
    ELLIS v. EMPLOYMENT SECURITY COMMISSION.
    Unemployment Compensation — Termination op Employment — Absence — Incarceration—Traffic Violation.
    Denial of unemployment compensation benefits by the employment security commission appeal board and circuit court, where claimant was absent from work because of incarceration for a traffic violation for 9 days, and where he reported back to work about 3 hours before his regular shift ended on the 10th day, held, proper, as it is unreasonable to say that by reporting so close to the end of the shift, claimant had reported to work on the 10th day, especially in view of requirement of collective bargaining agreement that an employee reporting for work be paid a minimum of 4 hours (Pa 1936 [1st Ex Sess], No 1; PA 1963, No 189).
    References for Points in Headnote
    48 Am Jur, Social Security, Unemployment Insurance and Retirement Eunds § 38.
    Conduct or activities of employees during off-duty hours as misconduct barring unemployment compensation benefits. 89 ALR2d 1089.
    Appeal from Muskegon; Beers (Henry L.), J.
    Submitted Division 3 March 8, 1966, at Grand Bap-ids.
    (Docket No. 497.)
    Decided June 28, 1966.
    Leave to appeal granted by Supreme Court October 8,1966.
    See 378 Mich 733, 380 Mich 11.
    Certiorari by Esau Ellis against Employment Security Commission and Campbell, Wyant & Cannon Foundry, Division of Textron American, Inc., following" determination by the Appeal Board of the Employment Security Commission denying him benefits. Judgment for defendants. Plaintiff appeals.
    Affirmed.
    
      Marcus, McCroshey, Libner, Reamon, Williams & Dilley (Jerry 8. McCroshey and Darryl R. Cochrane, of counsel), for plaintiff.
    
      Hathaway, Latimer, Clinh & Robb (Richard A. Robb, of counsel), for Textron American Inc.
   J. H. G-illis, J.

The Muskegon circuit court affirmed the decision of the Michigan employment security appeal hoard denying benefits to plaintiff, Esau Ellis, who had been employed by defendant, Campbell, Wyant & Cannon Foundry Co. During his period of employment with the defendant company, the plaintiff was involved in an automobile accident unrelated to his work resulting in his arrest, conviction for driving on a revoked license, and incarceration for 15 days. As a consequence of this imprisonment, it is undisputed that the plaintiff missed 9 consecutive days from his place of employment. The 10th working day was also the last day of plaintiff’s detention. He was released from custody on December 11,1963, at approximately 11 a.m. and reported at the defendant’s plant shortly before noon to determine if “I still had a job.” His supervisor was just leaving for lunch and advised plaintiff he would discuss the problem upon his return. At approximately 1 p.m. the plaintiff was informed that he was discharged for being “absent” from work. Plaintiff’s regular work shift was 6:30 a.m. to 3 p.m.

The circuit court’s affirmance of the appeal board’s denial of benefits was based on PA 1936 (Ex Sess), No 1, § 29m, as added by PA 1963, No 189 (CL 1948, § 421.29m[a] [Stat Ann 1963 Cum Supp § 17.531(1) (a)]). The pertinent provisions of this statute provide:

“(a) If an individual loses his job by reason of being absent from work as a result of a violation of law for which he has been convicted, and sentenced to jail or prison, such individual shall be disqualified for benefits for the week of such loss resulting from detention pursuant to sentence of any court and for the duration of his unemployment thereafter; and any wages earned prior to such loss with the employer involved therein, whether earned during the individual’s base period or within his current benefit year, shall not be used as a basis for computing or paying benefits for any period subsequent to the time said disqualifying loss occurred. * * *
“(d) The provisions of subsections (a) and (b) herein shall not be applicable when the conviction referred to in section 29m has been for a traffic violation that has resulted in an absence of less than 10 consecutive days from his place of employment.”

The decisive issue in this case is whether the plaintiff’s absence from his place of employment was less than 10 consecutive days. This Court agrees with the decision of the circuit court. Plaintiff failed to report for work on the 10th consecutive day but he did report to his place of employment 2 or 3 hours before his shift ended. The record indicates that a collective bargaining agreement required the employer to pay any employee reporting for work a minimum of 4 hours’ wages. Even in the absence of such contract, it is unreasonable to say that by reporting so close to the end of the shift that plaintiff had reported to work on the 10th day.

Affirmed. Costs to appellees.

Fitzgerald, P. J., and Burns, J., concurred.  