Anderson v. Director

Michael L. ANDERSON v. DIRECTOR, Employment
Security Department

E 96-241                                           ___ S.W.2d ___

                  Court of Appeals of Arkansas
                        Divisions IV & I
               Opinion delivered December 17, 1997


1.   Unemployment compensation -- good cause defined. -- Good cause
     has been defined as a cause that would reasonably impel the
     average, able-bodied, qualified worker to give up his or her
     employment; it is dependent not only on the good faith of the
     employee involved, which includes the presence of a genuine
     desire to work and to be self-supporting, but also on the
     reaction of the average employee; the question of what
     constitutes good cause is a question of fact for the Board to
     determine from the particular circumstances of each case.  

2.   Unemployment compensation -- scope of review -- substantial
     evidence discussed. -- In unemployment compensation cases, the
     scope of review is governed by the substantial-evidence rule,
     which requires that the evidence be reviewed in the light most
     favorable to the appellee, and if there is substantial
     evidence to support the decision made by the Board of Review,
     the appellate court must affirm it; substantial evidence is
     such relevant evidence as a reasonable mind might accept as
     adequate to support a conclusion; even where there is evidence
     upon which the Board might have reached a different decision,
     the scope of judicial review is limited to a determination of
     whether the Board could reasonably reach its decision based
     upon the evidence before it; the case is not allowed to be
     heard de novo and the appellate court cannot substitute their
     findings for those of the Board; even where the evidence is
     undisputed, the drawing of inferences is for the Board, not
     the appellate court.

3.   Unemployment compensation -- witnesses -- credibility of. --
     The credibility of the witnesses and the weight to be accorded
     their testimony are matters to be resolved by the Board of
     Review.

4.   Unemployment compensation -- appellant failed to show good
     cause for quitting -- Board's decision to deny benefits on
     finding that appellant left job voluntarily affirmed. -- The
     Board of Review denied benefits on a finding that appellant
     voluntarily quit his job without good cause connected with the
     work; in finding the absence of good cause, the Board did not
     accept appellant's claim that he quit in lieu of certain
     discharge; the Board was persuaded instead by the employer-
     representative's testimony indicating that appellant was not
     confronted with a "Hobson's" choice because no decision had
     been made regarding his continuing employment; appellant's own
     testimony established that he was aware that the employer had
     not reached that decision; the Board's decision was supported
     by substantial evidence and was affirmed.

     Appeal from the Arkansas Board of Review; affirmed.
     No briefs filed.
     
     Judith Rogers, Judge.
     This is an appeal from a decision of the Board of Review in
which it disallowed unemployment compensation benefits based on a
finding that the appellant, Michael Anderson, voluntarily quit his
job without good cause connected with the work.  The sole issue on
appeal in this unbriefed case is whether the Board's finding that
appellant lacked good cause for quitting is supported by
substantial evidence.  We hold that it is and affirm.
     The Board's decision in this case was made under the authority
of Ark. Code Ann.  11-10-513(a)(1) (1987), which provides that an
individual shall be disqualified for benefits if he, voluntarily
and without good cause connected with the work, left his last work. 
Good cause had been defined as a cause that would reasonably impel
the average, able-bodied, qualified worker to give up his or her
employment.  Carpenter v. Director, 55 Ark. App. 39, 929 S.W.2d 177
(1996).  It is dependent not only on the good faith of the employee
involved, which includes the presence of a genuine desire to work
and to be self-supporting, but also on the reaction of the average
employee.  Id.  The question of what constitutes good cause is a
question of fact for the Board to determine from the particular
circumstances of each case.  Roberson v. Director, 28 Ark. App.
337, 775 S.W.2d 82 (1989).  
     In unemployment compensation cases, the scope of review by
this court is governed by the substantial evidence rule.  Haig v.
Everett, 8 Ark. App. 255, 650 S.W.2d 593 (1983).  This rule
requires us to review the evidence in the light most favorable to
the appellee, and if there is substantial evidence to support the
decision made by the Board of Review, it must be affirmed.  Id. 
Substantial evidence is such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.  Brown v.
Director, 54 Ark. App. 205, 924 S.W.2d 492 (1996).  Even where
there is evidence upon which the Board might have reached a
different decision, the scope of judicial review is limited to a
determination of whether the Board could reasonably reach its
decision based upon the evidence before it.  Perdrix-Wang v.
Director, 42 Ark. App. 218, 856 S.W.2d 636 (1993).  We are thus not
permitted to hear the case de novo by substituting our findings for
those of the Board; even where the evidence is undisputed, the
drawing of inferences is for the Board, not this court.  See Willis
Johnson Co. v. Daniels, 269 Ark. 795, 601 S.W.2d 890 (Ark. App.
1980).
     The record discloses that appellant began working for Truck
Transport, Inc., on January 22, 1996, as a truck driver.  On April
24, 1996, he was involved in a serious accident when the truck he
was driving rear-ended another vehicle that had stopped abruptly to
make a turn.  Both vehicles were heavily damaged, and appellant was
injured in the wreck.  Appellant was released by his physician to
return to work on Friday, May 31; he tendered a letter of
resignation the following Monday after speaking with his
supervisor, Bill Williams.
     In his testimony, appellant said that he understood that he
had been placed on suspension following the accident and that he
spoke with Williams that Monday to discuss his possible return to
work.  Appellant said that Williams told him that the company had
not yet made a decision as to whether he would be terminated but
that Williams suggested that he resign beforehand because it would
look better in terms of obtaining future employment.  He also
testified that Williams gave him an ultimatum to either quit or be
fired.  He said that he resigned based on Williams' advice.
     Ed Gawerecki testified on behalf of the employer.  When asked
by the hearing officer whether appellant would have been
discharged, he responded that no decision had been made as of the
time appellant resigned and that he could not say with certainty
that appellant's discharge was inevitable.  He explained that it
was company policy to place a driver on suspension following an
accident, pending the completion of an investigation.  He said
that, due to the severity of the accident, appellant had remained
on suspension because not all of the information had been received
from the federal and local agencies advising of their opinions
concerning the accident.  When asked if appellant would have been
discharged if it were determined that the accident was his fault,
Gawerecki said that "it could have gone either way."  He stated
that the company had no set policy calling for automatic
termination and that any decision depended on the circumstances of
each individual case.  Gawerecki could not say whether Williams
encouraged appellant to resign.  He said, however, that Williams
did not have the authority to discharge an employee but that such
decisions were made by the corporate office.
     The Board affirmed and adopted as its own the decision of the
appeal tribunal, which denied benefits on a finding that appellant
voluntarily quit his job without good cause connected with the
work.  In finding the absence of good cause, the Board did not
accept appellant's claim that he quit in lieu of certain discharge. 
The Board was persuaded instead by the employer-representative's
testimony indicating that appellant was not confronted with a
"Hobson's" choice because no decision had been made regarding his
continuing employment.  The credibility of the witnesses and the
weight to be accorded their testimony are matters to be resolved by
the Board of Review.  Grigsby v. Everett, 8 Ark. App. 188, 649 S.W.2d 404 (1983).  We cannot say that the Board's decision is not
supported by substantial evidence.
     With regard to the dissenting viewpoint, the issue here is
whether appellant had good cause for voluntarily quitting his job. 
That he might have proved eligible for unemployment compensation
benefits had he either remained on suspension or been fired does
not logically translate into a finding of good cause.  In fact,
possible eligibility under those circumstances belies the dissent's
position that appellant was caught in a "Catch-22 situation" by
awaiting the employer's decision.  Furthermore, there is no
suggestion in this record that the employer's policy was unfair or
that the employer had purposely delayed bringing this matter to a
conclusion.  Even though the suspension was of indefinite duration,
any such probationary period is of a temporary nature, yet the fact
remains that appellant resigned before the situation was resolved. 
Although the dissent maintains that termination was inevitable, the
Board made a contrary finding that is supported by substantial
evidence.  The record supports the view that termination was not a
certainty, and appellant's own testimony establishes that he was
aware that the employer had not reached that decision.  We thus
cannot disagree with the Board's conclusion that good cause was not
shown.
     Affirmed.
     Arey, Jennings, and Bird, JJ., agree.
     Roaf and Griffen, JJ., dissent. 

