Friedlander v. Employment Division

676 P.2d 314, 66 Or. App. 546
CourtCourt of Appeals of Oregon
DecidedJanuary 18, 1984
Docket82-AB-2147; CA A27130; 82-AB-2080; A27131
StatusPublished
Cited by11 cases

This text of 676 P.2d 314 (Friedlander v. Employment Division) 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
Friedlander v. Employment Division, 676 P.2d 314, 66 Or. App. 546 (Or. Ct. App. 1984).

Opinion

*548 WARDEN, J.

In these consolidated cases, claimant appeals two orders of the Employment Appeals Board (EAB) that denied him unemployment compensation for a period from June 20 to September 28, 1982, on the basis of a statutory provision denying benefits to school instructors for periods between academic years. We affirm.

In September, 1979, claimant was employed by the University of Oregon (University) under a regular employment contract as an instructor in the School of Music. That contract expired at the end of the spring term of 1980, and because of budget cuts claimant’s regular position was eliminated. In September, 1980, claimant was employed by the University as an instructor through a program in the Division of Continuing Education (DCE). Classes in DCE were supported solely by extra fees paid by students who enrolled in them. Generally, classes were advertised in published class schedules, and those for which minimum enrollment levels were not met were cancelled. Claimant was employed by the University under the DCE system during the 1980 fall term, each term of 1981, and the 1982 winter and spring terms. For the 1982 summer term claimant advertised three of his classes. None of the classes achieved minimum enrollment, but only two of them were cancelled. Claimant taught one workshop during the week of July 19-23. He testified that there was no actual summer recess for the DCE but that only about half of the instructors at the School of Music teach during the summer term. He agreed that the generally recognized academic year at the University consists of the fall, winter and spring terms.

Lane Community College (LCC) also employed claimant as an instructor during part of 1981 and 1982. He taught one workshop at LCC during the fall term of 1981 and one during the winter term of 1982. Like claimant’s employment with the University through DCE, his classes were conducted only if they drew a minimum student enrollment. Because of a timing problem in changing the workshop to a regular class, claimant was not employed by LCC during the 1982 spring term, nor was he employed by LCC during the summer of 1982. The record contains no evidence as to whether LCC offered summer classes.

*549 In both the University’s DCE program and at LCC, the classes to be offered by an instructor were advertised in the institutions’ respective catalogues or schedules before the beginning of the term in which the class would be offered. Both the University and LCC advertised claimant’s classes for the 1982 fall term. Claimant submitted to the University the classes that he planned to teach. He knew that his classes would be advertised in the University’s fall schedule. He and the director of the University’s DCE program discussed his employment at the University in the fall of 1982, and he was never told that he would not be considered for work in the fall term of 1982. At LCC, the chairman of the Performing Arts Department orally advised claimant that he planned to have him teach in the fall of 1982. LCC also sent him a letter on May 27, 1982, advising that LCC intended to offer him employment beginning the fall term on the same basis as his employment before the summer recess.

On June 22, 1982, claimant filed a claim for unemployment insurance benefits, naming the University and LCC as employers. The claims were processed separately for the two institutions. On August 13, 1982, the Employment Division issued an administrative decision allowing benefits to claimant on his claim against LCC. On September 24, 1982, it issued a second administrative decision denying benefits on his claim against the University on the basis that he had reasonable assurance of returning to work there for the 1982 fall term. After separate hearings, the referees denied benefits on both claims on findings that claimant had reasonable assurances of returning to work for the 1982-83 academic year for both LCC and the University. EAB adopted the referees’ decisions and affirmed them.

Claimant appeals both EAB orders. Because the facts underlying the orders are interrelated, and the interests of both employers are involved, we consolidate the appeals for purposes of review. 1

*550 Claimant contends that, with the exception of the week of July 19-23, he was eligible for unemployment insurance benefits for the period between the end of his last class at the University in June, 1982, and the beginning of his fall term classes at the University and at LCC in September, 1982. The basis of his challenge is that EAB erroneously applied ORS 657.167(1):

“Benefits based on service in an instructional, research or principal administrative capacity for a school, college, university or other educational institution shall be payable to an individual in the same amount, on the same terms and subject to the same conditions as benefits payable on the basis of other service subject to this chapter, except that benefits shall not be paid based on such services for any week of unemployment commencing during the period between two successive academic years or, when an agreement provides instead for a similar period between two regular terms whether or not successive or during a period of paid sabbatical leave provided for in the individual’s contract and 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 educational institution in the second of such academic years or terms. * * *”

Claimant contends that his unemployment claim is not based on a period “between two successive academic years.” He also contends that, even if the time in question is such a period, he had no reasonable assurance of employment for the fall term of 1982. We discuss each of the contentions in turn.

Claimant makes several arguments in support of his contention that he was not between academic years. First, he argues that, because he was employed by the University during the summer of 1981, he was a year-round employe and that the summer of 1982 was not a period between academic years as applied to him. Second, he argues that the University operated some classes during the summer of 1982 and therefore that period was not between academic years as applied to the University, because it did not completely shut down for the summer term. The basis of his argument is that the statutory terminology “academic year” should be defined in light of the particular scheduling practices of each individual instructor and each institution. We disagree.

*551 The question whether claimant’s work hiatus during the summer of 1982 occurred between successive academic years is a question of statutory interpretation for this court to resolve. See McPherson v. Employment Division, 285 Or 541, 591 P2d 1381 (1979); McIntyre v. Employment Division, 41 Or App 189, 598 P2d 313, rev den 287 Or 641 (1979). That question turns on the meaning to be given the words “academic year,” which this court has not previously defined.

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Bluebook (online)
676 P.2d 314, 66 Or. App. 546, Counsel Stack Legal Research, https://law.counselstack.com/opinion/friedlander-v-employment-division-orctapp-1984.