Steele v. Employment Dept.

• Decision Date: 28 August 1996
• Docket Number: No. 95-AB-877,95-AB-877
• Citation: 143 Or.App. 105,923 P.2d 1252
• Parties: David J. STEELE, Petitioner, v. EMPLOYMENT DEPARTMENT and Faris Sheet Metal, Respondents. EAB; CA A89252.
• Court: Oregon Court of Appeals

Page 1252

923 P.2d 1252

143 Or.App. 105

David J. STEELE, Petitioner, v. EMPLOYMENT DEPARTMENT and Faris Sheet Metal, Respondents.

EAB No. 95-AB-877; CA A89252.

Court of Appeals of Oregon.

Argued and Submitted June 21, 1996.

Decided Aug. 28, 1996.

Gerald Brask, Jr., Portland, argued the cause for petitioner. With him on the briefs were Amy Parks, Certified Legal Intern, James McCarthy, Certified Legal Intern, Robert Randall, Certified Legal Intern, Henry Webb, Certified Legal Intern and Lewis and Clark Legal Clinic.

Jas. Adams, Assistant Attorney General, argued the cause for respondent Employment Department. With him on the brief were Theodore R. Kulongoski, Attorney General, and Virginia L. Linder, Solicitor General.

No appearance for respondent Faris Sheet Metal.

Before DEITS, P.J., and RICHARDSON, C.J., and HASELTON, J.

DEITS, Presiding Judge.

Claimant was discharged after he missed work on two successive days, due to the after effects of alcohol use. ¹ Claimant applied for and the Employment Appeals Board (EAB) held that claimant was disqualified from receiving unemployment benefits. It concluded that the discharge was for "misconduct connected with work" under ORS 657.176(2)(a) and OAR 471-30-140(5). Claimant seeks review, and we reverse and remand.

EAB found that claimant is an alcoholic, and there was evidence that could support a finding that he cannot control his use of alcohol or the consequences of his drinking. However, EAB did not reach the question of whether claimant's absences and underlying alcohol use were or were not "volitional." Rather, it concluded that OAR 471-30-140, the Employment Department's ² "Alcohol Adjudication Policy," makes alcohol-related absences disqualifying misconduct per se, for purposes of ORS 657.176(2)(a), without regard for whether the conduct is willful or otherwise accompanied by a culpable mental state. Claimant contends that EAB erred in holding that he was disqualified, without first considering whether and finding that his conduct was volitional.

ORS 657.176(2)(a) provides that a person is disqualified from receiving regular unemployment benefits if he or she "[h]as been discharged for misconduct connected with work." OAR 471-30-140(5) provides:

"An employee who is discharged or suspended for failing to appear for work as a result of the use of alcohol is discharged or suspended for misconduct connected with work." ³

That rule was promulgated in 1994, and its per se standard differs from the department's then and present general misconduct rule, OAR 471-30-038(3). Paragraph (a) of that rule provides:

"As used in ORS 657.176(2)(a) and (b) a willful or wantonly negligent violation of the standards of behavior which an employer has the right to expect of an employee is misconduct. An act or series of actions that amount to a willful or wantonly negligent disregard of an employer's interest is misconduct." ⁴

Moreover, under OAR 471-30-038(3)(b):

"Isolated instances or poor judgment, good faith errors, unavoidable accidents, absences due to illness or other physical or mental disabilities, or mere inefficiency resulting from lack of job skills or experience are not misconduct." (Emphasis supplied.)

The per se standard of OAR 471-30-140(5) also differs from a series of decisions by this court in cases applying the general misconduct rule to alcohol-related discharges. In James River Corp. v. Employment Division, 94 Or.App. 268, 765 P.2d 217 (1988), Kaeding v. Employment Division, 72 Or.App. 392, 695 P.2d 966 (1985), and Christensen v. Employment Division, 66 Or.App. 309, 673 P.2d 1379 (1984), we reasoned that the claimants' actions that resulted in their firings, if caused by the illness of alcoholism, were not "willful" or disqualifying within the meaning of OAR 471-30-038(3). The cases rest on the conventional medical understanding that alcoholism can defeat the affected person's ability to control alcohol-related behavior and, therefore, can render that behavior nonvolitional. We concluded further that whether any particular infraction was the product of the disease instead of volition is a question of fact. James River Corp. made it somewhat clearer than the earlier cases had that an alcoholic person can sometimes act volitionally in connection with alcohol-related activities, but it nevertheless retained the rule that it is a question of fact whether a particular act is caused by volition or by uncontrollable impulses of the disease, and that the act is not disqualifying misconduct if its cause is the latter. ⁵

"Misconduct connected with work," as used in ORS 657.176(2)(a), is a "delegative" statutory term that the Employment Department has policy-making authority to interpret and refine. See Sun Veneer v. Employment Div., 105 Or.App. 198, 804 P.2d 1174 (1991). As such, we may reject the department's interpretation or "explication" of the term only if it falls outside "the range of discretion allowed by the more general policy of the statute." Springfield Education Assn. v. School Dist., 290 Or. 217, 229, 621 P.2d 547 (1980). Claimant contends that OAR 471-30-140(5) fails that test because, insofar as it allows a determination of work-connected misconduct to be based on an alcoholic person's actions that are not actuated or accompanied by a willful or otherwise culpable mental state, it is directly contrary to the statute. According to claimant, mental states of that kind are contemplated by and embodied in the statutory term "misconduct connected with work."

