Warnick v. Employment Division

BUTTLER, J.

Claimant appeals from the denial by the Employment Appeals Board of his claim for unemployment compensation benefits for a three-week period, August 25 through September 15,1979. Denial was based on a finding that claimant did not make an active search for work and was not available for work during those weeks. ORS 657.155.

On appeal claimant contends that (1) the findings of the Board are "erroneous and not supported by the facts in the record,” and (2) the decision of the Board is arbitrary "because respondent has not formulated any rules defining the term 'actively seeking work.’ ” See ORS 655.155(1)(c). We affirm.

Claimant is a geographer. He last worked in that capacity for a scientific laboratory associated with Oregon State University (OSU) in Corvallis from October 6, 1977, until June 30, 1979, when his employment terminated for lack of work. Prior to leaving his employment and the state, claimant wrote 35 to 40 letters seeking employment in his field. In July he and his wife moved to the east coast and spent the entire month in transit via automobile. Initially they lived at the home of her parents in New Jersey, where he filed his claim for compensation for the week ending August 25, 1979 (week 34), on September 14, 1979.

On August 21, 1979, claimant and his wife flew back to Oregon to settle their personal affairs. They planned on being in Oregon for that purpose until September 12, and in fact were here for that period. Having moved from Oregon to New Jersey, claimant’s "normal labor market area” was New Jersey, his new domicile. During the periods in question, claimant was in Oregon all but three days, and while here he filed for each of the weeks for which he was denied benefits a so-called "courtesy claim.” Further, he made a job contact once during each of those weeks: he contacted the Oregon State University Geography Department on August 25 and 28, 1979, and on September 6, he contacted the New England River Basins Commission by telephone. On September 12 they flew back to New Jersey.

Claimant contends that the Board’s finding that he made only one job search contact during each of the weeks in dispute is not supported by substantial evidence because each of those contacts involved multiple contacts and that he wrote 35-40 letters based on information obtained from them. The record indicates, however, that the letters were written in June, while he was still at OSU, and the reasonable inference is that he obtained the names of prospective employers to whom the letters were sent from the geography department at OSU. There is nothing in the record to indicate that he obtained any additional information on the subsequent contacts he made in August. The same is true with respect to his September 6 telephone contact with the Basins Commission — he had talked with them previously. While he contends here that as a result of that contact, he telephoned numerous project managers (naming them), the record does not support those additional contacts.

There is, therefore, substantial evidence to support the Board’s findings with respect to claimant’s efforts to seek employment. We need not consider whether the Board’s regulation covering "actively seeking work” (OAR 471-30-036) is adequate, because it does not appear that claimant did anything other than re-contact OSU and the Basins Commission, from each of which he had already obtained the information he had already used. Furthermore, ORS 657.155(l)(c) requires that the claimant not only actively seek work, but that he be available for work. Subsection (2) of that section provides:

"An individual who leaves the normal labor market area of the individual for the major portion of any week is presumed to be unavailable for work within the meaning of this section. This presumption may be overcome if the individual establishes to the satisfaction of the assistant director that the individual has conducted a bona fide search for work and has been reasonably accessible to suitable work in the labor market area in which the individual spent the major portion of the week to which the presumption applies.”

Claimant, while in Oregon, was out of his normal labor market during all of the weeks ending August 25, September 1 and September 8, and for a major portion of the week ending September 15. He is presumed, therefore, to have been unavailable for work, and although he testified he would have been willing to go anywhere if a prospective employer requested, he did not satisfy the assistant director as required by ORS 657.155(2). We cannot say that the assistant director is compelled, on this record, to be satisfied that claimant has overcome the statutory presumption that he was not available for work.

Affirmed.