Stevenson v. Morgan
| Decision Date | 20 May 1974 |
| Citation | 99 Adv.Sh. 198,17 Or.App. 428,522 P.2d 1204 |
| Parties | Della M. STEVENSON, Petitioner, v. Ross MORGAN, Administrator, Employment Division, and Sunn Musical Equipment Company, Respondents. |
| Court | Oregon Court of Appeals |
David H. Blunt, Salem, argued the cause and filed the brief for petitioner.
Al J. Laue, Asst. Atty. Gen., Salem, argued the cause for respondents. With him on the brief were Lee Johnson, Atty. Gen., and W. Michael Gillette, Sol. Gen., Salem.
Before SCHWAB, C. J., and LANGTRY and THORNTON, JJ.
Claimant seeks judicial review of a decision of the Employment Appeals Board reversing the action of the referee and the administrator, both of whom had allowed claimant unemployment benefits. The Board ruled that claimant was disqualified under ORS 657.176(2) 1 because she had 'left work voluntarily without good cause.'
The issue before this court is whether the Board's order is (1) lawful in substance and procedure and (2) supported by 'reliable, probative and substantial evidence in the whole recoed * * *.' ORS 183.480(7).
Claimant voluntarily terminated her employment at the Sunn Musical Equipment Company, claiming that she could no longer withstand alleged mistreatment by her supervisor. The administrator determined after investigation that claimant had established 'good cause' for leaving her job and allowed the claim. The employer then requested a hearing before the referee. The referee found that the supervisor was harassing claimant and that such harassment constituted 'good cause' for claimant to leave her employment. The Employment Appeals Board reversed, fending that the claimant did not have 'good cause' because she had not attempted to discuss the problem with the plant manager and was therefore disqualified under ORS 657.176(2).
The referee found that claimant's supervisor was constantly finding fault with claimant's work; that the supervisor required claimant to use old animal glue on her job which was offensive to smell, more so than available new glue; that this caused claimant to become nauseated; that the supervisor was also treating claimant in an antagonistic and vindictive manner; that this treatment caused her to become anxious and nervous; and that all of this made claimant's working conditions intolerable and therefore constituted 'good cause' to leave. Claimant testified that she once complained about her supervisor to a previous manager who told her that 'you just have to live with it * * *.' Claimant also offered evidence that whenever an employe attempted to see the plant manager the supervisor made it a practice to follow the employe into the manager's office and would remain throughout the entire conversation.
The employer did not present contradictory evidence concerning the supervisor.
We must first determine what is the scope of review by the Employment Appeals Board of a decision of the referee.
ORS 657.275 provides that the Board may review decisions of the referee but is silent as to the scope of that teview. However ORS 657.280 states that the conduct of hearings before the referee and an appeal to the Board shall be in accordance with the regulations prescribed by the Administrator of the Employment Division as authorized by ORS 657.610.
The previous rules promulgated by the administrator provided that '* * * (i)n such review additional testimony will not be heard, nor the matter tried de novo.' Oregon Administrative Rules, ch. 471, § 41--010 (July 23, 1962). However, on June 21, 1972, the administrator promulgated a new § 41--010 deleting the language just quoted. We conclude from the foregoing that under the accepted rules of statutory interpretation the scope of review by the Board of decisions of the referee is de novo on the record made before the referee. See, Swift & Co. and Armour & Co. v. Peterson, 192 Or. 97, 233 P.2d 216 (1951).
Having determined the scope of review by the Board, we turn to the principal issue, namely, whether the Board's decision that claimant did not have 'good cause' for leaving her employment should be sustained. It would appear that the initial determination of 'good cause' for leaving employment is a mixed question of law and fact for the administrative agency. This determination is, of course, subject to review by the referee, the Employment Appeals Board, and ultimately by the courts as authorized by the statutes.
This court had occasion to consider the meaning of the term 'good cause' as used in ORS 657.176(2) IN FAJARDO V. MORGAN, OR.APP., 98 ADV.SH. 69, 516 P.2D 495 (1973)1. There we held that claimant had established that her employer arbitrarily discriminated against her because of her sex by paying her less for the same work done by men. Consequently, claimant had 'good cause' and was justified in leaving her employment. In the course of that opinion we stated:
"Good cause" may be said to be such cause as would similarly affect persons of reasonable and normal sensitivity, Geckler v. Review Bd. of Ind. Emp. Sec. Dev., 244 Ind. 473, 193 N.E.2d 357 (1963), and is limited to those instances...
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...The Court of Appeals has so characterized determinations of "good cause" under the unemployment compensation law. Stevenson v. Morgan, 17 Or.App. 428, 431, 522 P.2d 1204 (1974). When such a determination is reviewed, however, ORS 183.482(8) calls for separating the elements of the mixture t......
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