{ "id": 6138437, "name": "Sherman RUCKER v. Phil Price, DIRECTOR, and Townsends of Arkansas, Inc.", "name_abbreviation": "Rucker v. Price", "decision_date": "1996-02-21", "docket_number": "E 94-223", "first_page": "126", "last_page": "140", "citations": [ { "type": "official", "cite": "52 Ark. App. 126" }, { "type": "parallel", "cite": "915 S.W.2d 315" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "31 Ark. App. 81", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6137496 ], "weight": 2, "year": 1990, "opinion_index": 0, "case_paths": [ "/ark-app/31/0081-01" ] }, { "cite": "9 Ark. App. 59", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6137142 ], "weight": 3, "year": 1983, "opinion_index": 0, "case_paths": [ "/ark-app/9/0059-01" ] }, { "cite": "50 Ark. App. 77", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6137446 ], "weight": 6, "year": 1995, "opinion_index": 0, "case_paths": [ "/ark-app/50/0077-01" ] }, { "cite": "42 Ark. App. 218", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6140277 ], "weight": 7, "year": 1993, "opinion_index": 0, "case_paths": [ "/ark-app/42/0218-01" ] }, { "cite": "637 N.E.2d 631", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "pin_cites": [ { "parenthetical": "policy adopted because it \"was mandatory to retain government contracts\"" } ], "opinion_index": 1 }, { "cite": "655 P.2d 242", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1982, "opinion_index": 1 }, { "cite": "98 Wash. 2d 370", "category": "reporters:state", "reporter": "Wash. 2d", "case_ids": [ 1151236 ], "year": 1982, "opinion_index": 1, "case_paths": [ "/wash-2d/98/0370-01" ] }, { "cite": "2 Ark. App. 125", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6138677 ], "weight": 2, "year": 1981, "pin_cites": [ { "page": "127" }, { "page": "31" } ], "opinion_index": 1, "case_paths": [ "/ark-app/2/0125-01" ] }, { "cite": "Ark. Code Ann. \u00a7 11", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "opinion_index": 1 }, { "cite": "Ark. Code Ann. \u00a7 11-10-107", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1987, "pin_cites": [ { "page": "(a)" } ], "opinion_index": 1 }, { "cite": "Ark. Code Ann. \u00a7 11-10-514", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 5, "pin_cites": [ { "page": "(b)" }, { "page": "(a)", "parenthetical": "both the 1993 and 1995 supplements contain the same provisions as far as section 11-10-514 is concerned" }, { "page": "(a) and (b)" } ], "opinion_index": 1 }, { "cite": "31 Ark. App. 81", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6137496 ], "weight": 4, "year": 1990, "pin_cites": [ { "page": "84" }, { "page": "908" } ], "opinion_index": 1, "case_paths": [ "/ark-app/31/0081-01" ] }, { "cite": "9 Ark. App. 59", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6137142 ], "weight": 2, "year": 1983, "opinion_index": 1, "case_paths": [ "/ark-app/9/0059-01" ] }, { "cite": "50 Ark. App. 77", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6137446 ], "weight": 4, "year": 1995, "opinion_index": 1, "case_paths": [ "/ark-app/50/0077-01" ] } ], "analysis": { "cardinality": 899, "char_count": 28012, "ocr_confidence": 0.901, "pagerank": { "raw": 4.152747779910727e-07, "percentile": 0.9115788217768681 }, "sha256": "b055c1114d42b5d19ae85146bec3dd2937a0ae97e33fe4b7f84a1002d97ab4fe", "simhash": "1:151fe5122584c618", "word_count": 4657 }, "last_updated": "2023-07-14T22:09:48.648567+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Bullion, S.J., agrees.", "Mayfield and Robbins, JJ., dissent.", "Cooper, J., not participating." ], "parties": [ "Sherman RUCKER v. Phil Price, DIRECTOR, and Townsends of Arkansas, Inc." ], "opinions": [ { "text": "Judith Rogers, Judge.\nThe Board of Review affirmed and adopted the decision of the Appeal Tribunal disqualifying appellant, Sherman Rucker, from receiving unemployment compensation benefits based on a finding that he was discharged for misconduct connected with the work. In this unbriefed appeal, the issue before us is whether the Board\u2019s decision is supported by substantial evidence. We hold that it is so supported, and affirm.\nAppellant was employed by Townsends of Arkansas, Inc. In October of 1990, Townsends implemented a chemical substance and alcohol abuse policy with the goal of establishing a drug-free workplace. When appellant was hired in April of 1991, he signed a consent form agreeing to abide by the terms and conditions of the policy. Townsends\u2019 policy did not provide for random drug testing; however, testing was required of applicants seeking employment and of employees who were reasonably suspected of being under the influence of illegal drugs, controlled chemical substances and alcohol. Testing was also required of employees who were injured on the job, when the injury required treatment by a physician. The policy contained a listing of prohibited substances and set out levels of those substances, and alcohol, which would not be permitted. The policy called for the automatic termination of an employee whose test yielded such a positive result, although employees were given the opportunity for a second test, at their own expense.