Rodriguez v. Director

Jane RODRIGUEZ v. DIRECTOR, Arkansas
Employment Security Department

E 95-40                                            ___ S.W.2d ___

                  Court of Appeals of Arkansas
                           Division IV
                Opinion delivered October 1, 1997


1.   Unemployment compensation -- standard of review. -- On appeal,
     the findings of fact of the Board of Review are conclusive if
     supported by substantial evidence; appellate court review is
     limited to determining whether the Board could reasonably
     reach its decision upon the evidence before it; the appellate
     court reviews the evidence and all reasonable inferences
     deducible therefrom in the light most favorable to the Board's
     findings.

2.   Unemployment compensation -- substantial evidence existed to
     support Board's finding that appellant failed to prove that
     ten or more people worked twenty or more weeks -- point
     affirmed. -- After reviewing the evidence, the appellate court
     was unable to say that there was no substantial evidence to
     support the Board of Review's finding that appellant failed to
     prove that ten or more people worked twenty or more weeks;
     under the appropriate standard of review, the point was
     affirmed. 

3.   Appeal & error -- neither authority nor convincing argument
     presented -- point affirmed. -- Where appellant's argument
     that the case should be remanded for further investigation by
     the appellee with regard to the cash payments made by the
     orchard was made without citation to any authority, the point
     was affirmed; where appellant fails to cite any authority or
     present any convincing argument, and it is not apparent
     without further research that appellant's position is well
     taken, the appellate court will affirm.


     Appeal from Arkansas Board of Review; affirmed.
     Jeffrey E. Levin, for appellant.
     Phyllis Edwards, for appellee.

     Judith Rogers, Judge.
     This is an appeal from the Board of Review's decision denying
appellant, Jane Rodriguez, unemployment benefits.  On appeal,
appellant argues that there is no substantial evidence to support
the Board's decision and that the case should be remanded for
further investigation.  We disagree and affirm.
     The record indicates that, since 1989, appellant had worked
for Shinn's Orchards planting, thinning, and harvesting peaches. 
She filed a claim for unemployment benefits in 1994.  However,
Shinn's Orchards did not pay unemployment-insurance taxes at the
time that appellant filed her claim.  A district tax field
representative was sent by the Employment Security Department (ESD)
to investigate whether or not Shinn's Orchards was an agricultural
employer and whether it was required to pay insurance benefits.  It
was determined that Shinn's Orchards was an agricultural business
employing agricultural labor.  The field representative
investigated the employer's checking account and determined,
however, that Shinn's Orchards was not a covered employer as
defined under Ark. Code Ann.  11-10-210(a)(5)(A) (Repl. 1996) and
was thus not required to pay unemployment insurance.  A hearing was
held before the Appeal Tribunal during which the field
representative and three people who had worked for Shinn's Orchards
testified.  The Appeal Tribunal found that Shinn's Orchards was a
covered employer and that appellant was entitled to unemployment
benefits.  The Board of Review disagreed and reversed the Appeal
Tribunal, finding that appellant had failed to prove that Shinn's
Orchard had employed ten or more employees for at least twenty
weeks or that Shinn's Orchard had paid $20,000 in remuneration
during any quarter in question.
     On appeal, the findings of fact of the Board of Review are
conclusive if supported by substantial evidence.  White v.
Director, 54 Ark. App. 197, 924 S.W.2d 823 (1996).  Our review is
limited to determining whether the Board could reasonably reach its
decision upon the evidence before it; we review the evidence and
all reasonable inferences deducible therefrom in the light most
favorable to the Board's findings.  Brown v. Director, 54 Ark. App.
205, 924 S.W.2d 492 (1996).
     Appellant argues that there is no substantial evidence to
support the Board's finding that Shinn's Orchard had not employed
ten or more employees for at least twenty weeks.  We disagree.
     Arkansas Code Annotated  11-10-210(a)(5) provides that
"employment" means:
          (5)  Service performed by an individual in
          agricultural labor as defined in subdivision
          (f)(1) of this section when:

          (A)  The service is performed for a person
          who:
          (i)  During any calendar quarter in either the
          current or the preceding calendar year paid
          remuneration in cash of twenty thousand
          dollars ($20,000) or more to individuals
          employed in agricultural labor; or
          (ii)  For some portion of a day in each of
          twenty (20) different calendar weeks, whether
          or not the weeks were consecutive, in either
          the current or preceding calendar year,
          employed in agricultural labor ten (10) or
          more individuals, regardless of whether they
          were employed at the same moment of time.


At the hearing, three people who had worked for Shinn's Orchard
testified concerning the number of people that had also worked for
Shinn's Orchard.  Appellant's husband testified that he worked
three days in 1993 during the thinning season, which would have
been at the end of May or June.  He said that he saw nine other
people working at that time.  He also testified that he and several
of the other workers had been paid in cash.  Tobby Allen, a
laborer, testified that he worked five weeks from June 25 through
July 30, 1993.  He also said that he saw about nine people working
during that time.  Appellant testified that she worked basically
year round.  She said that the thinning season lasted for two weeks
and that picking season lasted from the first of June through the
middle of August.  The workers revealed that Mr. Shinn was
essentially using Mexican laborers during the busy parts of the
peach season and paying several of them by cash.  When specifically
questioned by the referee why Mr. Shinn could not recall any of the
Mexicans that prior witnesses had testified worked for him, Mr.
Shinn stated, "No comment."   
     After reviewing the evidence, we are reluctantly unable to say
that there is no substantial evidence to support the Board's
finding that appellant failed to prove that ten or more people
worked twenty or more weeks.  We are bound by our standard of
review to affirm this point.
     Appellant also argues that this case should be remanded for
further investigation by the ESD with regard to the cash payments
made by Shinn's Orchards.  Appellant contends that it was the ESD's
responsibility to provide her with a thorough and competent
investigation so that she could establish her burden of proof. 
Appellant fails to cite to any authority in support of her argument
that it was ESD's duty to aid her in proving her claim.  Where
appellant fails to cite any authority or present any convincing
argument, and it is not apparent without further research that
appellant's position is well taken, we will affirm.  Equity Fire &
Cas. Co. v. Needham, 323 Ark. 22, 912 S.W.2d 926 (1996).  
     Without reaching appellant's argument, we feel compelled to
comment that Ark. Code Ann.  11-10-307 (Repl. 1996) gives the
Director of the Arkansas Employment Security Department the
authority to set up and maintain an enforcement unit.  The unit has
the power to conduct investigations "in connection with the
enforcement of this chapter to the end that fraudulent claims on
the part of the claimants and the violation of this chapter on the
part of employers may be curtailed to the minimum possible."  Ark.
Code Ann.  11-10-307(g)(1) (Repl. 1996).  Even though it is not
the duty of the ESD to aid appellant in proving her claim, it is
legislatively mandated that an investigation by the ESD, if
undertaken, be performed to curtail violations by employers.  In
this case, it is clear that the ESD investigated Shinn's Orchard;
however, from a review of the record it would appear that the
investigation was wholly inadequate to achieve the purpose set
forth in Ark. Code Ann.  11-10-307.
     Affirmed.
     Bird and Roaf, JJ., agree.