Rucker v. Director

Sherman RUCKER v. Phil PRICE, Director,
Townsends of Arkansas, Inc.

E 94-223                                           ___ S.W.2d ___

                  Court of Appeals of Arkansas
                             En Banc
               Opinion delivered February 21, 1996


1.   Unemployment compensation -- findings of fact of Board of
     Review are conclusive if supported by substantial evidence --
     factors on review. -- On appeal, the findings of facts of the
     Board of Review are conclusive if they are supported by
     substantial evidence; substantial evidence is such relevant
     evidence as a reasonable mind might accept as adequate to
     support a conclusion; the court reviews the evidence and all
     reasonable inferences deducible therefrom in the light most
     favorable to the Board's findings; appellate court review is
     limited to a determination of whether the Board could
     reasonably reach its decision upon the evidence before it.

2.   Unemployment compensation -- disqualification for benefits --
     misconduct discussed. -- Arkansas Code Annotated  11-10-
     514(a) (Supp. 1993) provides that an individual shall be
     disqualified for benefits if he is discharged for misconduct
     in connection with the work; "misconduct," for purposes of
     unemployment compensation, involves:  (1) disregard of the
     employer's interest; (2) violation of the employer's rules;
     (3) disregard of the standards of behavior which the employer
     has the right to expect; and, (4) disregard of the employee's
     duties and obligations to his employer; there is an element of
     intent associated with a determination of misconduct; mere
     good faith errors in judgment or discretion and unsatisfactory
     conduct are not considered misconduct unless they are of such
     a degree of recurrence as to manifest culpability, wrongful
     intent, evil design, or intentional disregard of the
     employer's interest; whether an employee's acts are willful or
     merely the result of unsatisfactory conduct or unintentional
     failure of performance is a fact question for the Board to
     decide. 

3.   Unemployment compensation -- three-part test for determining
     whether an employee's off-duty conduct will be considered
     misconduct in connection with work. -- Misconduct in
     connection with the work can occur while an employee is off
     duty; the three-part test for determining whether an
     employee's off-duty conduct will be considered misconduct in
     connection with the work consists of:  first, there must exist
     a nexus between the employee's work and his or her off-duty
     activities; second, it must be shown that the off-duty
     activities resulted in harm to the employer's interests; and
     third, the off-duty conduct must be violative of some code of
     behavior contracted between the employer and employee, and the
     employee's conduct must be done with the intent or knowledge
     that the employer's interests would suffer.

4.   Unemployment compensation -- three-part test inapplicable here
     -- misconduct may also be found for the intentional violation
     of the employer's rules. -- The three-part test did not govern
     the court's review where the court recognized that misconduct
     may also be found for the intentional violation of an
     employer's rules. 

5.   Unemployment compensation -- appellant not discharged for off-
     duty conduct -- Board's decision of disqualification was
     supported by substantial evidence. --  Appellant was not
     discharged for off-duty conduct where he was terminated
     pursuant to the employer's policy requiring the discharge of
     any employee who tested positively for drugs in excess of the
     designated tolerance levels; as appellant's conduct was in
     violation of the employer's rules, he was discharged for
     misconduct in connection with the work; because appellant had
     agreed to be bound by the policy and he was thus aware of its
     terms and the ramifications for failing a test, the Board
     found that appellant's conduct was intentional; the Board's
     decision of disqualification was supported by substantial
     evidence.


     Appeal from Arkansas Employment Security Department; affirmed.
     Appellant, pro se.
     Allan Pruitt, for appellees.

     Judith Rogers, Judge.*CA*ADVREP6*                  EN BANC   




                                       E 94-223
                                        
                                                  February 21, 1996    
                                          

SHERMAN RUCKER                       AN APPEAL FROM THE ARKANSAS
                 APPELLANT           EMPLOYMENT SECURITY DEPARTMENT,  
                                     NO. 94-BR-1194         
VS.
                                         
PHIL PRICE, DIRECTOR,           
TOWNSENDS OF ARKANSAS, INC.
                 APPELLEES           AFFIRMED






                         Judith Rogers, Judge.