The department responds, generally, that volitional mental states are not necessarily inherent in the phrase "misconduct connected with work," and that the per se disqualification standard in OAR 471-30-140(5) is within its delegated policy-making authority. The department asserts that claimant's reliance on OAR 471-30-038(3) is misplaced, as are his apparent attempts to import that rule's term "willful or wantonly negligent" into the statutory phrase; the statute does not itself contain that term and, the department notes, OAR 471-30-140(1) expressly provides that the Alcohol Adjudication "rule is an exception to OAR 471-30-038." The department also argues that James River Corp., Kaeding and Christensen do not assist claimant, because those cases are simply applications of OAR 471-30-038(3); since that rule has been replaced by OAR 471-30-140 as the one that applies to claims arising out of alcohol-related discharges, the department reasons that neither it nor the cases that rely on it are pertinent here.

Claimant argues, however, that several of this court's decisions that pre-date the 1979 promulgation of OAR 471-30-038 have interpreted the statutory term as requiring proof of a willful or otherwise culpable state of mind in order for disqualifying misconduct to be found. See, e.g., Goodwin v. Emp. Div., 35 Or.App. 299, 303, 581 P.2d 115 (1978); Shed Cafe v. Employment Div., 30 Or.App. 639, 567 P.2d 617 (1977); Babcock v. Employment Div., 25 Or.App. 661, 664-65, 550 P.2d 1233 (1976); Geraths v. Employment Division, 24 Or.App. 201, 204-05, 544 P.2d 1066 (1976); Bauer v. Morgan, 16 Or.App. 132, 135, 517 P.2d 689, rev den (1974). ⁶

The department assails claimant's reliance on each of those cases, except one which it does not mention. It maintains variously that the language on which claimant relies consists of dictum (Goodwin ), or that the cases do not hold what claimant finds in them (Shed Cafe ), or that they "simply [quote] at length from Am Jur 2d" (Geraths ). However, in Babcock, the case that the department does not discuss, we took a different view from the one it takes about the significance of Geraths, and we also very clearly restated the point that claimant attributes to the cited cases. We said:

"Geraths was decided by this court after the decision in this case was handed down by the board. In that decision we pointed out that misconduct within the statute

' " ' * * * must be an act of wanton or wilful disregard of the employer's interest * * * ' " ' [quoting Am Jur 2d]." 25 Or.App. at 664-65, 550 P.2d 1233.

After quoting further, we observed in Babcock that the language from the American Jurisprudence passage was quoted with approval in Geraths. 25 Or.App. at 665, 550 P.2d 1233. Consequently, it is clear that neither Geraths nor Babcock is correctly read as simply reciting at length from the treatise. They adopt the language of the treatise that they quote as the law of this state and, in particular, indicate that the wanton or willful disregard formulation is part of the test for finding disqualifying misconduct under ORS 657.176(2)(a).

In sum, we agree with claimant's understanding that, in cases decided before the promulgation of OAR 471-30-038 or any other agency rule defining the word, we interpreted the misconduct term in ORS 657.176(2)(a) as making a claimant's disqualification contingent on a showing that he or she acted willfully or with some other culpable mental state. ⁷

The department argues, next, that those interpretations of the statute by this court, which predated Springfield and predated the department's promulgation of rules interpreting the statute, are not dispositive; it asserts that, unlike an interpretation of a statute by the Supreme Court, an interpretation by this court is not deemed to be part of the statute. See Mathel v. Josephine County, 319 Or. 235, 240, 875 P.2d 455 (1994). The department notes that the Supreme Court has not interpreted ORS 657.176(2)(a) with respect to the matter in question.

However, the Supreme Court has recognized that OAR 471-30-038(3), with its reference to willfulness as part of the definition of the statutory term "misconduct," "was promulgated in 1979 to codify the Court of Appeals' holdings as to what constitutes misconduct under ORS 657.176(2)(a)." Nelson v. Emerald People's Utility Dist., 318 Or. 99, 106, 862 P.2d 1293 (1993); see also Bunnell v. Employment Division, 304 Or. 11, 14-15, 741...