*1 20, 1979 12, 1978, March July and remanded Argued reversed Petitioner, McPHERSON, al, DIVISION, et EMPLOYMENT Respondents. 25719)
(TC
8816, SC
77-AB-862, CA
Al J. Assistant respondent Divi- argued the cause for Redden, James A. were With him on brief sion. Attorney Barrie, Solicitor General, and L. Walter General. Attorney, City Salem, Launer,
Jeanette Assistant respondent City argued With the cause for Salem. Attorney. City Juza, her on the brief was William J. Tongue, Presiding Justice, Holman, Before *3 Bryson, Linde, Howell, Lent, and Justices.
LINDE, J.
Tongue, dissenting opinion. J.,
[542-a] *4 [542-b] LINDE, J. a
Petitioner, McPherson, review of seeks Marlynn her denying Division decision of that she the ground on unemployment compensation good and without employment voluntarily left her Decision,”1 the the "Administrator’s After cause. her A denied a referee requested hearing. claimant that of law of fact and conclusions findings claim upon The Employment be discussed below. will in the On review affirmed the referee’s decision. Board affirmed decision was the Division’s Appeals, Court P2d 654 court, divided 31 Or (1977), and allowed we review. Division misconstrued
The issue is whether concluding in law compensation unemployment her to leave did not have cause” McPherson a question involves That turn employment. question deter- of the Division’s judicial review scope previous- This court has not minations of cause.” For occasion to address these questions. had ly follow, peti- and remand we reverse reasons claim to the Division. tioner’s initial enact- and the Since its The statute facts. has been law unemployment ment of substitute a source designed provide program unemployed eligible fund for public any income from one of the disqualified unless the person person In phrasing in the statute. one provided reasons have essentially another, reasons disqualifying own to the employee’s due been loss without misconduct, voluntarily job one’s giving up accept or to cause, and failure apply good pro- 657.176 At ORS employment. present, suitable vides: (1) designated representative An authorized each examine promptly director shall
the assistant heading refers is of the decision The "administrator” to which this Employment Division Employment, Director of who heads Assistant provi "administer[s] the Department of Human Resources with the 657.608, law, or his unemployment compensation ORS sions” representatives, 471-10-005. authorized OAR *5 subject
claim to determine whether an individual is disqualification separation, to as a result of his termination, leaving, resignation, disciplinary or sus- pension from work or as result of the individual’s apply failure to accept promptly for or work and shall enter an assistant if required director’s decisión (4) subsection of ORS 657.265. (2) designated by If the representative authorized the assistant director finds:
(a) discharged The individual has been for miscon- work, duct connected with his or Ob)The from work suspended individual has been work, for misconduct connected with his or (c) voluntarily The individual left work without cause, good or
(d) good The individual failed without cause to apply for available suitable work when referred director, employment office or assistant
(e) good The individual failed without cause to him, accept suitable work when offered to receipt from the disqualified individual shall be performed of benefits until he has service for which remuneration is received or in excess of his equal to weekly separate benefit amount in four weeks subse- causing in quent to the week which the act disqualification occurred. (2)(c), above,
As stated this case involves subsection without "voluntarily whether the claimant left work good findings cause.” The referee’s of fact are set forth 1279-1281, repeated in 31 Or at and need not be findings here. from the and Briefly, appears are based undisputed they evidence on which under the City claimant was of Salem employed by 1975, and hired as CETA program February, with the classifica regular August, employee her Throughout tion "Maintenance I.” to required she was two male coworkers with whom did not they work to her and to others complained posi female worker in the maintenance of a approve to do the tion, strength job. that she lacked the or other did not McPherson information They give skills. develop job her assistance that she needed additional difficulties a union over grievance She filed him, date declined to after she of the men with one McPherson apology. later settled which was her attention of the matter brought repeatedly of- affirmative action employer’s and the supervisor the men’s ignore her ficer. The told supervisor her remarks; with he also said that he was satisfied her periodically and recommended progress work and she However, claimant decided that raises. pay work experience not be able to obtain technical would *6 or seminars job beyond attending on the courses February, notice in reading gave manuals. She following the month. and quit In it is that claimant left summary, undisputed did of the voluntarily and that she so because work with whom she "sexist” behavior of male employees objected doing to who to her assigned was work and work.” us is not whether we "men’s The issue before would reach the same on the facts that the decision Division did. The our review is Employment purpose Division reached its conclu- to determine whether a benefits under unemployment sion claimant denying Before cause.” scope misapprehension examining clarify appro- that we must question, priate scope review. outset, At be recalled review. should
