White v. Director
Annotate this Case
Laurie WHITE v. DIRECTOR, Arkansas Employment
Security Department and Duff-Norton Yale
Hoists Co.
E 94-297 ___ S.W.2d ___
Court of Appeals of Arkansas
En Banc
Opinion delivered June 26, 1996
1. Unemployment compensation -- appeal of Board of Review's
determination -- factors on review. -- On appeal, the findings
of fact of the Board of Review are conclusive if supported by
substantial evidence, i.e., by such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion; review is limited to determining whether the Board
could reasonably reach its decision upon the evidence before
it, and in making that determination, the court reviews the
evidence and all reasonable inferences deducible therefrom in
the light most favorable to the Board's findings.
2. Unemployment compensation -- Board of Review's determination
reasonably reached -- decision affirmed. -- Where there was
evidence that the employer notified the appellant that a
positive result was obtained on her drug test, and that the
appellant neither obtained a retest within 30 days nor
accepted treatment pursuant to the employer's policy, the
Board could reasonably have reached its decision disqualifying
appellant from receiving unemployment benefits on the evidence
before it.
Appeal from the Arkansas Board of Review; affirmed.
Trotter Law Firm, P.A., by: Scott C. Trotter,for appellant.
Ronald A. Calkins, for appellee Director.
Friday, Eldredge & Clark, by: James W. Moore and Andrew T.
Turner, for appellee Duff-Norton Yale Hoists Co..
James R. Cooper, Judge. *ADVREP*CA4*
EN BANC
E94-297
June 26, 1996
LAURIE WHITE APPEAL FROM THE ARKANSAS
APPELLANT BOARD OF REVIEW
[NO. 94-BR-1545]
VS.
DIRECTOR, ARKANSAS EMPLOYMENT AFFIRMED
SECURITY DEPARTMENT and
DUFF-NORTON YALE HOISTS
APPELLEES
James R. Cooper, Judge.
The appellant in this unemployment compensation case was
employed by the appellee, Duff-Norton Yale Hoists Co., on
February 3, 1994. On that date she consented to be tested for drug
abuse pursuant to the employer's policy. The employer asserted
that her test was positive, and she was subsequently discharged for
failure to comply with company policy regarding actions to be taken
following a positive drug test. After a hearing, the Board of
Review found that the appellant was disqualified for unemployment
benefits because she had been discharged for misconduct connected
with the work. From that decision, comes this appeal.
For reversal, the appellant contends that there is no
substantial evidence to support the Board's finding that she was
discharged for misconduct connected with the work. We do not
agree, and we affirm.
On appeal, the findings of fact of the Board of Review are
conclusive if supported by substantial evidence, i.e., by such
relevant evidence as a reasonable mind might accept as adequate to
support a conclusion. George's Inc. v. Director, 50 Ark. App. 77,
900 S.W.2d 590 (1995). Our review is limited to determining
whether the Board could reasonably reach its decision upon the
evidence before it, and in making that determination, we review the
evidence and all reasonable inferences deducible therefrom in the
light most favorable to the Board's findings. Id.
Viewed in that light, the record shows that the employer's
drug policy required employees testing positive for drug use to
accept treatment for substance abuse; failure to accept treatment
was expressly provided to be insubordination subjecting the
employee to discharge. In the event that an employee should
disagree with the test results, the policy permitted a second test
to be performed at employee expense, using the original specimen,
within 30 days of the original test.
In the case at bar, there was evidence that the employer
notified the appellant that a positive result was obtained on her
drug test, and that the appellant neither obtained a retest within
30 days nor accepted treatment pursuant to the employer's policy.
Although there was evidence that would support a finding that the
appellant had not been insubordinate, the scope of our review is
limited to determining whether the Board could reasonably reach its
decision on the evidence before it. Perry v. Gaddy, 48 Ark. App.
128, 891 S.W.2d 73 (1995). We hold that it could, and
consequently, we must affirm.
Affirmed.
Jennings, C.J., and Stroud, J., agree.
Mayfield, Neal, and Griffen, JJ., dissent.
*ADVREP*CA4-B* EN BANC
E94-297
June 26, 1996
LAURIE WHITE AN APPEAL FROM ARKANSAS
APPELLANT BOARD OF REVIEW
V.
