Holmes v. Dir.

Cite as 2015 Ark. App. 337
ARKANSAS COURT OF APPEALS
DIVISION I
No. E-14-956
CHARLES HOLMES Opinion Delivered MAY 20, 2015
APPELLANT
APPEAL FROM THE ARKANSAS
V. BOARD OF REVIEW
[NO. 2014-BR-02321]
DIRECTOR, DEPARTMENT OF
WORKFORCE SERVICES, and BENT
CREEK PARTNERS, LLC
APPELLEES AFFIRMED
CLIFF HOOFMAN, Judge
Appellant Charles Holmes appeals from the Arkansas Board of Review’s (Board)
decision, which affirmed and adopted the opinion of the Appeal Tribunal (Tribunal) finding
that Holmes was disqualified from receiving unemployment benefits because he was
discharged from last work for misconduct connected with the work and because he willfully
misrepresented a material fact in filing his initial claim for benefits. On appeal, Holmes argues
that he was not discharged for misconduct and that he was instead laid off due to a lack of
work. We affirm.
Holmes began working for appellee Bent Creek Partners, LLC (Bent Creek) as a part-
time maintenance person in May 2013, and he was discharged in June 2014. Holmes filed
a claim for unemployment benefits on June 24, 2014, indicating that his last day of work was
on June 12, 2014, and that he was laid off on June 16, 2014, due to a lack of work. Bent
Creek responded and contested Holmes’s claim, stating that he had been discharged for failing
Cite as 2015 Ark. App. 337
to show up for work for three days in a row, on June 18, 19, and 20. Holmes was denied
unemployment benefits by the Department of Workforce Services (Department) on the basis
that he had been discharged from his last work for misconduct connected with the work. The
Department also determined that Holmes had willfully made a false statement or
misrepresented a material fact when filing his initial claim for benefits. Holmes timely
appealed these determinations to the Tribunal, which held a telephone hearing on September
2, 2014.
At the hearing, Holmes testified that he worked an average of between fifty and
seventy hours per month for Bent Creek and that he was told to call the employer each
morning to find out if he was needed on that day. He stated that his last day of work was on
June 20, 2014, and that he was not supposed to return to work until the following Monday,
June 23. However, when he phoned Bent Creek on Monday morning, he testified that he
was informed by Tamika Pulliam, the manager, that he was being laid off because there was
no work for him to do. When Holmes was questioned as to whether he had received a copy
of Bent Creek’s policy stating that employees were required to call in two hours prior to the
start of their scheduled work shift if they were going to be late or absent, Holmes admitted
that he had received a copy of the policies. He testified, however, that he had never been late
or absent without notifying Bent Creek beforehand, despite several specific incidents that had
been reported by Bent Creek in its statements to the Department. With regard to Bent
Creek’s claim that he had been a “no show” on June 18, 19, and 20 despite Pulliam’s attempts
to contact him via text or phone call, Holmes denied this; he testified that he had called his
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employer on those days but had been notified that there was no work for him. He admitted
that his phone may have been disconnected during this time frame but claimed that he had
either borrowed someone’s phone to call in each morning or had physically checked in with
the office, which was near his home.
Following the hearing, the Tribunal affirmed the Department’s denial of
unemployment benefits under Arkansas Code Annotated sections 11-10-514 and 11-10-
519(a)(1) (Supp. 2013). The Tribunal stated that Holmes was aware of Bent Creek’s policies
with regard to maintaining contact with management and giving notification two hours prior
to the start of the workday if he was going to be late or absent. The Tribunal found that
Holmes had violated these policies on prior occasions and had been reprimanded, yet he had
again been absent from work on June 18, 19, and 20 without notifying Bent Creek. Thus,
the Tribunal found that Holmes’s action amounted to a willful disregard of a standard of
behavior that his employer had a right to expect and that he was discharged for misconduct
in connection with the work. The Tribunal further found that Holmes had misrepresented
the circumstances of his separation to obtain benefits and that he had therefore willfully
misrepresented a material fact in filing his initial claim.
Holmes appealed the Tribunal’s decision to the Board, which affirmed and adopted the
Tribunal’s decision, with one modification to the Tribunal’s finding with respect to a date on
which Holmes was contacted by his supervisor. The Board’s opinion was mailed on October
14, 2014, and Holmes has timely appealed to this court.
On appeal in unemployment cases, findings of fact by the Board are conclusive if
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supported by substantial evidence, and review is limited to determining whether the Board
could reasonably reach its decision based upon the evidence before it, even if there is evidence
upon which the Board might have reached a different decision. Hiner v. Dir., 61 Ark. App.
139, 965 S.W.2d 785 (1998). The reviewing court may not substitute its findings for the
Board’s, even though the court might have reached a different conclusion had it made an
original determination upon the same evidence. Thomas v. Dir., 55 Ark. App. 101, 931
S.W.2d 146 (1996). Also, the credibility of witnesses and the weight to be accorded their
testimony are matters to be resolved by the Board. Johnson v. Dir., 84 Ark. App. 349, 141
S.W.3d 1 (2004).
