Michael Hudgins v. Director, Employment Security Department and Petromark, Inc.

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

KAREN R. BAKER, JUDGE

DIVISION IV

MICHAEL HUDGINS

APPELLANT

V.

DIRECTOR EMPLOYMENT SECURITY DEPARTMENT and PETROMARK INC.

APPELLEE

E99-170

MAY 16, 2001

APPEAL FROM THE ARKANSAS BOARD OF REVIEW

[NO. 99-BR-00758]

AFFIRMED

Appellant, Michael A. Hudgins, brings this appeal from a decision by the Arkansas Board of Review. The Employment Security Department (ESD) awarded appellant unemployment insurance benefits. Appellee, Petromark, Inc., employer, appealed the decision of the ESD to the Arkansas Appeal Tribunal, which reversed the ESD's decision based on a finding that appellant was discharged from work for misconduct in connection with his work. The Arkansas Board of Review (Board) upheld the Appeal Tribunal's decision. Appellant has three points on appeal. First, appellant argues that the Board erred in refusing appellant a new hearing and for allowing witnesses to testify. Second, appellant argues the Board's findings of fact were not consistent with the record. Third, appellant argues the Board erred in its finding of willful misconduct as defined by Arkansas law. We affirm.

Appellant was employed by appellee, Petromark, Inc., as a zone manager for a chain

of convenience stores. Appellant's employment lasted approximately two years. During the time appellant worked as a zone manager, his job responsibilities included such things as ensuring merchandise was available in the stores in his zone and arranging for advertising promotions. He also was responsible for increasing sales for two specific locations, the ice cream and hot food outlets. Furthermore, appellant was responsible for keeping his company van in good condition.

During a hearing conducted before the Appeal Tribunal, testimony demonstrated that appellant did not fulfill his job responsibilities while employed for appellee. For example, testimony from John Zima, director, revealed that appellant failed to get merchandise from the warehouse to the store locations within his zone. Specifically, as late as January 1999, when an inventory was taken at the warehouse, items such as wild life knives and ice scrapers were still present in the warehouse, which had been there since inventory was conducted in June 1998. Therefore, appellant failed to move the items to the store locations in a timely manner, resulting in the items being unavailable to sell during the period of time when they were more likely to be sold. Appellant also failed to keep his company van in good condition. Testimony showed that Mr. Zima informed appellant that his vehicle had to be cleaned and maintained, however, appellant failed to do so. When a problem arose with the radio promotion for which appellant was responsible, appellant was asked to assist in resolving the problem by providing the company's comptroller with contractual agreements and purchase receipts from the radio station. At the time appellant wasdischarged, he had still failed to help remedy the problem. In addition to his failure to follow through with the radio promotion, appellant also failed to follow through and recover missing t-shirts that appellee had ordered for promotion purposes. When the original order arrived, forty-eight shirts were missing. Appellant was instructed to follow through with the supplier of the shirts and obtain the missing shirts. The shirts were not received until approximately four months later. On February 17, 1999, appellant was discharged for poor job performance.

On appeal, the findings of fact of the Board are conclusive if they are supported by substantial evidence. Perry v. Gaddy, 48 Ark. App. 128, 891 S.W.2d 73 (1995) (citing Perdrix-Wang v. Director, 42 Ark. App. 218, 856 S.W.2d 636 (1993)). We review the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Board's findings. Id. This Court will determine whether the Board could reasonably reach its results upon the evidence before it, but will not replace its judgment for that of the Board even though this Court might have reached a different conclusion based upon the same evidence the Board considered. Greenberg v. Director, 53 Ark. App. 295, 922 S.W.2d 5 (1996).

Appellant first asserts that the Board erred in refusing appellant a new hearing and for allowing witnesses to testify. Appellant specifically argues that the appellee should not have been allowed to present testimony to the Appeal Tribunal because they notified the Appeal Tribunal twenty-three hours and forty-eight minutes prior to the actual time of the hearing of the names of their witnesses instead of the twenty-four hours as stated in the instructions. Arkansas Code Annotated § 11-10-526(a)(1) (Supp. 1999) states, The Board of Review, appeal tribunal, and special examiners shall not be bound by common law or statutory rules of evidence or by technical rules of procedure, but any hearing or appeal before the tribunals shall be conducted in such manner as to ascertain the substantial rights of the parties.

Thus, the Board is not bound by technical rules of procedure, and had the discretion to rule as it did concerning a new hearing and witness testimony.

Second, appellant argues that the Board's findings of fact were not consistent with the record. Although there was disputed testimony regarding the specific findings of misconduct on the part of the appellant, it is for the administrative agency, sitting as fact-finder, to determine the weight to be accorded the evidence before it. See, e.g., Beeson v. Landcoast, 43 Ark. App. 132, 862 S.W.2d 846 (1993). The credibility of witnesses and the drawing of inferences from the testimony are for the Board, not this court. Baker v. Director, 39 Ark. App. 5, 832 S.W.2d 864 (1992). We do not substitute our findings for those of the Board even though we might have reached a different conclusion had we made the original determination upon the same evidence. Shipley Baking Co. v. Stiles, 17 Ark. App. 72, 703 S.W.2d 465 (1986). It is clear that the finder of fact simply placed moreweight on the testimony of John Zima, Director of Operations, than on the testimony of appellant.

Third, appellant asserts the Board erred in finding that he was discharged for willful misconduct. A person is disqualified from benefits if discharged from his last work for misconduct in connection with the work. Ark. Code Ann. § 11-10-514(a)(1) (Supp. 1999). "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 standard's 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, supra. Mere inefficiency, unsatisfactory conduct, failure of good performance as a result of inability or incapacity, inadvertence, and ordinary negligence or good faith errors in judgment or discretion are not considered misconduct for unemployment insurance purposes unless they are of such a degree or recurrence as to manifest culpability, wrongful intent, evil design, or an intentional or substantial disregard of an employer's interests or of an employee's duties and obligations. Shipley Baking Co. v. Stiles, supra.

However, a finding of misconduct may be supported when the evidence shows a recurring pattern of carelessness from which the Board might infer a manifest indifference that constitutes a substantial disregard of the employer's interests, as well as a substantial disregard of the employee's duties and obligations to the employer. See Kimble v. Director, 60 Ark. App. 36, 959 S.W.2d 66 (1997).

Testimony showed that appellant repeatedly failed to perform his job duties asrequired. The director, Mr. Zima, testified that appellant failed to move merchandise to the stores in his zone. Therefore, merchandise was not available in the stores for sale during the appropriate season. After being warned, appellant's company vehicle was not cleaned and presentable. When asked to help solve a problem with the radio promotion, appellant made no efforts toward assisting in a solution, even when he signed the contracts at the root of the problem. As a result of appellant's failure to assist, the company's comptroller was recruited to help solve the problem. Appellant was unsuccessful in increasing sales in two of the companies locations, which was one of appellant's primary focus areas as a zone manager. Finally, appellant failed to assist when an incomplete order of t-shirts arrived for a promotion; it was not until approximately four months later that the shirts were received without appellant's assistance.

In reaching its decision, the Board noted that appellant's pattern of omissions was of such degree as to display a willful disregard of his obligations to the employer, and violated a standard of behavior the employer had a right to expect of an employee in appellant's position. The Board held that the totality of appellant's actions constituted misconduct.

From our review of the record, we find there is substantial evidence to support the Board's decision.

Affirmed.

Jennings and Robbins, JJ., agree.