Filed: February 11, 1999

DAVID J. STEELE,

Respondent on Review,

v.

EMPLOYMENT DEPARTMENT,

Petitioner on Review,

and

FARIS SHEET METAL,

Respondent.

On appeal from the Court of Appeals.*

Argued and submitted September 8, 1997.

Jas. Adams, Assistant Attorney General, Salem, argued the cause for petitioner on review. With him on the brief were Theodore R. Kulongoski, Attorney General, and Virginia L. Linder, Solicitor General.

Gerald Brask, Jr., Portland, argued the cause and filed the brief for respondent on review.

Before Carson, Chief Justice, and Gillette, Van Hoomissen, and Durham, Justices.**

MEMORANDUM OPINION

The decision of the Court of Appeals is affirmed by an equally divided court.

*Judicial review from the Employment Appeals Board.

143 Or App 105, 923 P2d 1252 (1996)

**Fadeley, J., retired January 31, 1998, and did not participate in this decision; Graber, J., resigned March 31, 1998; Kulongoski, J., did not participate in the consideration or decision of this case.