{ "id": 6143032, "name": "Ronald G. SMITH v. ARKANSAS EMPLOYMENT SECURITY DEPARTMENT and Land O Frost, Inc.", "name_abbreviation": "Smith v. Arkansas Employment Security Department", "decision_date": "1996-12-23", "docket_number": "E 95-132", "first_page": "348", "last_page": "354", "citations": [ { "type": "official", "cite": "55 Ark. App. 348" }, { "type": "parallel", "cite": "934 S.W.2d 952" } ], "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 11-10-529", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "pin_cites": [ { "page": "(a)(2)(A)" } ], "opinion_index": 0 }, { "cite": "48 Ark. App. 128", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6139064 ], "weight": 2, "year": 1995, "opinion_index": 0, "case_paths": [ "/ark-app/48/0128-01" ] }, { "cite": "1 Ark. App. 114", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6138641 ], "weight": 5, "year": 1981, "pin_cites": [ { "page": "118" }, { "page": "614" } ], "opinion_index": 0, "case_paths": [ "/ark-app/1/0114-01" ] }, { "cite": "50 Ark. App. 77", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6137446 ], "weight": 2, "year": 1995, "opinion_index": 0, "case_paths": [ "/ark-app/50/0077-01" ] }, { "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": "53 Ark. App. 295", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6141957 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/ark-app/53/0295-01" ] }, { "cite": "42 Ark. App. 218", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6140277 ], "weight": 2, "year": 1993, "opinion_index": 0, "case_paths": [ "/ark-app/42/0218-01" ] }, { "cite": "Ark. Code Ann. \u00a7 11-10-513", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1996, "opinion_index": 0 }, { "cite": "796 S.W.2d 348", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 6645026, 6644510 ], "year": 1990, "opinion_index": 1, "case_paths": [ "/ark-app/32/0058-01", "/ark-app/32/0043-01" ] }, { "cite": "32 Ark. App. 43", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6644510 ], "year": 1990, "opinion_index": 1, "case_paths": [ "/ark-app/32/0043-01" ] }, { "cite": "217 Ark. 38", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8717599 ], "weight": 2, "year": 1950, "opinion_index": 1, "case_paths": [ "/ark/217/0038-01" ] }, { "cite": "23 Ark. App. 96", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6137586 ], "weight": 2, "year": 1988, "opinion_index": 1, "case_paths": [ "/ark-app/23/0096-01" ] }, { "cite": "48 Ark. App. 128", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6139064 ], "weight": 2, "year": 1995, "opinion_index": 1, "case_paths": [ "/ark-app/48/0128-01" ] }, { "cite": "42 Ark. App. 218", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6140277 ], "weight": 2, "year": 1993, "opinion_index": 1, "case_paths": [ "/ark-app/42/0218-01" ] }, { "cite": "Ark. Code Ann. \u00a7 11-10-513", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1996, "pin_cites": [ { "page": "(a)(2)" } ], "opinion_index": 1 } ], "analysis": { "cardinality": 550, "char_count": 12877, "ocr_confidence": 0.811, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.17497796203562446 }, "sha256": "c38cacbf0fd063f3e4ca234249460c7cd83392952e8e168458baf69521b65997", "simhash": "1:537e8545879f741a", "word_count": 2070 }, "last_updated": "2023-07-14T22:52:16.845649+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Pittman and Rogers, JJ., agree.", "Mayfield, Stroud and Griffen, JJ., dissent." ], "parties": [ "Ronald G. SMITH v. ARKANSAS EMPLOYMENT SECURITY DEPARTMENT and Land O Frost, Inc." ], "opinions": [ { "text": "John B. Robbins, Judge.\nAppellant Ronald G. Smith appeals from the May 31, 1995, decision by the Board of Review which found that appellant was discharged from his last work for misconduct connected with the work, resulting in his disqualification for unemployment benefits for a period of eight weeks pursuant to Ark. Code Ann. \u00a7 ll-10-514(a)(3) (Repl. 1996). Appellant contends on appeal that the Board\u2019s decision disqualifying him from benefits is not supported by substantial evidence. We disagree and affirm.\nIn January 1995, appellant was employed as a truck driver for Land O Frost, Inc. He requested to be off work for two weeks beginning January 22, 1995, so that he could be with his son and daughter-in-law for the birth of their baby in February 1995. That request was denied by his employer, but appellant was given permission to take one week off after January 27, 1995. Appellant went to California to be with his daughter-in-law anyway, arriving there on January 25. On February 1, 1995, appellant telephoned his employer and informed the manager that he did not believe that he could be back to Arkansas by February 5, the last day of the two-week period. He returned to work on February 10, 1995, but his employer deemed him to have resigned when he did not appear for work the week of January 22, 1995. The Arkansas Employment Security Department denied appellant benefits pursuant to Ark. Code Ann. \u00a7 11-10-513 (Repl. 1996), finding that he voluntarily left his last work without good cause connected with the work. Appellant appealed that decision to the Board of Review, resulting in the modification already mentioned whereby appellant was held to have been discharged on account of misconduct connected with the work.