{ "id": 6139478, "name": "Louis G. CARRARO, Jr. v. DIRECTOR, Employment Security Division", "name_abbreviation": "Carraro v. Director, Employment Security Division", "decision_date": "1996-06-26", "docket_number": "E 95-154", "first_page": "210", "last_page": "216", "citations": [ { "type": "official", "cite": "54 Ark. App. 210" }, { "type": "parallel", "cite": "924 S.W.2d 819" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "Ark. Code Ann. \u00a7 11-10-107", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1996, "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "1 Ark. App. 6", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6136127 ], "weight": 2, "year": 1981, "opinion_index": 0, "case_paths": [ "/ark-app/1/0006-01" ] }, { "cite": "22 Ark. App. 117", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6659406 ], "weight": 2, "year": 1987, "opinion_index": 0, "case_paths": [ "/ark-app/22/0117-01" ] }, { "cite": "17 Ark. App. 72", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6649985 ], "weight": 4, "year": 1986, "pin_cites": [ { "page": "74" }, { "page": "467" } ], "opinion_index": 0, "case_paths": [ "/ark-app/17/0072-01" ] }, { "cite": "1 Ark. App. 114", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6138641 ], "weight": 4, "year": 1981, "pin_cites": [ { "page": "118" }, { "page": "614" } ], "opinion_index": 0, "case_paths": [ "/ark-app/1/0114-01" ] } ], "analysis": { "cardinality": 538, "char_count": 10733, "ocr_confidence": 0.783, "pagerank": { "raw": 2.7871235826079257e-07, "percentile": 0.8357143601808446 }, "sha256": "be58d74ebaf042c3e5b687d1ab14e726ca589c723035cb7b863600f68aa9bbae", "simhash": "1:b1aab0e63f9c9400", "word_count": 1829 }, "last_updated": "2023-07-14T17:04:29.533878+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Stroud and Neal, JJ\u201e agree." ], "parties": [ "Louis G. CARRARO, Jr. v. DIRECTOR, Employment Security Division" ], "opinions": [ { "text": "Melvin Mayfield, Judge.\nAppellant, Louis G. Carraro, Jr., appeals a decision of the Arkansas Board of Review which found that he was discharged from his last work for misconduct connected with the work. The appellant is not represented by an attorney and neither party has filed a brief.\nAppellant worked for Southwestern Bell for eighteen years. He was discharged for misconduct as a result of his refusal to follow the Employee Assistance Program\u2019s (EAP) recommendations under the Workplace Violence Policy.\nAt the Appeal Tribunal hearing, appellant, a supply attendant who delivered materials for Southwestern Bell, testified that he was asked to submit to EAP counselling because of a misunderstanding which occurred on January 3, 1995, when a co-worker told him to \u201cget off my ass and do my job.\u201d Appellant said he came out of his truck and told his co-worker that \u201cI could rip his head off and shove it down his neck, for him to get away from me, our business was done.\u201d Appellant testified it was \u201cjust a figure of speech, how can you actually rip somebody\u2019s head off and shove it down their neck, it can\u2019t be done, I didn\u2019t threaten to kick his butt, I didn\u2019t threaten to shoot him or anything, you know it just came out of my mouth that way.\u201d Appellant\u2019s co-worker reported the incident and appellant\u2019s supervisor Russell Hannahs told him he was suspended.\nAppellant testified that on January 9, 1995, Hannahs told him he would be fired unless he signed a document referred to as \u201cattachment three\u201d relating to EAP counselling. This untided document is included in the record and is in essence a release. It asks whether appellant \u201cintends to follow the recommendations of the EAP Counselor,\u201d and, if he agrees to follow the recommendations, whether he is \u201cgetting the help\u201d he needs or is \u201ccompleting the agreed upon plan of action.\u201d The document bears appellant\u2019s signature, but the signature line for the EAP Counselor is blank. Appellant testified that he read the document; that he had a union representative with him; that he did not know what the document meant; and that he did not know what he was signing; however, when he was told he would be fired unless he signed, he had no other choice but to sign.