dissenting.
In my view we cannot reach a proper decision in this case until there has been a determination by the Employment Division as to whether the conduct for which claimant was asked to resign amounted to "misconduct connected with his work.” ORS *696657.176(2)(a).1 I would therefore remand for this determination.
The record establishes that this claimant was forced to resign.2 As the Oregon Supreme Court observed in Wied v. Marion County, 275 Or 711, 721, 552 P2d 1294 (1976):
«* * * There is no practical distinction between a coerced resignation and a dismissal * *
I find it inconsistent to allow unemployment benefits to a claimant discharged for conduct not amounting to misconduct within ORS 657.176(2)(a), which we have frequently approved,3 and to deny benefits to a claimant who resigns under a threat of discharge for the same conduct. And it would seem unfair to penalize a claimant who resigns under a threat of discharge for minor infractions the employer perceives as grounds for discharge, when the resignation is made to protect the opportunity for reemployment in *697the same field or as an accommodation to the employer.
The majority opinion relies upon our decision in Beaverton Sch. Dist. No. 48 v. Emp. Div., 29 Or App 487, 564 P2d 717 (1977). In Beaverton also the claimant resigned to avoid dismissal. However, in Beaverton there was a determination that the claimant had been guilty of misconduct. Here there has been no such determination.
A difficulty with the case at bar is that the parties and the Employment Appeals Board have viewed this case as a 'leaving work with good cause’ case and that approach does not gracefully accommodate a "misconduct” aspect. Nonetheless, it seems to me that whether resignation under threat of imminent discharge is viewed as leaving work with "good cause” due to an untenable working environment or as a constructive discharge is a matter of indifference so long as the employe is not granted unemployment benefits when the conduct for which he is asked to resign amounts to "misconduct connected with his work.”
I therefore respectfully dissent.
ORS 657.176(2)(a) provides:
"(2) If the authorized representative designated by the administrator finds:
"(a) The individual has been discharged for misconduct connected with his work * * * ”
In an Inter-Department Memorandum from the police chief about a month after claimant’s resignation, he wrote:
"Since [claimant] had been counseled on several previous occasions for various infractions, and since this matter at hand was very precarious, I discussed the matter with his immediate supervisors and told them that I was prepared to terminate [claimant]. The supervisors counseled [claimant] and advised him of the seriousness of this incident. They also advised [claimant] that I was prepared to terminate him for the many infractions, culminating with this incident. They advised [claimant] that the Chief of Police would consider a resignation, if it were offered.
"On June 24, 1976, I received a resignation from [claimant] indicating pressure of the job and economic reasons as cause for the termination.
"Since it was my intention to terminate [claimant], I accepted the resignation in lieu of termination.”
See, for example, Georgia-Pacific v. Employment Div., 21 Or App 135, 533 P2d 829 (1975); Geraths v. Employment Division, 24 Or App 201, 544 P2d 1066 (1976); Babcock v. Employment Div., 25 Or App 661, 550 P2d 1233 (1976).