Johnson v. Employment Division

• Jurisdiction: Oregon
• Citation: Johnson v. Employment Division, 642 P.2d 329, 56 Or.App. 454 (Or. App. 1982)
• Docket Number: No. 81-AB-415,81-AB-415
• Parties: Fred D. JOHNSON, Petitioner, v. EMPLOYMENT DIVISION and City of Pendleton, Respondents. ; CA A20618.
• Court: Oregon Court of Appeals
• Decision Date: 29 April 1982

Page 329

642 P.2d 329

56 Or.App. 454

Fred D. JOHNSON, Petitioner, v.EMPLOYMENT DIVISION and City of Pendleton, Respondents.

No. 81-AB-415; CA A20618.

Court of Appeals of Oregon.

Argued and Submitted Feb. 12, 1982.

Decided March 22, 1982.

Reconsideration Denied April 29, 1982.

Daniel W. Brandt, Oregon Legal Services Corp., Pendleton, argued the cause and filed the brief for petitioner.

Rudy Murgo, Pendleton, argued the cause and filed the brief for respondentCity of Pendleton.

Jan Peter Londahl, Asst. Atty. Gen., Salem, waived appearance for respondentEmployment Division.

Before GILLETTE, P. J., JOSEPH, C. J., and YOUNG, J.

GILLETTE, Presiding Judge.

Claimant seeks judicial review of a decision of the Employment Appeals Board(Board) disqualifying him for unemployment compensation benefits on the ground of misconduct in connection with his work.He maintains, inter alia, that the Board's decision is not supported by substantial evidence and that the Board's conclusions are not supported by its findings of fact.We reverse and remand.

Claimant worked for the City of Pendleton as a laborer from June 13, 1977, until he was discharged in late October, 1980.His work included sign painting, weed cutting, street painting and catch basin cleaning.This last task involves significant physical effort while using a long handled shovel.

On June 12, 1980, claimant injured his back at work.His treating doctors limited him to light work duties until September 22, 1980, when he was again released to perform his regular duties.Claimant was then assigned to cut weeds and, sometime later, to clean catch basins.He complained of back difficulties in performing these jobs, especially the catch basin cleaning.Finally, on October 27, he told his foreman that he would not clean the catch basins any more without help.He was discharged on October 29, effective November 1.

Claimant sought and was granted unemployment benefits.The administrative decision was appealed by the city.A referee affirmed the grant of benefits, concluding that claimant had been discharged, but not for misconduct.

OAR 471-30-038 defines "misconduct" as

" * * * a wilful violation of the standards of behavior which an employer has a right to expect of an employee.An act that amounts to a wilful disregard of the employer's interests, or recurring negligence which demonstrates wrongful intent is misconduct."

The referee, in holding that the claimant was not guilty of misconduct, explained,

"The evidence presented in this matter belies the employer('s) contention that claimant was insubordinate, that he refused to carry out instructions.Both the medical evidence and the description of the duties assigned claimant after his release by the attending physician, support claimant's credible testimony that he did not refuse to perform those duties, but simply could not continue to perform those duties without seriously jeopardizing his health.Claimant's unwillingness to further aggravate his back injury does not represent the type of adverse behavior described in (OAR 471-30-038)."

The city sought further review with the Board.The case, as recited by the Board in its findings of fact and conclusions of law, bore little resemblance to that decided by the referee.The Board made no findings whatsoever with respect to claimant's physical...