The opinion
Cite as 2017 Ark. App. 171
ARKANSAS COURT OF APPEALS
DIVISION II, III & IV
No. E-16-386
JIMMY WILSON OPINION DELIVERED: MARCH 15, 2017
APPELLANT
V. APPEAL FROM THE ARKANSAS
BOARD OF REVIEW
DIRECTOR, DEPARTMENT OF [NO. 2016-BR-01073]
WORKFORCE SERVICES, AND
CENTERPOINT ENERGY
APPELLEES AFFIRMED
ROBERT J. GLADWIN, Judge
Jimmy 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.
Appellant, 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
assistance.”
Cite as 2017 Ark. App. 171
During 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.
Terry 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 it.”
Appellant 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 didn’t.”
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The 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.
We 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.
A 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
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expect of its employees, and (4) disregard of the employee’s duties and obligations to the
employer. Id.
Our 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.
The 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 equipped than we are to make those determinations. Our standard of
review requires us to affirm the decision because it is supported by substantial evidence.
Affirmed.
GRUBER, C.J., and ABRAMSON, GLOVER, MURPHY, and BROWN, JJ., agree.
HARRISON, KLAPPENBACH, and WHITEAKER, JJ., dissent.
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BRANDON J. HARRISON, Judge, dissenting. The issue in this case is whether
Wilson was discharged from CenterPoint Energy for misconduct. I respectfully disagree
with the majority’s conclusion that Wilson’s actions constituted misconduct and would
reverse the Board’s decision and remand for an award of benefits.
The majority correctly recites our standard of review: The Board’s decisions are
upheld if they are supported by substantial evidence, which is evidence that reasonable minds
might accept as adequate to support a conclusion. See Garrett v. Dir., 2014 Ark. 50. We
view the evidence and all reasonable inferences deducible therefrom in the light most
favorable to the Board’s findings. Id. Even if the evidence could support a different
decision, our review is limited to whether the Board could have reasonably reached its
decision based on the evidence presented. Id. “This is not to say, however, that our
function on appeal is merely to ratify whatever decision is made by the Board.” Thomas v.
Dir., 55 Ark. App. 101, 104, 931 S.W.2d 146, 147 (1996); see also Clark v. Dir., 83 Ark.
App. 308, 311, 126 S.W.3d 728, 730 (2003) (“[W]e are not limited to a ‘rubber stamp’
review of decisions arising from the Board of Review.”) (reversing for benefits and
collecting numerous cases where the Board was reversed and benefits awarded).
In the unemployment-compensation context, misconduct is defined as “(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; or (4) disregard of
the employee’s duties and obligations to the employer.” Moody v. Dir., 2014 Ark. App.
137, at 6, 432 S.W.3d 157, 160. The cases make clear that to constitute misconduct, an
element of intent is required. Garrett, supra; Hubbard v. Dir., 2015 Ark. App. 235, 460
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S.W.3d 294. 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. Hubbard,
supra. Misconduct must be based on 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. See Garrett, supra; Hubbard, supra.
This court has directed that “the statutory misconduct provision of the Law must be
given an interpretation in keeping with that of the declared policy. It should not be so
literally construed as to affect a forfeiture of benefits by an employee except in clear instances
of misconduct.” Willis Johnson Co. v. Daniels, 269 Ark. 795, 800, 601 S.W.2d 890, 893
(Ark. Ct. App. 1980) (internal citations omitted). Given the undisputed and particular
circumstances this case presents, I cannot agree that Wilson’s decision to plug the riser was
a clear instance of misconduct. In other words, his decision did not constitute an intentional
or deliberate violation, a willful or wanton disregard, or carelessness or negligence of such a
degree or recurrence that manifested wrongful intent or evil design.
The record shows that Wilson acted with the intent to make a scene safer. No one
disputed his testimony on this point. According to Wilson, the car that caused the problem
in the first place “almost turned over on top of the riser . . . which could have sparked and
caused a fire.” He also said, which no one disputed, that “the lightning in the air and
everything else, the Jonesboro Police Department and the fire department both agreed that
[he] needed to get it plugged off quick[.]” Wilson’s additional concern that the riser was
“too close to that house trailer” was also undisputed. The company decided that he had
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violated a policy and terminated his employment. But that issue is legally separate from
whether Wilson acted in a way that manifested the required wrongful intent toward his
employer’s interest pursuant to section 11-10-514(b).
And paying Wilson’s claim in this case would not offend the purpose of our
unemployment-security statutes, which is, according to our supreme court, “to protect the
state unemployment compensation fund against claims of individuals who would prefer
benefits to jobs.” Garrett v. Cline, 257 Ark. 829, 832, 520 S.W.2d 281, 284 (1975). No
evidence suggests that Wilson—who worked for the company from 1976 until 2016 and
was denied benefits for his actions during an emergency situation—chose benefits over
work. Therefore, I respectfully dissent.
KLAPPENBACH and WHITEAKER, JJ., join in this dissent.
Jimmy L. Wilson, pro se appellant.
Phyllis Edwards, Associate General Counsel, for appellee.
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