Rucker v. Price

Judith Rogers, Judge. The Board of Review affirmed and adopted the decision of the Appeal Tribunal disqualifying appellant, Sherman Rucker, from receiving unemployment compensation benefits based on a finding that he was discharged for misconduct connected with the work. In this unbriefed appeal, the issue before us is whether the Board’s decision is supported by substantial evidence. We hold that it is so supported, and affirm. Appellant was employed by Townsends of Arkansas, Inc. In October of 1990, Townsends implemented a chemical substance and alcohol abuse policy with the goal of establishing a drug-free workplace. When appellant was hired in April of 1991, he signed a consent form agreeing to abide by the terms and conditions of the policy. Townsends’ policy did not provide for random drug testing; however, testing was required of applicants seeking employment and of employees who were reasonably suspected of being under the influence of illegal drugs, controlled chemical substances and alcohol. Testing was also required of employees who were injured on the job, when the injury required treatment by a physician. The policy contained a listing of prohibited substances and set out levels of those substances, and alcohol, which would not be permitted. The policy called for the automatic termination of an employee whose test yielded such a positive result, although employees were given the opportunity for a second test, at their own expense. Appellant worked as a trainer in the wing department. On June 1, 1994, a Wednesday, he sliced his hand with a knife while cutting a cardboard box. Seven stitches were required to repair the injury. On the day of the accident, appellant submitted a urine sample for testing. He was fired, effective June 7, 1994, for failing to pass the test. It was said that the test revealed a positive result for a non-prescription, controlled substance. However, in keeping with the company’s policy of confidentiality, the particular drug was not named. Appellant did not request a second test. Appellant testified of his awareness of the drug policy, including the provision calling for automatic termination should he fail a drug test following a work-related injury. He denied that he had taken any drugs on the day of the accident, but he said that he had “smoked a joint” during the Memorial Day weekend. On this evidence, the Board ruled that appellant was discharged for misconduct connected with the work, finding that he had violated a company rule and that his conduct was in disregard of his employer’s interest. The Board, declined, however, to deny benefits under Ark. Code Ann. § ll-10-514(b) (Supp. 1993), which provides for further disqualification for reporting to work under the influence of intoxicants, including controlled substances. On appeal, the findings of facts of the Board of Review are conclusive if they are supported by substantial evidence. Perdrix-Wang v. Director, 42 Ark. App. 218, 856 S.W.2d 636 (1993). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id. We review the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Board’s findings. Id. Our review is limited to a determination of whether the Board could reasonably reach its decision upon the evidence before it. Id. Arkansas Code Annotated § ll-10-514(a) (Supp. 1993) provides that an individual shall be disqualified for benefits if he is discharged for misconduct in connection with the work. “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 which the employer has the right to expect; and, (4) disregard of the employee’s duties and obligations to his employer. George’s Inc. v. Director, 50 Ark. App. 77, 900 S.W.2d 590 (1995). There is an element of intent associated with a determination of misconduct. Mere good faith errors in judgment or discretion and unsatisfactory conduct are not considered misconduct unless they are of such a degree of recurrence as to manifest culpability, wrongful intent, evil design, or intentional disregard of the employer’s interest. Id. Whether an employee’s acts are willful or merely the result of unsatisfactory conduct or unintentional failure of performance is a fact question for the Board to decide. Id. At the hearing, appellant argued that he should not be penalized for his off-duty conduct. At first blush, such an argument brings to mind our decision in Feagin v. Everett, 9 Ark. App. 59, 652 S.W.2d 839 (1983). In Feagin, we recognized that misconduct in connection with the work can occur while an employee is off duty. There, a teacher was fired after criminal charges had been filed against her for the possession of a controlled substance, which had been found in her home. In affirming the Board’s finding of misconduct, we adopted a three-part test for determining whether an employee’s off-duty conduct will be considered misconduct in connection with the work. First, there must exist a nexus between the employee’s work and his or her off-duty activities. Second, it must be shown that the off-duty activities resulted in harm to the employer’s interests. And third, the off-duty conduct must be violative of some code of behavior contracted between the employer and employee, and the employee’s conduct must be done with the intent or knowledge that the employer’s interests would suffer. The decision in Feagin v. Everett, id., however, does not gpvern our review of the instant case. We have recognized that misconduct may also be found for the intentional violation of an employer’s rules. In Grace Drilling Co. v. Director, 31 Ark. App. 81, 790 S.W.2d 907 (1990), the employer had developed a safety program which included drug testing on a random basis. The policy prohibited employees from having “any detectable level of alcohol, drugs, or controlled substances, or any combination thereof, in the body.” The employee was discharged after failing a drug test. The Board of Review awarded unemployment compensation benefits. We reversed, holding that the employee’s actions constituted misconduct in connection with the work in that the employee’s positive test result represented a deliberate violation of the employer’s rules, as well as a willful disregard of the standard of behavior which the employer had a right to expect. More recently, we decided the case of George’s Inc. v. Director, 50 Ark. App. 77, 900 S.W.2d 590 (1995). The employer in that case had also adopted a drug policy, and the employee was fired after testing positive for a detectable amount of a controlled substance which had not been prescribed to him. We disagreed with the Board’s conclusion that the employer’s drug policy was not reasonable1, and we held that the employee was discharged for the violation of the employer’s rules. We remanded for the Board to make a finding of fact as to whether the employee’s violation of the employer’s rule was intentional, since the Board had not addressed that pivotal issue. In reviewing this case, we are guided by the decisions in Grace Drilling Co. v. Director, supra, and George’s Inc. v. Director, supra. We conclude that appellant was not discharged for off-duty conduct, but that he was terminated pursuant to the employer’s policy requiring the discharge of any employee who tested positively for drugs in excess of the designated tolerance levels. As appellant’s conduct was in violation of the employer’s rules, we hold that he was discharged for misconduct in connection with the work. Noting that appellant had agreed to be bound by the policy and that he was thus aware of its terms and the ramifications for failing a test, the Board found that appellant’s conduct was intentional. We cannot say that the Board’s decision of disqualification is not supported by substantial evidence. Affirmed. Bullion, S.J., agrees. Mayfield and Robbins, JJ., dissent. Cooper, J., not participating. Footnotes [1] In Grace Drilling Co. v. Director, supra, we observed that it was not unreasonable for the employer to implement a drug policy given the dangerous nature of employer’s business. In George’s Inc. v. Director, supra, we stated that a prerequisite to finding misconduct for the violation of an employer’s rule is that the rule be “reasonable.” The record in this case contains no evidence describing Townsends’ business or appellant’s job duties. In sum, no argument was made below challenging the reasonableness of Townsends’ drug policy. We thus do not consider this question as being within the realm of contested issues, and thus we can offer no opinion on the matter. This court does not consider issues raised for the first time on appeal. Perdrix-Wang v. Director, 42 Ark. App. 218, 856 S.W.2d 636 (1993).