Cropley v. Employment Division

BUTTLER, P. J.,

dissenting.

This case and Aldrich v. Employment Division, 72 Or App 176, 694 P2d 1029 (1985), were consolidated for hearing before the referee, because they involve generally the same operative facts. I view the case the same as the dissenting member of EAB: none of the claimants involved in either of the two cases was “called back” to work; therefore they remained on lay-off status and did not become disqualified because of the strike.

The letter on which employer relies is quoted in relevant part in the majority opinion, 72 Or App at 95-96. That letter was sent to striking employes as well as to laid-off nonstriking employes. It advised them that the company wished to resume operations with its existing employes but *100that, if they did not chose to return to work by a certain date, the employer would hire permanent replacements. An employer has the right to do that when, as here, the strike is an economic one. That the letter was nothing more than a statement of the employer’s position with respect to the labor dispute is evidenced by the undisputed fact that at least two of the laid-off claimants in Aldrich called in after receiving that letter, and each was advised that the letter did not apply to him. That letter was an effort to terminate the strike, not to call back laid-off workers.

Given that state of the record, there is no substantial evidence to support the finding that any of these claimants was called back to work, thereby terminating their status as laid-off employes entitled to unemployment compensation.

Accordingly, the issues addressed by the majority are irrelevant, and Barrier v. Employment Division, 29 Or App 387, 563 P2d 1230 (1977), is inapplicable. In Barrier, each of the petitioners was called by the employer and was offered a job vacated by a striking employe. All of the petitioners declined to cross the picket line; rather, they joined the picket line and received strike benefits from the union strike fund. 29 Or App at 389. Those facts are in marked contrast to those here.

Because the claimants in both of these cases were not called back to work, they remained on a laid-off status, and were not disqualified from unemployment benefits. Accordingly, I would reverse the decision of EAB and not remand for reconsideration in this case.