Moore v. Director
Annotate this Case
Walter C. MOORE v. Phil Price, DIRECTOR
E 94-231 ___ S.W.2d ___
Court of Appeals of Arkansas
En Banc
Opinion delivered January 31, 1996
1. Unemployment compensation -- Board of Review did not exceed
parameters of defined issues -- appellant was not denied due
process. -- Where the record, without any doubt, reflected
that the issues before the Board of Review were whether
appellant was entitled to benefits or whether he was
disqualified for either voluntarily quitting without good
cause or for being discharged for misconduct, it could not
plausibly be argued that the Board exceeded the parameters of
the defined issues; the case did not present a situation where
the Board disqualified a claim for benefits on a ground
unanticipated by the claimant; therefore, the court of appeals
held that appellant was not denied due process.
2. Unemployment compensation -- Board's decision supported by
substantial evidence. -- The appellate court found no error in
the Board's decision disqualifying appellant from receiving
unemployment compensation benefits and further concluded that
it was supported by substantial evidence.
Appeal from the Arkansas Board of Review; affirmed.
Walter C. Moore, pro se.
Allan F. Pruitt, for appellee.
Judith Rogers, Judge.
EN BANC
E 94-231
January 31, 1996
WALTER C. MOORE AN APPEAL FROM THE ARKANSAS
APPELLANT EMPLOYMENT SECURITY DEPARTMENT,
NO. 94-BR-1125
VS.
PHIL PRICE, DIRECTOR
APPELLEE
AFFIRMED
Judith Rogers, Judge.
This is an appeal from a decision of the Board of Review
disqualifying appellant from receiving unemployment compensation
benefits. The Board held that appellant was discharged for
misconduct connected with the work. This appeal comes to us
without benefit of briefs being filed by either party. We affirm.
Both the Agency and Appeal Tribunal in this case denied
benefits based on a finding that appellant had voluntarily quit his
job without good cause connected with the work pursuant to Ark.
Code Ann. 11-10-513(a)(1) (1987). The Board also denied
benefits, but modified the appeals referee's decision by finding
that the appellant had been discharged for misconduct pursuant to
Ark. Code Ann. 11-10-514(a)(1) (1987). In Linscott v. Director,
9 Ark. App. 103, 653 S.W.2d 150 (1983), the Agency and Appeal
Tribunal determined that the appellant was disqualified for the
receipt of benefits for misconduct connected with the work. The
Board of Review, however, denied benefits on the ground that
appellant had voluntarily quit his job without good cause connected
with the work. We agreed with the argument presented in the appeal
and held that it was a denial of due process for the Board to
disqualify a claimant on a different ground than that contained in
the hearing notice. Consequently, we reversed and remanded for
further proceedings.
Here, as in Linscott, the Board denied benefits on a ground
different from that of the Agency and Appeal Tribunal. However,
the decision in Linscott does not compel reversal of this case.
Fundamental to the decision in Linscott was the appellant's claim
that the issue to be litigated was confined to the charge of
misconduct, and his assertion that he and his legal representative
had only prepared and presented evidence pertinent to that one
issue. Under those circumstances, we determined that the injection
of the voluntary quit issue for the first time in the Board's
decision effectively deprived the appellant of notice and the
opportunity to defend and be heard on the alternative ground raised
by the Board. By contrast, the record in this case demonstrates
that the Board's finding that appellant was discharged for miscon-
duct was within the framework of contested issues. The hearing
notice plainly states that the "primary issue(s) involved are:
Whether the claimant voluntarily left, was discharged or suspended
from last work and whether the circumstances of the separation
entitle the claimant to unemployment benefits within the meaning of
Ark. Code Ann. 11-10-513 and/or 514." Indeed, the appeals referee
framed the issues as such in her opening remarks. Furthermore, it
was the appellant's position that he had been discharged as
reflected by his testimony: "I was laid off. I did not quit." In
sum, the record, without any doubt, reflects that the issues before
the Board were whether appellant was entitled to benefits, or
whether he was disqualified for either voluntarily quitting without
good cause or for being discharged for misconduct. On this record,
it cannot plausibly be argued that the Board exceeded the parame-
ters of the defined issues. This case simply does not present a
situation where the Board disqualified a claim for benefits on a
ground unanticipated by the claimant. Therefore, we hold that
appellant was not denied due process.
