specially concurring.
I concur in the majority’s holding that the Bureau of Labor and Industries (BOLI) committed no error in declining to deduct unemployment benefits from the back pay portion of its remedial order. I write separately, because I do not accept the majority’s rationale.
I would rely solely on Seibel v. Liberty Homes, Inc., 305 Or 362, 752 P2d 291 (1988), to sustain BOLI’s order. Seibel refused to allow a private employer an offset of Social Security disability benefits from damages in a breach of employment contract action.
Petitioner here seeks to offset unemployment benefits rather than Social Security disability benefits, but that is a distinction without a difference in this context. Applying Seibel, I would analyze the statutes relating to unemployment benefits and to BOLI’s authority to award back pay. That authority is clear. ORS 659.060(3); ORS 659.010(2). The statutes relating to BOLI and to unemployment compensation have no relevant recoupment provision.1 ORS 18.580, relating to collateral benefits received for a bodily injury or death, is irrelevant, and petitioner cites no other statute *528entitling it to offset unemployment benefits from its back pay obligation. BOLI appears to have properly exercised authority that is common to many tribunals that effectuate labor law policies through back pay awards. See Labor Board v. Gullett Gin Co., 340 US 361, 71 S Ct 337, 95 L Ed 337 (1951); Kauffman v. Sidereal Corp., 695 F2d 343 (1982).2
The majority cites Filter v. City of Vernonia, 95 Or App 550, 770 P2d 82 (1989), which allowed a public employer to offset unemployment benefits from damages in an employment contract breach action, because that employer paid the Employment Division a substantial contribution toward the employee’s unemployment benefits. Filter is not controlling here, and the majority seems to agree. However, in dictum, the majority purports to apply Filter’s rationale to this private employer and suggests that an offset would be proper if there were “a significantly greater correlation between the employer’s direct expense for the benefits and the actual benefits received than is the case with private employers and unemployment benefits.” 111 Or App at 526.
The dictum is unwarranted. It will tend to create different offset rules for private and public employers, a consequence that the legislature probably did not intend. Filter cited no statute. It determined only that the public employer had made a substantial contribution to the state program that paid the unemployment benefits. Seibel v. Liberty Homes, Inc., supra, requires an analysis of the statutory policy of the benefit program and of the agency’s authority, not only the extent of an employer’s contribution to social program benefits. We have no occasion here to perform that analysis in the context of public employment.
The majority’s dictum also will tend to inhibit BOLI and other tribunals from properly exercising their authority regarding back pay and offset issues in public employment cases. For example, BOLI’s order suggests, also in dictum, that the company would have a right to an offset if it were a public employer, citing Filter v. City of Vernonia, supra. BOLI may believe that an offset is needed to prevent a “windfall” for the employee, which is an argument relied on in Filter. The majority opinion discredits that, and I agree. Whether *529BOLI’s suggestion about apublic employer’s right to an offset is correct will have to await an appropriate case. In the meantime, the proper course for BOLI and other tribunals is to decide offset questions for all employers by analyzing all of the policies that underlie the benefit program and the authority of the agency, as Seibel requires.
The Employment Division may recapture benefits obtained by an individual due to fraud or any error. ORS 657.310; ORS 657.315(1), (2). Public employers are obligated to reimburse the division for unemployment benefits deducted from an employee’s settlement agreement or back pay award. ORS 657.315(3). However, no statute directs the division to recapture unemployment benefits or obligates the employee to reimburse the division if the. employee receives a back pay award.
Additional cases are collected in Annot., 66 ALR Fed 88 (1984).