Erickson v. Employment Division

565 P.2d 1101 (1977)

29 Or.App. 893

Carl E. ERICKSON, Petitioner, v. EMPLOYMENT DIVISION, and Brooks-Willamette Corporation, an Oregon Corporation, Respondents.

Court of Appeals of Oregon.

Argued and Submitted May 24, 1977.

Decided June 27, 1977.

Thomas A. Caruso, Portland, argued the cause for petitioner. With him on the brief was Bailey, Doblie & Bruun, Portland.

James C. Rhodes, Asst. Atty. Gen., Salem, argued the cause for respondent Employment Division. With him on the brief were James A. Redden, Atty. Gen., and W. Michael Gillette, Sol. Gen., Salem.

Larry K. Amburgey, Portland, argued the cause for respondent Brooks-Willamette Corp. With him on the brief was Bullard, Korshoj & Smith, Portland.

Before THORNTON, P.J., and TANZER and JOHNSON, JJ.

THORNTON, Presiding Judge.

Petitioner appeals from an order of the Employment Appeals Board (Board) reversing the referee and denying unemployment benefits, holding that petitioner was discharged for misconduct connected with his work. ORS 657.176(2).

Petitioner, an alcoholic, had received treatment under an Antabuse program and had worked for Brooks-Willamette Corporation without incident for about six years. A few days prior to September 2, 1976, he stopped taking Antabuse and, on the morning of September 2, drank wine prior to reporting for work. Petitioner was observed "staggering around" on a catwalk while doing maintenance work on a production saw and was requested to take a breathalyzer test by his supervisor. The breathalyzer test registered .15 percent blood alcohol by weight well above the.10 percent standard embodied in the union agreement and he was fired.

*1102 Petitioner contends on appeal that his misconduct was not a wanton or wilful disregard of the employer's interest as required by Geraths v. Employment Division, 24 Or. App. 201, 544 P.2d 1066 (1976), for denial of benefits but was a good faith error in judgment caused by a disease, alcoholism.

We cannot disturb a reasonable conclusion drawn from the facts even though we might reach a different conclusion were we sitting as triers of fact. Grigsby v. Employment Div., 24 Or. App. 499, 546 P.2d 788 (1976).

Petitioner was aware of the employer's practice of automatic termination of intoxicated employes and was presumably aware of a provision in the United Paperworkers International Union agreement to the effect that an employe under the influence of alcohol may be terminated. He nonetheless reported for work at a paper mill work involving potential risks to himself and other employes in an intoxicated condition.

We cannot view the choice to go to work intoxicated, under these circumstances, as other than "`* * * a deliberate violation of the employer's rules, a disregard of standards of behavior which the employer has a right to expect of his employee * *.'" Geraths, 24 Or. App. at 204, 544 P.2d at 1068. Accord: Bates Unemployment Compensation Case, 171 Pa.Super. 529, 90 A.2d 379 (1952); Booker v. Emp. Security Comm., 369 Mich. 547, 120 N.W.2d 169 (1963); In re Gibbs, 15 A.D.2d 979, 225 N.Y.S.2d 553 (Sup.Ct. 1962).

Affirmed.