Dillaha Fruit Co. v. Everett, E

• Decision Date: 22 June 1983
• Docket Number: No. E,E
• Parties: DILLAHA FRUIT COMPANY, Appellant, v. William F. EVERETT, Director of Labor, and Clarence William, Jr., Appellees. 82-304.
• Court: Arkansas Court of Appeals

Page 643

652 S.W.2d 643

9 Ark.App. 51

DILLAHA FRUIT COMPANY, Appellant, v. William F. EVERETT, Director of Labor, and Clarence William Jr., Appellees.

No. E 82-304.

Court of Appeals of Arkansas.

June 22, 1983.

House, Holmes, & Jewell, P.A. by Donna Smith Galchus, Little Rock, for appellant.

Alinda Andrews, Little Rock, for appellees.

GLAZE, Judge.

This is an Employment Security case in which the claimant was awarded benefits. On appeal, the employer contends the claimant is disqualified for benefits because he was discharged for misconduct in connection with the work. Because the Board of Review held claimant was terminated for reasons other than misconduct, the issue before us is whether there is substantial evidence to support the Board's decision.

In Willis Johnson Co. v. Daniels, 269 Ark. 795, 601 S.W.2d 890 (Ark.App.1980), our Court delineated the factors necessary to show 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's interests or of an employee's duties and obligations.

Id. at 799-800, 601 S.W.2d at 892-93.

Furthermore, Arkansas case law requires that misconduct must be on account of wanton or willful disregard of the employer's rules and a disregard of the standard of behavior which the employer has a right to expect. Poff v. Everett, 8 Ark.App. 83, 648 S.W.2d 815 (1983). Whether the acts of the employee are willful and wanton or merely result from inefficiency, unsatisfactory conduct, or unintentional failure of performance is a question of fact for the Board of Review. Arlington Hotel v. Employment Security Division, 3 Ark.App. 281, 625 S.W.2d 551 (1981). On appeal, the Board's findings are conclusive if they are supported by substantial evidence. Parker v. Ramada Inn, 264 Ark. 472, 572 S.W.2d 409 (1978). Stated in different terms, this Court cannot substitute its findings for those made by the Board even though we might reach a different conclusion on the same evidence which was before the Board. See Stagecoach Motel v. Krause, 267 Ark. 1093, 593 S.W.2d 495 (Ark.App.1980). Guided by the foregoing principles, we now review the evidence which was before the Board. ¹

The claimant was employed as a truck driver and drove a route three days a week between Little Rock and El Dorado. His schedule required him to work Monday, Wednesday and Friday, and to be off each Tuesday and Thursday. Sometime before Monday, May 17, 1982, the claimant received a note from his supervisor instructing claimant to call regarding a change in his route. The new route was in Little Rock and required claimant to work six days a week. On May 17, he called the supervisor as directed. In talking with his supervisor about the new route, the claimant said that he wanted to discuss the matter with the president of the company. Claimant also indicated that he would be unable to work on Tuesday, May 18. In fact, it is undisputed that claimant called the employer daily, Monday through Thursday, advising the supervisor on each occasion that claimant would not be in the next day because of "personal business." By letter dated Friday, May 21, 1983, the supervisor notified the claimant that he was terminated.

Before the Appeal Tribunal and Board of Review, the employer argued the claimant's actions amounted to misconduct, thus disqualifying him for benefits. In essence, the employer contended the claimant's refusal to appear for work for four consecutive days was just cause connected with the employment to discharge him. Claimant countered, arguing that he merely had followed established procedure when absenting himself from work. He testified that to be absent from work all he had to do was call in advance and say he could not come in because he had personal business.

Claimant's...