Pursuant to Arkansas Code Annotated section 11-10-514(a), if an individual is
discharged from last work for misconduct in connection with the work, the individual is
disqualified for benefits until, subsequent to filing a claim, he or she has had at least thirty days
of covered employment. An employee’s actions constitute misconduct sufficient to warrant
denial of unemployment benefits if they deliberately violate an employer’s rules, or if they
wantonly or willfully disregard the standard of behavior that the employer has a right to
expect of its employees. Thomas, supra. Mere unsatisfactory conduct, ordinary negligence,
or good-faith errors in judgment or discretion are not considered misconduct unless it is of
such a degree or recurrence as to manifest wrongful intent or an intentional or substantial
disregard of an employer’s interests or the employee’s duties and obligations. Id. Whether
an employee’s actions constitute misconduct in connection with the work sufficient to deny
unemployment benefits is a question of fact for the Board. Id.
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In addition, under Arkansas Code Annotated section 11-10-519(a)(1) (Supp. 2013),
an individual shall be disqualified for benefits if he or she willfully makes a false statement or
misrepresentation of a material fact, or willfully fails to disclose a material fact in filing an
initial claim or a claim renewal. This disqualification shall continue from the date of filing the
claim until the individual has ten weeks of employment in which he or she has earned wages
equal to at least the weekly benefit amount. Id.
Holmes argues on appeal that he was never told he was fired and that he was instead
told that he was laid off due to lack of work. In support of his argument, he points to an
affidavit of a co-employee who stated that she and Holmes were informed by Pulliam at Bent
Creek that there was no work available during the week of June 16, 2014, and that they were
then laid off on June 23, 2014.
Holmes’s testimony clearly conflicted with the statements of his employer. We note
that Holmes’s statements were also inconsistent with each other, as he testified at the hearing
that his last day of work was June 16 and that he was notified that he was laid off on June 23;
however, his initial claim and other statements to the Department indicated that his last day
of work was on June 12 and that he was laid off on June 16. It is for the Board to resolve
conflicts in the testimony and to decide matters of credibility. Johnson, supra; W.C. Lee Constr.
v. Stiles, 13 Ark. App. 303, 683 S.W.2d 616 (1985). In this case, the Board obviously
resolved these conflicts in favor of the employer. Thus, there was substantial evidence to
support the Board’s finding that Holmes was discharged from his last work for misconduct
connected with the work. Furthermore, because the Board found that Holmes was aware
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that he had not been laid off due to a lack of work and that he misrepresented the
circumstances of his separation when filing his initial claim for benefits, there is also substantial
evidence to support the finding that he was disqualified under Arkansas Code Annotated
section 11-10-519(a)(1).
Affirmed.
KINARD, J., agrees.
WHITEAKER, J., concurs.
PHILLIP T. WHITEAKER, Judge, concurring. I agree with the majority that
substantial evidence supports the Arkansas Board of Review’s decision. I write separately,
however, to express concern about the adversarial tone of the questioning by the hearing
officer for the Arkansas Appeal Tribunal.
Under Arkansas Code Annotated section 11-10-526(a)(1) (Repl. 2012), the
Appeal Tribunal is not bound by common law or statutory rules of evidence or by technical
rules of procedure, but any hearing or appeal before the tribunal shall be conducted in such
manner as to ascertain the substantial rights of the parties. Moreover, the Arkansas Code of
Judicial Conduct applies to members of the administrative law judiciary. See Ark. Code Jud.
Conduct Part I.B (Application). “A judge shall uphold and apply the law, and shall perform
all duties of judicial office fairly and impartially.” Ark. Code Jud. Conduct R. 2.2 (2014)
(emphasis added).
In this case, I believe that the hearing officer’s line of questioning went beyond
merely ascertaining the substantial rights of the parties; it became confrontational and
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accusatory, taking on the tenor of cross-examination at times. The appellant, Charles Holmes,
was the only person to testify, as the employer did not participate in the hearing to present
its version of events. On several occasions, however, as Holmes was attempting to explain his
absences from work, the hearing officer interrupted him to ask pointed, almost prosecutorial
questions, appearing to attempt to discredit him. Although the weight and credibility of the
evidence are for the administrative agency to determine, see Beeson v. Landcoast, 43 Ark. App.
132, 862 S.W.2d 846 (1993), the fact-finder must be careful not to take on the role of an
adversary in considering and assessing that evidence.
Under section 11-10-526(a)(1), unless the hearing is conducted in such a way
as to make it impossible to ascertain the substantial rights of the parties, we cannot properly
reverse on procedure. See Stagecoach Motel v. Krause, 267 Ark. 1093, 593 S.W.2d 495 (Ark.
App. 1980). Because it is not “impossible” in this case to ascertain the rights of the parties, this
court’s decision to affirm is the correct one. I would simply caution all hearing officers in this
state to be mindful that they must be impartial arbiters, not prosecutors.
Charles Holmes, pro se appellant.
Phyllis Edwards, for appellee.
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