\n. Appellant said he went to counselling, and the counsellor asked inappropriate questions regarding whether he had been fondled, molested, or played with himself. He said he answered all her questions; that on January 10, she referred him to Dr. Owens; and that Dr. Owens asked the same inappropriate questions. Then Dr. Owens told appellant he did not need to see him any more, but appellant had to take a drug test. Appellant said he felt he had some constitutional rights \u201cwhen it came to that\u201d; that he had been asked a bunch of questions he should not have been asked; and he believed it was time to get his union involved and let them advise him on what to do. He said he told Dr. Owens he was going \u201cstraight to my union.\u201d\nOn January 11, 1995, the EAP counsellor called appellant and asked whether he had taken a drug test. Appellant said that he told her he was not refusing anything; that he needed to \u201clet someone know what I need to do on this\u201d; that he was waiting for the union to tell him what to do; and that he would get back to her.\nOn Friday morning, January 13, the counsellor called again and told appellant he had from 8 a.m. until 10 a.m. to take the test. Appellant said he told her again that he was not refusing to take the test, and he testified that he went to the union hall to ask what he should do and he was told to go home until \u201cyou hear from us.\u201d Appellant said he went straight home, and at 5 p.m. he received a call from the union telling him he\u2019d been fired because he didn\u2019t \u201ctake that drug test\u201d and asking whether there was any way he could take a drug test \u201cright now.\u201d\nAppellant testified that the next morning (Saturday) he went to his doctor\u2019s office and had a drug test and took it to the union hall. On Monday he returned to the union hall and was told he needed to go where \u201cthey wanted you to take the drug test to begin with.\u201d He said that he went and submitted to another test \u201cwhich was my money\u201d and that he went back to the union hall and gave it to them.\nAppellant was fired on January 18, 1995, after a disciplinary hearing. Appellant said he did not inform the board that he had submitted to the test, but they would not let him say anything. He testified that he couldn\u2019t believe he was fired and had he been told he would be suspended or fired if he failed to take the test, he would have taken it \u201cright then, immediately.\u201d He said the counsel-lor only said that if he did not take the test she would have \u201cno alternative but to call Legal and say you refused,\u201d but nobody said anything about getting fired.\nWhen asked whether he knew that if he didn\u2019t follow EAP recommendations he would be dismissed, appellant testified that he feels like he complied with the recommendations. He said that other than taking the drug test he complied one hundred percent. He said he did not refuse to take the test, the union told him to go to the house, and that is exactly what he did.\nRussell Hannahs, the appellant\u2019s supervisor in material management, testified that he suspended the appellant on January 9, 1995, after another employee reported being threatened. Hannahs said that the employer has a workplace violence policy which states that violence or threats to another employee are prohibited and will be dealt with \u201caccordingly\u201d; that he held an investigatory interview with appellant; and that appellant admitted making the threat. Han-nahs said he made the mandatory referral that appellant go to EAP and follow their recommendations. On Friday evening (January 13) about 7 p.m., Francine Barton, the EAP counselor, called him at home and said appellant had not followed the recommendations given him by EAP, but she did not tell him what appellant failed to do, and he did not inquire. Hannahs said he notified his supervisor and appellant was terminated on January 18, 1995, for \u201cfailure to follow the recommendations of the EAP.\u201d Hannahs testified further that appellant knew he had to follow the EAP recommendations or be fired.\nThe Appeal Tribunal granted benefits on the basis that appellant did not willfully or intentionally violate a standard of behavior that the employer had a right to expect. It found that appellant\u2019s reliance on the union representative\u2019s advice was not unreasonable; that appellant\u2019s behavior was a judgment call and not misconduct.