Scope of of an administrative judicial review scope from the nature of the simply decision does follow governing The rules disputed decision and of the issue. review can be are judicial generally provided a decision of the law. In the case of a formal Board, made on affirming decision referee, of review is scope record hearing stated for cases under the Administrative contested 183.482(8). Act, That subsection Procedure ORS provides: presently
(8) affirm, or may reverse remand The court order or remand the order. The court shall reverse if it finds: (a) to unlawful in substance The order be procedure, but procedure error in shall not be cause for reversal or remand unless the court shall find that rights substantial petitioner prejudiced were thereby; or (d) The order is not supported by substantial evidence in the whole record. requires party challenging
The statute thus agency specify, determination to and the court to agency decide, whether the asserted error is one of lacking support misapplica- fact, evidence, in the aor procedural tion of the relevant substantive or law. Of challenge may grounds, course the involve several but necessary identify it remains which is which. necessary identify responsible It is also being whose order is reviewed. In the case of unemployment compensation claims this is not self- above, evident. As stated note the administration of this statute is entrusted to the Assistant Director of Employment. ques- He is directed to "determine all general policy promulgate tions of rules and regulations responsible and be for the administration chapter.” of this ORS 657.610. Determinations with respect particular eligibility to a claimant’s are made representative,” the assistant director’s "authorized 657.176(1), ORS ORS If 657.265. determination *7 subject hearing contested, it becomes the a of before a appointed by referee, who is the assistant director. 657.650(1). ORS A decision, however, referee’s is subject approval disapproval and review or of the assistant director but rather to review the Employment Appeals Indeed, Board.2 the assistant may party seeking director be the review of the words, referee’s decision. In other the assistant direc- "agency” setting policy tor is the for the of the representative "agen- Division. His authorized is the 2 Employment Appeals The composed Board is of three members appointed by subject the Governor to confirmation the Senate and serving part time. The assistant responsibility director has for the board’s 657.685(6) budget, ORS prescribing and regulations for "the conduct of hearings appeals” disputed claims, and on ORS 657.280. claim, making which cy” of a Only the initial decision operative if the decision if not contested. becomes representative the does is contested of authorized Thus case.” decide the "contested referee conduct and policy- reviewing a rather than in a he serves capacity. determining OAR 471-40-025. law identification of of fact and errors of errors scope purposes of under ORS review
183.482(8), statutory agency applies when an particular a broad situation, is term one of most problematic e.g., See, 4 issues in administrative law. §§ Davis, (1958) 30.01, K. C. Law Treatise Administrative and later supplements; Jaffe, 30.02 Judicial (1965); B. Control Administrative Action 556-564 of (1976). Agency Schwartz, Administrative 642-662 Law interpreting legal applying term it to decisions particular pose facts are sometimes said to a "mixed question Commissioner, law fact.” of and See Dobson v. (1943); Jaffe, 320 US 501 Control Judicial (1965). Action, Administrative Appeals 546-547 The Court of so has characterized determinations unemployment compensation cause” under the law. Morgan, App 428, 431, 17 P2d Stevenson (1974). reviewed, When such determination is 183.482(8) separating however, ORS calls for elements of mixture that are from those "facts” interpret law. It has been observed that practice appear sequence courts to reverse premise they seeming conclusion, and to choose what first proper scope review then to label
*8 deem accordingly. the issue as one of "fact” Davis, "law” See §§ supra, reviewing many 30.09, deci 30.03— and Byse, sions; Gellhom Administrative Law 427-428 (6th 1974). legal particular However, ed when applied by more standard closely, examined analysis ques a more consistent of "mixed” possible. tions law and fact is enter said, are those elements "Facts,” it has been phenomena ing describe into the decision [547] significance events without reference to their the under question, way, they put law or to it another as might lay person a be described unaware of the disputed legal sense, In issue.3 the claimant’s quitting employment reasons for her and the events meaning up questions that led to them are of fact. The 657.176, of the words cause” on as used ORS plainly question hand, is the other not the end is of law. But that inquiry scope judicial of of into question review, for this law in turn leads to the of agency question how far ORS 657.176 entrusts to the the determination of what kind of reasons are employment cause” to leave and what kind of reasons are not. prior unemployment compensa
In
cases under the
reviewing
problem
law,
has
tion
this court
faced the
of
agency
relationships
determinations whether various
pay
providers
between
them constituted
of services and those who
coverage of
within the
Cameron,
354,
v.