\nAppellant worked as a trainer in the wing department. On June 1, 1994, a Wednesday, he sliced his hand with a knife while cutting a cardboard box. Seven stitches were required to repair the injury. On the day of the accident, appellant submitted a urine sample for testing. He was fired, effective June 7, 1994, for failing to pass the test. It was said that the test revealed a positive result for a non-prescription, controlled substance. However, in keeping with the company\u2019s policy of confidentiality, the particular drug was not named. Appellant did not request a second test.\nAppellant testified of his awareness of the drug policy, including the provision calling for automatic termination should he fail a drug test following a work-related injury. He denied that he had taken any drugs on the day of the accident, but he said that he had \u201csmoked a joint\u201d during the Memorial Day weekend.\nOn this evidence, the Board ruled that appellant was discharged for misconduct connected with the work, finding that he had violated a company rule and that his conduct was in disregard of his employer\u2019s interest. The Board, declined, however, to deny benefits under Ark. Code Ann. \u00a7 ll-10-514(b) (Supp. 1993), which provides for further disqualification for reporting to work under the influence of intoxicants, including controlled substances.\nOn appeal, the findings of facts of the Board of Review are conclusive if they are supported by substantial evidence. Perdrix-Wang v. Director, 42 Ark. App. 218, 856 S.W.2d 636 (1993). 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\u2019s findings. Id. Our review is limited to a determination of whether the Board could reasonably reach its decision upon the evidence before it. Id.\nArkansas Code Annotated \u00a7 ll-10-514(a) (Supp. 1993) provides that an individual shall be disqualified for benefits if he is discharged for misconduct in connection with the work. \u201cMisconduct,\u201d for purposes of unemployment compensation, involves: (1) disregard of the employer\u2019s interest; (2) violation of the employer\u2019s rules; (3) disregard of the standards of behavior which the employer has the right to expect; and, (4) disregard of the employee\u2019s duties and obligations to his employer. George\u2019s Inc. v. Director, 50 Ark. App. 77, 900 S.W.2d 590 (1995). 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 of recurrence as to manifest culpability, wrongful intent, evil design, or intentional disregard of the employer\u2019s interest. Id. Whether an employee\u2019s 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.\nAt the hearing, appellant argued that he should not be penalized for his off-duty conduct. At first blush, such an argument brings to mind our decision in Feagin v. Everett, 9 Ark. App. 59, 652 S.W.2d 839 (1983). In Feagin, we recognized that misconduct in connection with the work can occur while an employee is off duty. There, a teacher was fired after criminal charges had been filed against her for the possession of a controlled substance, which had been found in her home. In affirming the Board\u2019s finding of misconduct, we adopted a three-part test for determining whether an employee\u2019s off-duty conduct will be considered misconduct in connection with the work. First, there must exist a nexus between the employee\u2019s work and his or her off-duty activities. Second, it must be shown that the off-duty activities resulted in harm to the employer\u2019s interests. And third, the off-duty conduct must be violative of some code of behavior contracted between the employer and employee, and the employee\u2019s conduct must be done with the intent or knowledge that the employer\u2019s interests would suffer.\nThe decision in Feagin v. Everett, id., however, does not gpvern our review of the instant case. We have recognized that misconduct may also be found for the intentional violation of an employer\u2019s rules. In Grace Drilling Co. v. Director, 31 Ark. App. 81, 790 S.W.2d 907 (1990), the employer had developed a safety program which included drug testing on a random basis. The policy prohibited employees from having \u201cany detectable level of alcohol, drugs, or controlled substances, or any combination thereof, in the body.