Green v. Employment Division

VAN HOOMISSEN, J. The Employment Division petitions for reconsideration and modification of our decision in this case. Green v. Employment Division, 57 Or App 49, 643 P2d 1303 (1982). We now conclude that our former decision is incorrect. We therefore withdraw it and affirm. Claimant appeals an order of the Employment Division denying him unemployment benefits. The issue is whether he voluntarily left work without good cause. If he did, he is disqualified from the receipt of benefits.1 Claimant worked for employer as a sheet metal worker for approximately two-and-one-half years until December 22, 1980. His hourly rate was $8 per hour. He received a job offer from another firm and gave his employer two weeks’ notice that he would be leaving on December 24. The new job was to begin January 5, 1981, and would pay $9 per hour. He reported for work at his old job on December 22, but did not actually perform any work that day. Instead, he quit that day, because he was dissatisfied with his job assignment for that day and with the higher pay rate being offered his replacement. That was three days before the end of his notice period. Continuing work was available for him through his notice period, had he not quit his job on December 22. When he reported for work at the new job on January 5, his new employer informed him that due to a reduction in work orders, no job was available. He then filed his claim. The Division denied the claim. The referee reversed, finding that claimant had left work to accept a [370] definite offer of other employment and was therefore not disqualified under ORS 657.176(2)(c).2 Employer sought review by the Employment Appeals Board, which reversed the referee, finding that claimant had left work, not to accept other employment, but “because he became dissatisfied with his job assignment for the remaining three days of his notice period.” The Board concluded that: “ * * * [T]he most reasonable alternative would have been for the claimant to continue working until the new offer of work was to start. As a reasonable alternative existed which was not pursued, a disqualification from benefits is required.” OAR 471-30-038, a rule interpreting ORS 657.176(2)(c), provides in pertinent part: “(1) As used in ORS 657.176, with the exception of the provision of ORS 657.221(2)(a), the date an individual is separated from work is the date the employer-employe relationship is severed. * * * a * * * * * “(2) The distinction between voluntary leaving and discharge is: “(a) If the employe could have continued to work for the same employer for an additional period of time the separation is a voluntary leaving of work. “(b) If the employe is willing to continue to work for the same employer for an additional period of time but is not allowed to do so by the employer the separation is a discharge.” (Emphasis supplied.) This rule was approved in Employment Division v. Scott Machinery, 48 Or App 61, 616 P2d 521 (1980), in which we recognized that application of the rule necessarily requires the fact-finder to focus on the immediate reasons for a separation, regardless of whether the employment relationship would have terminated a short time later for different reasons. Here, as in Scott Machinery, the Board was authorized to make the determination whether claimant had [371] voluntarily left work without good cause. It did so, and its findings and conclusions are supported by substantial evidence in the record. The evidence is undisputed that petitioner could have continued to work for the same employer for an additional period of time. His separation, therefore, constituted a voluntary leaving of work without good cause. Reconsideration granted; former opinion withdrawn; affirmed. Footnotes [1] ORS 657.176(2) (c) provided (now amended by Or Laws 1981, ch 5, § 2 and ch 751, § 2): “(2) If the authorized representative designated by the assistant director finds: (i * * * * * “(c) The individual voluntarily left work without good cause * * * • (< * * * * * the individual shall be disqualified from the receipt of benefits until he has performed service for which remuneration is received equal to or in excess of his weekly benefit amount in four separate weeks subsequent to the week in which the act causing the disqualification occurred.” [2] OAR 471-30-038(5)(a) provides in pertinent part: “Leaving work with good cause includes, but is not limited to, leaving work after accepting a definite offer of other work which can reasonably be expected to continue and pays an amount equal to or in excess of the weekly benefit amount. * * *”