
    SHEPHERD v. EMPLOYMENT SECURITY COMMISSION.
    1. Unemployment Compensation — Leave op Absence — Voluntary Request.
    Employee who ehose to apply for 6-month leave of absenee from work rather than to jeopardize his seniority rights by being absent for more than 2 days when acute exacerbation of osteoarthritis of spine made his work too painful, held, to have made a voluntary choice to request leave of absenee, henee, he was properly found not unemployed by referee and appeal board of employment security commission (CLS 1961, §§ 421.28, 421.48).
    2. Same — Leave oe Absence — Union Contract.
    Leave of absenee for 6 months granted by employer to employee upon his application, made to protect his seniority rights when acute exacerbation of osteoarthritis of spine made his work too painful, held, granted pursuant to collective bargaining agreement whieh provided for granting of leave of absence at discretion of employer for not more than 1 year, and that employer would not be required to provide work until expiration of the granted leave, hence employee was properly found not to be unemployed by referee and appeal board of employment security commission (CLS 1961, §§421.28, 421.48).
    3. Same — Leave op Absence — Termination.
    A granted leave of absenee to an employee is not terminable unilaterally at request of employee before time for whieh leave was granted expired, when union-management contract provided that employer would not be required to provide work for employee until expiration date of leave of absenee, so as to render the employee unemployed and entitled to unemployment compensation benefits (CLS 1961, §§ 421.28, 421.48).
    References for Points in Headnotes
    
       48 Am Jur, Social Security, Unemployment Insurance, and Retirement Funds § 35 et seq.
    
    
      4. Same — Leave oe Absence — Unemployment.
    Employee who was on unexpired leave of absence from Ms work, granted at Ms request and pursuant to union-management contract, held, not to be unemployed witMn meaning of employment security act (CLS 1961, § 421.48).
    Appeal from Ingham; Salmon (Marvin J.), J.
    Submitted Division 2 June 1, 1966, at Lansing.
    (Docket No. 1,429.)
    Decided October 25, 1966.
    Jim Shepherd made a claim for unemployment compensation benefits when employer Albion Malleable Iron Company, a Michigan corporation, refused to reinstate him at work. Claim denied. Claimant appealed to referee, then appeal board of Michigan Employment Security Commission, each of which denied benefits. Claimant appealed to circuit court. Appeal board decision affirmed. Claimant appeals.
    Affirmed.
    
      Kelman, Loria, Downing $ Schneider, for plaintiff.
    
      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, E. J. Setlock, Assistant Attorney General, for defendant Michigan Employment Security Commission.
    
      Varnuin, Riddering, Wierengo & Christenson (Carl E. VerBeeh, of counsel), for defendant Albion Malleable Iron Company.
   T. G. Kavanagh, J.

Claimant, Jim Shepherd, was hired by defendant, Albion Malleable Iron Company, in 1951 and worked in the core department until October 18,1962. In January, 1961, he was working on an oven and experienced pain in his back. At this time he left work on a leave of absence for about six months. When he returned he was assigned to the core department and remained there until October 18, 1962. On that date claimant asked his foreman for a change of jobs and was referred to defendant-employer’s doctor. The doctor recommended “retirement or light work or part-time light work” because claimant suffered from an acute exacerbation of pre-existing osteoarthritis of the spine. Claimant then requested a leave of absence after it was explained to him that if he was to be away from work more than two days and wanted to protect his seniority, he would have to request and obtain a leave of absence.

Claimant requested such a leave, signed the application therefor, and a leave of absence was granted to him for the period October 18, 1962, to April 15, 1963. The leave was granted in accordance with the extant union-management contract and was approved and signed by claimant’s union and committeeman, claimant’s foreman, and the employer’s employee relations manager. The applicable section of the union-management contract is paragraph 58(c), which reads:

“Leave of absence maybe granted at the discretion of the company to any employee for such period as the company may determine, but not exceeding 1 year. Before a leave of absence is granted it shall be approved by the employee’s foreman, the appropriate committeeman, and the personnel department. The company shall not be required to provide work for an employee until the expiration date of the leave of absence which was granted.”

In early November, 1962, claimant informed the employer that he could return to light work and submitted a letter from their doctor stating his back had improved. The employer, however, refused to reinstate the claimant after checking with the doctor and discovering that claimant was not able to work. Claimant then filed a grievance, bnt it was withdrawn by his union representative on November 15, 1962. At this time, claimant was advised that he would be eligible for weekly sickness and accident benefits, but, instead, on November 23, 1962, he elected to apply for workmen’s compensation benefits.

On December 14, 1962, claimant filed an application for unemployment compensation benefits with the appellee, Michigan Employment Security Commission. In answer to their inquiry the employer’s doctor indicated that claimant was not able to do his customary work but could do light work only.

The commission issued a determination dated January 8, 1963, denying the claim for the reason that the medical statement presented indicated that he was unable to work and was, therefore, ineligible under section 28(c) of the Michigan employment security act.

Upon claimant’s request for a redetermination, the commission again denied his claim, finding that claimant (1) was on an approved leave of absence and was, therefore, not “unemployed” within the meaning of section 48 of the act, and (2) he had not established that he was then able to work as required by section 28(c) of the act.

The referee, to whom an appeal was next taken, also held claimant not to be “unemployed” for the same' reason.

The appeal board, after hearing, affirmed the referee and further held that his decision as to claimant’s availability for work was moot because no valid claim had been filed in view of its finding that he was not an unemployed individual. Their decision was affirmed by tlie circuit court for the county of Ingham.

On appeal to this court, appellant first contends that the leave of absence was not granted at his request. We regard the appellant’s signature of the leave form, following the explanation that -it was necessary in order to protect his seniority rights, as an election to request a leave of absence, a choice voluntarily made by appellant.

Appellant’s next contention is that the leave of absence was not granted pursuant to a collective bargaining agreement.

To agree with this contention we would have to ignore section 58 of the union contract and take phrases out of context from the hearing before the appeal board. This we cannot do. The language of the union contract explicitly covers the situation before us and further, the testimony of defendant’s employee indicated that the leave of absence request form was not limited only to a personal leave of absence, but covered all types of leaves, including the one now before us.

Finally, we do not view the leave of absence granted claimant to be terminable unilaterally. The decisions in American Telephone & Telegraph Company v. Employment Security Commission (1965), 376 Mich 271, and Michigan Bell Telephone Company v. Employment Security Commission (1965), 376 Mich 308, are. dispositive of this issue. Further, section 58 of the union contract here involved specifically provides that if a leave of absence is obtained the company will not be required to provide work for the employee until the expiration of the leave of absence.

Having determined claimant to have been on a leave of absence and thus, not an “unemployed individual,” a determination by us of whether or not claimant met the requirements of section 28(c) of the act would not be required.

The decision of the circuit court is hereby affirmed. Costs to appellee.

Lesinski, C. J., and McGregor, J., concurred. 
      
       CLS 1961, § 421.28(c) (Stat Ann 1960 Rev § 17.530[c]).
     
      
       CLS 1961, §421.48 (Stat Ann 1960 Rev § 17.552).—Reporter,
     