The opinion
George Howard, Jr., Judge, dissenting. The necessary facts for an understanding of the issue presented are:
On Monday, September 10, 1979, claimant, while enroute to his place of employment for respondent, encountered automotive problems and, consequently, did not report to work but, according to a written statement submitted to the local office of the Employment Security Division, telephoned his employer advising him of his automotive difficulties.
In protesting claimant’s application for benefits, the employer submitted the following written statement as the reason for the termination of claimant’s services:
He did not show up for work regular, was supposed to have been here on Monday, 9/10, was not so we hired someone else. When he came to work Tuesday we told him that we would call him when we have work.’ ”
During the hearing before the Appeals Tribunal, a representative for the employer testified:
“Well, he was late it might not have been 3/4 of the time, but he was late a lots and, like, if he ever called in I don’t know it, I mean, I’m not saying that he didn’t, but I didn’t know .... Ah, the absenteeism just lead up to it ah, this last day was the straw that broke the camel’s back with me. ...”
The following exchange took place between the Referee and the representative for the employer:
REFEREE: Mr. Cotham was he actually discharged from his job because of sleeping on the job or for being late to work?
COTHAM: That particular time, for late to work. (Emphasis added)
REFEREE: Okay, now then I believe according to the information he furnished the Agency or in his statement, he stated that he started to work on September 10, his car broke down, he called and stated that he was unable to get to work because of transportation problems, that he would get in the next day and apparently somebody told him it was okay. When he came to work the next day he was discharged from his job. Do you know if he called in on that morning?
COTHAM: No sir, I don’t.
REFEREE: Do you question as to whether he did or did not sir?
COTHAM: I would question that, because if he called in, he never did call in and if he called in that morning that was, that was the first morning. I’m not saying that he didn’t call in that morning, but I didn’t get the word for it, I didn’t get the word to it.
REFEREE: Have you subsequently to the time he was discharged made any kind of an investigation to see if anybody received a telephone call in authority as far as the office or anything like that was concerned?
COTHAM: No sir.
REFEREE: You have not made the investigation?
COTHAM: No sir.
REFEREE: Then there is a possibility that he did call in that morning?
COTHAM: Well, as far as I'm concerned there is. (Emphasis added)
While the majority recognizes that the employer had the burden of going forward with the evidence, during the hearing before the Appeals Tribunal, to overcome the prima facie case in favor of the claimant, the majority concludes, however:
“. . . In the case before us the employer has met the burden of going forward with the evidence before the appeals tribunal. Mr. Cotham, the supervisor of the employee, gave strong testimony with respect to the appellee’s absences, tardiness, and sleeping on the job. The appeals tribunal and board of review apparently disregarded his testimony because he was unable to say that the employee did not telephone to advise the employer of automobile. trouble on the date of his last absence which admittedly precipitated his discharge for misconduct.”
The troubling part of the majority’s conclusion is the difficulty that I have in finding that the employer "gave strong testimony” in support of its justification for discharging claimant when it is readily apparent that not only is the evidence submitted by the employer conflicting as to the reason claimant was discharged on Monday, September 10, but has no persuasive or probative value at all regarding the question whether the claimant notified his employer of his automotive problem.
It is well recognized that it is the prerogative of the administrative agency to resolve conflicts and determine credibility of witnesses. This is so basic that it is not even necessary to cite any authorities in support of this proposition. It is plain that the Board of Review, here, resolved all conflicts and doubts in behalf of the claimant.
Finally, the majority appears to be somewhat disturbed by the fact that the claimant did not appear in person, during the hearing, before the Appeals Tribunal, but Ark. Stat. Ann. § 81-1107(d)(3) provides in relevant part:
(3) . . . [TJhe Board [of Review] may on the basis of the evidence previously submitted in such case, or upon the basis of such additional evidence as it may direct be taken, affirm, modify or reverse the findings and conclusions of the appeal tribunal.
(4) . . . The Board of Review, appeal tribunals and special examiners shall not be bound by common law or statutory rules of evidence or by technical rules of procedure, but any hearing or appeal before such tribunals shall be conducted in such manner as to ascertain the substantial rights of the parties. . . . (Emphasis added).
It is clear that claimant’s presence was not absolutely required, under the law, in order for the Appeals Tribunal to review this proceeding. Moreover, the récord does not reflect whether the respondent requested or demanded that the claimant be required to appear in person.
I would affirm the action of the Board of Review in allowing claimant benefits.