DIRECTOR, EMPLOYMENT
SECURITY DEPARTMENT, AND
DUFF-NORTON YALE HOISTS
APPELLEES DISSENTING OPINION
Wendell L. Griffen, Judge.
Although the majority views this case as turning on the fact that appellant þneither
obtained a retest within 30 days nor accepted treatment pursuant to the employerþs
policyþ in case of a positive result from an employeeþs drug test, the clear and
uncontradicted proof is that the employer never provided the original specimen within 30
days of the original test. The plain proof is that the appellant disputed the positive drug
test, challenged the chain of custody for the original sample, and was told by the
personnel manager for appellee that her options were to either enter rehabilitation or be
fired. Appellant also testified that she tried to persuade the employer to retest the
original sample, but that the personnel manager rejected that request. Furthermore, the
personnel manager (Martha Lucas) testified that she did not receive the original test
result until the day before the second hearing before the Appeal Tribunal. Neither she
nor anybody else associated with the employer have produced the original test specimen
so that the appellantþs right to obtain a retest could be honored.
The personnel manager testified that appellant had missed quite a number of days
from work before February 3, 1994, and there appears to have been some concern that
she needed or was contemplating psychiatric hospitalization at that point in time.
Although the personnel manager testified that the contemplated hospitalization may have
been for treatment of anorexia, there is no verification that appellant was diagnosed with
that condition in the record. At any rate, the personnel manager informed appellant that
she would be scheduled for a drug test due to her perceived absenteeism problem.
Appellant went to the lab at Baptist Hospital in Forrest City on February 3, 1994, and
provided a urine specimen, pursuant to directions from the personnel manager who had
told her that unless she did so she would be fired immediately. Appellantþs undisputed
testimony is that she did not seal, initial, or otherwise label the urine specimen and that
she did not see anyone else do so. The personnel manager testified that she does not
know what happened to the urine specimen, but that the specimen produced a positive
result for presence of amphetamines and that appellant was fired because she did not
produce a negative result upon retesting of the original specimen. Thus, appellant was
terminated for alleged noncompliance with appelleeþs drug policy in what appears to
have been a blatant violation of that policy by her employer. Now our court has decided
to uphold the denial of her claim for unemployment benefits based upon the view that
there is substantial evidence supporting the Board of Reviewþs decision that she was
discharged from her job because of misconduct connected with the work.
The Arkansas Supreme Court has stated that in keeping with the declaration of
the state public policy of providing benefits to workers who are unemployed through no
fault of their own, the statutory misconduct provision of the unemployment compensation
law must be given an interpretation consistent with that declared policy, and that it
should not be so literally construed as to effect a forfeiture of benefits by an employee
except in clear cases of misconduct. Willis Johnson Co. v. Daniels, 269 Ark. 795, 601 S.W.2d 890 (1980). While various definitions of the term þmisconductþ have been given
by Arkansas courts, it appears generally accepted that a finding of þmisconductþ will
attach only to conduct evincing an intentional or deliberate violation of employer rules,
a willful or wanton disregard, or carelessness or negligence of such degree or recurrence
as to manifest wrongful intent or evil design. Hillman v. Arkansas Hwy. & Transp. Depþt,
39 F.3d 197 (8th Cir. 1994); see also A. Tennenbaum Co. v. Director of Labor, 32 Ark.
App. 43, 796 S.W.2d 348 (1990); Edwards v. Stiles, 23 Ark. App. 96, 743 S.W.2d 12
(1988).
It is true that the issue of misconduct is a question of fact for the Board of Review,
and that, on appeal, the Boardþs findings are conclusive if supported by substantial
evidence. A. Tennenbaum Co., supra. The problem with the Boardþs findings in this
case is that any holding of misconduct must rest upon a finding that appellant failed to
comply with the employerþs drug testing policy requiring her to produce a negative result
from the original specimen that produced the positive result. All the evidence on the
issue shows that the employer never produced the original specimen for appellant to
retest. The employer selected the testing agency. It had the duty to make the original
specimen available to appellant so that she could exercise her right to have it retested
in connection with her challenge to the positive finding. Having failed to safeguard the
original specimen so as to make it available for retesting pursuant to its own policy, the
employer is in no position to use appellantþs failure to produce a negative result upon a
retest that the employer knows cannot be obtained to justify her dismissal.
