David L. McKissick v. Director, Employment Security Department and J.B. Hunt Transport, Inc.

David McKISSICK v. Ed ROLLE, Director of
Arkansas Employment Security Department, and
J.B. Hunt Transport, Inc.

E 97-212                                           ___ S.W.2d ___

                  Court of Appeals of Arkansas
                       Divisions II & III
                Opinion delivered April 15, 1998


1.   Unemployment compensation -- standard of review. -- In
     employment security cases, the appellate court reviews the
     findings of fact of the Board of Review in the light most
     favorable to the prevailing party, only reversing where the
     findings are not supported by substantial evidence;
     substantial evidence is such evidence that a reasonable mind
     would find adequate to support a conclusion; the credibility
     of the witnesses and the weight to be accorded their testimony
     are matters to be resolved by the Board of Review; even when
     there is evidence upon which the Board might have reached a
     different decision, the scope of judicial review is limited to
     a determination of whether the Board could reasonably reach
     its decision upon the evidence before it. 

2.   Unemployment compensation -- discharge for misconduct -- what
     constitutes misconduct. -- Arkansas Code Annotated  11-10-
     514(a) (Repl. 1996) provides that an individual shall be
     disqualified for benefits if he is discharged 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 the right to expect; 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 or recurrence as to manifest culpability, wrongful
     intent, evil design, or intentional disregard of the
     employer's interest; 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 to
     decide.

3.   Unemployment compensation -- appellant manifested substantial
     disregard of both his employer's interest and his own duties
     and obligations when he exceeded a safe driving speed -- Board
     of Review's determination supported by substantial evidence. -
     - The appellate court found that appellant manifested a
     substantial disregard of both his employer's interest and his
     own duties and obligations as an employee when he exceeded a
     safe driving speed under high-wind conditions, particularly
     since he had been counseled to either slow down or stop during
     inclement conditions, had agreed in writing to do so, and was
     on probationary status; there was substantial evidence to
     support the Board of Review's determination that appellant was
     terminated for misconduct connected with the work.