\nThe Board of Review reversed the findings of the Appeal Tribunal holding appellant was discharged for misconduct connected with the work for failure to comply with the recommendations of the employer\u2019s EAP. The Board held that appellant\u2019s failure to follow the recommendation within the specified time frame resulted in his discharge for willful disregard of the employer\u2019s interests, and the appellant\u2019s duties and obligations to the employer.\nArkansas Code Annotated \u00a7 ll-10-514(a)(l) (Repl. 1996) provides that an individual shall be disqualified for benefits if he is discharged from his last work for misconduct in connection with the work. However, as we explained in Nibco, Inc. v. Metcalf & Daniels, 1 Ark. App. 114, 613 S.W.2d 612 (1981):\nTo constitute misconduct, however, the definitions require more than mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies, ordinary negligence in isolated instances, or good faith error in judgment or discretion. There must be an intentional or deliberate violation, a willful or wanton disregard, or carelessness or negligence of such degree or recurrence as to manifest wrongful intent or evil design.\n1 Ark. App. at 118, 613 S.W.2d at 614.\nOn review of unemployment compensation cases, the factual findings of the Board of Review are conclusive if they are supported by substantial evidence; but that is not to say that our function on appeal is merely to ratify whatever decision is made by the Board of Review. See Shipley Baking Company v. Stiles, 17 Ark. App. 72, 703 S.W.2d 465 (1986). As we said in Shipley, \u201cWe are not at liberty to ignore our responsibility to determine whether the standard of review has been met.\u201d 17 Ark. App. at 74, 703 S.W.2d at 467. When the Board\u2019s decision is not supported by substantial evidence, we will reverse. Sadler v. Stiles, 22 Ark. App. 117, 735 S.W.2d 708 (1987). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Victor Industries Corp. v. Daniels, 1 Ark. App. 6, 611 S.W.2d 794 (1981).\nAfter reviewing the evidence, we cannot conclude the Board\u2019s finding of misconduct is supported by substantial evidence.\nThe employer stated that appellant was discharged for \u201cfailure to follow the recommendations of the EAP.\u201d But, appellant went to counselling with both the counsellor and Dr. Owens, and they both asked what he considered to be inappropriate questions. When Dr. Owens asked him to take a drug test, appellant felt his constitutional rights were threatened and told Dr. Owens he was going \u201cstraight to my union.\u201d Moreover, it is not disputed that appellant told the counselor he was not refusing to take the test; that he went to the union; and then went \u201cstraight home\u201d on the union\u2019s advice. While appellant\u2019s reliance on the union\u2019s advice may have been ill-advised, we do not think this conduct was sufficient for reasonable minds to conclude that appellant\u2019s conduct exhibited \u201can intentional or deliberate violation, a willful or wanton disregard, or carelessness or negligence of such degree or recurrence as to manifest wrongful intent or evil design.\u201d\nWe finally note that the untided document referred to as \u201cattachment three\u201d states:\nI hereby relieve and release the Southwestern Bell Telephone Company, my employer if other than the Telephone Company, and the Southwestern Bell Telephone Company EAP personnel from any and all claims, judgements [sic], damages and causes of action arising out of, or in connection with the aforementioned release of information.\nArkansas Employment Security Law provides that \u201c[a]ny agreement by an individual to waive, release, or commute his rights to benefits or any other rights under this chapter shall be void.\u201d Ark. Code Ann. \u00a7 11-10-107(a) (Repl. 1996).\nThe decision of the Board of Review is reversed and remanded for the Board to allow appellant unemployment compensation.\nReversed and remanded.\nStroud and Neal, JJ\u201e agree.", "type": "majority", "author": "Melvin Mayfield, Judge." } ], "attorneys": [], "corrections": "", "head_matter": "Louis G. CARRARO, Jr. v. DIRECTOR, Employment Security Division\nE 95-154\n924 S.W.2d 819\nCourt of Appeals of Arkansas Division III\nOpinion delivered June 26, 1996" }, "file_name": "0210-01", "first_page_order": 236, "last_page_order": 242 }