STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS
PROVIDENCE, SC DISTRICT COURT, SIXTH DIVISION

FALVEY LINEN SUPPLY, INC.:

V.   :  A.A. 03-87

DEPARTMENT OF LABOR AND  TRAINING, BOARD OF REVIEW:

D E C I S I O N

DEROBBIO, C.J.  This matter is before the Court on the complaint of Falvey Linen Supply, Inc., filed pursuant to Rhode Island General Laws § 42-35-15, seeking judicial review of a final decision rendered by the respondent, Board of Review, Department of Labor and Training, which upheld the finding of the Referee that the claimant, Wilson Sanchez was entitled to receive employment security benefits.

            The travel of the case is as follows.  The claimant was employed for two years as a packer.  His last day of work was March 28, 2003.  He filed a claim for Employment Security benefits on April 3, 2003.   In a Director’s decision dated May 19, 2003, it was determined that the claimant was discharged from his employment under disqualifying circumstances under the provisions of Section 28-44-18 of the Rhode Island Employment Security Act.  The claimant filed a timely appeal of that decision. A hearing on the appeal was held on June 30, 2003, at which time the claimant and two employer representatives appeared and testified. The claimant was assisted by an interpreter.  The employer was represented by legal counsel.

 The Referee held the claimant, Wilson Sanchez, was entitled to receive unemployment security benefits, based on the determination that claimant was not discharged under disqualifying circumstances and was thus qualified pursuant to Rhode Island General Laws § 28-44-18.

            Thereafter, a timely appeal was filed and the matter was heard by the Board of Review.  The Board determined that the Referee’s decision was a proper adjudication of the facts, and upheld the Referee's decision.  Thereafter, Falvey Linen Supply, Inc. filed a complaint for judicial review; jurisdiction for review of the decisions of the Board is vested in the District Court by Rhode Island General Laws § 28-44-52.

            The standard of review is provided by Rhode Island General Laws § 42-35-15(g), a section of the state Administrative Procedures Act, which provides as follows:

42-35-15.  Judicial review of contested cases.

(g)       The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact.  The court may affirm the decision of the agency or remand the case for further proceedings, or it may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:

            (1)       In violation of constitutional or statutory provisions;

            (2)       In excess of the statutory authority of the agency;

            (3)       Made upon unlawful procedure;

            (4)       Affected by other error of law;

            (5)       Clearly erroneous in view of the reliable,

                        probative, and substantial evidence on the

                        whole record; or

            (6)       Arbitrary or capricious or characterized by abuse

                        of discretion or clearly unwarranted exercise of

                        discretion.

Thus, on questions of fact, the District Court ". . . may not substitute its judgment for that of the agency and must affirm the decision of the agency unless its findings are clearly erroneous.”  Guarino v. Department of Social Welfare, 122 R.I. 583, 584, 410 A.2d 425 (1980) citing Rhode Island General Laws § 42-35-15(g)(5).  The Court will not substitute its judgment for that of the Board as to the weight of the evidence on questions of fact.  Cahoone v. Board of Review of the Department of Employment Security, 104 R.I. 503, 246 A.2d 213 (1968).  Stated differently, the findings of the agency will be upheld even though a reasonable mind might have reached a contrary result.  Cahoone v. Board of Review of Department of Employment Security, 104 R.I. 503, 246 A.2d 213, 215 (1968).  See also D'Ambra v. Board of Review, Department of Employment Security, 517 A.2d 1039, 1041 (R.I. 1986).

The Court has recognized that a liberal interpretation shall be utilized in construing and applying the Employment Security Act:

. . . eligibility for benefits is to be determined in the light of the expressed legislative policy that "Chapters 42 to 44, inclusive, of this title shall be construed liberally in aid of their declared purpose which declared purpose is to lighten the burden which now falls upon the unemployed worker and his family.”  G.L.1956, § 28-42-73. The legislature having thus declared a policy of liberal construction, this court, in construing the act, must seek to give as broad an effect to its humanitarian purpose as it reasonably may in the circumstances.  Of course, compliance with the legislative policy does not warrant an extension of eligibility by this court to any person or class of persons not intended by the legislature to share in the benefits of the act; but neither does it permit this court to enlarge the exclusionary effect of expressed restrictions on eligibility under the guise of construing such provisions of the act.  Harraka v. Board of Review of Department of Employment Security, 98 R.I. 197, 201, 200 A.2d 595, 597 (1964).

The issue before the Court is whether the Board’s determination that the Referee’s decision was a proper adjudication of the facts and that the claimant was not discharged from his employment under disqualifying circumstances was supported by reliable, probative, and substantial evidence in the record and whether or not it was clearly erroneous.