     The Board of Review affirmed and adopted the decision of the
Appeal Tribunal disqualifying appellant, Sherman Rucker, from
receiving unemployment compensation benefits based on a finding
that he was discharged for misconduct connected with the work.  In
this unbriefed appeal, the issue before us is whether the Board's
decision is supported by substantial evidence.  We hold that it is
so supported, and affirm.
     Appellant was employed by Townsends of Arkansas, Inc.  In
October of 1990, Townsends implemented a chemical substance and
alcohol abuse policy with the goal of establishing a drug-free
workplace.  When appellant was hired in April of 1991, he signed a
consent form agreeing to abide by the terms and conditions of the
policy.  Townsends' policy did not provide for random drug testing;
however, testing was required of applicants seeking employment and
of employees who were reasonably suspected of being under the
influence of illegal drugs, controlled chemical substances and
alcohol.  Testing was also required of employees who were injured
on the job, when the injury required treatment by a physician.  The
policy contained a listing of prohibited substances and set out
levels of those substances, and alcohol, which would not be
permitted.  The policy called for the automatic termination of an
employee whose test yielded such a positive result, although
employees were given the opportunity for a second test, at their
own expense.
       Appellant worked as a trainer in the wing department.  On
June 1, 1994, a Wednesday, he sliced his hand with a knife while
cutting a cardboard box.  Seven stitches were required to repair
the injury.  On the day of the accident, appellant submitted a
urine sample for testing.  He was fired, effective June 7, 1994,
for failing to pass the test.  It was said that the test revealed
a positive result for a non-prescription, controlled substance. 
However, in keeping with the company's policy of confidentiality,
the particular drug was not named.  Appellant did not request a
second test.
      Appellant testified of his awareness of the drug policy,
including the provision calling for automatic termination should he
fail a drug test following a work-related injury.  He denied that
he had taken any drugs on the day of the accident, but he said that
he had "smoked a joint" during the Memorial Day weekend.  
     On this evidence, the Board ruled that appellant was dis-
charged for misconduct connected with the work, finding that he had
violated a company rule and that his conduct was in disregard of
his employer's interest.  The Board, declined, however, to deny
benefits under Ark. Code Ann.  11-10-514(b) (Supp. 1993), which
provides for further disqualification for reporting to work under
the influence of intoxicants, including controlled substances.
     On appeal, the findings of facts of the Board of Review are
conclusive if they are supported by substantial evidence.  Perdrix-
Wang v. Director, 42 Ark. App. 218, 856 S.W.2d 636 (1993). 
Substantial evidence is such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.  Id.  We review
the evidence and all reasonable inferences deducible therefrom in
the light most favorable to the Board's findings.  Id.  Our review
is limited to a determination of whether the Board could reasonably
reach its decision upon the evidence before it.  Id. 
     Arkansas Code Annotated  11-10-514(a) (Supp. 1993) provides
that an individual shall be disqualified for benefits if he is
discharged for misconduct in connection with the work.  "Miscon-
duct," for purposes of unemployment compensation, involves:  (1)
disregard of the employer's interest; (2) violation of the
employer's rules; (3) disregard of the standards of behavior which
the employer has the right to expect; and, (4) disregard of the
employee's duties and obligations to his employer.  George's Inc.
v. Director, 50 Ark. App. 77, 900 S.W.2d 590 (1995).  There is an
element of intent associated with a determination of misconduct. 
Mere good faith errors in judgment or discretion and unsatisfactory