             Andree Layton Roaf, Judge, dissenting.


     I would reverse the decision of the Board of Review in this
case, and remand for an award of benefits.  When Mr. Anderson
returned to work more than thirty days after the accident, after
being released by his workersþ compensation treating physician, he
learned he would not be allowed to work. According to his
testimony, he was told by his supervisor, Bill Williams, that þwe
got two ways we can go.  We can terminate you or you can sign a
resignation.þ  Although Williams also told Anderson that a final
decision had not yet been made, Anderson stated that Williams
advised him that it would be better for him to resign because it
would þlook betterþ in securing other employment.  Although the
testimony of a party cannot be taken as undisputed, it cannot be
arbitrarily disregarded; there must be some basis for disbelieving
it.  See Timms v. Everett, Director, 6 Ark. App. 163, 639 S.W.2d 368 (1982).  Here, the employer did not produce Andersonþs
supervisor as a witness at the hearing, and Andersonþs testimony
that Williams procured his resignation was not refuted. 
     Although the record reflects that the employer reported the
suspension in various documents as, initially, for thirty days and
later, in a fax to the Board, for ninety days, by the time of the
hearing the Director of Administration for the employer testified
that þwe donþt have any set time for suspension,þ that he did not
know how long the suspension would have lasted, and that he could
not say whether Anderson would have been fired.  He also testified
that he did not know if Williams suggested to Anderson that he
resign.
     Thus, Anderson was faced with a þcatch-22 situation.þ  He
could continue in limbo, with no pay, and await the employerþs
decision, or take his supervisorþs advice and resign.  Had Anderson
been fired for being involved in an accident, pursuant to our case
law, he would have been eligible to recover unemployment benefits. 
This court has made clear that there is an element of intent
associated with misconduct, and that ordinary negligence in
isolated instances is not sufficient.  þThere must be an
intentional or deliberate violation, a willful or wanton disregard,
or carelessness or negligence of such degree or recurrence as to
manifest wrongful intent or evil design.þ  Rollins v. Director, 58
Ark. App. 58, 945 S.W.2d 410 (1997); Carraro v. Director, 54 Ark.
App. 210, 924 S.W.2d 819 (1996).  Moreover, had Anderson remained
on unpaid þsuspension,þ it is clear that he would have been
eligible to receive benefits.  Pursuant to Ark. Code Ann.  11-10-
214 (a) (Repl. 1996), a person is deemed unemployed with respect to
any week during which he þperformed no servicesþ and þno wages are
payable to him.þ  Anderson would be neither þineligibleþ to receive
benefits or þdisqualifiedþ from receiving benefits during an unpaid
þsuspensionþ pursuant to our employment security law.  See Ark.
Code Ann.  11-10-510 to -519 (Repl. 1996).
     Clearly, an employer cannot defeat an employeeþs entitlement
to benefits by keeping him on unpaid suspension for an indefinite
and prolonged period of time until the employee is fired or
resigns.  However, in this instance Anderson, on the advice of his
supervisor, resigned and as a  result is denied the benefits to
which he would have otherwise been entitled had he not followed
this advice.  Consequently, Mr. Andersonþs resignation was, in all
important respects, merely an acknowledgment that he would never
again be gainfully employed by his employer.  I would reverse.
     Griffen, J., joins.