The Worksource, Inc. v. Director, Employment Security Department

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e03-118

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

THE WORKSOURCE, INC.

APPELLANT

V.

DIRECTOR, ARKANSAS EMPLOYMENT SECURITY DEPARTMENT

APPELLEE

E03-118

March 24, 2004

APPEAL FROM THE ARKANSAS BOARD OF REVIEW

[NO. 2003-BR-384]

AFFIRMED

John Mauzy Pittman, Judge

The claimant in this unemployment compensation case filed a claim for benefits alleging that he was terminated from his employment with appellant, Worksource, Inc., for reasons other than misconduct connected with the work. After a hearing, the Board of Review found that the claimant was in fact terminated for reasons other than misconduct, and awarded benefits. From that decision, comes this appeal.

For reversal, appellant contends that the Board erred in finding that the claimant was terminated for reasons other than misconduct, and that the Board erred in failing to remand the case for the taking of additional evidence. We find no error, and we affirm.

Arkansas Code Annotated ยง 11-10-514(a) (Repl. 2002) 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. George's Inc. v. Director, 50 Ark. App. 77, 900 S.W.2d 590 (1995). 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. McKissick v. Director, 61 Ark. App. 266, 966 S.W.2d 921 (1998).

On appeal, we review the findings of fact of the Board of Review in the light most favorable to the prevailing party, Niece v. Director, 67 Ark. App. 109, 992 S.W.2d 169 (1999), and we will affirm the decision of the Board if it is supported by substantial evidence. Rankin v. Director, 78 Ark. App. 174, 79 S.W.3d 885 (2002). Substantial evidence is such evidence that a reasonable mind would find adequate to support a conclusion. Niece v. Director, supra. The credibility of the witnesses and the weight to be accorded their testimony are matters to be resolved by the Board. Id. The question is whether the Board could reasonably reach its decision upon the evidence before it. Rodriguez v. Director, 59 Ark. App. 8, 952 S.W.2d 186 (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. Niece v. Director, supra.

Viewing the evidence in light of these principles, the record shows that the claimant was a salaried employee of appellant. He worked for appellant from 1998 to 2002. During that time, the only day he missed work was when his father died in 2001. The claimant's work hours varied somewhat, but he had stopped working weekends in the early part of 2001, after which time weekend work was voluntary. At approximately 3:30 on the afternoon of Friday, October 18, 2002, another employee of appellant, Marsha Mansfield, instructed the claimant to gather together approximately two file boxes of papers from an office and carry them upstairs. This was required so that the office would be available the following Monday morning. When the claimant began to do the work, he was told that he could not do it at that time, but must instead come to work on the following day, Saturday, to do it. The claimant explained to Ms. Mansfield that he could not do so because he was a single parent and had a prior commitment to take his son out of town for a school-sponsored junior symphony event. He also explained that this was a graded portion of his son's schooling, that participation in the school band was contingent on his son's attendance, and that it was necessary for his son to be accompanied by a parent during the entire event. Finally, the claimant informed Ms. Mansfield that he would return from the event on Saturday evening and inquired why the work could not be performed at a time other than Saturday. Ms. Mansfield replied that he must come in on Saturday to do the work or be terminated. The claimant stated that he could not do the work on Saturday and was told that he did not have a job and was instructed to leave the premises. The claimant attempted to preserve his job by contacting the owner of the business, but this was unavailing.

Noting that the claimant's refusal to perform that task on Saturday when it could easily have been performed on Sunday was an isolated incident, that he had a legitimate reason for his refusal to come in on that day, and that he made numerous attempts to solve the problem in a mutually agreeable way, the Board found that the claimant's conduct was not of such a degree or recurrence as to manifest culpability, wrongful intent, evil design, or intentional disregard of the employer's interest. Viewing this evidence in light of the applicable standard of review, we cannot say that the Board erred in finding that the claimant was terminated for reasons other than misconduct.

Appellant also argues that, because the Board stated in its opinion that it was hampered by a lack of evidence from the employer, it was error for the Board to decide the case on the evidence before it rather than ordering a remand for the taking of additional evidence. We do not agree. Whether or not to remand for the taking of additional evidence is a matter within the sound discretion of the Board, and nothing in the law requires a second hearing so long as each side has notice of and a fair opportunity to rebut the evidence of the other party. Fry v. Director of Labor, 16 Ark. App. 204, 698 S.W.2d 816 (1985). We agree with the Board's conclusion that appellant was in fact provided with such notice and opportunity in the present case, and we therefore hold that it did not abuse its discretion by not ordering a remand.

Affirmed.

Gladwin and Baker, JJ., agree.