conduct are not considered misconduct unless they are of such a
degree of recurrence as to manifest culpability, wrongful intent,
evil design, or intentional disregard of the employer's interest. 
Id.  Whether an employee's acts are willful or merely the result of
unsatisfactory conduct or unintentional failure of performance is
a fact question for the Board to decide.  Id.     
     At the hearing, appellant argued that he should not be
penalized for his off-duty conduct.  At first blush, such an
argument brings to mind our decision in Feagin v. Everett, 9 Ark.
App. 59, 652 S.W.2d 839 (1983). In Feagin, we recognized that
misconduct in connection with the work can occur while an employee
is off duty.  There, a teacher was fired after criminal charges had
been filed against her for the possession of a controlled sub-
stance, which had been found in her home.  In affirming the Board's
finding of misconduct, we adopted a three-part test for determining
whether an employee's off-duty conduct will be considered miscon-
duct in connection with the work.  First, there must exist a nexus
between the employee's work and his or her off-duty activities. 
Second, it must be shown that the off-duty activities resulted in
harm to the employer's interests.  And third, the off-duty conduct
must be violative of some code of behavior contracted between the
employer and employee, and the employee's conduct must be done with
the intent or knowledge that the employer's interests would suffer.
     The decision in Feagin v. Everett, id., however, does not
govern our review of the instant case.  We have recognized that
misconduct may also be found for the intentional violation of an
employer's rules.  In Grace Drilling Co. v. Director, 31 Ark. App.
81, 790 S.W.2d 907 (1990), the employer had developed a safety
program which included drug testing on a random basis.  The policy
prohibited employees from having "any detectable level of alcohol,
drugs, or controlled substances, or any combination thereof, in the
body."  The employee was discharged after failing a drug test.  The
Board of Review awarded unemployment compensation benefits.  We
reversed, holding that the employee's actions constituted miscon-
duct in connection with the work in that the employee's positive
test result represented a deliberate violation of the employer's
rules, as well as a willful disregard of the standard of behavior
which the employer had a right to expect.  More recently, we
decided the case of George's Inc. v. Director, 50 Ark. App. 77, 900 S.W.2d 590 (1995).  The employer in that case had also adopted a
drug policy, and the employee was fired after testing positive for
a detectable amount of a controlled substance which had not been
prescribed to him.  We disagreed with the Board's conclusion that
the employer's drug policy was not reasonable, and we held that
the employee was discharged for the violation of the employer's
rules.  We remanded for the Board to make a finding of fact as to
whether the employee's violation of the employer's rule was
intentional, since the Board had not addressed that pivotal issue.
     In reviewing this case, we are guided by the decisions in
Grace Drilling Co. v. Director, supra, and George's Inc. v.
Director, supra.  We conclude that appellant was not discharged for
off-duty conduct, but that he was terminated pursuant to the
employer's policy requiring the discharge of any employee who
tested positively for drugs in excess of the designated tolerance
levels.  As appellant's conduct was in violation of the employer's
rules, we hold that he was discharged for misconduct in connection
with the work.  Noting that appellant had agreed to be bound by the
policy and that he was thus aware of its terms and the ramifica-
tions for failing a test, the Board found that appellant's conduct
was intentional.  We cannot say that the Board's decision of
disqualification is not supported by substantial evidence.
     Affirmed.
     Bullion, S.J., agrees.
     Mayfield and Robbins, JJ., dissent.
     Cooper, J., not participating. *CA*ADVREP6A*
                             EN BANC