240
P2d 691
the act. Baker
Or
401
(1965),
disputed,
concluded that "if
are
the facts
question
'employee’
is
or the
of whether one
question
citing
law,”
of another
contractor
Com.,
627,
155
Journal Pub. Co. State U.C.
175 Or
(1945),
Unemployment
P2d 570
and Rahoutis v.
Com-
3 In NLRB
Trucking Co.,
v. Marcus
(1961),
286 F2d
Judge
583
Hemy
Friendly
quotation
cited this
Holmes, Jr.,
of O.
Jaffe,
W.
from
Judicial
Questions Law,
Review:
(1955):
69 Harv L Rev
finding
"A
fact is
phenomenon
the assertion that a
happened
has
or is or will be
happening independent
course,
legal
of or anterior to its
effect.” 286 F2d at 590. Of
layman may appear
what to a
descriptive
as a
"fact” when it is
legally irrelevant, for
person
instance
"wife,”
whether one
is another’s
or
"son,”
"employer,”
or
question
often becomes a
of law when that relation
ship is at issue.
Judge Friendly attempted
Supreme
to order the
Court decisions
involving
separation
(1)
of "facts” from "law” under three heads:
application
statutory
facts
meaning,
term "as to whose
at least in
particular case,
(2)
there
dispute,”
is little
disputes involving both the
propriety
meaning
inferences and
term,
statutory
of the
(3) disputes primarily
meaning
over the
statutory
term. 286
F2d at 590-591.
distinguished
From these he
situation,
a fourth
"where the
agency has acted under
statutory
a broad
policy as to whose detailed
application
necessarily
discretion,
has
e.g.
'public
wide
. . .
convenience
”
necessity.’
Id. at n. 5.
(1943), although the
mission, 171
136 P2d
*9
given
agency
be
some
the
on the issue "should
views of
stops
240
at
This
well
Or
359-360.4
consideration.”
position
Publica-
agency’s
in NLRB v.Hearst
the
taken
short of
(1944),
specialized
111
a
tions, 322 US
employment relationship
the mean-
within
view of an
accepted
ing
governing
if it has
statute should be
of its
Judicial
322
at 131.5
"a
basis in law.”
US
reasonable
legal
respect
agency’s interpretation
term,
of a
for an
it is
explained
question
though
a
law,
on
of
is often
a
may apply
theory
agency "expertise.” That
where
vocabulary
statutory terms are drawn from a technical
meaning
particular science,
a
its
from
which takes
agency
industry,
occupation
trade,
the
has
or
in which
genuine expertise,
agency’s
a
but an
administration of
political
specialized program does
mean that its
not
acquire
changing personnel
need or
head or
either
expertise
about
in that sense.6 As this court said
applying
the Public
the Hearst Publications formula to
Utility
interpretation
term in
Commissioner’s
experience
highway
agency’s special
law,
tax
use
problem
degree
calls
to "the
to which the
for deference
knowledge peculiar
industry, business,
to the
involves
knowledge
etc.,”
involved
which was not shown
be
Rogers
interpreting
at
Construction
term issue.
(1963).
Hill,
352, 356,
Co. v.
235 Or
"undue” "unreasonable,” or con- necessity,” "good venience and calls for cause” in its own terms completing judgment legisla- a value that the *10 evaluating ture itself has indicated: what are "good” giving up employment reasons for one’s and what are not. Judicial evaluations, review of such though "question requires law,” of a court to deter- legislature mine how much the has itself decided and by agency. how much it has left to be resolved the For decision substance,” is not "unlawful 183.482(8), agency’s ORS if the elaboration aof supra, "good range standard like cause” within the of its is responsibility effectuating broadly for stated statu- tory policy. history Oregon’s
Review under ORS657.176. The of unemployment compensation law shows some range agency responsibility defining "good of for original disqual- cause” was intended. The 1935 act any voluntarily ified claimant who left except for "reasonable cause attributable to his Session) employer.” Oregon (Special 70, Laws 1935 ch 4(b)(2). § legislature changed At the next session the cause, this to Oregon if so found the commission.” § 1937, 398,
Laws ch 4. The reference to the "commission” was amended to "administrator” when organized, 1969, 597, the Division was Or Laws ch 172(2). § 1973, In the section was revised from "when the delegate so as to so found administrator” repre- an "authorized finding in individual cases to administrator,” Or Laws designated by sentative to 1973, 398, 2,7§ we have no reason believe ch but to was meant subdelegation this for provision of scope responsibility. alter the Division’s Division of the personnel are referees Although to it is attached Board Employment Appeals to which responsibility purposes, administrative administrator, now the in the been placed refer has we above, he As stated Employment. Director of Assistant Unemployment State former of the the successor is statute, and, suc by the Commission Compensation ORS functions. its duties all powers, to ceeded of questions all to "determine He is directed 657.608. regulations rules and and promulgate general policy this administration for the responsible and be instance, Division If, ORS 657.610. chapter.” describing one rules interpretative to issue were independently cause” more characteristics is case, director the assistant of a the decision concrete 183.310(1), See ORS to do so.8 authorized "agency” (7). OAR 714-10-010.9 to have cases, Appeals appears the Court
In prior
change
was made
The
from
to "assistant director”
Administrator’’
267,
§
ch
6.
