Portland Hilton v. Employment Division , 21 Or. App. 790 ( 1975 )

FOLEY, J.

The only issue in this review of the Employment Appeals Board’s decision is whether the claimant was discharged for misconduct in connection with his work. The misconduct charged was coming to work with the odor of alcohol on his breath, which was a violation of his employment rules. There was a conflict in the evidence as to whether there was an odor of alcohol on claimant’s breath. Claimant denied he had been drinking at all, even the night before. His immediate supervisor detected no odor of alcohol, although she was within two and one-half feet of him. Claimant’s manager testified that claimant had alcohol on his breath.

The administrator in his decision as well as the hearing referee in his decision and the Employment Appeals Board in its decision apparently considered as more credible the evidence favorable to claimant; they all concluded that claimant was discharged, but not for misconduct in connection with his work. The referee found that “* * * the employer was unable to show to the satisfaction of the referee that the claimant had, in fact, presented himself for work that day with the odor of alcohol on his breath. * * *” The Appeals Board said: “We agree with the decision of the referee in this matter. * *

We have reviewed the record. ORS 183.480(7) (d) provides:

“(7) The court * * * shall reverse or remand the order only if it finds:

“(d) On review of a contested case, the order is not supported by reliable, probative and substantial evidence in the whole record * **§*

Some hearsay evidence was admitted at the hearing. It apparently was disregarded by the Board as its findings of fact appear not to be based in any way upon the hearsay evidence. We conclude that the Board did not disregard its rule concerning hearsay evidence.^① There was substantial evidence apart from the disregarded hearsay to support the Board’s findings. •

Affirmed.

① * * * *

“(2) * * * Under no circumstances shall any irrelevant, immaterial or hearsay evidence received under this rule, or otherwise appearing in the record, be used as a basis for any finding of fact or decision.

“* * * * Oregon Administrative Rules, ch 471, § 40-020.