Nichols v. Employment Division

• Decision Date: 26 January 1976
• Citation: Nichols v. Employment Division, 544 P.2d 1068, 24 Or.App. 195 (Or. App. 1976)
• Parties: Arthur L. NICHOLS, Petitioner, v. EMPLOYMENT DIVISION and Cochran's Auto Sales, Respondents.
• Court: Oregon Court of Appeals

Page 1068

544 P.2d 1068

24 Or.App. 195

Arthur L. NICHOLS, Petitioner, v.EMPLOYMENT DIVISION and Cochran's Auto Sales, Respondents.

Court of Appeals of Oregon.

Submitted on Record and Briefs Dec. 18, 1975.

Decided Jan. 26, 1976.

John Svoboda, Springfield, and Sanders, Lively & Wiswall, Springfield, for petitioner.

Lee Johnson, Atty. Gen., W. Michael Gillette, Sol.Gen., and John W. Burgess, Asst. Atty. Gen., Salem, for respondents.

Before SCHWAB, C.J., and LANGTRY and THORNTON, JJ.

THORNTON, Judge.

Claimant appeals from the decision of the Employment Appeals Board(Board) which found that he was not actively seeking employment and therefore liable to repay the Employment Division(Division) a portion of the benefits he received.

Claimant applied for benefits in December of 1973 and received benefits totaling well over $3,000.Sometime in 1974 the Division became concerned that claimant was not in fact unemployed but actively engaged in his wife's drapery business.After an investigation, the administrator issued a decision which concluded:

'You are performing substantial services of monetary value and subsequently share in the business assets.* * * You are not unemployed.You are not a bona fide member of the unemployed labor supply and are therefore not available for work or actively seeking and unable to obtain suitable work.'

Petitioner requested a hearing before the referee who reversed the administrator's decision and found that claimant was entitled to benefits.The Division appealed to the Board which agreed with the referee that claimant was not engaged in his wife's drapery business but found that claimant had not been actively seeking work and therfore was liable to repay a portion of the benefits he had received.

Claimant appeals contending that the issue of whether he was actively seeking employment was not before the Board and was therefore not a proper basis for the Board's decision.Additionally, claimant alleges that there was not sufficient evidence to support the Board's decision.Since claimant's two assignments are so interrelated we shall consider them together.

Respondent argues that the notice of hearing sent to claimant by the Division put the question of whether claimant was actually seeking work in issue.That notice provided:

'ISSUES ARE: * * *

'* * *

'xxx 3.ORS 657.155, 657.100.Was claimant unemployed, able to work, available for work, and actively seeking work.

'* * *

'NOTE: Attention is directed to the decision(s) and excerpts of the law and rules, copies of which were served on the interested parties, for specific information as to the issues.ALSO NOTE: Other...