White v. Director, Arkansas Employment Security Department , 54 Ark. App. 197 ( 1996 )

Melvin Mayfield, Judge,

dissenting. I agree with, and join in, the dissenting opinion of Judge Griffen in this case. Also, I want to make the following remarks which demonstrate, in my view, that the Board of Review’s decision should be reversed.

Laurie White was denied unemployment benefits for eights weeks on a finding that she was discharged from last work for misconduct connected with the work because her urine was positive for amphetamines in violation of the employer’s alcohol and drug abuse policy.

The employer, Duff-Norton Yale Hoists, and the Steelworkers Union, had negotiated an alcohol and drug abuse policy which took effect on September 18, 1992. The policy states its purpose as “to provide a safe and productive work environment for all employees,” and to “make every effort to have a drug and alcohol free workplace and workforce.” [sic] The policy provided that managers and supervisors who had probable cause to suspect that an employee was under the influence of alcohol or controlled substances, or had illegal drugs or alcohol in his or her possession, could ask the employee to take a drug and/or alcohol test. The policy further provides that an employee refusing a test can be discharged, but after a “first time positive result” an employee will be offered rehabilitation, and refusal to accept treatment will be viewed as insubordination and will subject the employee to discharge. And the policy provides that employees disagreeing with test results can, at the employee’s expense, have the sample analyzed again. Appellant Laurie White signed an acknowledgment that she had. received a copy of the drug policy on September 24, 1992.

On February 3, 1994, while appellant was off on sick-leave, she was asked to submit a urine specimen for a drug-screening test. Appellant testified at one of the hearings that the personnel manager, Martha Lucas, told her that two doctors had informed her that appellant was “chemically dependent.” Appellant signed the consent form at 3:05 p.m. and went to a laboratory in Forrest City to submit a urine specimen. The report from the Forrest City Laboratory states that the collection date was February 3, 1994, at 1600 hours. According to appellant she gave her urine sample to the nurse in an open container and the nurse did not seal it in front of her. Appellant said she did not know what the nurse did with the sample.

On February 14 appellant was told that her urine tested positive for amphetamines. Appellant testified that she had never taken any amphetamines but admitted she was on several prescription drugs, although the only ones she could name were Prozac and Tranzen. Appellant related that she asked Ms. Lucas if she could get another test done and was told she could not. She said Ms. Lucas told her she could either go into a rehabilitation program or be fired. Appellant said she also asked for another test on the original specimen, which was permitted by the written alcohol and drug policy of the company, but Ms. Lucas also told her she could not do that either.

Appellant then hired an attorney, who was apparently able to get the original urine specimen sent to another laboratory, Roche Biomedical Laboratories in Southhaven, Mississippi. The result was sent to appellant’s family physician, Dr. Collins Morgan, and is entered into the record. That report also shows appellant’s urine was positive for amphetamines.

The record contains the handwritten notes of Ms. Lucas, dated February 1 through 3, 1994, in which she explains that appellant was attempting to check into Greenleaf Hospital in Jonesboro, a psychiatric hospital, for treatment of anorexia. They offered to admit her to the alcohol and drug dependency unit but appellant refused, claiming that she was not drug dependent. These notes also say that appellant was advised that they wanted her to take a drug test, “based upon her absentee record, crying at her work place for no apparent reason, frequent trips to the bathroom.”

After a hearing before the Appeal Tribunal, it issued an opinion, dated September 29, 1994, which held that the employer had failed to prove that the claimant had amphetamines in her system in light of her consistent denial that she had ever used amphetamines. The referee said the employer did not present sufficient chain of custody evidence that the results from the laboratory were actually from the urine specimen given by claimant because the employer offered no information on what happened to the claimant’s open container of urine between the time the claimant handed it to a hospital employee and when the employer received the original test results. The Appeal Tribunal allowed benefits, but the employer appealed to the Board of Review.

On November 23, 1994, the chairman of the Board of Review' issued an opinion in which he held that the appellant was discharged from her last work for misconduct connected with the work. The chairman’s opinion states, in part:

Based on the evidence, the Board of Review finds that the claimant was discharged from last work for misconduct connected with the work. . . . What is controlling is the claimant’s failure to abide by the employer’s policy and comply with provisions once the employer asserted that it had an initial positive test. One option for the claimant was to enter a rehabilitation program. It is understandable that the claimant would not desire to do so when asserting that the initial test result was erroneous. The other option for the claimant was to effectively pursue, under the employer’s policy, retesting of the original specimen. . . . Even if possibly dilatory, the claimant began such a pursuit. However, she did not successfully follow through with that pursuit, and the evidence fails to establish that the employer contributed to the failure of the claimant to successfully complete that option. The Board particularly notes the lack of evidence about what the claimant did after allegedly learning on March 11 that the initial specimen had (purportedly) been destroyed. The evidence does not establish that she did anything, and she should not now be heard to complain about any alleged shortcoming of the employer in administering its policy.

Appellant argues on appeal that “the decision of the Board of Review is not supported by substantial evidence and is contrary to law in that (1) the Board failed to specify what conduct constituted misconduct according to recognized legal standards and (2) the claimant’s actions did not constitute misconduct in connection with work.” Appellant submits that because she did not refuse to give a urine specimen for testing and because the employer failed to offer competent evidence of the chain of custody or the procedures of testing and result, it is impossible for the employer to prove the drug policy was violated. Appellant argues that the drug policy and Ms. Lucas’s testimony show that to terminate appellant for insubordination for refusing rehabilitation there must have been a positive drug test followed by the same result on a second test on the same sample and then refusal of rehabilitation. Since there was a delay in the second testing of the original sample and the employer then failed to offer appellant rehabilitation before terminating her for insubordination, she was discharged for a reason not constituting misconduct connected with the work.

I think the Board’s finding that the appellant failed to follow through on the retest after being told the original specimen had been destroyed is inadequate. The Board has not found conduct of the appellant that was a wilful (1) disregard of the employer’s interest, (2) violation of the employer’s rules, (3) disregard of the standards of behavior which the employer had a right to expect of his employees, or (4) disregard of the employee’s duties and obligations to his employer. A. Tenenbaum Co. v. Director of Labor, 32 Ark. App. 43, 796 S.W.2d 348 (1990); Grace Drilling Co. v. Director, 31 Ark. App. 81, 790 S.W.2d 907 (1990). There must be an element of intent associated with a determination of misconduct. Mere good faith errors in judgment or discretion and unsatisfactory conduct are not considered misconduct unless they are of such a degree of recurrence as to manifest culpability, wrongful intent, evil design, or intentional disregard of an employer’s interest. Grace Drilling Co. v. Director, supra; Sadler v. Stiles, 22 Ark. App. 117, 735 S.W.2d 708 (1987); Shipley Baking Co. v. Stiles, 17 Ark. App. 72, 703 S.W.2d 465 (1986). There has been no finding whatsoever and, indeed, there is no evidence in the record to support such a finding, that appellant has been guilty of conduct that would fit the above definition of employee misconduct.

I would reverse and remand.

Neal and Griffen, JJ., join in this dissent.