\u201d The employee was discharged after failing a drug test. The Board of Review awarded unemployment compensation benefits. We reversed, holding that the employee\u2019s actions constituted misconduct in connection with the work in that the employee\u2019s positive test result represented a deliberate violation of the employer\u2019s rules, as well as a willful disregard of the standard of behavior which the employer had a right to expect. More recently, we decided the case of George\u2019s Inc. v. Director, 50 Ark. App. 77, 900 S.W.2d 590 (1995). The employer in that case had also adopted a drug policy, and the employee was fired after testing positive for a detectable amount of a controlled substance which had not been prescribed to him. We disagreed with the Board\u2019s conclusion that the employer\u2019s drug policy was not reasonable, and we held that the employee was discharged for the violation of the employer\u2019s rules. We remanded for the Board to make a finding of fact as to whether the employee\u2019s violation of the employer\u2019s rule was intentional, since the Board had not addressed that pivotal issue.\nIn reviewing this case, we are guided by the decisions in Grace Drilling Co. v. Director, supra, and George\u2019s Inc. v. Director, supra. We conclude that appellant was not discharged for off-duty conduct, but that he was terminated pursuant to the employer\u2019s policy requiring the discharge of any employee who tested positively for drugs in excess of the designated tolerance levels. As appellant\u2019s conduct was in violation of the employer\u2019s rules, we hold that he was discharged for misconduct in connection with the work. Noting that appellant had agreed to be bound by the policy and that he was thus aware of its terms and the ramifications for failing a test, the Board found that appellant\u2019s conduct was intentional. We cannot say that the Board\u2019s decision of disqualification is not supported by substantial evidence.\nAffirmed.\nBullion, S.J., agrees.\nMayfield and Robbins, JJ., dissent.\nCooper, J., not participating.\nIn Grace Drilling Co. v. Director, supra, we observed that it was not unreasonable for the employer to implement a drug policy given the dangerous nature of employer\u2019s business. In George\u2019s Inc. v. Director, supra, we stated that a prerequisite to finding misconduct for the violation of an employer\u2019s rule is that the rule be \u201creasonable.\u201d The record in this case contains no evidence describing Townsends\u2019 business or appellant\u2019s job duties. In sum, no argument was made below challenging the reasonableness of Townsends\u2019 drug policy. We thus do not consider this question as being within the realm of contested issues, and thus we can offer no opinion on the matter. This court does not consider issues raised for the first time on appeal. Perdrix-Wang v. Director, 42 Ark. App. 218, 856 S.W.2d 636 (1993).", "type": "majority", "author": "Judith Rogers, Judge." }, { "text": "Melvin Mayfield, Judge,\ndissenting. I cannot agree to affirm the decision of the Board of Review in this case. The Board found that the decision of the Appeal Tribunal was \u201ccorrect, both as to findings of fact and conclusions of law,\u201d and stated: \u201cThat decision is hereby adopted as the decision of the Board of Review.\u201d Therefore, we must focus on the decision of the Appeal Tribunal, the gist of which is found in the following paragraphs.\nThe claimant admits that he smoked marijuana approximately two days before the test was given. He argues that the employer has no right to determine what an employee can or cannot do on his own time. However, the law does give the employer the right to implement a drug and alcohol policy and to discharge an employee who fails to observe the policy. The claimant testified that he was aware of the policy, and was aware that he would be discharged if he tested positive. He admits he knew this before he chose to use a controlled substance. While an employer may not have the right to dictate an employee\u2019s personal life, the employer does have the right to take action against the employee when his personal life is carried over into his employment. The claimant knew the possible consequences of his actions, and chose to take that risk. He lost. His actions indicate an intentional disregard for the employer\u2019s interests. Therefore, the claimant was discharged for misconduct in connection with the work.