FROM THE ARKANSAS BOARD OF REVIEW [NO. 2015-BR-01802]
& Taylor Law Firm, P.A., by: Andrew M. Taylor and Tasha
C. Taylor, for appellant.
Gregory Ferguson, for appellee.
RAYMOND R. ABRAMSON, Judge
Burch appeals from a decision of the Arkansas Board of Review
(Board of Review) denying her claim for unemployment benefits
on account of misconduct in connection with the work. She
argues that the evidence is insufficient to support the
finding. We affirm.
13, 2015, Weldon, Williams & Lick, Inc.
("WWL"), terminated Burch after she had exceeded
the absences allowed for sick leave by WWL's written
attendance policy. On July 8, 2015, her supervisor advised
her to talk to the human resources department (HR) about the
possibility of using intermittent Family Medical Leave Act
(FMLA) leave to reduce one of her absences. However, she did not immediately do so, and
she was discharged for attendance violations the following
her termination, Burch timely applied for unemployment
benefits; a notice of agency determination denying benefits
was mailed to Burch on August 3, 2015. She then timely filed
a petition for appeal to the Appeal Tribunal on August 6,
2015, and a hearing was held on September 1, 2015. The Appeal
Tribunal denied benefits in a September 2, 2015 decision. The
following day, Burch filed a petition for appeal to the Board
of Review. In an October 8, 2015 decision, the Board of
Review affirmed the Appeal Tribunal. Burch appeals to our
appeal, Burch argues that (1) her illness-related absences do
not rise to the level of misconduct required to deny
unemployment benefits; (2) WWL has not presented substantial
evidence that she violated a written policy because WWL did
not introduce into evidence the written policy that it
alleges she violated; and (3) even if WWL did have a written
policy, she did not violate the policy because her supervisor
had previously stated in writing that vacation leave could be
used without prior approval in special circumstances, such as
standard of review to be followed in such cases is clear. We
do not conduct a de novo review in appeals from the Board of
Review. Snyder v. Dir., 81 Ark.App. 262, 101 S.W.3d
270 (2003). In appeals of unemployment-compensation cases, we
instead review the evidence and all reasonable inferences
deducible therefrom in the light most favorable to the Board
of Review's findings. Id. The findings of fact
made by the Board of Review are conclusive if supported by
substantial evidence; even when there is evidence on which
the Board of Review might have reached a different decision,
the scope of judicial review is limited to a determination of
whether the Board of Review could have reasonably reached its
decision based on the evidence before it. Id. If
fair-minded persons could reach the Board of Review's
conclusions on the same evidence, then we must affirm its
evidence is such evidence as a reasonable mind might accept
as adequate to support a conclusion. Barnard v.
Dir., 2013 Ark.App. 143, at 2 (quoting Valentine v.
Dir., 2012 Ark.App. 612, at 3). It is also clear that
the credibility of the witnesses and the weight to be
accorded their testimony are matters to be resolved by the
Board of Review. Barnard, supra. Like a
jury, an administrative body is free to believe or disbelieve
the testimony of any witness. Gunter v. Dir., 82
Ark.App. 346, 107 S.W.3d 902 (2003).
employer must prove misconduct by a preponderance of the
evidence. Grigsby v. Everett, 8 Ark.App.
188, 191, 649 S.W.2d 404, 406 (1983). Arkansas Code Annotated
section 11-10-514 provides, in pertinent part,
(a)(2) In cases of discharge for absenteeism, the individual
shall be disqualified for misconduct in connection with the
work if the discharge was pursuant to the terms of a bona
fide written attendance policy, regardless of whether the
policy is a fault or no-fault policy.
Ark. Code Ann. § 11-10-514(a)(2) (Repl. 2015).
case law has long interpreted misconduct to include "(1)
disregard of the employer's interests, (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." Nibco, Inc. v.
Metcalf, 1 Ark.App. 114, 118, 613 S.W.2d 612, 614
(1981). But whether an employee's behavior is misconduct
that justifies the denial of unemployment benefits is a
question of fact for the Board of Review to decide. Smith