J. P. Price Lumber Co. v. Daniels

David Newbern, Judge. The question on this employment security benefits appeal is whether the board of review’s decision in favor of the employee may be sustained in view of the fact that the employee declined to appear or otherwise present evidence to the appeals tribunal or board of review, and the employer presented substantial evidence in support of its position. The holding in favor of the appellee-employee was based upon his statement which was made to a local employment security agency when he filled out a claims worksheet. We hold that statement may not be considered substantial evidence to support the ruling of the board of review. Ark. Stat. Ann. § 81-1107(d)(2) (Repl. 1976) provides that “the appeal tribunal, after affording the parties a reasonable opportunity for a fair hearing, and on the basis of the record, shall affirm, modify, or reverse” the determination of an employment security division office. Where, as in this case, the employee has prevailed upon his claim at the agency level the burden is upon the employer to go forward with evidence before the appeals tribunal to overcome the prima facie case in favor of the employee created by the agency determination. Little Rock Furniture Mfg. Co. v. Commission of Labor, 227 Ark. 288, 298 S.W. 2d 56 (1957). 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. In this court the standard for review of board of review decisions is well settled. We must affirm if there is substantial evidence to support the board’s determination. Terry Dairy Products Co. v. Cash, 224 Ark. 576, 275 S.W. 2d 12 (1955). We have recently determined that hearsay testimony before the appeals tribunal does not qualify as substantial evidence. Woods v. Employment Security Division, et al., 269 Ark. 613, 599 S.W. 2d 435 (Ark. App. 1980). We have also held that an employee need not appear at an appeals tribunal hearing in order to have his appeal considered if he has presented evidence to the appeals tribunal in writing. Stewart v. Charles L. Daniels, et al., 269 Ark. 809, 601 S.W. 2d 245 (Ark. App. 1980). As noted above, the question here is whether we can go outside the record compiled by the appeals tribunal and the board of review. In other words, to affirm this case we would have to hold that the initial statement made by the employee when he filled out his claims worksheet is substantial evidence to support his claim. Although we see no reason why the board of review and. appeals tribunal may not consider a claimant’s initial statement to the local employment security agency as some evidence either in support of the claim or in opposition to it, we cannot say such a statement alone serves as “substantial evidence” in support of the claim. That is especially true in this case where the statement made by the employee addressed only the matter of his excuse for one of many absences to which direct testimony was given before the appeals tribunal by his supervisor. Reversed. Howard, J., dissents.