After a careful and thorough review of the record, we find no
error in the Board's decision and further conclude that it is
supported by substantial evidence.
Affirmed.
Mayfield and Robbins, JJ., and Bullion, S.J., dissent.
EN BANC
E 94-231
JANUARY 31, 1996
WALTER MOORE APPEAL FROM THE ARKANSAS
BOARD OF REVIEW
APPELLANT
VS.
PHIL PRICE, DIRECTOR DISSENTING OPINION
APPELLEE
Melvin Mayfield, Judge.
I respectfully dissent from the majority opinion in this case.
In the first place, I think the decision of the Board of Review was
reached under circumstances that were fundamentally unfair. And in
the second place, I think that in pro se appeals to this court from
the Board of Review it is our duty to see that the Board complies
with the rules of procedure and decides the cases in keeping with
the law and the evidence.
The first reason for my dissent is based on the failure of the
majority opinion to apply the law in Linscott v. Director, 9 Ark.
App. 103, 653 S.W.2d 150 (1983), to the present case. In Linscott
the appellant's claim for unemployment benefits was denied by the
agency on the basis that he had been discharged for misconduct in
connection with his work. His disqualification was affirmed upon
appeal to the Appeal Tribunal. However, on appeal to the Board of
Review, the Board denied benefits on the basis that he had
voluntarily quit his job without good cause connected with the
work. On appeal to this court, we held:
Here, the injection of the voluntary quit issue for the
first time in the board's decision effectively denied
appellant proper notice of the disputed issue, the
opportunity to subpoena witnesses on his behalf, to
confront and cross-examine adverse witnesses, and to
present rebuttal evidence on the voluntary quit issue.
In short, appellant was denied the minimum requirements
of due process of law . . . .
9 Ark. App. at 105-06, 653 S.W.2d at 151 (citations omitted).
Linscott was a unanimous decision of this court, sitting en
banc. The decision was later cited by a Missouri Court of Appeals,
along with cases in other states, to support that court's holding
that "many other courts" have found that this situation violates
due process. See Wilson v. Labor and Industrial Relations
Commission, 693 S.W.2d 328, 330 (Mo. App. 1985). Moreover, one of
the Oregon cases cited in Linscott has been cited again by that
court as authority for holding that an appeal to an Appeals Board
must be remanded where the Board decided the case on an issue
presented for the first time in the appeal to the Board. See
Cascade Corporation v. Employment Division, 800 P.2d 305 (Or. App.
1990). And the Vermont case cited in Linscott has been relied upon
for another similar decision in that state. See Call v. Department
of Employment Security, 138 Vt. 52, 411 A.2d 1336 (1980).
However, the majority opinion in the present case seeks to
distinguish this case from Linscott and the rule followed in the
above cited cases, on the basis that "the record in this case
demonstrates that the Board's finding that appellant was discharged
for misconduct was within the framework of contested issues." I
must, with due respect, vigorously disagree.
The record in this case shows that on February 8, 1994, the
appellant filed a "Claimant's Statement Concerning Discharge" in
which he stated that he had received a letter discharging him from
work and was told his discharge would be considered a voluntary
quit. On February 18, 1994, the employer wrote a letter to the
Employment Security Division stating that appellant "voluntarily
quit without attributable cause to the employer," and the "Employer
Response" dated February 21, 1994, to the agency request for
additional information states that the appellant "quit."
The agency cited Ark. Code Ann. 11-10-513(a)(2) (1987),
under which one who voluntarily leaves work is disqualified for
benefits until he has 30 days covered employment, and denied
appellant benefits on the basis that he left work without good
cause connected with the work. Appellant appealed to the Appeal
Tribunal and the Appeal Tribunal held that "the determination of
the Agency denying the claimant benefits under Ark. Code Ann. 11-
10-513 is affirmed."