Stripped of its obligatory references to the standard of review, this result stands
for the proposition that an employee can be found guilty of misconduct so as to be
disqualified from entitlement to unemployment benefits where the employer accuses her
of violating its drug policy based upon a positive drug test from a specimen that nobody
has identified and which the employer cannot find. As if that were not enough, the
prevailing opinion also holds that where the employer has deprived the employee of the
chance to retest the original specimen, the employer may successfully assert the
employeeþs failure to produce a negative result upon retesting as þmisconduct.þ I cannot
agree that fair-minded persons confronted with these facts would characterize appellantþs
failure to produce a negative result from a specimen that her employer has failed and/or
refused to produce for retesting as intentional or deliberate disregard of her job duties
and obligations or the employerþs interests. Moreover, I reject the notion that the
Arkansas General Assembly intended that employees should forfeit their right to
unemployment compensation benefits on account of misconduct due to plain proof of
such suspicious behavior by an employer.
Neal, J., joins in this dissent.
*ADVREP*4-A*
EN BANC
E 94-297
JUNE 26, 1996
LAURIE WHITE APPEAL FROM THE ARKANSAS
BOARD OF REVIEW
APPELLANT
VS.
DIRECTOR, EMPLOYMENT DISSENTING OPINION
SECURITY DIVISION
APPELLEE
Melvin Mayfield, Judge.
I agree with, and join in, the dissenting opinion of Judge Griffen in this case. Also,
I want to make the following remarks which demonstrate, in my view, that the Board of
Review's decision should be reversed.
Laurie White was denied unemployment benefits for eights weeks on a finding that
she was discharged from last work for misconduct connected with the work because her
urine was positive for amphetamines in violation of the employer's alcohol and drug
abuse policy.
The employer, Duff-Norton Yale Hoists, and the Steelworkers Union, had
negotiated an alcohol and drug abuse policy which took effect on September 18, 1992.
The policy states its purpose as "to provide a safe and productive work environment for
all employees," and to "make every effort to have a drug and alcohol free workplace and
workforce." [sic] The policy provided that managers and supervisors who had probable
cause to suspect that an employee was under the influence of alcohol or controlled
substances, or had illegal drugs or alcohol in his or her possession, could ask the
employee to take a drug and/or alcohol test. The policy further provides that an
employee refusing a test can be discharged, but after a "first time positive result" an
employee will be offered rehabilitation, and refusal to accept treatment will be viewed as
insubordination and will subject the employee to discharge. And the policy provides that
employees disagreeing with test results can, at the employee's expense, have the
sample analyzed again. Appellant Laurie White signed an acknowledgment that she had
received a copy of the drug policy on September 24, 1992.
On February 3, 1994, while appellant was off on sick-leave, she was asked to
submit a urine specimen for a drug-screening test. Appellant testified at one of the
hearings that the personnel manager, Martha Lucas, told her that two doctors had
informed her that appellant was "chemically dependent." Appellant signed the consent
form at 3:05 p.m. and went to a laboratory in Forrest City to submit a urine specimen.
The report from the Forrest City Laboratory states that the collection date was February
3, 1994, at 1600 hours. According to appellant she gave her urine sample to the nurse
in an open container and the nurse did not seal it in front of her. Appellant said she did
not know what the nurse did with the sample.
On February 14 appellant was told that her urine tested positive for
amphetamines. Appellant testified that she had never taken any amphetamines but
admitted she was on several prescription drugs, although the only ones she could name
were Prozac and Tranzen. Appellant related that she asked Ms. Lucas if she could get
another test done and was told she could not. She said Ms. Lucas told her she could
either go into a rehabilitation program or be fired. Appellant said she also asked for
another test on the original specimen, which was permitted by the written alcohol and
drug policy of the company, but Ms. Lucas also told her she could not do that either.
Appellant then hired an attorney, who was apparently able to get the original urine
specimen sent to another laboratory, Roche Biomedical Laboratories in Southhaven,
Mississippi. The result was sent to appellant's family physician, Dr. Collins Morgan, and
is entered into the record. That report also shows appellant's urine was positive for
amphetamines.
