Nibco, Inc. v. Metcalf, E

• Decision Date: 08 April 1981
• Docket Number: No. E,E
• Citation: Nibco, Inc. v. Metcalf, 613 S.W.2d 612, 1 Ark.App. 114 (Ark. App. 1981)
• Parties: NIBCO, INC., Appellant, v. Joe METCALF and Charles Daniels, Commissioner of Labor, Appellees. 80-81.
• Court: Arkansas Court of Appeals

Page 612

613 S.W.2d 612

1 Ark.App. 114

NIBCO, INC., Appellant, v.Joe METCALF and Charles Daniels, Commissioner of Labor, Appellees.

No. E 80-81.

Court of Appeals of Arkansas.

April 8, 1981.

Jeff Starling, Pine Bluff, for appellant.

Carolyn Parham, Little Rock, for appellees.

MAYFIELD, Chief Judge.

Nibco, Inc., the former employer of Joe Metcalf, has appealed from the decision of the Board of Review allowing Metcalf unemployment benefits.It is Nibco's contention that Metcalf was disqualified to receive benefits because he was discharged for misconduct in connection with his work and, for reversal, Nibco argues that the allowance of benefits is not supported by substantial evidence.

The essential facts are not in dispute.Metcalf was employed by Nibco from July 9, 1975, until February 7, 1980.In August of 1979, he underwent surgery for an ankle injury and was off work until November when his doctor released him and he returned to his regular job of running a machine while standing on his feet.On December 12, 1979, he was transferred to a job which required considerable moving around which included walking on sand.He felt this job was too hard on his ankle and at noon, after going to the office with his foreman, he followed his employer's suggestion and went back to see his doctor.He returned to work the next day with a note from his doctor saying he could do only light duty because of his ankle, but was told by Nibco he could not go to work until he could return to regular duty.Nibco did have light duty available.It was only provided, however, for employees who were hurt on the job and because there was a dispute about Metcalf's injury occurring on the job, Nibco would not give him light duty.

By letter dated January 11, 1980, Nibco's personnel manager sent Metcalf their accident and sickness form for his doctor to fill out and return.The second paragraph of the letter stated:

Joe, as discussed, we need this in order that we may know when to expect you back to work and this is also necessary if you qualify for accident and sickness payment.Joe, we need you to sign where we have marked in red and have your doctor fill out spaces marked in blue.As per our conversation you are to return this no later than week ending January 19, 1980.

By letter dated January 18, 1980, Nibco again wrote Metcalf.This letter stated that the physician's statement referred to in the previous letter had not been received and unless Nibco heard from Metcalf before January 24, 1980, he would be considered to have quit voluntarily and his employment would be terminated.

On January 22, 1980, Metcalf's attorney wrote Nibco saying that Metcalf had brought him Nibco's letters of January 11 and 18.The attorney's letter stated that Metcalf felt he could satisfactorily perform the duties of his original job within the "light duty restrictions" placed upon him by the doctor and that Nibco's "refusal" to allow him the opportunity of returning to work and testing his skills was causing him to continue to be totally disabled during this period of time.With reference to the statement that Nibco asked Metcalf to have completed by his doctor, the letter stated: "I have advised Mr. Metcalf against submitting that statement to Dr. Dickson in view of the fact of his contention that his problems are job related, and therefore are not eligible for submission for consideration under a group sickness or accident plan."

On January 23, 1980, Nibco wrote to Metcalf thanking him for the letter from his attorney and for "letting us know that you have no claim under our group accident and sickness plan."The remainder of the letter said:

The fact still remains that we need to know from your doctor when we can expect you back to work with no restrictions.The last thing we have from your doctor is that you can return to work doing light duty only.Again, we need to know from your doctor approximately how long it will be before we can expect you back without these restrictions.

Now that we know this isn't for an accident and sickness claim, I trust you will get the attached filled out by your doctor and return to us no later than Feb. 2, 1980 in order that we may know what to expect as far as your returning to work.

Please sign where we have checked in red and have your doctor fill out areas checked in blue.

There was no response to this letter and on February 2, 1980, Nibco's personnel manager wrote Metcalf again, saying:

In reference to my letter of January 23, 1980, we still have not received from your doctor a statement giving us approximate date we can expect you back to work with no restrictions.Joe, if I do not hear from you on this matter before Thursday, February 7, 1980, I will, as per our company policy, consider you to have quit voluntarily and your employment will be terminated.

If you have any questions please call.

When there was no response to this letter, Nibco terminated Metcalf's employment, and the question before us is whether the failure to furnish the requested information constituted "misconduct" which disqualified Metcalf for unemployment benefits under Ark.Stat.Ann. § 81-1106(b)(1)(Repl.1976).

We have been furnished excellent briefs which have reviewed and discussed most of our appellate decisions involving this question.¹Misconduct as used in section 81- 1106(b)(1) has been defined in the cases of Stagecoach Motel v. Krause, 267 Ark. 1093, 593 S.W.2d 495(Ark.App.1980);B. J. McAdams, Inc., v. Daniels, 269 Ark. ---, 600 S.W.2d 418(Ark.App., June 4, 1980);Milner v. Daniels, 269 Ark. ---, 600 S.W.2d 429(Ark.App., June 11, 1980);andWillis Johnson Co. v. Daniels, 269 Ark. ---, 601 S.W.2d 890(Ark.App., June 18, 1980).And while the language used is not exactly the same in each case, they say that misconduct involves: (1) disregard of the employer's interests, (2) violation of the employer's 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's duties and obligations to his employer.

To 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.

In Stagecoach, supra, the denial of benefits was upheld where the motel's desk clerk was discharged for failure to collect room rent in advance in keeping with the employer's policy.But in B. J. McAdams, Inc., supra, the allowance of benefits was upheld where the employee was a truck driver who had three accidents in an eleven-month period and the employer argued there was a pattern or course of conduct showing the employee was "not only negligent but his actions in violating the policies and directives of his employer were willful."And in Willis Johnson Co., supra, the allowance of benefits was...