The appellant then appealed to the Board of Review, and the
Board's opinion cited a different section of the Employment
Security Law þ Ark. Code Ann. 11-10-514(a) (1995 Supp.) þ and
held that the appellant was disqualified "for misconduct" under
that section and could not receive benefits "for a period of eight
(8) weeks, of unemployment . . . ." I think it is clear that the
Board was wrong in using section 11-10-514 to find appellant guilty
of misconduct when he had only been charged with having voluntarily
left work without good cause under section 11-10-513.
At the hearing on appellant's claim, the referee said that
"the Agency determined this to be a voluntary quit," and Robert
Gant, who appeared in behalf of the employer, testified they
considered that appellant "voluntarily quit." Gant testified
further that Ron Arney verbally offered appellant light duty work
on August 20 and appellant refused.
Appellant testified that he did not quit; that he was "laid
off"; and that "they told me that I quit July 15th, which was
incorrect." Appellant said that he had injured his knee, but he
did not remember being offered "light duty"; that Arney told him
that "he would get back" with him; and the "next thing I know, I
got a letter stating that I had voluntarily quit." He testified
further that he never told anyone he quit; that "all of a sudden"
he no longer had a job; and that he wanted to know why he was
"terminated."
Under these circumstances, I do not believe the misconduct
issue was "within the framework of contested issues." The employer
continuously claimed that the appellant had voluntarily quit. The
agency held that the appellant had voluntarily quit. The issue
that was contested before the referee was whether the appellant had
voluntarily quit. And the referee affirmed the agency finding that
the appellant had voluntarily quit. Therefore, I believe that the
only issue before the Board of Review was whether the appellant had
voluntarily quit. When the Board departed from that issue and
found that the appellant had been discharged for misconduct, that
determination was made on an issue which was not before the agency,
the Appeal Tribunal, or the Board.
It is true that Ark. Code Ann. 11-10-525(a)(2) (1987)
provides:
Upon review on its own motion or upon appeal, and on
the basis of evidence previously submitted in the case,
or upon the basis of such additional evidence as it may
direct to be taken, the board may affirm, modify, or
reverse the findings and conclusions of the appeal
tribunal or may remand the case.
The above provisions were quoted in Brown Jordan v. Dukes, 269 Ark.
581, 600 S.W.2d 21 (Ark. App. 1980) (at that time the provisions
were Ark. Stat. Ann. 81-1107(d)(3) (Repl. 1976)), and the court
said, "we interpret 'previously submitted' to mean submitted in
some previous hearing at which either party would have an opportu-
nity to question or support." 269 Ark. at 583, 600 S.W.2d at 23.
Because the "additional evidence" in that case had not been
"previously submitted" the court reversed the decision of the board
and "remanded for the taking of further evidence." We amplified
the "additional evidence" point in Jones v. Director, 8 Ark. App.
234, 650 S.W.2d 601 (1983), when we said, "We think that phrase
means additional evidence directed to be taken at some hearing,
conducted by the board or someone designated by the board, at which
witnesses could appear and opportunity for cross-examination could
be afforded." 8 Ark. App. at 236, 650 S.W.2d at 603. The action
of the Board in allowing or refusing to allow additional evidence
to be taken is discretionary, and we have affirmed the Board where
it remanded the case to the Appeal Tribunal for the taking of
additional evidence, Edwards v. Stiles, 23 Ark. App. 96, 743 S.W.2d 12 (1988), and where it refused to remand for that purpose,
Arkansas Game & Fish Commission v. Director, 36 Ark. App. 243, 821 S.W.2d 69 (1992). The controlling issue, however, in the decision
to remand for the taking of additional evidence is stated in
Maybelline Co. v. Stiles, 10 Ark. App. 169, 174, 661 S.W.2d 462,
465 (1983), as whether "each side has notice of and a fair
opportunity to rebut the evidence of the other party."