                                        E 94-223


                                             FEBRUARY 21, 1996   


SHERMAN RUCKER                     AN APPEAL FROM THE ARKANSAS
                                   EMPLOYMENT SECURITY
               APPELLANT           DEPARTMENT                    
                                   NO. 94-BR-1194

VS.                                     

PHIL PRICE, DIRECTOR,              DISSENTING OPINION
TOWNSENDS OF ARKANSAS, INC.

               APPELLEES



                     Melvin Mayfield, Judge.


     I cannot agree to affirm the decision of the Board of Review
in this case.  The Board found that the decision of the Appeal
Tribunal was "correct, both as to findings of fact and conclusions
of law," and stated:  "That decision is hereby adopted as the
decision of the Board of Review."  Therefore, we must focus on the
decision of the Appeal Tribunal, the gist of which is found in the
following paragraphs.  
          The claimant admits that he smoked marijuana
     approximately two days before the test was given.  He
     argues that the employer has no right to determine what
     an employee can or cannot do on his own time.  However,
     the law does give the employer the right to implement a
     drug and alcohol policy and to discharge an employee who
     fails to observe the policy.  The claimant testified that
     he was aware of the policy, and was aware that he would
     be discharged if he tested positive.  He admits he knew
     this before he chose to use a controlled substance. 
     While an employer may not have the right to dictate an
     employee's  personal life, the employer does have the
     right to take action against the employee when his
     personal life is carried over into his employment.  The
     claimant knew the possible consequences of his actions,
     and chose to take that risk.  He lost.  His actions
     indicate an intentional disregard for the employer's
     interests.  Therefore, the claimant was discharged for
     misconduct in connection with the work.  

          The employer failed to indicate to what extent the
     claimant tested positive.  As a result, the Tribunal can
     not reach a determination as to whether or not the
     claimant reported while under the influence.  Although
     the claimant admits that he smoked marijuana approximate-
     ly two days before the test, this does not establish the
     extent of the influence when he reported to work.  Ark.
     Code Ann.  11-10-514(b) disqualifies a claimant for a
     longer period if the employee reports to work under the
     influence.  In this case, the evidence does not support
     such a finding.  That section of law does not indicate
     that the mere use of narcotics should lead to the greater
     disqualification.  Therefore, the claimant was discharged
     for misconduct, but not on account of reporting to work
     while under the influence of a controlled substance.  

