*1 16, January 21, 1977, and remanded Argued reversed October Petitioner, PETRO,
v.
DIVISION,
EMPLOYMENT
Respondent.
8653)
(No.
77-AB
CA
Al J. Solicitor respondent. cause With him on the were brief Attorney Redden, A. General, James Alvin Alex- and Attorney anderson, General, Assistant Salem. Judge, Schwab, Before Chief and Tanzer Judges. Roberts,
SCHWAB, J.C. *3 ]
[ 18-a *4 ] [ 18-b SCHWAB, C. J. of the Employment from an order
Claimant appeals (EAB) him unemployment denying Board Appeals this by appeal The issue presented compensation. eligibility attendance upon the effect of school regular unemployment compensation. for sheet metal worker
Claimant was as a employed 1,1974. with one from Claimant employer September been 1974. attending college has since September Between 1974 and 1976 this attendance was at night and did days not affect claimant’s to work ability 1976, In full-time. claimant enrolled as a daytime student at Reed College. employer Claimant and his worked out a claimant could continue to plan whereby work while worked attending part- school. Claimant semesters, time school on the during generally night shift, and full-time semester He was during breaks. also called to fill in for his when needed for employer semesters, an jobs. During rush claimant worked of more than 20 under this average per hours week arrangement.
Claimant was laid off from work in January testified but has continued as a student at He college. to willing at the held on his claim that he was hearing any work hours and that he was to take any willing any offered him. Claimant stated that employment and his conflicts between potential employment in favor of the employment. would be settled schooling He in the he had missed classes past indicated work, but had never missed work go order to also stated that order to school. Claimant go or six con- for had included five employment search he told all potential tacts each week time. any for work at that he was available employers unemploy- denied the referee hearing The not available he was because compensation ment The EAB affirmed 657.155. ORS by required work as decision. the referee’s *5 657.155(l)(c)
ORS that an provides unemployed if, individual shall be eligible to receive benefits other among qualifications: work, work, "He is able to is available for and is actively seeking and unable to obtain suitable work He H* H* [99]
The central
issue involved in the student-claimant
unemployment
cases which this court has decided has
been whether
the claimant
is available for work.
Callaghan
In
v.
the first such
decided,
case we
Morgan, 9 Or
116, 120, 496
App
(1972),
P2d 55
we held
that student claimants
seeking unemployment
com
pensation benefits have a "heavy burden” to overcome
in that
regular
attendance
at school "is in itself
Employment
Minniti v.
evidence of
In
ineligibility.”
(Minniti
Division,
(1974)
18
44,
Or App
The next four cases concerning student claimants
v.
Bird Employment
were all decided at the
time.
same
Division,
v.
Brown
385,
(1975);
22 Or
539
P2d 668
App
Division,
Employment
382,
22
P2d
Or
539
666
App
v.
Division,
Henderson
(1975);
Or
Employment
App
378,
v.
Divi-
(1975);
presented at
the hearing
testimony.
was claimant’s
in
Nothing
testimony
his
in any way
was
inconsistent
with his statement
that work came first. The referee
found him credible.
Board,
The Employment Appeals
in
a review of the
only,
record
no
a
arriving
had
basis for
at
different result
the
credibility.
on
issue of
On the record
here we find as a matter of law that the referee’s decision
was correct.” 22 Or
at 377.
App
In Henderson we followed
Evjen
in
that
the
holding
Board had no basis for rejecting the
finding
referee’s
that the claimant’s testimony that he would
"any
take
job
any
reasonable
at
reasonable
and
place
drop school
if
22
381. Brown
was credible.
Or
at
In
necessary”
App
Bird,
and
the referees ruled
the
and
against
claimants
the Board affirmed. We
that
affirmed
stated
"we
assume
in
that
so
[the Board]
as is
doing
gave weight,
to the
appropriate,
referee’s
to
finding as
claimant’s
credibility. See Hannan v.