\nThe employer failed to indicate to what extent the claimant tested positive. As a result, the Tribunal can not reach a determination as to whether or not the claimant reported while under the influence. Although the claimant admits that he smoked marijuana approximately two days before the test, this does not establish the extent of the influence when he reported to work. Ark. Code Ann. \u00a7 11-10-514(b) disqualifies a claimant for a longer period if the employee reports to work under the influence. In this case, the evidence does not support such a finding. That section of law does not indicate that the mere use of narcotics should lead to the greater disqualification. Therefore, the claimant was discharged for misconduct, but not on account of reporting to work while under the influence of a controlled substance.\n(Emphasis added.)\nIt is important to note that the last sentence in the second paragraph actually finds that the appellant was not discharged for misconduct \u201con account of reporting to work under the influence of a controlled substance.\u201d Therefore, the denial of unemployment benefits to appellant is based solely on findings made in the first paragraph, and one of those findings would allow an employer to discharge an employee who uses a controlled substance while not at work and who does not report to work under the influence of such substance.\nThis point was specifically raised by the appellant who told the referee at the Appeal Tribunal hearing that he had \u201csmoked a joint during the Memorial Weekend\u201d but also said, \u201cI don\u2019t feel that should have anything to do with my job though.\u201d The referee, however, thought differently and said in her findings in the first paragraph quoted above: \u201cHowever, the law does give the employer the right to implement a drug and alcohol policy and to discharge an employee who fails to observe the policy.\u201d\nIn the first place, taken in its compete and unlimited sense, this statement is wrong. No authority is cited by the referee, by the Board, or by the majority opinion to support this statement in its complete and unlimited sense. It is true that in June of 1994, when appellant was tested positive for a controlled substance, Ark. Code Ann. \u00a7 ll-10-514(b) (Supp. 1995) was in effect and provided that an employee shall be disqualified for unemployment benefits if he is discharged for misconduct for \u201creporting for work while under the influence of ... a controlled substance, or willful violation of the rules or customs of the employer pertaining to the safety of fellow employees or company property . . . .\u201d But the Appeal Tribunal specifically found that the appellant did not report to work under the influence of a controlled substance. So, that provision does not apply here.\nI will discuss later the provision about the willful violation of the rules or customs of the employer, but now I want to finish the point that the Appeal Tribunal erred in making the unqualified statement that the law gives an employer the right to implement a drug policy and discharge an employee who violates it. Of course, the employer has such a right if we put aside the consequences of such action as it relates to the entitlement of unemployment benefits. An employee can be fired, but such employee will be entitled to unemployment benefits unless we factor into that statement some conditions or limitations.\nThe majority opinion does not attempt to support the referee\u2019s unlimited and unconditional statement that the employee has the right to adopt a drug policy and discharge an employee who fails to observe it, but does cite George's Inc. v. Director, 50 Ark. App. 77, 900 S.W.2d 590 (1995), which held that such a policy was reasonable in that case. However, that opinion, in its opening paragraph, states that the appellant there argued that the Board of Review\u2019s finding that the drug policy in that case was unreasonable was not supported by substantial evidence. This court agreed that the Board was wrong in finding the policy unreasonable in that case. But that is not the issue now under discussion. At this point, I am discussing the finding of the Appeal Tribunal, adopted by the Board of Review, which stated without qualification that \u201cthe law does give the employer the right to implement a drug and alcohol policy and to discharge an employee who fails to observe the policy.\u201d I contend that this finding is wrong if it means that this finding alone will disqualify an employee from receiving unemployment benefits. The law simply does not give an employer such an unlimited right.