Section 34, 38
PROCEDURE, Substantial evidence
CITE AS: Ngo v Nabisco Inc/Lifesavers, Ottawa Circuit Court, No. 99-35034-AE (June 9, 2000)
Appeal pending: No
Claimant: Thiet Ngo
Employer: Nabisco Inc/Lifesavers
Docket No. B1999-03348-152225
CIRCUIT COURT HOLDING: Notwithstanding the opinion that evidence supporting a Board conclusion is less substantial when the Board disagrees with the Referee, the Board’s decision must be affirmed if the record contains evidence a reasonable mind would accept as adequate to support a conclusion.
FACTS: Employer discharged claimant for violating rules prohibiting the removal of company property without written authorization. Security guards stopped claimant and found two 50-count boxes of lollipops under a Burger King bag in his lunch box. He did not have a receipt showing they were purchased at employer’s company store and did not know when he bought them. The candy was not packaged like that for sale at the company store, and was not in a bag from the store. Claimant testified he unwrapped both boxes to snack on, but had not eaten any of the candy. The Referee found the claimant’s testimony credible that he previously purchased the candy and had thrown the receipt away. The Board rejected the Referee’s credibility finding and found claimant disqualified under Section 29(1)(b). The Board found the claimant not credible because he did not know when he bought the lollipops, bought them to snack on and removed the cellophane but did not eat any, then tried to remove them from the facility without a receipt.
DECISION: Claimant is disqualified for misconduct.
RATIONALE: Claimant argued that the Board did not give due deference to the Referee’s credibility finding, citing Michigan Employment Relations Comm v Detroit Symphony Orchestra, Inc, 393 Mich 116, 127 (1974), for the proposition that “evidence supporting a review board’s conclusion is less substantial when it disagrees with an experienced impartial examiner who has observed the witness,” to argue that there was insufficient evidence to support the Board’s conclusion. The court disagreed, observing that “less substantial” is not the same as “insubstantial” and that Section 34 authorizes the Board to “...reverse the findings of fact and decision of the referee.”