Nicolai-Morgan Products Co. v. Employment Div., NICOLAI-MORGAN
Citation | 795 P.2d 598,102 Or.App. 578 |
Decision Date | 25 July 1990 |
Docket Number | AB-524-A,NICOLAI-MORGAN |
Parties | PRODUCTS CO., Petitioner--Cross-Respondent. v. EMPLOYMENT DIVISION, Respondent--Cross-Petitioner, and Jeffrey L. Meacham, Respondent--Cross-Respondent. 89-; CA A60998. |
Court | Court of Appeals of Oregon |
David J. Riewald, Portland, argued the cause, for petitioner--cross-respondent. With him on the brief, were Lester V. Smith, Jr. and Bullard, Korshoj, Smith & Jernstedt, P.C., Portland.
Diane S. Lefkow, Asst. Atty. Gen., Salem, argued the cause, for respondent--cross-petitioner. With her on the brief, were David B. Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.
Martha C. Evans, Eugene, argued the cause, for respondent--cross-respondent. With her on the brief, was DePaolis, Evans, Shepard & Vallerand, Eugene.
Before GRABER, P.J. Pro Tem., JOSEPH, C.J., and EDMONDS, J.
Employer seeks review of a decision of the Employment Appeals Board (EAB) that allowed unemployment benefits to claimant. Employer argues that claimant was disqualified from receiving benefits during a strike. We reverse and remand for reconsideration. 1
Claimant worked for employer as a door inspector. He belonged to the Western Council of Industrial Workers, Local 3035 (union). After a collective bargaining agreement between employer and the union expired and negotiations for a new contract broke down, the union called a strike. Claimant attended two union meetings during the strike and received payments from the union's strike fund for walking the picket line. Although work was available to him had he crossed the picket line, he refused, because of his union membership. He did not resign from the union or employer. He testified that he continued his union membership in order to receive union-provided medical insurance.
Shortly after the strike began, claimant obtained employment with D & D Builders for two or three weeks. Thereafter, he worked for J.C. Penney as a finish carpenter. That employment lasted about four months, until claimant was laid off for lack of work. He then applied for unemployment benefits.
The referee denied benefits, on the ground that claimant was unemployed due to a labor dispute in active progress at employer's premises. On review, EAB reversed.
EAB erred, first, by applying the wrong legal standard to reach the conclusion that claimant was qualified for benefits. ORS 657.200(1) provides:
"An individual is disqualified for benefits for any week with respect to which the assistant director finds that the unemployment of the individual is due to a labor dispute which is in active progress at the factory, establishment or other premises at which the individual is or was last employed or at which the individual claims employment rights by union agreement or otherwise." (Emphasis supplied.)
EAB held:
That analysis is deficient, because the statute provides two alternatives. A claimant is disqualified if unemployment is due to a labor dispute either at claimant's last employer or at the premises "at which the individual claims employment rights[.]" ORS 657.200(1). That statute expressly contemplates that an individual can be disqualified from receiving unemployment benefits when the labor dispute continues at a former employer if the claimant still claims employment rights there. In essence, the struck employer is deemed to be the "current" or most recent employer for the purpose of the statute, even though the claimant has worked elsewhere in the meantime. ORS 657.200(1) precludes individuals from receiving unemployment benefits when they are striking, even if they obtain other interim, temporary employment, and thereby furthers the goal of state neutrality in labor disputes. EAB's reading renders the last clause of ORS 657.200(1) meaningless.
The first pertinent inquiry, then, is the reason for claimant's original unemployment. See Adams v. Employment Division, 78 Or.App. 570, 574, 717 P.2d 1199 (1986). EAB found that his original unemployment was due to the labor dispute; but for his participation in the strike, employer would have continued to employ him. That finding is supported by substantial evidence in the record.
The second inquiry is whether claimant "claims employment rights by union agreement or otherwise" with employer. ORS 657.200(1). 2 EAB found:
That statement is not supported by substantial evidence.
There is no statutory definition of "employment rights." In the absence of a statutory definition, we construe a term in accordance with its ordinary meaning. Naumes of Ore. v. Employment Div., 23 Or.App. 57, 541 P.2d 141, rev. den. (1975). A right to re-employment is an employment right in the ordinary sense; so is a right to have access to re-employment determined on the basis of accumulated service or seniority. 3 Neither does the statute define what it means for the individual to "claim" employment rights. Again, using the ordinary meaning of the word, to "claim" an employment right means simply to assert entitlement to it. The statute does not require that the individual have made a formal demand.
Contrary to EAB's finding, there was other testimony "in this regard." Claimant testified that he had attended two strike meetings, that he had not resigned from employer, and that he retains some seniority rights there, albeit not very favorable seniority rights:
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