Laws
Board,
The
subject
and the
who
referees
are
review,
its
not be
interpreta
would
bound
follow the assistant director’s
they
if
range
defining
tion
"good
as
conclude
a matter of
law that
exceedsthe
cause” entrusted to the
Division
statute.
analysis
scope
agency’s interpretation
to be
allowed
*11
Francis,
(1977),
illustrated in Batterton v.
[551] decided the question of "good cause” without always
distinguishing whether
the result
followed because
the statute itself imposed a test or rule to be applied the facts found by the agency
or
permitted the
Division to adopt that
test or
Fajardo
rule.
v. Morgan,
454,
15 Or
516
App
(1973),
P2d 495
clearly intended
binding statutory interpretation
both in holding that
wage discrimination
based on sex is "good cause” to
quit because it is an unlawful
employment practice,
and also in adopting the "objective” test
cause” must be one that would "reasonably motivate in
a similar situation the average able-bodied and qual-
ified worker to give
his or
up
employment,”
her
15 Or
App at 459. This was later elaborated in Stevenson v.
Morgan, supra,
to mean a worker of "reasonable and
normal
.
sensitivity,
. . not the supersensitive
person,”
17 Or
at
App
432-433.10 The same is true of
Arias
Division,
26
841,
Or App
The decision closest to the
McCain
Division,
442,
Application present case. We therefore turn to agency’s the governing decision to examine on what view of the findings
law it was based. The referee’s fact have been summarized above. He concluded that voluntarily good the claimant left work without cause. His statement of "Conclusions and Reasons” cited the measuring "reasonably prudent person stick of the under similar circumstances” from Stevenson v. Mor- gan, supra. It then continued:
The primary leaving claimant’s reasons for work were the sexist attitudes of two co-workers and her training belief that her was progressing not as rapidly possible. as The record no contains evidence that being training the claimant was denied oppor- tunities; fact, it appears being given she was great training necessary deal of consideration for qualifications promotion. enhance her Fajardo Morgan, In v. 15 P2d (1973); the held that Court discrimination based on may good quit sex constitute cause to work. The however, record, any lacks evidence that the claimant against by was discriminated The employer. performance appraisals claimant received favorable periodic Although merit raises. it pay pos- was sible that the sexist attitudes of the claimant’s two training co-workers could have affected her appear does not development, career adversely affected. career was claimant’s the present stated that case opinion The referee’s then Division, supra. was similar to McCain his and Reasons” "Conclusions remainder from the quotation of an extensive simply consisted McCain, including Court opinion following: employer’s] [an if cause” would exist "Good some actual discrimina- produced "sexist” attitude tion, harassment, cause grievous or other undue foundation, . . . reasonable of fellow
Generally, character habits offensive workers, ant, they may be to claim- distasteful however cause” claimant to will constitute Thus, . claimant must at least establish that leave. .. the employer, of her or of prevailing sexual attitudes to sexual employes, her fellow were such as amounted discrimination, harassment or some other cause of grievous compel sufficiently foundation reasonable reasonably quit a circumstances. under similar prudent person to ,11 .. *14 in the The concluded: "The Claimant opinion referee’s discrimination, harass- case has failed to show present ment, good other sufficient to constitute cause cause for left board these having appeals adopted work.” change. conclusions and reasons without findings, the his on entirely Since referee thus based decision McCain, assumed apparently in he quoted opinion not but merely permitted that his conclusions were above, this as a matter of law. As stated compelled view of the takes an narrow assumption improperly define cause” "good own responsibility Division’s of the unem- policy provisions within the overall little in the law. But there is ployment compensation criteria of cause” "good record or to show what briefs in the absence that might develop Division no is that the Division filed misconception. One reason by phrase at is 445-446. We do know what meant quotation. "cause of foundation” used twice in this reasonable brief in the Court of and did inso this court response particular question posed by in to a Although unemployment paid by court. claims are responsible respondent state, and the Division is the petitions when a claimant for review of its denial of regard benefits, the Division sometimes seems to these controversy cases as a between the claimant and the employer objects protect "experi- who in order to his rating” purposes unemployment ence of the tax appeals rate, and to cast its referee and the board umpire parties. the role of between these two How- employer’s recognized ever, while the interest is in the procedures, properly 657.282, ORS it is 657.265— policies role of the to articulate its and defend administering program its decisions in entrusted to it. response question,