Good Samaritan Hosp.,
4
178,
831,
(1970),
Or
471 P2d
App
There are several consistent is that a claimant’s The first from above cases. to an in may attendance at school rise regular give opinions ference of While some of our unavailability.1 rise have that a student to a suggested gives status "strong” Callaghan— inference or a see presumption, followed, a has see Evjen which the Board suggestion now such specifically disapprove language. —we of and the may The inference which the fact finder draw he accords it must be in the context weight determined Co., See v. Bee of each case. Judson Hive Auto Service (1931). 1050, 588, 294 P P 944 136 Or 74 ALR in this inference light The second theme is that of bear a draw, referee a may which the claimant may for work. availability burden” in "heavy proving in money if a with For example, ample school, it in his of would bank were last term medical for him to convince a a burden probably prove heavy that work as taxi trier of fact he was available for of medical to the extent that he would out drop driver say This we if offered such work. is not school on proof of higher have standard judicially imposed claimants; only light this is say student at school substantial involving attendance regular time, much more may have a periods of a claimant he is avail time the referee that convincing difficult II, each case work. we noted Minniti able for As *7 which facts, its and burden turn on own the must in his case. the facts upon claimant bears depends Ellis) II, have {Minniti our of opinions Several uncon that claimant’s unequivocal, the suggested other evi supported by must be testimony tradicted prevail. his and the to meet burden for dence it appears language, because reject now also such We 41.260 which provides contrary to be to ORS is entitled witness who direct evidence of one "[t]he * * fact any is of proof full sufficient credit as: 41.320 an inference 1 ORS defines "* * * finder] [fact the makes [A] the reason of which deduction express law to that proved, direction of an the facts without from effect.” present The third theme in our cases is that the credibility of the student claimant is often the deter deciding availability minative factor in for work. This recognized explicitly Evjen companion was in and its availability employ cases. Since the of a claimant for ment involves a claimant’s mental state or his desire impression work, to obtain the the claimant makes upon may the referee be critical.
The fourth theme is that various external factors may weighed by judging be in referee a claimant’s credibility. Some of these factors are a claimant’s monetary school, investment Brown Bird; diligence of claimant’s work, search for Ellis and history during II; Minniti the claimant’s work school— consistently placed whether he work school, above Brown—and finishing how close the claimant was to education, Minniti II.
*8
We believe there is a more consistent method of
adjudicating
First,
student-claimant cases.
since credi
bility
usually
importance
is
of critical
cases,
such
it
necessary
in those cases that the referee make an
explicit straightforward finding
credibility
as to the
of
including
claimant,
what evidence he relies on in
reaching
finding
and the relevance of that evi
meaningfully
dence. This allows the Board to
the referee’s decision on
consider
credibility.
Determinations of
credibility
purpose
they
do not serve their
if
intended
polite
point
being ambiguous.
are
to the
Second,
of
though
even
the Board reviews the decision of the
Morgan,
referee de novo
record,
on the
see Stevenson v.
App
(1974),
17 Or
The fact that a claimant attends school the the trier of by itself a conclusion fact support infer is for Some employment. claimant not available in minimal ences are from fact situations so drawn evi that uncontradicted direct their value probative to the as a of law contrary dence to sufficient matter the to from those facts. overcome inferences be drawn 347, 509 P2d Co., Petten 265 Or See Palmer v. Van Lbr. Co., (1973); v. Bee Hive Auto Service supra. Judson finan the burden of the heavy We mentioned above last term medical able medical student cially be a An of the extreme would school. example opposite cabinet one-hour-per-week carpenter’s taking making night. course at as to finding
Here the referee made no specific the for an by We remand order credibility. claimant’s above the elements discussed referee incorporating Board, and, if to the an again appropriate appealed it. by order
Reversed and remanded.
ROBERTS, J., dissenting. the Employment be reversed and This case should for claimant pay compensation Division ordered period question. deal- cases analysis previous The of our majority’s com- unemployment for with student claimants ing make I would respects confusing. is in some pensation than burden is no heavier normal it there explicit unemploy- on any than student upon by majority used compensation. Language ment varies different claimants indicates that the burden on according or reason is no sound to the facts. There *9 differing imposing legislative standards sanction for unemploy- proof groups for of of claimants on different compensation. ment majority must be remanded
The holds that this case credibility. explicit finding on the claimant’s for an by findings agree I in the future such While that remanding agree I to referees should be made cannot majority upon a the referee to enter this case. The calls hearing finding credibility held at a as to claimant’s delay year ago. a makes such almost a The time alone objection procedure questionable. My major to re- manding simply providing this case is that we will be analysis opportunity develop an the referee a second support deny will decision to which benefits. hearing entered the referee
After the on claim stating part: his decision sufficiently avail- was not "CONCLUSION: Claimant does not say This is not to that claimant able work. motivated, highly employed. appeared want to be He however, say, It is to study living. both to and to earn a such as this high required that the of cases proof level has not been met. inference significant creates a
"School attendance itself inference can be overcome unvailability of for work. This drop school that a student will by unequivocal testimony facts showing of additional by in favor of work and v. job. Minniti secondary proving that education — —, Division, App Or 75 Adv Sh Employment by first test met the arguably 1975. Claimant has repre- his earlier consistent hearing testimony by however, not, quite He has sentations to the Division. met the second.” clearly language made that the referee indicates
This proof higher level the basis of the his decision on required of student was earlier cases indicated which majority the referee The is correct claimants. specific finding made credibility. no sugges- as to The is, tion however, the referee found claimant credible but ruled that he could not obtain benefits because he failed to show additional consistent I facts. would rule that as a matter of law claimant was paid available for compensation. unemployment work and should be respectfully I dissent.