So, in the case at bar, the issue is the right to a fair
hearing before the Board of Review. The Appeal Tribunal found that
appellant voluntarily quit work without good cause, but on appeal
the Board found that he was discharged for misconduct. There was
no way for him to know that the Board was even going to consider
the misconduct issue. The specific question involved is whether it
was fundamentally fair for the Board to consider the misconduct
issue without notice to appellant and opportunity to produce
evidence on that issue.
It is therefore important to note that the petition for review
in this court was filed on September 19, 1994. Although it was
filed on a form designed for appeal to the Board of Review, it was
filed within 20 days after it was mailed on August 31, 1994, and
qualified as a timely petition for appeal to this court. There is
a question on the form asking if the appellant has additional
evidence to present, and it was checked by appellant. This
certainly indicates that after he received the Board's decision
mailed to him on August 31, 1994, the appellant wanted to present
additional evidence on the misconduct issue. As we did in
Linscott, and as other courts have done in similar situations, I
think we should remand this case to the Board of Review with
directions that it either decide the single issue of whether the
appellant voluntarily quit work without good cause in connection
with that work, or that the Board remand to the Appeal Tribunal for
it to allow the parties an opportunity to introduce additional
evidence and cross-examine witnesses on the discharge-for-miscon-
duct issue. This will enable the Board to apply the law set out in
Ark. Code Ann. 11-10-525(a)(2) (1987) in a way that is fundamen-
tally fair to all parties.
I also want to comment upon a point that was mentioned in our
discussion in conference on this case. That point concerns our
duty and responsibility in unemployment compensation cases appealed
pro se to the Arkansas Court of Appeals. Before this court was
established and started to function in July of 1979, these cases
were appealed to the circuit court and then to the Arkansas Supreme
Court. Section 2 of Act 252, enacted by the Arkansas General
Assembly in 1979, codified as Ark. Code Ann. 11-10-529 (1987),
provided for appeals from the Board of Review to be made directly
to the Arkansas Court of Appeals, and the Emergency Clause of that
Act stated that "the present system of judicial review has not been
adequate to insure the prompt and final determination of the issues
involved in such matters and, as a result, there has been undue
delay to the prejudice of the State and the parties involved." A
computer printout reveals that almost 200 such published cases have
been appealed to the Court of Appeals in the almost 16 years since
this court was established. From 1935 to 1979, a total of almost
45 years prior to the establishment of this court, a computer
printout reveals less than 100 such cases were appealed from
circuit court to the Arkansas Supreme Court. Therefore, it would
seem that the direct appeal to this court has also provided a more
accessible method for the review of the decisions of the Board of
Review.
From the beginning of the operation of this court we have
recognized that most of the appeals from the Board of Review were
pro se, and we have treated these appeals in a somewhat different
manner. For example, in Hunter v. Daniels, 2 Ark. App. 94, 616 S.W.2d 763 (1981), we said:
We first consider the Board's Rule 9 argument.
While it is true that Hunter's brief did not meet the
requirements of that rule, we hold that it was not
required to do so. Our Rule 7(a) requires the filing of
briefs in all civil cases. We have not heretofore
treated petitions for review from the decisions of the
Board of Review as cases in which briefs are required.
It is rare when appellants in unemployment benefit cases
are represented by counsel. It is even rarer when we are
furnished anything other than a transcript of the
proceedings on appeal. We have not treated unemployment
benefit cases the same as other civil cases under our
Appellate Rules. Accordingly, we hold that appellant is
not required to abstract the record under Rules 7 or 9 of
this court since this appeal involves an unemployment
benefit case.
2 Ark. App. 96, 616 S.W.2d 765.
In Smith v. Everett, 6 Ark. App. 337, 642 S.W.2d 320 (1982),
a pro se case, we stated in a supplemental opinion on denial of
rehearing as follows:
In Employment Security cases, the Board of Review,
appeal tribunals and special examiners are not bound by
common law, statutory rules of evidence or by technical
rules of procedure, but any hearing or appeal before such
hearing officers must be conducted in a manner to
ascertain the substantial rights of the parties. Ark.
