Smith v. Arkansas Employment Security Department

John B. Robbins, Judge.

Appellant Ronald G. Smith appeals from the May 31, 1995, decision by the Board of Review which found that appellant was discharged from his last work for misconduct connected with the work, resulting in his disqualification for unemployment benefits for a period of eight weeks pursuant to Ark. Code Ann. § ll-10-514(a)(3) (Repl. 1996). Appellant contends on appeal that the Board’s decision disqualifying him from benefits is not supported by substantial evidence. We disagree and affirm.

In January 1995, appellant was employed as a truck driver for Land O Frost, Inc. He requested to be off work for two weeks beginning January 22, 1995, so that he could be with his son and daughter-in-law for the birth of their baby in February 1995. That request was denied by his employer, but appellant was given permission to take one week off after January 27, 1995. Appellant went to California to be with his daughter-in-law anyway, arriving there on January 25. On February 1, 1995, appellant telephoned his employer and informed the manager that he did not believe that he could be back to Arkansas by February 5, the last day of the two-week period. He returned to work on February 10, 1995, but his employer deemed him to have resigned when he did not appear for work the week of January 22, 1995. The Arkansas Employment Security Department denied appellant benefits pursuant to Ark. Code Ann. § 11-10-513 (Repl. 1996), finding that he voluntarily left his last work without good cause connected with the work. Appellant appealed that decision to the Board of Review, resulting in the modification already mentioned whereby appellant was held to have been discharged on account of misconduct connected with the work.

On appeal, the findings of fact of the Board of Review are conclusive if they are supported by substantial evidence. Pendrix-Wang v. Director, 42 Ark. App. 218, 856 S.W.2d 636 (1993). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Greenberg v. Director, 53 Ark. App. 295, S.W.2d (1996). Our review is limited to determine whether the Board could reasonably reach its results upon the evidence before it, and we will not replace our judgment for that of the Board even though this court might have reached a different conclusion based upon the same evidence the Board considered. Sadler v. Stiles, 22 Ark. App. 117, 735 S.W.2d 708 (1987).

Arkansas Code Annotated section ll-10-514(a)(l) (Repl. 1996), provides that an individual shall be disqualified from benefits if he is discharged for misconduct in connection with the work. “Misconduct,” for the purposes of unemployment compensation, involves: (1) disregard of the employer’s interest, (2) violation of the employer’s rules, (3) disregard of the standards of behavior which the employer has a right to expect of his employees, and (4) disregard of the employee’s duties and obligations to his employer. George’s, Inc, v. Director, 50 Ark. App. 77, 900 S.W.2d 590 (1995). The element of intent must also be determined when assessing whether or not misconduct has occurred. In Nibco, Inc. v. Metcalf & Daniels, 1 Ark. App. 114, 613 S.W.2d 612 (1981), this court stated:

To constitute misconduct, however, the definitions require more than mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies, ordinary negligence in isolated instances, or good faith error in judgment or discretion. There must be an intentional or deliberate violation, a willful or wanton disregard, or carelessness or negligence of such degree or recurrence as to manifest wrongful intent or evil design.

1 Ark. App. at 118, 613 S.W.2d at 614. The issue of misconduct is a question of fact for the Board to determine. Greenberg v. Director, supra.

In our opinion, the decision of the Board of Review finding that appellant was discharged from his last work for misconduct in connection with the work is supported by substantial evidence.

There was proof in the record before the Board that appellant had requested to be off work for two weeks to be with his daughter-in-law, who was having a baby. There was also evidence that appellant’s request was denied as to the first week he wanted off, but that he would likely be permitted to take the second week. Notwithstanding the employer’s response, appellant took off both weeks. The Board could find that this conduct constituted an intentional or deliberate disregard of appellant’s duties and obligations to his employer. See George’s Inc. v. Director, supra; Perry v. Gaddy, 48 Ark. App. 128, 891 S.W.2d 73 (1995); and Nibco, Inc. v. Metcalf & Daniels, supra.

Appellant was required by Ark. Code Ann. § 11-10-529(a)(2)(A) to state the ground upon which he sought our review of the Board of Review’s decision. In his petition for review appellant acknowledged that he had not quit, but had been discharged from his last job. His complaint is that the Board of Review erred in not receiving the additional evidence of the family emergency that he requested to introduce.

Assuming, arguendo, that the Board of Review erred in denying appellant’s request to introduce into evidence the two letters that he proffered, such error was harmless. One of these letters was from appellant’s son and basically stated the same family information that appellant testified to before the Appeal Tribunal. The other letter was from Dr. Richard L. Alexander, the obstetrician who attended appellant’s daughter-in-law. Dr. Alexander stated that appellant’s daughter-in-law had “a slightly elevated blood pressure.” This could hardly constitute a family medical emergency which would justify an employee to defy an employer’s refusal to give the employee time off to be with the expectant daughter-in-law. Consequently, even if the Board of Review should have received these letters into evidence, it did not constitute prejudicial error.

Because the Board’s decision is supported by substantial evidence, we affirm.

Affirmed.

Pittman and Rogers, JJ., agree. Mayfield, Stroud and Griffen, JJ., dissent.