Babcock v. Employment Division

• Citation: 25 Or.App. 661,550 P.2d 1233
• Parties: Robert BABCOCK, Petitioner, v. EMPLOYMENT DIVISION, and Dallas Planing Mill, Respondents.
• Decision Date: 14 June 1976
• Court: Court of Appeals of Oregon

Page 1233

550 P.2d 1233

25 Or.App. 661

Robert BABCOCK, Petitioner, v. EMPLOYMENT DIVISION, and Dallas Planing Mill, Respondents.

Court of Appeals of Oregon.

Argued and Submitted April 28, 1976.

Decided June 14, 1976.

Steve K. Miyasaka, Marion-Polk Legal Aid Service, Inc., Salem, argued the cause and filed the brief for petitioner.

Rhidian M. M. Morgan, Asst. Atty. Gen., Salem, argued the cause for respondent Employment Division. With him on the brief were Lee Johnson, Atty. Gen., and W. Michael Gillette, Sol. Gen., Salem.

No appearence for respondent Dallas Planing Mill.

Before SCHWAB, C.J., and FORT and LEE, JJ.

FORT, Judge.

Claimant appeals a denial of his claim for unemployment benefits made by the Employment Appeals Board, one member dissenting. ORS 657.176(2) provides:

'If the authorized representative designated by the administrator finds:

'(a) The individual has been discharged for misconduct connected with his work, or '(c) The individual voluntarily left work without good cause, * * *

the individual shall be disqualified from the receipt of benefits * * *.'

There are two issues raised. The first is whether claimant was discharged or whether he left work voluntarily. The board adopted the referee's opinion finding that claimant was discharged. There is substantial evidence in the record to support its conclusion that claimant did not voluntarily leave work without good cause. Thus ORS 657.176(2)(c) does not apply.

The second issue is whether claimant was discharged 'for misconduct connected with his work.' ORS 657.176(2)(a). The referee and a dividied board concluded that he was discharged for misconduct based on the following findings of fact:

'* * * (1) Claimant worked for the employer 18 years, ending August 18, 1975. He worked as a planer man and set-up man, working from 8:00 a.m. to 4:30 p.m., Monday through Friday. Claimant earned $5.00 per hour. (2) At about 12:50 p.m., August 18, 1975, claimant asked his foreman for time off in order to help his wife to start the family car. The car was about three blocks from the job site. (3) Because claimant was unable to successfully start the car and keep it running, he became involved in various journeys through the city of Dallas, trying to get the car repaired. (4) At about 3:00 p.m., the owner observed claimant and his wife in the family car. The owner then asked the claimant to return to work because he was needed there. (5) Claimant declined to return to work because the car was not operating properly and he did not wish to leave his wife with the car. (6) The employer then caused the claimant's separation check to be prepared.'

There is substantial evidence in the record to support these findings.

It is conceded here that the employer did discharge the claimant at the time and in the manner set forth in the above findings. Thus the sole question before the referee and the board was whether claimant's actions constituted 'misconduct connected with his work' under that statute.

We consider first the question of upon whom the burden of proof rests to establish 'misconduct connected with his work' under the statute. We have previously had occasion to cite with approval major portions of 76 Am.Jur.2d 945, Unemployment Compensation § 52. Geraths v. Employment Division, 24 Or.App. 201, 544 P.2d 1066 (1976); Romanosky v. Employment Div., 21 Or.App. 785, 536 P.2d 1277 (1975); Georgia-Pacific v. Employment Div., 75 Adv.Sh. 1450, 1452, 21 Or.App. 135, 533 P.2d 829 (1975). In 76 Am.Jur.2d it states:

'* * * Furthermore, where an employer charges a claimant with such misconduct as would bring about his disqualification from unemployment compensation benefits, it is incumbent upon the employer to sustain the charge by a reasonable preponderance of the evidence.' (Footnote omitted; 76 Am.Jur.2d at 946.)

In Industrial Lndry, v. Rev. Bd., 147 Ind.App. 40, 258 N.E.2d 160 (1970), the court stated:

'The burden of proving claimant's misconduct rests on the employer. A. Winer, Inc. v. Review Board (1950), 120 Ind.App. 638, 641, 95 N.E.2d 214; Boynton Cab Co. v. Giese (1941), 237 Wis. 237, 296 N.W. 630. * * *' 147 Ind.App. at 44, 258 N.E.2d at 163.

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, * * *"

and that "* * * The terms should be construed...