Fulgham v. Director

Vickey Lee FULGHAM v. DIRECTOR, Employment
Security Department, and Regal Ware, Inc.

E 95-124                                           ___ S.W.2d ___

                  Court of Appeals of Arkansas
                          Division III
                 Opinion delivered March 6, 1996


1.   Unemployment compensation -- factors involved in misconduct --
     mere good faith errors in judgment are not normally considered
     misconduct. -- A person is disqualified from benefits if she
     is discharged from her last work 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 a right to
     expect of his employees, 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 an employer's
     interest; whether the 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. 

2.   Unemployment compensation -- review of findings of the Board
     of Review -- factors on appeal. -- On appeal, the findings of
     fact 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
     review is limited to a determination of whether the Board
     could reasonably reach its decision upon the evidence before
     it.  

3.   Unemployment compensation -- employer may be justified in
     having a rule discharging employees who engage in fights --
     existence of such a rule does not necessarily mean that the
     discharged employee is guilty of misconduct within the meaning
     of employment security law. -- An employer may be 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; legitimate self defense would not disqualify a
     terminated employee for unemployment benefits; furthermore,
     the right of self defense is recognized under English common
     law and by Arkansas statutory law, and is universally
     accepted, it is a right the exercise of which cannot be said
     to be an act of wanton or willful disregard of the employer's
     interest.      

4.   Unemployment compensation -- evidence insufficient to show
     appellant manifested the requisite culpability for her
     violation of her employer's rules to constitute misconduct --
     Board of Review's findings not supported by substantial
     evidence. -- Where the record revealed that there was no
     relevant evidence from which reasonable minds could conclude
     that appellant manifested the requisite culpability for her
     violation of her employer's rules to constitute misconduct and 
     there was no evidence in the record to indicate that she
     harbored any wrongful intent, evil design, or intentional
     disregard of her employer's interest, there was not
     substantial evidence to support the Board of Review's finding
     that appellant was guilty of misconduct.


     Appeal from the Arkansas Board of Review; reversed and
remanded.
     Appellant, Pro Se.
     Allan Pruitt, for appellees.

     John F. Stroud, Jr., Judge.   *ADVREPCA5*               DIVISION III









VICKEY LEE FULGHAM
                     APPELLANT

V.


DIRECTOR, EMPLOYMENT SECURITY
DEPARTMENT, AND REGAL WARE,
INC.
                     APPELLEES



E 95-124

                                                    March 6, 1996


APPEAL FROM THE ARKANSAS BOARD
OF REVIEW [E 95-124]  







REVERSED AND REMANDED



                   John F. Stroud, Jr., Judge.



     Appellant, Vickey Fulghum, applied for unemployment
compensation benefits after she was discharged by her employer,
Regal Ware, Inc., for being involved in a fight with another
employee.  The Arkansas Employment Security Division determined
that appellant was not entitled to benefits under Ark. Code Ann.
 11-10-514 (Supp. 1995) because she was fired for misconduct
connected with the work on account of willful violation of the
rules of her employer.  She appealed that determination to the
Arkansas Appeal Tribunal, which reversed the Divisionþs finding and
awarded appellant benefits.  Regal appealed the Tribunalþs decision
to the Board of Review, which reversed the Tribunalþs findings and
found that appellant was disqualified for benefits because she was
involved in a fight in willful violation of Regalþs rules. 
We reverse.
     The Board of Reviewþs decision was based solely on the record
of the proceedings before the Appeal Tribunal.  Appellant was the
only eyewitness to the incident who testified at the hearing before
the Tribunal.  She stated that she was returning to her work
station after borrowing a piece of gum from another employee when
her co-worker Aram Koger walked past her.  When she walked past
Ms. Koger, they bumped into each other.  Ms. Koger said, þYou
better watch out,þ and appellant replied, þ[You] watch out.þ 
Appellant then turned around and began walking back to her station. 
She heard someone following her and turned around and said, þYes?þ 
Then Ms. Koger slapped her and appellant pulled Ms. Kogerþs hair. 
The two fell to the floor in a scuffle which was broken up by other
employees.
     Charlene Brown, a human resource assistant for Regal,
testified that the other employees who witnessed the event did not
see anything until both women were on the floor.  When asked why
appellant was terminated, she stated:
     Our employee rules of conduct, and we cover this in every
     pre-employment orientation, [state that if] there is any
     fighting on company property at all that is grounds for
     immediate termination, there are no exceptions.  Both
     parties are terminated.  And all indications point that
     Ms. Koger was the aggressor but company policy says that
     both employees must be terminated.

Ms. Brown never disputed appellantþs claim that she acted in self-
defense nor did she offer any evidence to rebut the claim of self-
defense.
     The Board of Review found that appellant was discharged from
work for misconduct connected with the work on account of a willful
violation of the rules of the employer.  A person is disqualified
from benefits if she is discharged from her last work for
misconduct in connection with the work.   Arkansas Code Annotated
 11-10-514(a)(1) (Supp. 1995).  "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
a right to expect of his employees, and (4) disregard of the
employee's duties and obligations to his employer.  Georgeþs 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. 
Id.  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.  Id.  Whether the 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.  
     On appeal, the findings of fact of the Board of Review are
conclusive if they are supported by substantial evidence.  Georgeþs
Inc. V. Director, 50 Ark. App. 77, 900 S.W.2d 590 (1995). 
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.  
     The Board found:
     the evidence fails to establish that the claimant did not
     have the opportunity to retreat, or that the response to
     the slap was self-defense.  Thus, while the claimant
     might feel that her actions of retaliation were
     justified, misconduct is established.

Upon our review of the record in this case, we hold that there was
no relevant evidence from which reasonable minds could conclude
that appellant manifested the requisite culpability for her
violation of Regalþs rules to constitute misconduct.  There is no
evidence in the record to indicate that she harbored any wrongful
intent, evil design, or intentional disregard of her employer's
interest.  
     The facts of this case are parallel to those in Hodges v.
Everett, Director, 2 Ark. App. 125, 617 S.W.2d 29 (1981), in which
we stated:
          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.  There is no evidence in this
     case that appellant knew of a rule against self defense,
     but even if she had known, legitimate self defense would
     not disqualify her for unemployment benefits. 
     Furthermore, there is no substantial evidence to indicate
     that appellant struck her attacker, or do more than hold
     her by the hair.  The right of self defense is recognized
     under English common law and by Arkansas statutory law,
     and is universally accepted.  It is a right the exercise
     of which cannot be said to be an act of wanton or willful
     disregard of the employerþs interest.  There is no
     substantial evidence to support the Board of Reviewþs
     finding that appellant was guilty of misconduct, and she
     is entitled to unemployment benefits. (Internal citations
     omitted.)

In this case, as in Hodges, there is no doubt that appellant
violated one of her employerþs rules.  However, there is not
substantial evidence to support the Board of Reviewþs finding that
appellant was guilty of misconduct.
     Reversed and remanded.
     Mayfield and Neal, JJ., agree.