C B Masonry vs. Arkansas Employment Security Department

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

JOSEPHINE LINKER HART, JUDGE

DIVISION II

C B MASONRY, INC.

APPELLANT

ED ROLLE, DIRECTOR EMPLOYMENT SECURITY DEPARTMENT and GARLAND DAVIS

APPELLEES

E99-111

February 9, 2000

APPEAL FROM THE ARKANSAS BOARD OF REVIEW

[NO. E99-111]

AFFIRMED

Appellant, C B Masonry, Inc., appeals the Arkansas Board of Review's award of unemployment compensation benefits to Garland Davis. Appellant contends that the award of benefits was not supported by substantial evidence and, relying on Ark. Code Ann. § 11-10-513(a)(1) (Supp. 1999), that Davis was not entitled to benefits because he voluntarily and without good cause failed to report to work as a bricklayer at a new construction site. We affirm.

The statute relied upon by appellant, Ark. Code Ann. § 11-10-513(a)(1), provides that "an individual shall be disqualified for benefits if he voluntarily and without good causeconnected with the work left his last work." The Board of Review, however, in reaching its decision to award Davis benefits, relied on Ark. Code Ann. § 11-10-514 (a)(1) (Supp. 1999), which provides that "an individual shall be disqualified for benefits if he is discharged

from his last work for misconduct in connection with the work." Thus, rather than focusing on whether Davis voluntarily left work without good cause, we review only the sufficiency of the evidence to support the Board's conclusion that Davis was discharged from his last work for reasons other than misconduct.

We view the Board of Review's findings of fact in the light most favorable to the prevailing party and reverse if the findings are not supported by substantial evidence. McKissick v. Director, 61 Ark. App. 266, 268, 966 S.W.2d 921, 923 (1998). "The credibility of the witnesses and the weight to be accorded their testimony are matters to be resolved by the Board of Review." Id. "Even when there is evidence upon which the Board might have reached a different decision, the scope of judicial review is limited to a determination of whether the Board could reasonably reach its decision upon the evidence before it." Id. at 268-69, 966 S.W.2d at 923.

At a hearing before the Appeal Tribunal, Davis testified that he worked as a bricklayer for appellant until September 28, 1998, when they completed a project in Fulton, Mississippi. He testified that he awaited the start of appellant's new project in Carthage, Mississippi. He stated that he called and left his number with appellant several times, but appellant never returned his calls. Appellant's chief financial officer, Chris Estes, testified that they had been calling bricklayers and trying to find bricklayers, and he did not know how they would havemissed Davis's calls. Estes testified that when Davis called in he would have been given the name and telephone number of a foreman.

The Board of Review held as follows:

[T]he Board notes the weight of the evidence that at the end of his work at his last job site for the employer, the employer did not directly reassign the claimant to work at another job site. The employer's testimony about the claimant generally needing to contact the employer about where he might next work did not effectively rebut the claimant's description of the employer not having work for him when he was calling the employer for about a week after his last assignment ended. As a result, the evidence supports the finding of some interruption in the work through layoff because of at least a short-term unavailability of work for the claimant.

Deferring to the Board of Review regarding determinations of the credibility of witnesses, we conclude that there was substantial evidence to support its conclusion. We do note, however, that the Board expressly held open the opportunity for appellant to apply for a determination of whether Davis has been available for suitable work.

Affirmed.

Stroud and Griffen, JJ., agree.