Opinion · Orlaw Oregon

OLCC v. ERB, 52 Or. App. 247 (1981)

628 P.2d 416

Type
Opinion
Court
Orlaw Oregon
Jurisdiction
Orlaw
Date
1981-05-18
Topic
general

OLCC v. ERB, 52 Or. App. 247 (1981) 628 P.2d 416 OREGON LIQUOR CONTROL COMMISSION, Petitioner, v. EMPLOYMENT RELATIONS BOARDet al, Respondents. No. 961-972, CA 18392Oregon Court of Appeals.Argued and submitted March 23, 1981 Affirmed May 18, 1981 Judicial Review from Employment Relations Board.

Citator

UpLaw has not yet analyzed OLCC v. ERB, 52 Or. App. 247 (1981). The absence of a flag is not a finding that it is good law.

OLCC v. ERB,52 Or. App. 247(1981)
628 P.2d 416
OREGON LIQUOR CONTROL COMMISSION,Petitioner,v. EMPLOYMENT RELATIONS BOARD
et al,Respondents.
No. 961-972, CA 18392
Oregon Court of Appeals.
Argued and submitted March 23, 1981
Affirmed May 18, 1981
Judicial Review from Employment Relations Board.
Al J. Laue, Assistant Attorney General, Salem, argued the cause for petitioner. With him on the brief were James M. Brown, Attorney General, John R. McCulloch, Jr., Solicitor General, and William F. Gary, Deputy Solicitor General, Salem.

Daniel C. Ellis, Chairman, Employment Relations Board, Salem, waived appearance for respondent Employment Relations Board.

F. Peter DeLuca, Salem, argued the cause and filed the brief for respondent John W. Whiteaker.
Before Richardson, Presiding Judge, and Thornton and Van Hoomissen, Judges.Page 248
RICHARDSON, P. J.

Affirmed.Page 249
RICHARDSON, P. J.
The Oregon Liquor Control Commission (OLCC) appeals from an Employment Relations Board (ERB) order setting aside OLCC's dismissal of the respondent employee.1ERB concluded that "[w]hile some discipline was in order" for the employee's conduct, "no reasonable employer would have dismissed" him. We affirm.

OLCC relies on our holdings inThompson v. Secretary ofState,19 Or. App. 74,526 P.2d 621, rev den (1974), and other cases,2where we adopted the rule that ERB can reverse or modify an agency disciplinary action pursuant to ORS240.560only if it finds that "no reasonable employer" would have imposed the discipline under the circumstances. OLCC argues:
"In this case, given the totality of the circumstances, some employers might not have dismissed, but it cannot be said thatnoemployer would have dismissed, therefore, the Board exceeded its authority on review of the action of OLCC." (Emphasis OLCC's.)


InBrown v. Oregon College of Education,52 Or. App. 251,628 P.2d 410(1981), we held that, in reviewing agency disciplinary actions, ERB is to findas a factwhether a reasonable employer would have taken the action. We further held that the "no reasonable employer" rule is an objective test and is to be applied in essentially the manner the "reasonable person" test is applied in negligence cases.

OLCC's argument does not persuade us that ERB's decision in this case entailed an erroneous application of the "no reasonable employer" test as construed inBrown.3

Affirmed.Page 250
[EDITORS' NOTE: THIS PAGE IS BLANK.]Page 251
  1. The employee does not cross-appeal from ERB's affirmance of his interim suspension. ↩
  2. Thompsonand the other cases were rejected by our opinion inFairview Hospital v. Stanton,28 Or. App. 643,560 P.2d 667(1977), insofar as they relate to ERB'sfactfindingpowers under ORS240.560. However,Stantonexpressly endorsed the "no reasonable employer" test ofThompsonand its precursors as the proper limitation on ERB'sremedialpowers.See28 Or App at 647. ↩
  3. We do not imply that we would find error under any authority or principles which pre-datedBrownor that there was not substantial evidence to support the factual findings. We note that it is at least arguable that, underBrown,the employee here was entitled to more factual determinations than ERB made. However, he neither cross-appeals from nor objects to ERB's order. ↩