\nOn appeal, the findings of fact of the Board of Review are conclusive if they are supported by substantial evidence. Pendrix-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. Greenberg v. Director, 53 Ark. App. 295, S.W.2d (1996). Our review is limited to determine whether the Board could reasonably reach its results upon the evidence before it, and we will not replace our judgment for that of the Board even though this court might have reached a different conclusion based upon the same evidence the Board considered. Sadler v. Stiles, 22 Ark. App. 117, 735 S.W.2d 708 (1987).\nArkansas Code Annotated section ll-10-514(a)(l) (Repl. 1996), provides that an individual shall be disqualified from benefits if he is discharged for misconduct in connection with the work. \u201cMisconduct,\u201d for the 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 a right to expect of his employees, 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). The element of intent must also be determined when assessing whether or not misconduct has occurred. In Nibco, Inc. v. Metcalf & Daniels, 1 Ark. App. 114, 613 S.W.2d 612 (1981), this court stated:\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. The issue of misconduct is a question of fact for the Board to determine. Greenberg v. Director, supra.\nIn our opinion, the decision of the Board of Review finding that appellant was discharged from his last work for misconduct in connection with the work is supported by substantial evidence.\nThere was proof in the record before the Board that appellant had requested to be off work for two weeks to be with his daughter-in-law, who was having a baby. There was also evidence that appellant\u2019s request was denied as to the first week he wanted off, but that he would likely be permitted to take the second week. Notwithstanding the employer\u2019s response, appellant took off both weeks. The Board could find that this conduct constituted an intentional or deliberate disregard of appellant\u2019s duties and obligations to his employer. See George\u2019s Inc. v. Director, supra; Perry v. Gaddy, 48 Ark. App. 128, 891 S.W.2d 73 (1995); and Nibco, Inc. v. Metcalf & Daniels, supra.\nAppellant was required by Ark. Code Ann. \u00a7 11-10-529(a)(2)(A) to state the ground upon which he sought our review of the Board of Review\u2019s decision. In his petition for review appellant acknowledged that he had not quit, but had been discharged from his last job. His complaint is that the Board of Review erred in not receiving the additional evidence of the family emergency that he requested to introduce.\nAssuming, arguendo, that the Board of Review erred in denying appellant\u2019s request to introduce into evidence the two letters that he proffered, such error was harmless. One of these letters was from appellant\u2019s son and basically stated the same family information that appellant testified to before the Appeal Tribunal. The other letter was from Dr. Richard L. Alexander, the obstetrician who attended appellant\u2019s daughter-in-law. Dr. Alexander stated that appellant\u2019s daughter-in-law had \u201ca slightly elevated blood pressure.\u201d This could hardly constitute a family medical emergency which would justify an employee to defy an employer\u2019s refusal to give the employee time off to be with the expectant daughter-in-law. Consequently, even if the Board of Review should have received these letters into evidence, it did not constitute prejudicial error.\nBecause the Board\u2019s decision is supported by substantial evidence, we affirm.\nAffirmed.\nPittman and Rogers, JJ., agree.\nMayfield, Stroud and Griffen, JJ., dissent.", "type": "majority", "author": "John B. Robbins, Judge." }, { "text": "Wendell L. Griffen, Judge,\ndissenting. The Board of Review found that appellant was discharged from his last work for misconduct connected with the work, resulting in his disqualification for unemployment benefits for a period of eight weeks pursuant to Ark. Code Ann. \u00a7ll-10-514(a)(3) (Repl. 1996). This finding was made despite the admission by appellant\u2019s supervisor that the employer considered appellant to have voluntarily quit his job when he failed to report for work the week of January 22-28, 1995, because he had gone to California to be with his pregnant daughter-in-law. Because I am convinced that substantial evidence was not presented to support the finding of misconduct, I would reverse and remand.\nThe findings of fact made by the Board of Review are conclusive upon judicial review if supported by substantial evidence. Edwards v. Stiles, 23 Ark. App. 96, 743 S.W.2d 12 (1988); Reddick v. Scott, 217 Ark. 38, 228 S.W.2d 1008 (1950). Whether the findings of the Board of Review are supported by substantial evidence is a question of law, and the Court of Appeals may reverse a finding of the Board of Review which is not supported by substantial evidence. Edwards v. Stiles, supra. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Perdrix-Wang v. Director, Emp. Sec. Dep\u2019t, 42 Ark. App. 218, 856 S.W.2d 636 (1993).