Brown v. Director

Doyne D. BROWN v. DIRECTOR, Employment
Security Division

E 95-20                                            ___ S.W.2d ___

                  Court of Appeals of Arkansas
                           Division II
                 Opinion delivered June 26, 1996


1.   Unemployment compensation -- appeal from Board of Review --
     factors on review. -- On review of unemployment compensation
     cases, the factual findings of the Board of Review are
     conclusive if they are supported by substantial evidence;
     substantial evidence is valid, legal and persuasive evidence;
     such relevant evidence as a reasonable mind might accept as
     adequate to support a conclusion.
  
2.   Unemployment compensation -- good cause to quit work -- taking
     of steps to prevent continuance of perceived misconduct one
     element considered. -- The taking of appropriate steps to
     prevent a perceived misconduct from continuing is an element
     to be considered in determining whether an employee had good
     cause to quit work.  

3.   Unemployment compensation -- appellant walked off job without
     making any effort to discuss his problem with employer --
     Board's decision supported by substantial evidence. --      
     The appellant left his job when he became upset because his
     employer told him he was not going to pay an insurance claim;
     however, appellant admitted one claim had already been paid;
     the other claim was paid six weeks after he quit; and there
     was evidence that the employer did not have the authority to
     stop a claim, moreover, appellant said he did not make an
     effort to discuss the problem before walking off the job; the
     Board's decision to deny unemployment compensation was
     supported by substantial evidence. 

4.   Unemployment compensation -- court declined to apply sanctions
     for appellee's failure to file the record on appeal within 90
     days after notice of appeal filed by claimant -- court may
     apply sanctions in future instances. -- Appellant's argument
     that because the record on appeal was not timely filed the
     appellee should be estopped from denying that appellant was
     entitled to unemployment benefits was not accepted; even
     though appellee failed to file the transcript of the record in
     this case until seven months after the date the  appellant's
     petition was filed, Ark. Code Ann.  11-10-529(b)(1) (Repl.
     1996) provides that the Director of the Arkansas Employment
     Security Department shall file a certified copy of the record
     of the case, but does not specify a time period in which this
     must be done; the court declined, without some advance
     warning, to apply sanctions for simply failing to file the
     record on appeal within 90 days after the notice of appeal has
     been filed by a claimant; however, the court might in the
     future consider this opinion sufficient advance warning.


     Appeal from the Arkansas Board of Review; affirmed.
     Jeffrey A. Weber, for appellant.
     Allan Pruitt, for appellee.

     Melvin Mayfield, Judge.  *ADVREP*CA5*
                           DIVISION II



                                        E 95-20


                                             JUNE 26, 1996


DOYNE D. BROWN                     AN APPEAL FROM THE ARKANSAS
                                   BOARD OF REVIEW
               APPELLANT

VS.                                

DIRECTOR, EMPLOYMENT               AFFIRMED
SECURITY DIVISION

               APPELLEE




                     Melvin Mayfield, Judge.


     Doyne Brown appeals from a decision of the Arkansas Board of
Review which denied his claim for unemployment benefits.
     Appellant filed a claim for unemployment benefits on August 8,
1994.  On August 30, 1994, appellant completed an "Arkansas
Employment Security Department Work Sheet" in which he stated he
quit because Larry Sigler questioned him about an insurance claim
he submitted for substance abuse treatment; that he felt that this
was an invasion of his privacy; and that he felt he could not
continue working under those conditions.  He also stated that his
wages and working hours had been reduced about a year prior to
August 30, 1994.  
     The agency found that appellant quit his job for undisclosed
reasons and denied benefits based upon Ark. Code Ann.  11-10-
513(A)(1) on the finding that appellant left his work voluntarily
and without good cause connected with the work.
     Appellant appealed to the Appeal Tribunal, and at a hearing
held October 19, 1994, appellant testified he walked off the job
because he was so outraged he felt it best to say nothing to
anyone.  He testified he was upset because Mr. Sigler, the
employer's president, told him he was not going to pay a health
insurance claim.  Appellant said Sigler asked about the claim and
it was appellant's understanding that this was illegal under the
Americans with Disabilities Act.  Appellant testified that he had
filed two claims for substance abuse treatment approximately eight
months previously, and only one was paid.  Appellant said the other
claim was paid six weeks after he was "constructively discharged." 
Appellant said he made no effort to discuss the problem with his
employer; that he was demoted approximately one year ago because of
a substance abuse insurance claim; and although he did not receive
a pay cut, his hours were reduced from 47 1/2 to 45 hours per week. 
Appellant testified further that he was not aware that, under the
Americans with Disabilities Act, there are situations where an
employer has the right to ask for assurances that an employee is
not currently using drugs.
     Terry Stalnaker testified he observed the confrontation
between Sigler and the appellant; he saw that appellant was very
upset; and he saw appellant go out the back door, but he did not
hear what was said.
     Barbara Brosett, the employer's office manager, testified that
the employer was a self-insured company with an administrator.  She
testified that Sigler has nothing to do with the insurance checks
and would not have the authority to stop a claim.  She said that on
the day in question Sigler opened the mail and said he would ask
appellant what he was on.  She testified that to her knowledge
appellant was not reduced in pay.
     The Appeal Tribunal denied benefits on the basis that
appellant voluntarily left his last work without good cause
connected with the work within the meaning of the law.  The referee
held there was insufficient evidence to show that appellant's wages
or hours were reduced, but that the evidence shows he primarily
quit because he became upset that the employer was questioning him
about his condition.
     The Board of Review affirmed the decision of the Appeal
Tribunal, and found:
     The evidence indicates that the claimant became upset
     when the president of the company asked him about a claim
     for drug rehabilitation costs, and walked off the job. 
     He acknowledged that he made no effort to resolve the
     problem before quitting, because of what he termed his
     "outrage." . . .  The claimant also contended that he was
     improperly demoted and reduced in pay.  He did not
     testify as to the date that occurred, but information in
     the record indicates that occurred in 1993.  Because of
     the remoteness in time, the Board cannot see how that
     could be considered part of the catalyst in his decision
     to quit on the day he did.