\nMoreover, the fact that an employee agrees to such a policy does not waive the employee\u2019s right to unemployment compensation. This is true for the simple reason that the Arkansas Employment Security Law so provides. Ark. Code Ann. \u00a7 11-10-107(a) (1987) clearly states that \u201cAny agreement by an individual to waive, release, or commute his rights to benefits or any other rights under this chapter shall be void.\u201d\nTherefore, I think the Board was clearly wrong in holding that this decision of the Appeal Tribunal was \u201ccorrect, both as to the findings of fact and conclusions of law.\u201d\nI now return to that part of Ark. Code Ann. \u00a7 11 -10-514(b) (Supp. 1995) which provides that an employee shall be disqualified for unemployment benefits if he is discharged for a \u201cwillful violation of the rules or customs of the employer pertaining to the safety of fellow employees or company property.\u201d It should be noted that this is a very narrow provision, and it does not appear to be relied upon to support the majority opinion. As I read the majority opinion, it relies upon Ark. Code Ann. \u00a711-10-514(a) (Supp. 1995) (both the 1993 and 1995 supplements contain the same provisions as far as section 11-10-514 is concerned). The provision in subsection (b) that states \u201cor willful violation of the rules or customs of the employer pertaining to the safety of fellow employees or company property\u201d may relate to reporting for work under the influence of \u201cintoxicants including a controlled substance,\u201d and in that case it has no relevance here because the Appellee Tribunal found that the evidence did not support a finding that the appellant reported to work while under the influence of a controlled substance.\nHowever, if this provision includes an employee who reports to work \u2014 not under the influence of intoxicants or a controlled substance but, as applied to this case, in such a condition that he tests positive for a controlled substance in willful violation of a rule or custom of the employer pertaining to the safety of fellow employees or company property \u2014 then we must focus upon the rule as it applies to the \u201csafety\u201d of the fellow employees and company property. Thus, the Appeal Tribunal\u2019s findings, adopted by the Board, that \u201cthe law does give the employer the right to implement a drug and alcohol policy and to discharge an employee who fails to observe the policy\u201d is not sufficient to deny benefits to the appellant in this case because the finding does not reach the safety issue, and there is no evidence in the record on that point.\nAt this point, however, I want to discuss the application of both Ark. Code Ann. \u00a7 11-10-514(a) and (b) to this case. Of course, it is subsection (a) that is relied upon by the majority, but both subsections are properly considered together at this point. And in that connection, I note that there is a finding by the Appeal Tribunal that does come close to being a correct statement of the law and which relates to the appellant\u2019s contention that the \u201cjoint\u201d he smoked \u201cduring the Memorial Weekend . . . should not have anything to do with my job.\u201d This statement, which appears in the first paragraph quoted at the beginning of this dissent is as follows:\nWhile an employer may not have the right to dictate an employee\u2019s personal life, the employer does have the right to take action against the employee when his personal life is carried over into his employment.\nAlthough I do not think this is an exact statement of the law, it is close enough for us to reach the real issue in the case \u2014 which I submit the majority has failed to do.\nThe case of Feagin v. Everett, 9 Ark. App. 59, 652 S.W.2d 839 (1983), is cited by the majority in response to appellant\u2019s argument that \u201che should not be penalized for his off-duty conduct,\u201d but the majority rejects its application to the instant case by stating that it \u201cdoes not govern our review of the instant case.\u201d The apparent rationale for this conclusion is the next statement \u2014 \u201cwe have recognized that misconduct may also be found for the intentional violation of an employer\u2019s rules,\u201d and Grace Drilling Co. v. Director, 31 Ark. App. 81, 790 S.W.2d 907 (1990), is cited in support of this last statement.