(Emphasis added.)  
     It is important to note that the last sentence in the second
paragraph actually finds that the appellant was not discharged for
misconduct "on account of reporting to work under the influence of
a controlled substance."  Therefore, the denial of unemployment
benefits to appellant is based solely on findings made in the first
paragraph, and one of those findings would allow an employer to
discharge an employee who uses a controlled substance while not at
work and who does not report to work under the influence of such
substance.  
     This point was specifically raised by the appellant who told
the referee at the Appeal Tribunal hearing that he had "smoked a
joint during the Memorial Weekend" but also said, "I don't feel
that should have anything to do with my job though."  The referee,
however, thought differently and said in her findings in the first
paragraph quoted above:  "However, the law does give the employer
the right to implement a drug and alcohol policy and to discharge
an employee who fails to observe the policy."  
     In the first place, taken in its compete and unlimited sense,
this statement is wrong.  No authority is cited by the referee, by
the Board, or by the majority opinion to support this statement in
its complete and unlimited sense.  It is true that in June of 1994,
when appellant was tested positive for a controlled substance, Ark.
Code Ann.  11-10-514(b) (Supp. 1995) was in effect and provided
that an employee shall be disqualified for unemployment benefits if
he is discharged for misconduct for "reporting for work while under
the influence of . . . a controlled substance, or willful violation
of the rules or customs of the employer pertaining to the safety of
fellow employees or company property . . . ."  But the Appeal
Tribunal specifically found that the appellant did not report to
work under the influence of a controlled substance.  So, that
provision does not apply here.  
     I will discuss later the provision about the willful violation
of the rules or customs of the employer, but now I want to finish
the point that the Appeal Tribunal erred in making the unqualified
statement that the law gives an employer the right to implement a
drug policy and discharge an employee who violates it.  Of course,
the employer has such a right if we put aside the consequences of
such action as it relates to the entitlement of unemployment
benefits.  An employee can be fired, but such employee will be
entitled to unemployment benefits unless we factor into that
statement some conditions or limitations.  
     The majority opinion does not attempt to support the referee's
unlimited and unconditional statement that the employee has the
right to adopt a drug policy and discharge an employee who fails to
observe it, but does cite George's Inc. v. Director, 50 Ark. App.
77, 900 S.W.2d 590 (1995), which held that such a policy was
reasonable in that case.  However, that opinion, in its opening
paragraph, states that the appellant there argued that the Board of
Review's finding that the drug policy in that case was unreasonable
was not supported by substantial evidence.  This court agreed that
the Board was wrong in finding the policy unreasonable in that
case.  But that is not the issue now under discussion.  At this
point, I am discussing the finding of the Appeal Tribunal, adopted
by the Board of Review, which stated without qualification that
"the law does give the employer the right to implement a drug and
alcohol policy and to discharge an employee who fails to observe
the policy."  I contend that this finding is wrong if it means that
this finding alone will disqualify an employee from receiving
unemployment benefits.  The law simply does not give an employer
such an unlimited right.  
     Moreover, the fact that an employee agrees to such a policy
does not waive the employee's right to unemployment compensation. 
This is true for the simple reason that the Arkansas Employment
Security Law so provides.  Ark. Code Ann.  11-10-107(a) (1987)
clearly states that "Any agreement by an individual to waive,
release, or commute his rights to benefits or any other rights
under this chapter shall be void."  
     Therefore, I think the Board was clearly wrong in holding that
this decision of the Appeal Tribunal was "correct, both as to the
findings of fact and conclusions of law."  
     I now return to that part of Ark. Code Ann.  11-10-514(b)
(Supp. 1995) which provides that an employee shall be disqualified
for unemployment benefits if he is discharged for a "willful
violation of the rules or customs of the employer pertaining to the
safety of fellow employees or company property."  It should be
noted that this is a very narrow provision, and it does not appear
to be relied upon to support the majority opinion.  As I read the
majority opinion, it relies upon Ark. Code Ann.  11-10-514(a)
(Supp. 1995) (both the 1993 and 1995 supplements contain the same
provisions as far as section 11-10-514 is concerned).  The
provision in subsection (b) that states "or willful violation of
the rules or customs of the employer pertaining to the safety of
fellow employees or company property" may relate to reporting for
work under the influence of "intoxicants including a controlled
substance," and in that case it has no relevance here because the
Appellee Tribunal found that the evidence did not support a finding
that the appellant reported to work while under the influence of a
controlled substance.  
     However, if this provision includes an employee who reports to
work þ not under the influence of intoxicants or a controlled
substance but, as applied to this case, in such a condition that he
tests positive for a controlled substance in willful violation of
a rule or custom of the employer pertaining to the safety of fellow
employees or company property  þ then we must focus upon the rule
as it applies to the "safety" of the fellow employees and company
property.  Thus, the Appeal Tribunal's findings, adopted by the
Board, that "the law does give the employer the right to implement
a drug and alcohol policy and to discharge an employee who fails to
observe the policy" is not sufficient to deny benefits to the
appellant in this case because the finding does not reach the
safety issue, and there is no evidence in the record on that point.
     At this point, however, I want to discuss the application of
both Ark. Code Ann.  11-10-514(a) and (b) to this case.  Of
course, it is subsection (a) that is relied upon by the majority,
but both subsections are properly considered together at this
point.  And in that connection, I note that there is a finding by
the Appeal Tribunal that does come close to being a correct
statement of the law and which relates to the appellant's conten-
tion that the "joint" he smoked "during the Memorial Weekend . . .
should not have  anything to do with my job."  This statement,
which appears in the first paragraph quoted at the beginning of
this dissent is as follows:  
     While an employer may not have the right to dictate an
     employee's personal life, the employer does have the
     right to take action against the employee when his
     personal life is carried over into his employment.  