     Appeal from the Arkansas Board of Review; affirmed.
     No briefs filed.
     Affirmed.
     Margaret Meads, Judge.
     David L. McKissick appeals the decision of the Board of Review
which denied him benefits on the basis that he was discharged from
last work for misconduct connected with the work.  At issue in this
case, which is submitted without supporting briefs, is whether the
Board's finding of misconduct is supported by substantial evidence. 
We affirm.  
     Appellant was employed by J.B. Hunt Transport as an over-the-
road truck driver.  On June 14, 1996, while driving for his
employer, appellant's truck struck a car which was stopped on the
side of the interstate in heavy fog, totaling the car.  Appellant
was not cited for this accident, but the company considered it a
major preventable accident and placed him on one yearþs probation. 
Appellant was advised in a post-accident review with his employer
that in the future, when he encountered adverse weather conditions,
he should reduce his speed or stop until conditions improved. 
Further, appellant was assured there would be no adverse
consequences if he had to stop due to bad weather as long as he
contacted his fleet manager and kept him informed about the
situation.  Appellant signed the post-accident review report
acknowledging that he was on probation for one year and agreeing to
decrease his speed to meet driving conditions.  He was cautioned
that he was subject to termination in the event of another
preventable accident during the probationary period. 
     Appellantþs second accident occurred on April 30, 1997, while
he was still within his probationary period.  This accident
occurred when appellant's truck sideswiped a tanker truck in high
winds on the interstate, and he was cited for careless driving. In
his post-accident review following this incident, appellant
admitted that he was traveling at fifty-eight or fifty-nine miles
per hour.  Evidence revealed that the employerþs trucks are
governed at fifty-nine miles per hour.  Although he had been
instructed to decrease his speed or to stop during inclement
weather, appellant was driving as fast as the truck would travel. 
Appellant was discharged the day after the second accident
occurred.
     At the Appeal Tribunal hearing, appellant admitted that he had
received copies of the employeeþs and the driverþs manuals, and
that he had read and understood them.  Relevant portions of the
J.B. Hunt Driverþs Manual were introduced into evidence at the
hearing.  Under the heading þActions Which May Result In
Termination Without A Prior Warning,þ the following is listed: 
þMajor preventable accident or more than one minor preventable
accident.þ  Representatives of the employer testified that although
they considered the first accident to be major, the company decided
to give appellant further training and the opportunity to continue
driving.  
     Additionally, þReceipt of reckless or careless driving
citationþ is listed under the heading þActions Which Result In
Automatic Termination,þ in the driverþs manual.  The record clearly
reflects that appellantþs ticket from the second accident was for
careless driving.
     Our standard of review in employment security cases is well-
settled.  This court reviews the findings of fact of the Board of
Review in the light most favorable to the prevailing party, only
reversing where the findings are not supported by substantial
evidence.  Dray v. Director, 55 Ark. App. 66, 930 S.W.2d 390
(1996).  Substantial evidence is such evidence that a reasonable
mind would find adequate to support a conclusion.  Id.  The
credibility of the witnesses and the weight to be accorded their
testimony are matters to be resolved by the Board of Review. 
Anderson v. Director, 59 Ark. App. 266, 957 S.W.2d 712 (1997). 
Even when there is evidence upon which the Board might have reached
a different decision, the scope of judicial review is limited to a
determination of whether the Board could reasonably reach its
decision upon the evidence before it.  Perdrix-Wang v. Director, 42
Ark. App. 218, 856 S.W.2d 636 (1993).
     Arkansas Code Annotated  11-10-514(a) (Repl. 1996) provides
that an individual shall be disqualified for benefits if he is
discharged 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 the right to expect; and, (4) disregard of the
employee's duties and obligations to his employer.  Rucker v.
Director, 52 Ark. App. 126, 915 S.W.2d 315 (1996).  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 or recurrence as to manifest culpability, wrongful intent,
evil design, or intentional disregard of the employer's interest. 
Id.  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 to decide.  Id.
     Considering the facts of this case, we find that appellant
manifested a substantial disregard of both his employerþs interest
and his own duties and obligations as an employee when he exceeded
a safe driving speed under high-wind conditions, particularly since
he had been counseled to either slow down or stop during inclement
conditions, had agreed in writing to do so, and was on probationary
status.  We cannot say that there was not substantial evidence to
support the Board of Reviewþs determination that appellant was
terminated for misconduct connected with the work.
     Affirmed.
     Bird, Rogers, and Crabtree, JJ., agree.
     Robbins, C.J., and Roaf, J., dissent.   
     Andree Layton Roaf, Judge, dissenting.  I do not agree with the
majority that David McKissickþs two accidents in nearly sixteen
months of employment constitute þintentional misconductþ as this
court has defined it, so as to disqualify him for unemployment
benefits.  The majority opinion sets forth the circumstances of
both accidents and the reasons given by the employer for
terminating McKissick.  I will not repeat the facts other than to
point out that McKissick was terminated after a minor second
accident that occurred nearly a year after his first accident.  The
second accident occurred when a tanker truck attempted to pass
McKissick in high winds, and the two trucks sideswiped, causing
$699 in damages; McKissick was ticketed for careless driving. 
However justified his termination may have been, these facts fall
far short of the standard this court has articulated for misconduct
in unemployment cases.
     The majority opinion also correctly sets forth our definition
of þmisconductþ for purposes of unemployment compensation. See
Kimble v. Director, 60 Ark. App. 36, 959 S.W.2d 66 (1997); Rucker
v. Director, 52 Ark. App. 126, 915 S.W.2d 315 (1996).  However, in
Kimble, also involving a long-distance truck driver fired for
excessive preventable accidents, this court said that five
preventable accidents in a six-month period demonstrated a
þrecurring pattern of carelessness from which the Board was
permitted to infer a manifest indifference that constitutes a
substantial disregard for her employerþs interest.þ  
     Here, McKissickþs employer discharged him because he had two
accidents in a sixteen month period, both caused by his failure to
slow down or stop his truck during þinclement weather.þ  The Board
found that McKissick was þknowingly driving too fast for
conditionsþ in the second accident, and that his conduct was
reckless and manifested an intentional or substantial disregard of
his employerþs interest.
     It should be emphasized, however, that the inclement weather
at issue in the respective accidents was markedly different.  The
first accident occurred in heavy fog; the second in high winds. 
This significant difference in weather conditions supports a
finding, not of a þrecurring patternþ but rather of a one-time
error in judgment.  I find this conclusion particularly inescapable
because the second accident occurred when another professional
truck driver was attempting to pass McKissick. Surely, all at-fault
accidents will involve a violation of law and, in the case of a
professional truck driver, a disregard of the employerþs rules. 
However, McKissickþs accident record in his sixteen months of
employment simply does not present evidence of misbehavior of such
a degree or recurrence as to fall within our definition of
misconduct, and I would reverse for an award of benefits.
     Robbins, C.J., joins.