From its to this court’s learn we generally that the Division is Stevenson formulation discussed above. But its as satisfied with the broad sumptions concerning other issues relevant present appear instance, case at most inference. For passages in the referee’s Conclusions and Reasons suggest assumption grounds leaving an that the job, qualify statute, as cause” under the must employer. impression be attributable to the This quotation reinforced the Division’s brief of part Florida, decision from statutory where this is a noted, test.12 Yet as we have in this state requirement repealed was soon after the enact unemployment compensation ment of the law. The purpose provide living of the statute is to means unemployed compensate worker, for an not to her for a wrong employer. passages done Other in the opinion suggest assumption referee’s workplace merely cause” to leave a must not be economic, work-related but must arise out of the *15 physical, directly occupational aspects or other job. by required That, too, is not the statute itself. The Products, Comm’n, etc., Uniweld v. Inc. Industrial Pel. 211 S2d (Fla 1973). 829-830 Dist Ct
[556] law does not extend its benefits
ato worker who has a
job
voluntarily gives
up
"good
without
cause.”
impose upon
employee
But it also does not
one-dimensional motivation
of Adam Smith’s
workplace
setting
"economic man.” The
is the
of much
daily
of the worker’s
life. The statute does not demand
as a matter of law that he or she sacrifice all other
objectives and,
than economic
instance,
endure
personal
racial, ethnic, or sexual
abuse,
slurs or
abandoning
oppressive
fear that
situation will
disqualify
unemployment
the worker from
benefits.
e.g., Taylor Unemp. Comp.
Cf.,
Review,
Bd.
474 Pa
(1977).
"good
351,
Conclusion. As stated there are by adopted in the referee’s Reasons,” "Conclusions and Employment Appeals Board, compelled assumed its decision to be as a matter of law interpreted by Appeals statute, as the Court of Employment supra. in McCain v. Division, We cannot agency might discern what criteria of cause” the applied have on its own in the absence of that assumption. present This does not mean that on the might record the Court of or this court not have reached That, the same result. however, is assignment subject only our Division’s, but the review whether its assessment of the kind of reasons that are ful cause” to leave is "unlaw reasons, substance.” For these the case must be remanded to the Division for reconsideration the in the representative assistant director’s authorized light opinion. of this
Reversed and remanded. Dissenting.
TONGUE, J., majority, As stated this court can reverse the order of the in this Division case if that order was "unlawful in substance or procedure” supported by or was "not evi- substantial *16 (ORS 183.482(8)). The majority
dence” in the record does hold that the order "unlawful” not either was evidence.” supported by that it was "not substantial Instead, the this majority has remanded case development Division for cause,” upon theory based a which "criteria” case, in this was or discussed either urged by party not a them this court as and not submitted to was hearing in this court was interested question on which this for review. argument upon hearing petition to result, has opportunity As a neither had an party has had this court not question be heard on this and scrutiny theory through of a benefit operation adversary process. 12,1978. argued July During
This case was
on
time
eight
ample
months there has been
subsequent
parties
supple-
for
court
to submit
request
this
to
has
this court
question.
mental
this
Once
briefs on
a
and
theory
argued
decided a case
briefed
upon
petition
parties,
provided by
the procedure
satisfactory
a fair
does not
rehearing
provide
to
through
parties may attempt
which the
means
deciding
the court that
it was
error
persuade
already approved
which it has
theory
case upon
PERB, 281
v.
Or
See LaGrande/Astoria
adopted.
173,