\nThis reference to the Feagin and Grace Drilling cases clearly demonstrates the failure of the majority to understand that the law does not allow an employer to simply adopt a rule and provide that the failure of an employee to observe that rule will disqualify the employee from receiving unemployment benefits. The Arkansas Employment Security Law must agree that a violation of that rule will disqualify an employee from receiving unemployment benefits. The law in this regard is clear. In Hodges v. Everett, 2 Ark. App. 125, 127, 617 S.W.2d 29, 31 (1981), in reversing the denial of unemployment benefits, we said:\nIt may well be that the employer is justified in having a rule making any employee engaging in a fight subject to discharge, but the existence of such rule does not necessarily mean that the discharged employee is guilty of misconduct within the meaning of the Arkansas Employment Security Law.\nThis is also the general rule. See 76 Am. Jur. 2d Unemployment Compensation \u00a7 81 at 845 (1992), stating that \u201cthe effect of a violation by an employee of a rule relating to employment, warranting the withholding of unemployment compensation benefits on the basis of misconduct, must be determined not by the employer\u2019s rules, but by the provisions of the statute itself.\u201d\nHowever, Feagin and Grace Drilling are cases where the Arkansas Unemployment Security Law was in agreement with the denial of unemployment benefits to employees who were fired for the violation of an employer\u2019s rule.\nIn Feagin the court affirmed the Board of Review\u2019s denial of unemployment compensation to a school teacher who was discharged because law enforcement officers found drug paraphernalia, marijuana, and hash oil in a house where the teacher and her husband lived. In discussing what would constitute misconduct in connection with an employee\u2019s work (under what is now Ark. Code Ann. \u00a7 11-10-514) when the claimant was off-duty, we said that case was one of first impression. Relying on the Washington Supreme Court case of Nelson v. Employment Security Department, 98 Wash. 2d 370, 655 P.2d 242 (1982), we adopted a four-prong test that required that the employee\u2019s conduct must (1) have a nexus with her work; (2) result in some harm to the employer\u2019s interest; (3) be conduct violative of some code of at least an implied contract of behavior; and (4) done with the intent or knowledge that the employer\u2019s interest would suffer. We found that those elements were present in Feagin and affirmed the denial of benefits. Of interest, in connection with the present case, is the testimony in Feagin of the school superintendent that even though the drugs and drug paraphernalia were found in the teacher\u2019s house \u2014 something away from the school and concerned with her off-duty activities \u2014 he thought this would hinder the teacher\u2019s effectiveness and meet the provision in the school policy manual that allowed dismissal for undesirable personal traits.\nNo such evidence exists in the instant case. Actually, the evidence in this case does not clearly reveal the business in which the employer was engaged. There is in evidence a document entitled \u201cChemical Substance and Alcohol Abuse Policy.\u201d The \u201cpolicy\u201d statement set out in that document states that a violation of \u201cthis rule\u201d occurs by \u201cReporting to work or for Company business, and in a condition not conducive for work due to the use of drugs or alcohol. ...\u201d The employer\u2019s adopted \u201cChemical Substance and Alcohol Abuse Policy\u201d is stated to be: \u201cIn order to have a safe and efficient work environment and to comply with the Federal Drug-Free Workplace Act (Title 41 USCA 701-707). . . And it adds that \u201cReporting to work or for Company business, in a condition not conducive for work due to the use of drugs or alcohol is prohibited. ...\u201d\nThe specific situation to which the employer\u2019s policy was applied here is explained as follows:\nMr. Rucker was cutting a cardboard box and stated that the blade slipped and he cut himself. The incident was in a nature which caused Mr. Rucker three separate injuries for the same accident.\nThere is no explanation of the \u201cthree separate injuries for the same accident\u201d statement unless it is disclosed by this statement that follows: \u201cMr. Rucker was sent for medical attention (seven stitches) and drug testing.\u201d\nAnd the only indication of the nature of the employer\u2019s business was given by Larry King, who testified as the employer\u2019s representative, and said that the appellant \u201cwas in the wing department\u201d and that \u201cI assume the wing department is, could arrange [sic] anywhere from grading wings, cutting wings to support department for the wings, which means collecting packing material, boxes, etc.