Louis G. CARRARO, Jr. v. DIRECTOR, Employment
Security Division
E 95-154___ S.W.2d ___
Court of Appeals of Arkansas
Division III
Opinion delivered June 26, 1996
1. Unemployment compensation -- misconduct sufficient to
disqualify individual from receiving benefits -- what
constitutes misconduct. -- To constitute misconduct such that
an individual is disqualified from receiving unemployment
benefits requires 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.
2. Unemployment compensation -- review of unemployment
compensation cases -- Board's decision must be supported by
substantial evidence. -- On review of unemployment
compensation cases, the factual findings of the Board of
Review are conclusive if they are supported by substantial
evidence; but the court's function on appeal is not merely to
ratify whatever decision is made by the Board of Review, thecourt is not at liberty to ignore their responsibility to
determine whether the standard of review has been met; when
the Board's decision is not supported by substantial evidence,
it will be reversed; substantial evidence is such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion.
3. Unemployment compensation -- Board's decision to deny benefits
not supported by substantial evidence -- case reversed and
remanded. -- Where, after submitting to counseling with both
counsellor and a doctor, the appellant, upon being asked to
submit to a drug test, did not refuse to take the test, but
instead went home upon the advise of his union, appellant's
reliance on the union's advice may have been ill-advised, but
this conduct was not sufficient for reasonable minds to
conclude that appellant's conduct exhibited "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 addition the
untitled release referred to as "attachment three" was void
under Arkansas Employment Security Law; the decision of the
Board of Review was reversed and remanded for the Board to
allow appellant unemployment compensation.
Appeal from the Arkansas Board of Review; reversed and
remanded.
No briefs filed.
Melvin Mayfield, Judge.
*ADVREP*CA6*
DIVISION III
E 95-154
JUNE 26, 1996
LOUIS G. CARRARO, JR. AN APPEAL FROM THE ARKANSAS
BOARD OF REVIEW
APPELLANT
VS.
DIRECTOR, EMPLOYMENT REVERSED AND REMANDED
SECURITY DIVISION
APPELLEE
Melvin Mayfield, Judge.
Appellant, 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.
Appellant worked for Southwestern Bell for eighteen years. He
was discharged for misconduct as a result of his refusal to follow
the Employee Assistance Program's (EAP) recommendations under the
Workplace Violence Policy.
At 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 "get off my ass and do my job." Appellant
said he came out of his truck and told his co-worker that "I could
rip his head off and shove it down his neck, for him to get away
from me, our business was done." Appellant testified it was "just
a figure of speech, how can you actually rip somebody's head off
and shove it down their neck, it can't be done, I didn't threaten
to kick his butt, I didn't threaten to shoot him or anything, you
know it just came out of my mouth that way." Appellant's co-worker
reported the incident and appellant's supervisor Russell Hannahs
told him he was suspended.
Appellant testified that on January 9, 1995, Hannahs told him
he would be fired unless he signed a document referred to as
"attachment three" relating to EAP counselling. This untitled
document is included in the record and is in essence a release. It
asks whether appellant "intends to follow the recommendations of
the EAP Counselor," and, if he agrees to follow the
recommendations, whether he is "getting the help" he needs or is
"completing the agreed upon plan of action." The document bears
appellant's 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.
Appellant said he went to counselling, and the counsellor
asked inappropriate questions regarding whether he had beenfondled, 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 "when it came to that"; 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
"straight to my union."
On 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 "let
someone know what I need to do on this"; that he was waiting for
the union to tell him what to do; and that he would get back to
her.
On 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 "you hear from
us." Appellant said he went straight home, and at 5 p.m. he
received a call from the union telling him he'd been fired because
he didn't "take that drug test" and asking whether there was any
way he could take a drug test "right now."
Appellant testified that the next morning (Saturday) he wentto his doctor's 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 "they wanted you to take the drug test to begin
with." He said that he went and submitted to another test "which
was my money" and that he went back to the union hall and gave it
to them.
Appellant 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't 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 "right then, immediately." He said the
counsellor only said that if he did not take the test she would
have "no alternative but to call Legal and say you refused," but
nobody said anything about getting fired.
When asked whether he knew that if he didn't 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.
Russell Hannahs, the appellant's 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 andwill be dealt with "accordingly"; that he held an investigatory
interview with appellant; and that appellant admitted making the
threat. Hannahs 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 "failure to follow the recommendations of the EAP."
Hannahs testified further that appellant knew he had to follow the
EAP recommendations or be fired.
The 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's reliance on the union representative's advice was not
unreasonable; that appellant's behavior was a judgment call and not
misconduct.
The 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's EAP. The Board held that appellant's failure to follow
the recommendation within the specified time frame resulted in his
discharge for willful disregard of the employer's interests, and
the appellant's duties and obligations to the employer.
Arkansas Code Annotated § 11-10-514(a)(1) (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):
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.
1 Ark. App. at 118, 613 S.W.2d at 614.
On 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, "We are not
at liberty to ignore our responsibility to determine whether the
standard of review has been met." 17 Ark. App. at 74, 703 S.W.2d
at 467. When the Board's 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).
After reviewing the evidence, we cannot conclude the Board's
finding of misconduct is supported by substantial evidence.
The employer stated that appellant was discharged for "failure
to follow the recommendations of the EAP." 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 "straight to my union." 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 "straight home" on the
union's advice. While appellant's reliance on the union's advice
may have been ill-advised, we do not think this conduct was
sufficient for reasonable minds to conclude that appellant's
conduct exhibited "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."
We finally note that the untitled document referred to as
"attachment three" states:
I 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.
Arkansas Employment Security Law provides that "[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." Ark. Code
Ann. § 11-10-107(a) (Repl. 1996).
The decision of the Board of Review is reversed and remanded
for the Board to allow appellant unemployment compensation.
Reversed and remanded.
Stroud and Neal, JJ., agree.
_________________________
MAYFIELD, J. - 5