Teegarden v. Director, Ark. Employment Sec. Division

• Citation: 267 Ark. 893,591 S.W.2d 675
• Decision Date: 12 December 1979
• Docket Number: No. CA,CA
• Parties: Alma TEEGARDEN, v. DIRECTOR, ARK. EMPLOYMENT SECURITY DIVISION. 79-28.
• Court: Court of Appeals of Arkansas

Page 675

591 S.W.2d 675

267 Ark. 893

Alma TEEGARDEN, v. DIRECTOR, ARK. EMPLOYMENT SECURITY DIVISION.

No. CA 79-28.

Court of Appeals of Arkansas.

Dec. 12, 1979.

Released for Publication by the Court of Appeals Jan. 9, 1980.

Kenneth R. Smith, Yellville, for appellant.

Herrn Northcutt, Little Rock, for appellee.

PILKINTON, Judge.

This is an unemployment compensation case. The claimant has appealed the determination of the Arkansas Employment Security Board of Review holding her ineligible for benefits under the provisions of the Arkansas Employment Security Act. The agency had first determined that claimant was not considered unemployed. She was a school employee who did not normally work during the summer vacation, and expected to return to her job in the fall. On appeal, the Board of Review found that claimant was, in fact, unemployed within the meaning of the act, but was nevertheless ineligible for benefits under the provisions of Section 4(c) of the Arkansas Employment Security Law. The Board specifically found that claimant was not doing those things that a reasonably prudent person would do to seek suitable work, as required by the statute.

Section 4(c) of the Arkansas Employment Security Law provides that claimants will be eligible for benefits if they are unemployed, physically and mentally able to perform suitable work, available for such work, And doing those things that a reasonably prudent individual would be expected to do to secure work. (Emphasis added).

In Terry Dairy Products Company, Inc. v. Cash, Commissioner of Labor, 224 Ark. 576, 275 S.W.2d 12 (1955), the Arkansas Supreme Court held that the findings of fact made by the Board of Review in cases of this nature are conclusive on appeal if supported by substantial evidence. Therefore, the question here is whether there is substantial evidence to support the determination of the Board of Review. It is clear from a study of the record that there is such substantial evidence. The record reflects that claimant had worked for the same employer as a teacher's aid since about 1976. Since that time, the program has been suspended for the summer months only. The program was expected to resume again in early fall of 1979, and the claimant said that she planned and intended to return. However, she also testified that she was currently looking for and would accept other full time work. If she can find suitable work, she might not choose to return to this employer. But the evidence shows she has not worked during the past summers she has been off. It is a very close question, based on this record, as to whether claimant was, in fact, properly considered unemployed within the meaning of the act; however, the Board of Review resolved that issue in her favor, and claimant does not, of course, complain of that ruling. She does complain of the secondary finding of the Board that although "unemployed" she is still ineligible because of her lack of effort to find work. Claimant-Appellant is now represented by counsel who raises certain procedural points. It is claimed, for example, that appellant came before the hearing referee prepared to prove that she was, in fact, unemployed within the meaning of the act, which she did. Claimant says she understood this to be the only issue on appeal and had no idea the matter of her effort to seek work would also be reviewed. The notice of hearing which claimant received plainly stated, however, that "the hearing (before the referee) may involve any question having a bearing on the claimant's right to benefits up to time of the hearing". She had been previously advised of what effort she would be expected to make in seeking suitable employment. It should be noted, too, that claimant was only declared ineligible for benefits from April 30, 1979 up to and including the date of the hearing, June 12, 1979. If there was any misunderstanding about the matter in her mind, surely she was fully informed by the decision below so she could make the required effort, thereafter, if she was actively seeking employment.

If appellant was misled in any way by the notice of the setting of hearing before the examiner-referee, she still had an opportunity to raise the point before the Board of Review, which she did not do. She did, however, in her request for appeal to the Board of Review submit a detailed list of all contacts she had made since filing her application. In view of this list, which was before the Board of Review, the procedural error, if any, was harmless. Appellant placed before the Board of Review everything she then wished to have in the record. We are at a loss to know what additional evidence she could present on the point (of her efforts seeking work during the period involved) if this case was remanded. Appellant's counsel has not enlightened us as to what additional facts he seeks to present on remand. Under those circumstances, it would be useless to remand this case for further evidence as to appellant's effort seeking work during the period involved.

AFFIRMED.

NEWBERN, J., dissents.

NEWBERN, Judge, dissenting.

The appellant was denied unemployment compensation by her local unemployment compensation division (ESD) agency because she was found to be "not unemployed" within the meaning of § 4(c) of the Unemployment Compensation Act. Ark.Stat.Ann., 81-1105(c) (Repl.1976). She appealed that determination to the administrative appeals tribunal, and the notice to her of the appeal hearing was a printed ESD form which said, "(t)he primary issue involved is:" followed by a space in which was typed, in letters somewhat larger than the printing, "To determine if claimant is unemployed within the meaning of Section 4(c) of the Arkansas Employment Security Law." The printed matter resumed at the bottom of the space, approximately one half inch below the typewritten insert: "You are notified that the hearing may involve any question having a bearing on the claimant's right to benefits up to the time of the hearing."

At the hearing some questions were asked the appellant by the appeals tribunal referee with respect to her efforts to obtain work during the period she alleged she was unemployed. The referee was the sole determiner of fact and law, there being no other members of the "tribunal." Without telling the appellant the reason he was asking about the appellant's efforts to obtain employment or otherwise indicating he was considering a question of the adequacy of her efforts, the referee concluded she was unemployed but had not tried hard enough to find work. The decision of the agency denying compensation was thus effectively affirmed but on a basis entirely different from that invoked by the agency, and with utter lack of meaningful opportunity for the appellant to prepare to defend her claim on that basis.

The appellant thereafter appealed further to the board of review. She sent a handwritten list of places she had sought employment which ended, "and I've called other places."

On another printed, or otherwise mechanically reproduced, form the board of review simply affirmed...