Rollins v. Director

Entron ROLLINS v. DIRECTOR, Employment
Security Department and Lamb And Associates,
Inc.

E 95-240                                           ___ S.W.2d ___

                  Court of Appeals of Arkansas
                      Divisions III and IV
                 Opinion delivered June 11, 1997


1.   Unemployment compensation -- review of Board's decision --
     substantial evidence defined. -- 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 appellate court reviews
     the evidence and all reasonable inferences deducible therefrom
     in the light most favorable to the Board's findings; review is
     limited to a determination of whether the Board could
     reasonably reach its decision based upon the evidence before
     it.
     
2.   Unemployment compensation -- discharge for misconduct
     disqualifies employee from receiving benefits -- what
     constitutes misconduct. -- An individual will be disqualified
     for benefits if he is discharged from his 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; misconduct requires more than mere inefficiency,
     unsatisfactory conduct, failure in good performance as the
     result of inability or incapacity, inadvertancies, ordinary
     negligence in isolated instances, or good-faith error in
     judgment or discretion, there must be an intentional or
     deliberate violation, a willful or wanton disregard, or
     carelessness or negligence of such degree or recurrence as to
     manifest wrongful intent or evil design; therefore, there is
     an element of intent associated with a determination of
     misconduct.

3.   Unemployment compensation -- actions of appellant insufficient
     to constitute misconduct -- case reversed and remanded for
     award of benefits. -- Where the misconduct at issue revolved
     around the words spoken by appellant to a co-worker
     immediately preceding a fight, and while it was true that the
     words used may have been spoken in poor judgment, appellant
     was found to have acted in self defense during the scuffle,
     and the appellate court could not say that the language used
     rose to the level of misconduct as defined by statute; even
     assuming that appellant spoke out of lack of judgment, his
     actions could not be said to constitute such negligence that
     they evidenced a malicious or willful intent; there was no
     evidence that appellant had ever engaged in such conduct on
     any job before this incident, thus, there was no recurrence of
     poor judgment; the case was reversed and remanded for award of
     benefits.


     Appeal from the Arkansas Board of Review; reversed and
remanded.
     No briefs filed.
     
     Olly Neal, Judge.
     Appellant, Entron Rollins, appeals the decision of the
Arkansas Board of Review disqualifying him from receiving
unemployment compensation benefits based on a finding that he was
discharged for misconduct connected with the work.  The issue
before us, in this appeal submitted without briefs, is whether the
Board's decision is supported by substantial evidence.  We hold
that it is not and reverse.
     Appellant worked for the employer as a machine helper for more
than a year.  The employer manufactures corrugated containers.  On
May 9, 1994, appellant entered the break room and found his lunch
sitting on a trash can.  Appellant asked the cleaning man if he
knew who put his lunch on the trash can.  The cleaning man
kiddingly said he put the lunch there.  During the exchange between
appellant and the cleaning man, a co-worker, Carl Jones,
intervened, telling appellant that the cleaning man did not put the
lunch on the trash can and implying that he knew who did.   
Appellant responded to Jones saying, "I'm not talking to you.  This
is between [me] and this guy.  What are you talking about?  You
need to shut up."  Jones responded, "You make me shut up."  
Appellant declined and walked out of the breakroom.  Jones followed
appellant out of the breakroom and according to appellant "got nose
to nose, right up in my face."  Jones then drew back his arm and it
appeared to appellant that appellant was going to be hit by Jones. 
Appellant grabbed Jones to avoid being hit.  They struggled until
the supervisors came and broke them apart.  Appellant had started
outside to smoke a cigarette, when Jones struck him from behind
with a two-by-four.  As Jones prepared to hit appellant a second
time, appellant ran into him to keep from being hit.  They again
struggled until the supervisors separated them.
     The Board found that the appellant twice retreated from
violence with Jones and only fought to the extent necessary and
reasonable to protect himself from physical attacks.  However, the
Board found that appellant's "harsh and provocative" speech led
directly to violent events and, as such, constituted misconduct
connected with the work.
     On appeal, the findings of fact of the Board of Review are
conclusive if they are supported by substantial evidence.  George's
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.
     Arkansas Code Annotated  11-10-514 (a)(1)  (Repl. 1996)
provides that an individual shall be disqualified for benefits if
he is discharged from his 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.  Greenberg v. Director, 53 Ark. App.
295, 922 S.W.2d 5 (1996).  However, as the court explained in
Nibco, Inc. v. Metcalf & Daniels, 1 Ark. App. 114, 613 S.W.2d 612
(1981):
          To constitute misconduct, however, the definitions
          require more than mere inefficiency, unsatisfactory
          conduct, failure in good performance as the result
          of inability or incapacity, inadvertancies, ordinary
          negligence in isolated instances, or good faith error
          in judgment or discretion.  There must be an inten-
          tional or deliberate violation, a willful or wanton
          disregard, or carelessness or negligence of such
          degree or recurrence as to manifest wrongful intent
          or evil design. Carraro v. Director, 54 Ark. App. 210,
          924 S.W.2d 819 (1996).  (Emphasis added.)

  
Therefore, there is an element of intent associated with a 

determination of misconduct.  George's, Inc., supra.
     In the present case, the misconduct at issue revolves around
the words spoken by the appellant to a co-worker immediately
preceding a fight.  Appellant was found to have acted in self
defense during the scuffle, but the Board of Review found that he
was guilty of misconduct by saying what amounted to "stop meddling
in my business" and "shut up" to the co-worker, because those words
were "harsh and provocative."  While it is true that these words
may have been spoken in poor judgment, we cannot say that they rise
to the level of misconduct as defined by statute and as applied by
this court.  Even assuming that appellant spoke out of lack of
judgment, his actions can not be said to constitute such negligence
that they evidence a malicious or willful intent.  Furthermore,
there was no evidence that appellant had ever engaged in such
conduct on any job before this incident; thus, there was no
recurrence of poor judgment in this case.
     Reversed and remanded for award of benefits.
     Roaf, Griffen, Jennings, and Bird, JJ., agree.
     Pittman, J., dissents.


              John Mauzy Pittman, Judge, dissents.


     I dissent from a reversal of the Board's decision because it
represents a departure from our standard of review.
     The Board found that the employer discharged appellant for a
cause that involved appellant's willful disregard of the employer's
interests and his willful failure to conform to a standard of
behavior that the employer had a right to expect of its employees. 
Specifically, the Board found that (1) appellant was not without
fault in the incidents that led to his discharge; (2) appellant
knew that the coworker was apt to cause trouble among employees in
the work place; (3) appellant addressed the coworker in a manner
that was both unnecessary and unreasonable; and (4) appellant's
words were provocative and led to the events that caused the
physical confrontation that resulted in his discharge.
     It is for the Board to translate the evidence before it into
findings of fact, and it is our function, upon review, only to
determine whether those findings are supported by substantial
evidence.  As noted by the Board, appellant, a long-term employee,
knew that the coworker was an individual who meddled in the
business of other employees.  Thus, the Board reasoned that this
was not a case of mere inefficiency or the failure of good
performance as the result of inability, but rather a case where the
appellant's actions manifested an intentional disregard of his
employer's interest, and that appellant should have anticipated the
coworker's reaction.  The majority's characterization of
appellant's words as "spoken in poor judgment" does not take into
account the Board's finding that appellant should have known that
his comments would provoke a response.
     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 of Review to decide.  Ark. Code Ann.
 11-10-514(a); Rucker v. Director, 52 Ark. App. 126, 915 S.W.2d 315 (1996).  I think that the Board's denial of unemployment
compensation based on a finding of misconduct is supported by
substantial evidence and should be affirmed.