Employment Division v. De Leon

747 P.2d 1000, 89 Or. App. 25
CourtCourt of Appeals of Oregon
DecidedDecember 23, 1987
Docket86-AB-1535; CA A42376
StatusPublished

This text of 747 P.2d 1000 (Employment Division v. De Leon) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Employment Division v. De Leon, 747 P.2d 1000, 89 Or. App. 25 (Or. Ct. App. 1987).

Opinion

RICHARDSON, P. J.

The Employment Division seeks review of a decision of the Employment Appeals Board (EAB) which overruled the referee’s decision and awarded benefits to claimant. At issue is whether a substitute teacher who was employed on an on-call basis at several school districts in one year, but who received adequate assurances of reemployment from only some of these school districts for the following year, may receive unemployment compensation during the summer recess. We hold that EAB has misconstrued ORS 657.167 and remand for reconsideration.

Claimant is a substitute teacher who works on an on-call basis for several Jackson County school districts. During the 1985-86 school year, she worked in that capacity for the Medford School District, the Phoenix School District, the Central Point School District and the Jackson Educational Service District. She was also listed on the substitute teacher roster at the Ashland School District, but apparently did not perform any work for it in that academic year. In May, 1986, the Medford and Phoenix districts notified claimant that she would be retained on their substitute rosters in the fall of 1986, and she informed them of her acceptance. By letter dated August 7,1986, the Jackson ESD notified claimant that she was eligible to be included on its substitute teacher list for the 1986-87 school year. No notification was sent by the Ash-land or Central Point Districts.

ORS 657.167 (1) provides, in part:

“Benefits based on service in an instructional, research or principal administrative capacity for an educational institution * * * shall not be paid based on such services for any week of unemployment commencing during the period between two successive academic years * * * if such individual performs such services in the first of such academic years or terms and if there is a contract or a reasonable assurance that such individual will perform services in any such capacity for any institution in the second of such academic years or terms.” (Emphasis supplied.)

That statute has been interpreted to preclude the payment of benefits if a part-time substitute has worked for an educational institution on an on-call basis during one academic year and has received reasonable assurance of reemployment on a [28]*28similar basis for the following year. Slominski v. Employment Div., 77 Or App 142, 711 P2d 215 (1985); Johnson v. Emp. Div., 59 Or App 626, 651 P2d 1365 (1982). In the present case, EAB found that claimant had received adequate assurances of reemployment from the Medford and Phoenix School Districts. It found that she had not received adequate assurance from Jackson ESD and the remaining school districts and awarded benefits based on employment in those districts.

Division’s first two assignments of error relate to EAB’s conclusion that claimant was entitled to benefits based on her work at Jackson ESD. It argues that EAB erred in making this finding:

“(5) [Claimant] had never worked as a substitute teacher for Jackson during the regular school year in any of these six years.”

We agree with Division. The hearing transcript contains claimant’s unrebutted testimony that she worked for Jackson ESD in 1985-86. The finding is not supported by substantial evidence.

In addition, Division argues that EAB erred in finding that claimant did not have adequate assurance of reemployment by Jackson. EAB’s written opinion includes this:

“[Claimant] had not worked in any preceding school year as a substitute. The letter sent from Jackson is more in the form of soliciting possible substitutes who have not previously served in that capacity rather than written notification. This case is distinguishable from Johnson as claimant had worked only during the summer months under contract and there is no showing she had previously been on the substitute teacher list.”

In our view, if claimant worked as a substitute the previous year for Jackson ESD, the letter complies with the criteria for reasonable assurance of reemployment contained in OAR 471-30-075.1 As we indicated in Friedlander v. Employment [29]*29Division, 66 Or App 546, 553, 676 P2d 314 (1984), we look to the totality of the employment relationship in determining whether reasonable assurance has been given. Here, Jackson ESD had employed claimant for six summers as a teacher in a special migrant education program in addition to her substitute work in 1985-86. The letter contains information regarding payment procedures and invites claimant to submit a “Substitute Teacher Information” form.2 It appears that EAB interpreted the letter in the light of its finding that claimant had not worked as a substitute for Jackson ESD the previous academic year.

Finally, Division maintains that EAB erred in awarding claimant any unemployment benefits. EAB’s opinion contained this discussion of ORS 657.167 and our decision in Mallon v. Emp. Div., 41 Or App 479, 599 P2d 1164 (1979):

“On cross examination the Employment Division witness testified that having assurance from any of the schools is sufficient to invoke ORS 657.167 as to all the schools involved. Although the referee did not specifically address this issue, he appears to have agreed. In Johnson the Court cited Mallon v. Emp. Div., 41 Or App 479, 599 P2d 1164 (1979), regarding the phrase any educational institution which appears in the statute. In Mallon, the Court acknowledged that the Division’s decision was consistent with a literal reading of the statute but chose to ‘eschew narrow interpretations’ of the statute in order to avoid a harsh result which it presumed the legislature did not intend. Mallon was not overturned as urged by the Division. In light of the fact that the Court has, at least twice, examined the any educational institution clause and refused [30]*30to apply it literally, we shall not do so. The result of this is that the claimant is not subject to denial of benefits based on wage credits earned from educational institutions based solely upon reasonable assurance from one of the many schools involved.” (Emphasis EAB’s.)

EAB’s analysis is deficient, because it does not apply the test that we developed for determining whether an individual has received reasonable assurance of reemployment in a similar capacity pursuant to ORS 657.167. That test requires that a claimant be assured that she will perform any one of three named types of service in the same or similar quantity of full and part-time service performed during the preceding academic term. In Mallon, the claimant had a contract to perform the same type of service in the next academic year but would have suffered an 81 percent reduction in the quantity of service. The claimant’s situation in Mallon

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Related

Johnson v. Employment Division
651 P.2d 1365 (Court of Appeals of Oregon, 1982)
Friedlander v. Employment Division
676 P.2d 314 (Court of Appeals of Oregon, 1984)
Slominski v. Employment Division
711 P.2d 215 (Court of Appeals of Oregon, 1985)
Mallon v. Employment Division
599 P.2d 1164 (Court of Appeals of Oregon, 1979)

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Bluebook (online)
747 P.2d 1000, 89 Or. App. 25, Counsel Stack Legal Research, https://law.counselstack.com/opinion/employment-division-v-de-leon-orctapp-1987.