).
RATIONALE: "From our consideration of the record, it is clear that the circuit court correctly considered and applied the foregoing standards. The evidence presented at the referee hearing on claimant's alleged misconduct conflicted... . After recognizing the conflict in the testimony, deciding that he was faced with 'equal testimony,' and correctly assigning the burden to show misconduct to the employer, Tuck, supra, p 588, the hearing referee concluded that the employer failed to meet its burden. The circuit court found that the hearing referee's decision, and the MESC's board's affirmation of that decision, was authorized by law and supported by competent, material and substantial evidence. Since this is the proper standard, and it was correctly employed by the lower court, we affirm the circuit court determination."
11/90
14, 15:C