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

DOUGLAS R. MELLO :
:
:
V. : A.A. 06-16
:
:
DEPARTMENT OF LABOR AND TRAINING, BOARD OF REVIEW:

D E C I S I O N

GONNELLA, J. This matter is before the Court on the complaint of Douglas R. Mello, filed pursuant to R.I.G.L. § 42-35-15, seeking judicial review of a final decision rendered by the respondent, Department of Labor and Training, Board of Review (Board of Review), reversing the findings and conclusions of the Referee that claimant was entitled to receive employment security benefits. For the reasons set forth below, this Court affirms the Board's decision to deny benefits.

The travel of the case is as follows. Claimant last worked at an auto body shop on August 3, 2005. Claimant filed his new claim for benefits on August 2, 2005. In a decision dated November 10, 2005, the Director determined that Claimant was discharged from his employment under disqualifying circumstances, as provided under Section 28-44-18 of the Rhode Island Employment Security Act.

A hearing was held before a Referee on December 8, 2005, at which Claimant testified by telephone. The employer did not attend the Referee hearing despite being duly notified. On December 13, 2005 the Referee issued a decision in which he reversed the determination of the Director. The Referee based his decision on the testimony of Claimant only, since no one from the employer showed up at the hearing. The employer filed a timely appeal to the Board of Review, claiming he had marked the Referee's hearing for the wrong date and wanted to present evidence of Claimant's misconduct at the Board of Review's hearing.

A hearing was held before the full Board of Review on January 5, 2006 at which time both the Claimant and the employer testified. On January 18, 2006 the Board of Review issued its decision in which it reversed the decision of the Referee to award benefits and held that Claimant was not entitled to benefits since he was discharged under disqualifying circumstances under § 28-44-18.
Thereafter, claimant filed a complaint for judicial review in this court. 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." R.I.G.L. § 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 Board of Review adopted the following findings of fact.

"The claimant worked as an auto body technician for this employer for approximately ten months. During his last 23 weeks of employment the claimant did not put in a full weeks worth of work for 11 of those weeks. The claimant's tardiness and attendance record was very poor. These facts are not denied by the claimant."

The issue to be decided by this appeal is whether there are sufficient facts in the record to conclude that the claimant was discharged under disqualifying circumstances and, therefore, ineligible to collect benefits.
In order to impose a disqualification under the provisions of Section 28-44-18, there must be proof in the record that Claimant committed an act of misconduct in connection with his work. In all cases of discharge, the burden of proof to show misconduct in connection with the work rests solely with the employer. In this case Claimant was discharged for his repeated tardiness. Section 28-44-18 in pertinent part provides:
For 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 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 Turner v. Department of Employment and Training, Board of Review, 479 A.2d. 740, 741-42 (R.I. 1984), the Rhode Island Supreme Court expanded on the definition of the term "misconduct" as that term is used in Section 28-44-18.
[M]isconduct … is limited to conduct evincing such willful 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., quoting, Boynton Cab Co. v. Neubeck, 237 Wis. 249, 296 N.W. 636 (1941).
The Board of Review concluded "while an occasional incident of tardiness and explained absence maybe understandable, the claimant's record in this particular was such that we conclude that his conduct constituted misconduct within the meaning of Section 28-44-18." In so concluding, the Board of Review observed: "The employer is a small operation with very few employees. The absence of one critical employee has an extremely negative impact on his employer's entire business. The claimant's repeated pattern of absenteeism and tardiness is considered against his employer's interest and intentional in its nature and scope."

Upon careful review of the evidence, this Court finds that the decision of the Board was not clearly erroneous in view of the reliable evidence, and further, that the Board's decision was not arbitrary or capricious or an abuse of discretion and the factual findings of the Board were supported by competent evidence in the record. The mixed questions of law and fact presented in this case having been decided by the Board properly and without error, this Court is without authority to overrule the Board's decision. Accordingly, the decision of the Board of Review is hereby affirmed.