The opinion
Cite as 2019 Ark. App. 468
Digitally signed by Elizabeth ARKANSAS COURT OF APPEALS
Perry
Date: 2022.08.04 12:07:57
DIVISION I
-05'00' No. E-19-39
Adobe Acrobat version:
2022.001.20169
Opinion Delivered: October 23, 2019
ALLEN THOMAS
APPELLANT
APPEAL FROM THE ARKANSAS
V. BOARD OF REVIEW
[NO. 2018-BR-01493]
DIRECTOR, DEPARTMENT OF
WORKFORCE SERVICES, AND
WEYERHAEUSER NR COMPANY
APPELLEES AFFIRMED
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
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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.
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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:
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Because of the potential seriousness of injury for violation of the following
safety rules these disciplinary procedures shall apply:
1. First offense discharge—
Failure to properly utilize lockout/tagout procedures. Circumstances
surrounding the failure to utilize the procedures will be considered.
We have said when the employer has no written policy or fails to follow its written policy,
then the facts must be evaluated to determine whether the employee’s behavior was a willful
disregard of the employer’s interest. Hopkins v. Dir., 2019 Ark. App. 84, at 4, 571 S.W.3d
524, 527; see also Whitmer v. Dir., 2017 Ark. App. 367, at 4, 525 S.W.3d 45, 48.
Here, Weyerhaeuser’s disciplinary policy allowed for discharge after a first offense for
failure to use LOTO safety procedures following consideration of the surrounding
circumstances of the violation. The evidence is clear that Thomas failed to follow the
required safety procedure. His assertion that the Board determined that Weyerhaeuser had
failed to follow its policy for a first-offense discharge is incorrect. The Board found that it
was Weyerhaeuser’s custom to allow “reaching into the first pan [of the machine]” without
utilizing the lock-out procedure, but beyond that, a tool or the lock-out procedure was
required. Finding that Weyerhaeuser had a certain custom in addition to its written policy
is not synonymous with finding that Weyerhaeuser failed to discharge Thomas according to
that policy.
Regarding Thomas’s claim that Weyerhaeuser should have considered the pressure
he was under to get product out, it is not disputed that there was pressure on the employees.
However, Thomas admitted that there was no pressure to also disregard the safety
procedures. His next assertion—that Weyerhaeuser failed to consider similar use of the
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machine in the past and that his supervisor witnessed similar use without prior reprimand—
is contradicted by Russell’s testimony that he had never observed Thomas with his arm that
far into the machine. Issues of witness credibility and the weight to be afforded their
testimony are matters for the Board to determine. Weinstein v. Dir., 2013 Ark. App. 374,
428 S.W.3d 560. After Thomas had been suspended, Weyerhaeuser investigated the
circumstances of his safety violation. The video of Thomas reaching into the machine was
reviewed by several people within the company, and it interviewed seven other workers
about how they would respond in the same situation, all of whom explained that they
believed they could reach into the “first pan” of the machine but needed to use a “pike
pole” or lock out the machine beyond that area. Given the testimony and the evidence in
the record, we cannot say that Weyerhaeuser failed to consider the circumstances of the
safety violation.
Thomas’s final point is that his long tenure of employment with Weyerhaeuser
supports a finding that he did not engage in intentional misconduct. However, a violation
of safety rules satisfies the element of intent required to constitute misconduct. Wilson, 2017
Ark. App. 171, at 4, 517 S.W.3d at 429–30. Even though Thomas testified that he did not
“think” to follow the safety procedures, he admitted that he had his arm in the machine,
was aware of the required safety procedures, is required to follow the LOTO safety
procedure at any point when his arm is in a machine, and understood he could have been
mangled or worse, yet he did not follow the safety procedures before putting his arm in the
machine.
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Because Weyerhaeuser conducted an extensive investigation and Thomas admitted
he was aware of and understood the company’s LOTO safety policy, the Board could have
reasonably based its decision on the evidence before it. Substantial evidence existed to
support the Board’s finding that Thomas willfully violated the rules or customs of the
employer pertaining to safety. Therefore, we affirm the Board’s denial of unemployment
benefits.
Affirmed.
WHITEAKER and VAUGHT, JJ., agree.
Humphrey Law Office, by: Marion A. Humphrey, for appellant.
Cynthia Uhrynowycz, for appellee Director, Arkansas Department of Workforce
Services.
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