\nThe issue of misconduct is a question of fact for the Board of Review, and, on appeal, the Board\u2019s findings are conclusive if supported by substantial evidence. A. Tenenbaum Co. v. Director of Labor, 32 Ark. App. 43, 796 S.W.2d 348 (1990). Yet, it is well-setded in Arkansas that there is an element of intent associated with a determination of misconduct. Mere inefficiency, unsatisfactory conduct, failure of good performance as the result of inability or incapacity, inadvertencies, ordinary negligence or good-faith errors in judgment or discretion are not considered misconduct for unemployment insurance purposes unless it is of such degree or recurrence as to manifest culpability, wrongful intent, evil design, or an intentional or substantial disregard of an employer\u2019s interests or of an employee\u2019s duties and obligations. Perry v. Gaddy, 48 Ark. App. 128, 891 S.W.2d 73 (1995).\nI would hold that the Board of Review\u2019s finding that appellant was discharged because of misconduct in connection with his last work is not supported by substantial evidence. Although the record contains conflicting testimony from appellant and the employer concerning what was said during telephone conversations about his request for time off to be with his son and daughter-in-law, his supervisor testified that appellant phoned him on January 22, 1995, and announced that he was going to California for the birth of his grandchild. The manager testified that he told appellant that his position on the request was unchanged (that appellant was not authorized to be off work), but that if appellant went to California, the decision on his request would be reserved if appellant could document a family emergency. According to the manager, appellant agreed to call back in a week. Appellant phoned on February 1, 1995, ten days afterwards, and stated that the baby had not yet been born. The manager testified that the employer deemed appellant to have quit his job. Indeed, appellant\u2019s claim was initially denied on the finding that he voluntarily left his last work without good cause connected with the work.\nI find nothing in the record that shows where appellant was notified that the basis for his disqualification was being considered as misconduct before the Board of Review issued its decision, nor does the record show that the employer alleged misconduct as the basis for discharge so that appellant would have known or had reasonable notice that evidence on that issue was warranted. There is a material difference in a finding of disqualification because one has voluntarily left the last work without good cause connected to the employment and disqualification due to misconduct related to the work. A worker deemed disqualified due to having voluntarily left work shall continue disqualified until he has been employed for at least thirty days covered by an unemployment compensation law of Arkansas, another state, or the United States. Ark. Code Ann. \u00a711-10-513(a)(2). Disqualification due to misconduct is for eight weeks of unemployment. Ark. Code Ann. \u00a7 ll-10-514(a)(3). Because it does not appear that appellant had an opportunity to present evidence on the misconduct issue, or that he even knew that misconduct was a potential ground on which his claim was being considered for denial, I believe that the Board of Review erred by denying his claim on that basis.\nMoreover, the record does not support the finding of misconduct. As previously mentioned, appellant\u2019s manager testified that the employer deemed the appellant to have resigned. There is no proof that the employer deemed appellant\u2019s absence from work as a manifestation of culpability, wrongful intent, evil design, or an intentional or substantial disregard of the employer\u2019s interests or the employee\u2019s duties and obligations. Rather, Ernie Ritta (appellant\u2019s supervisor) testified that when appellant failed to report for work the week of January 22 through 28, 1995, the employer considered him to have voluntarily quit, conditioned on reconsidering its position if appellant was able to document that his presence in California was necessary due to a family emergency. There was no proof that anything fitting the meaning of misconduct occurred. Therefore, I would reverse the Board of Review and remand this case to it for a ruling not inconsistent with this opinion.\nI am authorized to state that Mayfield and Stroud, JJ., join in this opinion.\nAppellant appealed that determination by the Arkansas Employment Security Department to the Appeal Tribunal which found that appellant was deemed by the employer to have resigned when he did not return to work the week of January 22,1995, and that the evidence was insufficient to show a personal emergency despite appellant\u2019s assertion that his daughter-in-law needed a relative with her in the closing days of her pregnancy. Although appellant\u2019s appeal to the Board of Review challenged the determination that he voluntarily left his last work, the Board of Review modified the determination of disqualification by holding that appellant was discharged due to misconduct.", "type": "dissent", "author": "Wendell L. Griffen, Judge," } ], "attorneys": [ "Appellant, pro se.", "Allan Pruitt, for appellee." ], "corrections": "", "head_matter": "Ronald G. SMITH v. ARKANSAS EMPLOYMENT SECURITY DEPARTMENT and Land O Frost, Inc.\nE 95-132\n934 S.W.2d 952\nCourt of Appeals of Arkansas En Banc\nOpinion delivered December 23, 1996\nAppellant, pro se.\nAllan Pruitt, for appellee." }, "file_name": "0348-01", "first_page_order": 374, "last_page_order": 380 }