The record contains the handwritten notes of Ms. Lucas, dated February 1 through
3, 1994, in which she explains that appellant was attempting to check into Greenleaf
Hospital in Jonesboro, a psychiatric hospital, for treatment of anorexia. They offered to
admit her to the alcohol and drug dependency unit but appellant refused, claiming that
she was not drug dependent. These notes also say that appellant was advised that they
wanted her to take a drug test, "based upon her absentee record, crying at her work
place for no apparent reason, frequent trips to the bathroom."
After a hearing before the Appeal Tribunal, it issued an opinion, dated September
29, 1994, which held that the employer had failed to prove that the claimant had
amphetamines in her system in light of her consistent denial that she had ever used
amphetamines. The referee said the employer did not present sufficient chain of custody
evidence that the results from the laboratory were actually from the urine specimen given
by claimant because the employer offered no information on what happened to the
claimant's open container of urine between the time the claimant handed it to a hospital
employee and when the employer received the original test results. The Appeal Tribunal
allowed benefits, but the employer appealed to the Board of Review.
On November 23, 1994, the chairman of the Board of Review issued an opinion
in which he held that the appellant was discharged from her last work for misconduct
connected with the work. The chairman's opinion states, in part:
Based on the evidence, the Board of Review finds that the claimant was
discharged from last work for misconduct connected with the work. . . .
What is controlling is the claimant's failure to abide by the employer's
policy and comply with provisions once the employer asserted that it had
an initial positive test. One option for the claimant was to enter a
rehabilitation program. It is understandable that the claimant would not
desire to do so when asserting that the initial test result was erroneous.
The other option for the claimant was to effectively pursue, under the
employer's policy, retesting of the original specimen. . . . Even if possibly
dilatory, the claimant began such a pursuit. However, she did not
successfully follow through with that pursuit, and the evidence fails to
establish that the employer contributed to the failure of the claimant to
successfully complete that option. The Board particularly notes the lack of
evidence about what the claimant did after allegedly learning on March 11
that the initial specimen had (purportedly) been destroyed. The evidence
does not establish that she did anything, and she should not now be heard
to complain about any alleged shortcoming of the employer in
administering its policy.
Appellant argues on appeal that "the decision of the Board of Review is not
supported by substantial evidence and is contrary to law in that (1) the Board failed to
specify what conduct constituted misconduct according to recognized legal standards
and (2) the claimant's actions did not constitute misconduct in connection with work."
Appellant submits that because she did not refuse to give a urine specimen for testing
and because the employer failed to offer competent evidence of the chain of custody or
the procedures of testing and result, it is impossible for the employer to prove the drug
policy was violated. Appellant argues that the drug policy and Ms. Lucas's testimony
show that to terminate appellant for insubordination for refusing rehabilitation there must
have been a positive drug test followed by the same result on a second test on the same
sample and then refusal of rehabilitation. Since there was a delay in the second testing
of the original sample and the employer then failed to offer appellant rehabilitation before
terminating her for insubordination, she was discharged for a reason not constituting
misconduct connected with the work.
I think the Board's finding that the appellant failed to follow through on the retest
after being told the original specimen had been destroyed is inadequate. The Board has
not found conduct of the appellant that was a wilful (1) disregard of the employer's
interest, (2) violation of the employer's rules, (3) disregard of the standards of behavior
which the employer had a right to expect of his employees, or (4) disregard of the
employee's duties and obligations to his employer. A. Tenenbaum Co. v. Director of
Labor, 32 Ark. App. 43, 796 S.W.2d 348 (1990); Grace Drilling Co. v. Director, 31 Ark.
App. 81, 790 S.W.2d 907 (1990). There must be 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 an employer's interest. Grace Drilling Co. v. Director, supra; Sadler v.
Stiles, 22 Ark. App. 117, 735 S.W.2d 708 (1987); Shipley Baking Co. v. Stiles, 17 Ark.
App. 72, 703 S.W.2d 465 (1986). There has been no finding whatsoever and, indeed,
there is no evidence in the record to support such a finding, that appellant has been
guilty of conduct that would fit the above definition of employee misconduct.
I would reverse and remand.
Neal and Griffen, JJ., join in this dissent.
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