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Thomas v. Director, Department of Workforce Services

Court of Appeals of Arkansas, Division I

October 23, 2019

Allen THOMAS, Appellant


         Humphrey Law Office, by: Marion A. Humphrey, Little Rock, for appellant.

          Cynthia Uhrynowycz, for appellee Director, Arkansas Department of Workforce Services.


         RITA W. GRUBER, Chief Judge

          Appellant Allen Thomas appeals the decision of the Arkansas Board of Review (Board), which affirmed the opinion of the Appeal Tribunal (Tribunal) denying him unemployment benefits on the basis that he was discharged from last work for misconduct connected with the work. Thomas alleges that there is no substantial evidence to support the Board’s findings that he was discharged for misconduct because the employer failed to follow its written policy for termination. We disagree and affirm.

          Thomas was employed with Weyerhaeuser NR Company (Weyerhaeuser) as an operator for a stacker-stick-layer machine. He first began working for Weyerhaeuser in 1989 and was discharged in 2018 for violating its "lock out/tag out" (LOTO) safety policy. The LOTO policy requires operators to shut down the power to a machine and place a lock on the power source before entering the body of the equipment to work on it. The purpose of the policy is to prevent injury by ensuring that no bodily contact is made with any moving machine parts. The policy was in writing and reviewed with employees once a year.

          On July 24, 2018, the company sawmill lead and Thomas’s supervisor, Jason Russell, observed video footage that showed Thomas placing his arm up to his shoulder into an area of the machine with moving parts. The power had not been cut, and he did not follow the LOTO procedure. Thomas was subsequently suspended pending an investigation and was ultimately discharged. The Arkansas Department of Workforce Services denied Thomas’s application for unemployment benefits; he appealed its decision to the Tribunal.

          During the telephone hearing held by the Tribunal, Thomas admitted that he knew about the safety policy. He could explain the policy in detail but asserted that he did not think to employ the safety procedures because he needed to straighten a "stick" in the machine, and it took "just a second." In defense of his conduct, he stated that all operators straightened sticks without cutting power and that Russell had witnessed him do that without locking out the machine on other occasions but had never reprimanded him. When questioned about Thomas’s allegations, Russell explained that he had witnessed operators reach into only the first "pan" of the machine to straighten a stick but that Thomas had reached farther than that, with his arm almost up to his shoulder into the equipment. Russell said that if Thomas had contact with a moving part, the result would have been catastrophic, possibly causing death.

          The Tribunal found that Thomas was disqualified from receiving unemployment benefits under Arkansas Code Annotated section 11-10-514(b)(1) (Supp. 2017), reasoning that he had been "discharged from last work for misconduct in connection with the work on account of a willful violation of the employer’s written rules pertaining to the safety of persons." On review, the Board determined that the Tribunal was correct as to the outcome and found that Thomas had been discharged for a "willful violation of the rules or customs of the employer pertaining to the safety of fellow employees, persons, or company property." Arkansas Code Annotated section 11-10-514(b)(1) provides, in relevant part, that an individual who has been discharged for misconduct for willfully violating an employer’s bona fide written rules or customs— including those pertaining to the individual’s safety or the safety of fellow employees, persons, or company property— shall be disqualified from receiving unemployment benefits until, subsequent to the date of disqualification, the individual has been paid wages in two quarters for insured work totaling not less than thirty-five times his or her weekly benefit. Specifically, the Board determined that Thomas had violated the "customs of the employer pertaining to safety." This appeal followed.

          Board decisions are upheld if they are supported by substantial evidence. Blanton v. Dir., 2019 Ark.App. 205, 575 S.W.3d 186. Substantial evidence is such relevant evidence that reasonable minds might accept as adequate to support a conclusion. Id. In appeals of unemployment-compensation cases, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Board’s findings. Id. Even if there is evidence that could support a different decision, our review is limited to whether the Board could have reasonably reached its decision as a result of the evidence presented. Id. However, our function on appeal is not merely to rubber-stamp decisions arising from the Board. Wilson v. Dir., 2017 Ark.App. 171, 517 S.W.3d 427.

          When an individual is discharged from employment, the employer has the burden of proving by a preponderance of the evidence that the employee engaged in misconduct. Jones v. Dir., 2015 Ark.App. 479, 470 S.W.3d 277. 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 standards 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. Keith v. Dir., 2018 Ark.App. 541, 564 S.W.3d 296. 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 do not rise to the level of misconduct. Follett v. Dir., 2017 Ark.App. 505, 530 S.W.3d 884. 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. Id.

          On appeal, Thomas argues that Weyerhaeuser disregarded its own disciplinary policy because it did not consider "the circumstances surrounding the failure to utilize the procedures" as was required. He contends that Weyerhaeuser should have considered (1) the pressure employees were under to get product out, (2) his similar use of the machine in the past, and (3) his long work history with the company. Thomas asserts that because it failed to follow the first-offense discharge policy by not considering the circumstances of the safety violation, Weyerhaeuser was not justified in terminating him under it, and as a result, the Board’s findings were not supported by substantial evidence. We disagree. Weyerhaeuser’s disciplinary procedures state in part:

Because of the potential seriousness of injury for violation of the following safety rules these disciplinary ...

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