Steinkellner v. Employment Division , 67 Or. App. 50 ( 1984 )

676 P.2d 941 (1984) 67 Or.App. 50

Jeffrey STEINKELLNER, Petitioner,
v.
EMPLOYMENT DIVISION and Bob Thomas Auto Body, Inc., Employer, Respondents.

No. 83-AB-408; CA A27655.

Court of Appeals of Oregon.

Argued and Submitted September 14, 1983. Decided February 22, 1984.

Peter E. Baer, Gresham, argued the cause and filed the brief for petitioner.

Michael D. Reynolds, Asst. Atty. Gen., Salem, waived appearance for respondent Employment Division.

Respondent Bob Thomas Auto Body, Inc., waived appearance.

Before GILLETTE, P.J., and WARDEN and YOUNG, JJ.

GILLETTE, Presiding Judge.

Claimant appeals an order of the Employment Appeals Board (EAB) that adopted a referee's order denying him unemployment benefits on the ground that he voluntarily left work without good cause. ORS 657.176(2)(c). We reverse and remand.

Claimant worked as an auto painter. His usual work hours were 8:00 a.m. to 5:00 p.m., Monday through Friday. Several weeks before his employment terminated, he switched from working for an hourly wage to working on commission. At about 4:30 p.m. on the last day of his employment, claimant and his supervisor, Mr. Turner, got into a heated discussion as to whether claimant was going to stay at work to deal with some matters that Turner believed required immediate attention or leave work to attend to personal business. According to claimant, Turner fired him. According to Turner, claimant was warned that, if he left, he was fired. Claimant left. In due course, he filed the unemployment compensation claim that gave rise to this appeal.

Claimant's request for benefits was denied by an administrative decision on the ground that he had left work without good cause. After a hearing, the referee held the same way, apparently adopting the employer's version of the facts. The referee did not, however, make an express credibility determination or in any other way explain why he accepted the employer's version and rejected claimant's. Nonetheless, EAB — one member dissenting — affirmed the referee's decision and adopted his opinion as its own. This judicial review proceeding followed.

The case before the referee appears to have been tried on the theory that claimant wins or loses depending on whether he quit or was fired. We therefore assume, without deciding, that resolution of the fire/quit issue is dispositive. The trouble is, we cannot tell whether that determination was made or, if it was, why.

Credibility decides this case. Yet, the referee (and, hence, EAB) made no finding as to credibility. That must be done. Lewis v. Employment Division, 66 Or. App. 303, 673 P.2d 1376 (1984); Petro v. Employment Division, 32 Or. App. 17, 573 P.2d 1250 (1978). The failure squarely to address the issue requires reversal. Lewis v. Employment Division, supra.^[1]

Reversed and remanded for reconsideration.^[2]

NOTES

[1] While not essential to our analysis, we note in passing that, in addition to the imperfection already alluded to, the referee's order contains one erroneous finding of fact. Concerning the claimant's reason for wanting to leave work early, the referee found: "* * * Claimant made no mention to employer about having to go to the bank [on the day in question] to get money * * *." As we read the transcript, that finding is wrong. Both parties who testified at the hearing indicated that claimant's desire to go to the bank had been communicated to Turner.

[2] Claimant's other assignments of error attempt to argue the evidence. They do not require discussion.