Court of Appeals of Arkansas, Division II, III, IV
FROM THE ARKANSAS BOARD OF REVIEW [NO. 2016-BR-01073]
L. Wilson, pro se appellant.
Phyllis Edwards, Associate General Counsel, for appellee.
J. GLADWIN, Judge
Wilson appeals the Arkansas Board of Review's
(Board's) decision denying him unemployment benefits upon
finding that he was discharged from his employment for
misconduct. We affirm.
a forty-year employee of CenterPoint Energy, was employed as
a service technician at the time of his discharge.
CenterPoint provided appellant with a number of written
company policies. Among the writings was a document outlining
performance expectations, which required that all employees
were expected to abide by the rules and accepted practices of
the company. Further, a document titled "Special
Precautions for Gaseous Atmospheres" provided that
"no person will work in a gaseous atmosphere without
back-up assistance. Therefore, no employee will attempt to
squeeze off, stop or repair a blowing gas leak on a main or
service line in a gaseous atmosphere without backup
the hearing, CenterPoint's human-resources
representative, Sherry Martin, testified that appellant
worked as a service technician. She said that he was
discharged for violating company policy by entering a gaseous
atmosphere without permission from his supervisor.
Rollins, a district director for CenterPoint, testified that
appellant's direct supervisor was Wayne Tilley. Tilley
notified Rollins about appellant's actions, and Rollins,
Tilley, and Martin interviewed appellant about the incident.
Rollins testified that appellant admitted that "he went
into a gaseous atmosphere, and he should have called his
supervisor but he just got in a hurry and didn't do
testified that on April 29, 2016, he responded to an accident
involving a car that had hit a gas riser and had broken it
off below the cut-off valve. He stated that he had spoken to
Tilley on the way to the accident and that Tilley told him
that additional CenterPoint personnel were on their way.
Appellant testified that the riser was located near a trailer
house and that it needed to be plugged because it posed a
danger because of lightning in the area. Appellant said that
he discussed the situation with Jonesboro police officers and
firefighters who were on the scene, and he felt that the
riser needed to be plugged immediately. Appellant said that
he conferred with the fire department but did not call Tilley
again before entering the gaseous atmosphere "because
sometimes when you are out on an emergency like that
you've got to make a snap decision to make it safe for
the public." Appellant entered the gaseous atmosphere
without back up, plugged the riser, and then called Tilley.
When asked why he did not call his supervisor before entering
the gaseous atmosphere he replied, "I just
Appeal Tribunal found that appellant was disqualified under
Ark. Code Ann. § 11-10-514(b) (Supp. 2015), determining
that he had been "discharged from last work for
misconduct in connection with the work on account of a
violation of bona fide written rules or customs of the
employer including those pertaining to his or her safety or
the safety of fellow employees, persons or company
property." Appellant appealed to the Board, which
adopted the Appeal Tribunal's decision as its own, and he
now appeals to this court.
review the Board's finding in the light most favorable to
the prevailing party and affirm the Board's decision if
it is supported by substantial evidence. Price v.
Dir., 2013 Ark.App. 205. Substantial evidence is such
relevant evidence that a reasonable mind might accept it as
adequate to support the conclusion. Id. Even when
there is evidence upon which the Board might have reached a
different decision, the scope of our review is limited to a
determination of whether the Board reasonably could have
reached the decision it did based on the evidence before it.
Id. Our function on appeal is not merely to
rubber-stamp decisions arising from the Board. Id.
person shall be disqualified from receiving unemployment
benefits if it is determined that the person was discharged
from his or her last work for misconduct in connection with
the work. Ark. Code Ann. § 11-10-514(a)(1). The employer
has the burden of proving by a preponderance of the evidence
that an employee engaged in misconduct. Spencer v.
Dir., 2014 Ark.App. 479. Misconduct for purposes of
unemployment compensation involves (1) disregard of the
employer's interest, (2) violation of the employer's
rules, (3) disregard of the standard of behavior the employer
has a right to expect of its employees, and (4) disregard of
the employee's duties and obligations to the employer.
appellate jurisprudence makes clear that to constitute
misconduct, there must be an element of intent.
Spencer, supra. Misconduct requires 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 errors in judgment or discretion. Id. To
constitute misconduct there must be an intentional or
deliberate violation, a willful and wanton disregard, or
carelessness or negligence of such degree or recurrence as to
manifest a wrongful intent or evil design. Id.
evidence is clear and confirmed by appellant's testimony
that he entered a gaseous atmosphere without back up and
without permission from his supervisor. This was a clear
violation of his employer's rules and standards of
conduct. Appellant admits that he made a "snap
decision" and that he "just didn't" call
Tilley for permission. CenterPoint is entitled to expect its
employees to abide by its safety rules, not only for the
safety of its employees, but also for the safety of the
public. It is not up to the employee, the Jonesboro Fire
Department, or this court to determine when a violation of
the rules is justified. The company is better ...