     On appeal to this court, the appellant argues that the Board's
decision is not supported by substantial evidence.
     On review of unemployment compensation cases, the factual
findings of the Board of Review are conclusive if they are
supported by substantial evidence.  Substantial evidence is valid,
legal and persuasive evidence; such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion. 
Victor Industries Corporation v. Daniels, 1 Ark. App. 6, 611 S.W.2d 794 (1981).  
     Appellant argues he had good cause to resign his employment
because he believed his insurance benefits were being wrongly
withheld from him.  In support of this argument he cites Young v.
Everett, 6 Ark. App. 295, 641 S.W.2d 39 (1982), but that case is
factually different from this case.  There, the appellant testified
that when he was hired the employer agreed to provide expenses for
any change in location of the job site.  But when the employer's
operation was moved to another county, the appellant was told the
employer would not pay his out-of-town expenses.  Appellant
resigned when he discovered his wages would not cover his expenses. 
     Here, the appellant left his job when he became upset because
his employer told him he was not going to pay an insurance claim. 
However, appellant admitted one claim had already been paid; the
other claim was paid six weeks after he quit; and there was
evidence that the employer did not have the authority to stop a
claim.  Moreover, appellant said he did not make an effort to
discuss the problem before walking off the job.  The taking of
appropriate steps to prevent a perceived misconduct from continuing
is an element to be considered in determining whether an employee
had good cause to quit work.  See Teel v. Daniels, 270 Ark. 766,
606 S.W.2d 151 (Ark. App. 1980).        
     In the instant case, we think the Board's decision is
supported by substantial evidence. 
     Appellant has also argued that because the record on appeal
was not timely filed the appellee should be estopped from denying
that appellant is entitled to unemployment benefits.  Appellant
says he filed his pro se petition for review on January 24, 1995;
the agency filed an answer on March 1, 1995; and the transcript of
the record was filed August 18, 1995.  The appellant argues the
record should have been filed within 90 days from the date the
petition was filed.  
     In support of this argument, appellant cites Wortham v.
Director of Labor, 31 Ark. App. 175, 790 S.W.2d 909 (1990), where
we issued a writ of certiorari requiring the record to be filed
because over five months had passed since the filing of the notice
of appeal, and the record was not yet filed.  Drawing upon the
requirement of the Rules of Appellate Procedure in appeals from
circuit and chancery courts, we held that a period of 90 days after
the filing of the notice of appeal was a reasonable time in which
to file the record in an appeal from the Board of Review. 
Appellant says the Wortham rule is meaningless unless a penalty is
enforced against the agency for failure to adhere to the rule.
     It is true that the appellee failed to file the transcript of
the record in this case until seven months after the date the 
appellant's petition was filed.  The problem is that Ark. Code Ann.
 11-10-529(b)(1) (Repl. 1996) provides that the Director of the
Arkansas Employment Security Department shall file a certified copy
of the record of the case, including all documents, papers, and a
transcript of the testimony, but does not specify a time period in
which this must be done.  In Wortham we granted a petition for writ
of certiorari and ordered that the record be transmitted within 30
days.
     Of course, if the Board were the appellant in this case there
would be precedent for dismissing the appeal.  See Coggins v.
Benton, 45 Ark. App. 189, 873 S.W.2d 820 (1994).  And if the
director had failed to file the record as required by a writ of
certiorari, it would not be improper for sanctions of some kind to
be applied.  But we do not think that we should, without some
advance warning, apply sanctions for simply failing to file the
record on appeal within 90 days after the notice of appeal has been
filed by a claimant.  However, we think it fair to state that this
court might in the future consider this opinion sufficient advance
warning.  
     Affirmed.
     Stroud and Neal, JJ., agree.