Although I do not think this is an exact statement of the law, it
is close enough for us to reach the real issue in the case - which
I submit the majority has failed to do.
     The case of Feagin v. Everett, 9 Ark. App. 59, 652 S.W.2d 839
(1983), is cited by the majority in response to appellant's
argument that "he should not be penalized for his off-duty
conduct," but the majority rejects its application to the instant
case by stating that it "does not govern our review of the instant
case."  The apparent rationale for this conclusion is the next
statement - "we have recognized that misconduct may also be found
for the intentional violation of an employer's rules," and Grace
Drilling Co. v. Director, 31 Ark. App. 81, 790 S.W.2d 907 (1990),
is cited in support of this last statement.
     This reference to the Feagin and Grace Drilling cases clearly
demonstrates the failure of the majority to understand that the law
does not allow an employer to simply adopt a rule and provide that
the failure of an employee to observe that rule will disqualify the
employee from receiving unemployment benefits.  The Arkansas
Employment Security Law must agree that a violation of that rule
will disqualify an employee from receiving unemployment benefits. 
The law in this regard is clear.  In Hodges v. Everett, 2 Ark. App.
125, 127, 617 S.W.2d 29, 31 (1981), in reversing the denial of
unemployment benefits, we said:
          It may well be that the employer is justified in
     having a rule making any employee engaging in a fight
     subject to discharge, but the existence of such rule does
     not necessarily mean that the discharged employee is
     guilty of misconduct within the meaning of the Arkansas
     Employment Security Law.

This is also the general rule.  See 76 Am. Jur. 2d Unemployment
Compensation  81 at 845 (1992), stating that "the effect of a
violation by an employee of a rule relating to employment,
warranting the withholding of unemployment compensation benefits on
the basis of misconduct, must be determined not by the employer's
rules, but by the provisions of the statute itself."
     However, Feagin and Grace Drilling are cases where the
Arkansas Unemployment Security Law was in agreement with the denial
of unemployment benefits to employees who were fired for the
violation of an employer's rule.
     In Feagin the court affirmed the Board of Review's denial of
unemployment compensation to a school teacher who was discharged
because law enforcement officers found drug paraphernalia,
marijuana, and hash oil in a house where the teacher and her
husband lived.  In discussing what would constitute misconduct in
connection with an employee's work (under what is now Ark. Code
Ann.  10-10-514) when the claimant was off-duty, we said that case
was one of first impression.  Relying on the Washington Supreme
Court case of Nelson v. Employment Security Department, 98 Wash. 2d 370, 655 P.2d 242 (1982), we adopted a four-prong test that
required that the employee's conduct must (1) have a nexus with her
work; (2) result in some harm to the employer's interest; (3) be
conduct violative of some code of at least an implied contract of
behavior; and (4) done with the intent or knowledge that the
employer's interest would suffer.  We found that those elements
were present in Feagin and affirmed the denial of benefits.  Of
interest, in connection with the present case, is the testimony in
Feagin of the school superintendent that even though the drugs and
drug paraphernalia were found in the teacher's house - something
away from the school and concerned with her off-duty activities -
he thought this would hinder the teacher's effectiveness and meet
the provision in the school policy manual that allowed dismissal
for undesirable personal traits.
     No such evidence exists in the instant case.  Actually, the
evidence in this case does not clearly reveal the business in which
the employer was engaged.  There is in evidence a document entitled
"Chemical Substance and Alcohol Abuse Policy."  The "policy"
statement set out in that document states that a violation of "this
rule" occurs by "Reporting to work or for Company business, and in
a condition not conducive for work due to the use of drugs or
alcohol. . . ."  The employer's adopted "Chemical Substance and
Alcohol Abuse Policy" is stated to be:  "In order to have a safe
and efficient work environment and to comply with the Federal Drug
- Free Workplace Act (Title 41 USCA 701-707). . . ."  And it adds
that "Reporting to work or for Company business, in a condition not
conducive for work due to the use of drugs or alcohol is prohibit-
ed. . . ."
     The specific situation to which the employer's policy was
applied here is explained as follows:
          Mr. Rucker was cutting a cardboard box and stated
     that the blade slipped and he cut himself.  The incident
     was in a nature which caused Mr. Rucker three separate
     injuries for the same accident.