\u201d The appellant testified that his job was \u201cbasically a trainer.\u201d And his statement filed with the agency in making his claim for benefits states that his job and duties were \u201cTo set up the department so it would be ready for 2nd shift employee [sic] to start work. (Trainer).\u201d\nThus, it seems clear to me that the evidence here will not support the rationale under which the Feagin case was decided and the majority opinion is correct in stating that it \u201cdoes not govern our review in the instant case.\u201d But the majority is inconsistent by then citing the Grace Drilling case to support the majority\u2019s statement that \u201cwe have recognized that misconduct may also be found for the violation of an employer\u2019s, rules.\u201d Just as Feagin could properly find, under the evidence there, that the teacher\u2019s off-duty activities constituted misconduct because it affected her on-duty work, the Grace Drilling case could properly find, under the evidence there, that testing positive for drugs when reporting for work affected the employee\u2019s on-duty work because the testing policy was \u201cinitiated due to the high accident rate and risk factors relating to the nature of the drilling business and the desire to ensure the safety of the drilling crews.\u201d See 31 Ark. App. at 84, 790 S.W.2d at 908. The rationale in both cases is found in the effect that off-duty conduct has on the employee\u2019s work.\nTherefore, it comes as no surprise to find that Ark. Code Ann. \u00a7 11-10-514 (Supp. 1995) provides that an employee who is discharged from work is disqualified for unemployment benefits if the discharge is for misconduct in connection with the work. That is the point, and there are no exceptions. And that is the rationale of both Feagin and Grace Drilling. Although Grace Drilling is factually more like the instant case \u2014 the off-duty use of drugs caused the positive test \u2014 the issue is the same. However, because of evidence about the \u201chigh accident rate and the risk factors relating to the drilling business\u201d the safety of the drilling crews in Grace Drilling supported the decision that failing the drug test was misconduct. Here, there is no evidence that there was a safety problem that would support such a decision.\nAs indicated above, the only evidence here to explain why the testing policy was adopted is contained in the policy itself: \u201cIn order to have a safe and efficient work environment and to comply with the Federal Drug-Free Workplace Act (Title 41 USCA 701-707).\u201d Section 701 of that Act provides that contractors with the federal government must (except for services of a limited value) meet the Act\u2019s requirement for a drug-free workplace. See Robinson v. Department of Employment Security, 637 N.E.2d 631 (Ill. App. 1994) (policy adopted because it \u201cwas mandatory to retain government contracts\u201d). But there is no evidence that the employer here did any business with the federal government.\nIn George\u2019s Inc. v. Director, 50 Ark. App. 77, 900 S.W.2d 590 (1995), this court determined that the employer\u2019s drug policy was reasonable but remanded the case to the Board of Review for it to determine if the employee intentionally or deliberately violated that policy. I think the real issue is not whether the policy is reasonable but whether a violation of the policy constitutes misconduct in connection with the work. There is, however, an element of the reasonableness question involved in the real issue. However, even the question of the reasonableness of the employer\u2019s policy in this case is avoided by the majority opinion\u2019s footnote that says that issue was not raised below. If the pro se appellant\u2019s statement at the Appeal Tribunal hearing that he did not \u201cfeel\u201d that the \u201cjoint\u201d he smoked during the Memorial Weekend \u201cshould have anything to do with my job\u201d did not raise the issue here, I do not see how a pro se appellant has any real chance of ever reversing a decision of the Board of Review.\nI dissent.\nRobbins, J., joins in this dissent.", "type": "dissent", "author": "Melvin Mayfield, Judge," } ], "attorneys": [ "Appellant, pro se.", "Allan Pruitt, for appellees." ], "corrections": "", "head_matter": "Sherman RUCKER v. Phil Price, DIRECTOR, and Townsends of Arkansas, Inc.\nE 94-223\n915 S.W.2d 315\nCourt of Appeals of Arkansas En Banc\nOpinion delivered February 21, 1996\nAppellant, pro se.\nAllan Pruitt, for appellees." }, "file_name": "0126-01", "first_page_order": 148, "last_page_order": 162 }