            The Board of Review adopted the following findings of fact of the Referee:

“The claimant was employed for two years as a packer.  His last day of work was March 28, 2003.  On that day rather than wait in line to punch out he left the employer’s building to start his car.  He then returned to the building and punched out for the day.  While the claimant was in the parking lot starting his car he was observed by the employer/owner.  The owner said nothing to the claimant.  The owner went back into the building, reported the incident to the supervisor, and then left the premises.  The employer did not observe the claimant punching out for the day.  Upon his return to work on the following Monday, March 31, 2003, the claimant was discharged from his employment for leaving his shift early without punching out in violation of company policy.  The claimant had no prior warnings of incidents of this nature.”

      The Board of Review adopted the following conclusions of the Referee:

“The issue involved is whether or not the claimant was discharged from this job under disqualifying circumstances within the provisions of Section 28-44-18 of the Rhode Island Employment Security Act.

An individual who is discharged for reasons of proven misconduct in connection with his work must be held to have been terminated under disqualifying circumstances under the provisions of Section 28-44-18 which provides, in part, as follows:

For the purposes of this section, misconduct shall be defined as deliberate conduct in willful disregard of the employer's interest, or a knowing violation of a reasonable and uniformly enforced rule or policy of the employer, provided that such violation is not shown to be as a result of the employee's incompetence. Notwithstanding any other provisions of chapters 42 -- 44 of this title, this section shall be construed in a manner which is fair and reasonable to both the employer and the employed worker.

In the case of Turner vs. Department of Employment and Training, Board of Review, 479 A 2d 740, 741-42 (R.I. 1984), the Rhode Island Supreme Court adopted a general definition of the term, “misconduct”, as enunciated in Boynton Cab Co. vs. Newbeck, [sic]  237 Wis. 249, 296 N.W. 636 (1941):

“'[M]isconduct' . . . is limited to conduct evincing such wilful or wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer’s interest or of the employee's duties and obligations to his employer.  On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence  in isolated instances, or good faith errors in judgment or discretion are not to be deemed 'misconduct' within the meaning of  the statute.  Id. at 259-60, 296 N.W. at 640.”

In cases of termination the burden of proof to show misconduct in connection with the work rests solely upon the employer.  Conflicting testimony was presented at the hearing concerning the time the claimant exited the building prior to the end of his shift.  While the employer contended the claimant left his shift ten minutes before the end of that shift at 2:20 p.m., the claimant indicated it was merely two minutes before the end of his shift.  There was no evidence to indicate that the claimant did not return to that shift and punch out.  The claimant indicated that he did punch out when he returned to the building.  Although the claimant violated company policy by leaving the premises before punching out, I find that the incident was a result of poor judgement [sic] on the part of the claimant and was an isolated incident that did not rise to the level of misconduct within the meaning of the above Section of the Act.  Therefore, it is determined that the claimant cannot be denied benefits under Section 28-44-18 of the Rhode Island Employment Security Act.”

            There is evidence on the record that the employer observed claimant in his vehicle, leaving his shift early, and then punching out about ten minutes later.

            The claimant claims that it was a two minute period.

            The conflicting testimony in this case shows that the claimant violated company policy.  The company certainly can terminate for this type of conduct.

            The Court, in a review of the record, finds that the claimant has had no prior warnings and finds, on the evidence, that the Board of Review could conclude that this was an isolated act of bad judgment and does not rise to the level of misconduct as defined by Turner v. Department of Employment Security.

            The employer, in its brief, argues that the conduct of the claimant amounted to larceny from the employer.  The Court, based upon the record, cannot conclude, on the evidence that the Board of Review believed to be credible, that this rises to a criminal act of larceny.

            A review of the entire record demonstrates that there is substantial, probative and reliable evidence to support the findings of fact, conclusions and decision of the Board of Review.

            On findings of fact, as to the weight of the evidence, this Court shall not substitute its judgment for that of the administrative agency.

            The scope of judicial review by the Court is limited by Section 28-44-54 which in its pertinent part provides:

            28-44-54.  Scope of judicial review - Additional evidence - Precedence of proceedings. - The jurisdiction of the reviewing court shall be confined to questions of law, and, in the absence of fraud, the findings of fact by the board of review, if supported by substantial evidence regardless of statutory or common law rules, shall be conclusive.

            Upon careful review of the evidence, this Court finds that the decision of the Board was not "clearly erroneous in view of the reliable, probative and substantial evidence on the whole record," and that said decision was not "arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion."  Rhode Island General Laws § 42-35-15(g)(5)(6).

            Accordingly, the decision of the Board is hereby affirmed.