There is no explanation of the "three separate injuries for the
same accident" statement unless it is disclosed by this statement
that follows:  "Mr. Rucker was sent for medical attention (seven
stitches) and drug testing."
     And the only indication of the nature of the employer's
business was given by Larry King, who testified as the employer's
representative, and said that the appellant "was in the wing
department" and that "I assume the wing department is, could
arrange [sic] anywhere from grading wings, cutting wings to support
department for the wings, which means collecting packing material,
boxes, etc."  The appellant testified that his job was "basically
a trainer."  And his statement filed with the agency in making his
claim for benefits states that his job and duties were "To set up
the department so it would be ready for 2nd shift employee [sic] to
start work.  (Trainer)."
     Thus, it seems clear to me that the evidence here will not
support the rationale under which the Feagin case was decided and
the majority opinion is correct in stating that it "does not govern
our review in the instant case."  But the majority is inconsistent
by then citing the Grace Drilling case to support the majority's
statement that "we have recognized that misconduct may also be
found for the violation of an employer's rules."  Just as Feagin
could properly find, under the evidence there, that the teacher's
off-duty activities constituted misconduct because it affected her
on-duty work, the Grace Drilling case could properly find, under
the evidence there, that testing positive for drugs when reporting
for work affected the employee's on-duty work because the testing
policy was "initiated due to the high accident rate and risk
factors relating to the nature of the drilling business and the
desire to ensure the safety of the drilling crews."  See 31 Ark.
App. at 84, 790 S.W.2d  at 908.  The rationale in both cases is
found in the effect that off-duty conduct has on the employee's
work.
     Therefore, it comes as no surprise to find that Ark. Code Ann.
 11-10-514 (Supp. 1995) provides that an employee who is dis-
charged from work is disqualified for unemployment benefits if the
discharge is for misconduct in connection with the work.  That is
the point, and there are no exceptions.  And that is the rationale
of both Feagin and Grace Drilling.  Although Grace Drilling is
factually more like the instant case - the off-duty use of drugs
caused the positive test - the issue is the same.  However, because
of evidence about the "high accident rate and the risk factors
relating to the drilling business" the safety of the drilling crews
in Grace Drilling supported the decision that failing the drug test
was misconduct.  Here, there is no evidence that there was a safety
problem that would support such a decision.       As indicated
above, the only evidence here to explain why the testing policy was
adopted is contained in the policy itself:  "In order to have a
safe and efficient work environment and to comply with the Federal
Drug-Free Workplace Act (Title 41 USCA 701-707)."  Section 701 of
that Act provides that contractors with the federal government must
(except for services of a limited value) meet the Act's requirement
for a drug-free workplace.  See Robinson v. Department of Employ-
ment Security, 637 N.E.2d 631 (Ill. App. 1994) (policy adopted
because it "was mandatory to retain government contracts").  But
there is no evidence that the employer here did any business with
the federal government.
     In George's Inc. v. Director, 50 Ark. App. 77, 900 S.W.2d 590
(1995), this court determined that the employer's drug policy was
reasonable but remanded the case to the Board of Review for it to
determine if the employee intentionally or deliberately violated
that policy.  I think the real issue is not whether the policy is
reasonable but whether a violation of the policy constitutes
misconduct in connection with the work.  There is, however, an
element of the reasonableness question involved in the real issue. 
However, even the question of the reasonableness of the employer's
policy in this case is avoided by the majority opinion's footnote
that says that issue was not raised below.  If the pro se appel-
lant's statement at the Appeal Tribunal hearing that he did not
"feel" that the "joint" he smoked during the Memorial Weekend
"should have anything to do with my job" did not raise the issue
here, I do not see how a pro se appellant has any real chance of
ever reversing a decision of the Board of Review.
     I dissent.
     Robbins, J., joins in this dissent.