Stat. Ann. 81-1107(d)(4) (Repl. 1976) [now Ark. Code
Ann. 11-10-526(a)(1) (1987)]. Here, the appellee urges
us to adopt a rule which would impose a duty on the
parties to formally interpose objections in order to
preserve a record for an appeal to this Court. If we
required the parties to formally object or proffer
evidence to preserve a record for appeal purposes, we
would be imposing a duty contrary to that envisioned by
the Arkansas General Assembly when it enacted 81-
1107(d)(4). We believe it would be fundamentally unfair
to adopt such a rule in this type case. Parties in
Employment Security cases are rarely represented by
attorneys, and the records on review often reflect clear
errors that affect the substantial rights of the parties.
The appeal tribunals and the Board of Review are mandated
by law to conduct hearings and appeals in a manner to
ascertain the substantial rights of the parties. If they
fail to do so, we have a correlative duty to remand these
cases to require it to be done.
6 Ark. App. at 339A-339B, 642 S.W.2d at 322.
In summary, I do not think that the legislature provided for
this court to have direct appeals from the Board of Review in order
for us to simply summarily affirm the Board's decision. I think we
are supposed to give these cases a close inspection whether or not
the parties are represented by attorneys. My view in this regard
was ably expressed in a dissent written by now Justice David
Newbern when he was a judge on the Court of Appeals:
It is apparently easy for an administrative agency
to slip, unintentionally, into a high-handed and compli-
cated procedure in administering the "governmental
largess." Over ten years ago, Charles Reich made the
point, with some erudition, that we must treat this form
of wealth distribution as affecting and effecting
property rights. Reich, The New Property, 73 Yale L.J.
733 (1964). We are hearing ESD appeals mostly in cases
where citizens can afford to appeal pro se only. Lest
the citizenry lose faith in the substance of the system
and the procedures we use to administer it, we can ill
afford to confront them with a government dominated by
forms and mysterious rituals and then tell them they lose
because they did not know how to play the game or should
not have taken us at our word.
In 1937 Chief Justice Charles Evans Hughes
said:
The maintenance of proper standards on the
part of administrative agencies in the perfor-
mance of their quasi-judicial functions is of
the highest importance and in no way cripples
or embarrasses the exercise of their appropri-
ate authority. On the contrary, it is in
their manifest interest. For, as we said at
the outset, if these multiplying agencies
deemed to be necessary in our complex society
are to serve the purposes for which they are
created and endowed with vast powers they must
accredit themselves by acting in accordance
with the cherished judicial tradition embody-
ing the basic concepts of fair play. [Morgan
v. United States, 304 U.S. 1, 58 S. Ct. 999
(1937)].
Forty two years would seem enough to have learned this
small lesson. . . .
Teegarden v. Director, 267 Ark. 893, 899, 591 S.W.2d 675, 678 (Ark.
App. 1979).
I would reverse the decision of the Board of Review and remand
this case for further proceedings in keeping with this dissent, and
I regret that the appellant, who is without the benefit of legal
counsel, will probably not know that he can file a petition asking
that the Arkansas Supreme Court review the decision reached by the
three to three vote of the judges who participated in this case.
EN BANC
WALTER C. MOORE
APPELLANT
V.
DIRECTOR, ARKANSAS EMPLOYMENT
SECURITY DEPARTMENT
APPELLEE
E 94-231
JANUARY 31, 1996
APPEAL FROM THE ARKANSAS
BOARD OF REVIEW
DISSENTING OPINION
BRUCE T. BULLION, Special Judge
I agree with Judge Mayfield and Judge Robbins and vote to
reverse and remand this case to the Board of Review so it may
arrange for a hearing upon the question of work-related misconduct.
I remain neutral of opinion on that portion of Judge Mayfield's
written dissent regarding the intention of the General Assembly
concerning our review in unemployment compensation appeals. I
would reverse and remand this case to the Board of Review.
Robbins, J., joins in this opinion.
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