Opinion
No. E12-677
02-06-2013
ROBERT COCHRAN APPELLANT v. DIRECTOR, DEPARTMENT OF WORKFORCE SERVICES, and SAGE V. FOODS, LLC APPELLEES
Robert Cochran, pro se appellant. Phyllis Edwards, Associate General Counsel, for appellee.
APPEAL FROM THE ARKANSAS
BOARD OF REVIEW
[NO. 2011-BR-03499]
REVERSED AND REMANDED
KENNETH S. HIXSON , Judge
Appellant Robert Cochran appeals the denial of unemployment benefits to him following the end of his employment as a production supervisor for Sage V. Foods, LLC. Appellant did not prevail before the Department of Workforce Services, but the Appeal Tribunal reversed the Department and awarded benefits. The employer appealed to the Board of Review, which reversed the award of benefits to Cochran. The Board found that Cochran was terminated for misconduct in connection with the work and misconduct constituting dishonesty. Appellant appeals, contending that the Board's decision is not supported by substantial evidence. We agree with his argument and reverse and remand for an award of benefits.
On appeal from the Board of Review, its findings of fact are conclusive if supported by substantial evidence, meaning such relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Hayden v. Dir., Dep't of Workforce Servs., 2010 Ark. App. 298. We review the appeal in the light most favorable to the Board's decision. Id. Credibility calls are for the finder of fact, here the Board. Id. If fair-minded persons could reach the Board's conclusion, it must be affirmed. Id. Misconduct in this context is not ordinary negligence or good-faith errors in judgment or discretion, unless accompanied by wrongful intent or intentional disregard of the rules of the job or the employer's interests. Id. There is an underlying requirement of intent with misconduct. Id.; Perry v. Gaddy, 48 Ark. App. 128, 891 S.W.2d 73 (1995). "Dishonesty" in this context has been defined to mean a disposition to lie, cheat, or defraud; untrustworthiness; lack of integrity. Bergman v. Dir., Dep't of Workforce Servs., 2010 Ark. App. 729, 379 S.W.3d 625; King v. Dir., Emp't Sec. Dep't, 80 Ark. App. 57, 92 S.W.3d 685 (2002). See also Ark. Code Ann. § 11-10-514(b) (Repl. 2012).
The evidence in the telephone hearing included the testimony of Cochran, who stated that he worked for this employer for two-and-a-half years. He testified that Stephen Woods, a forklift driver under Cochran's supervision, was driving a forklift through a corridor when part of the forklift hit a yellow pipe. This happened on August 23, 2011. Woods reported this to Cochran, who then looked at it. Cochran said he did not know that the yellow pipe was a gas line because gas pipes were usually painted orange, and that it did not appear to have any structural damage. He said that there was no written policy about reporting accidents or incidents. He said that when he was hired, he was given an employee handbook, but that it was later taken back and rewritten with no explanation of any changes. Cochran said he had never been disciplined for any safety violations, nor did he believe he had done so in this instance.
Cochran said that James R. Oliver was his immediate supervisor. In a meeting in Oliver's office about various things on September 2, 2011, Cochran recalled Jeff Juno, operations manager, asking about someone hitting a gas line. Cochran testified that he reported knowing nothing about hitting a gas line. He was asked to find Steven Emory, the quality-assurance supervisor, who explained that "it was the yellow piece of pipe." At that point, Cochran said he recognized that it was the same pipe that Woods struck, which led to Cochran filling out safety reports and taking photographs for documentation.
A statement by Emory was admitted into evidence, wherein Emory recalled a conversation about the forklift driver hitting the pipe and reporting it to Cochran, but that Cochran did not immediately report the incident to his supervisors. Cochran was terminated on September 19, 2011, for failing to follow safety policy, being dishonest about it when asked, and having previous disciplinary actions.
The human-resources coordinator for the employer, Jennifer Felton, testified that the company did not have a written conduct or handbook policy. She had "never heard of it before." She stated that "if [employees] went through some type of supervisory training, they would be advised of that process at that time." She had no personal knowledge of the incident at issue, where a yellow gas line was struck in a hallway near the quality-assurance lab. She said that if an incident or accident like this was not reported to the safety manager, there was no resulting disciplinary procedure in place. When asked by the hearing officer why an employee might be fired if there was no consequential disciplinary procedure, she replied, "I can't answer that question. I have no idea." Ms. Felton testified that Cochran had prior disciplinary actions in his personnel file, but none concerned safety violations or safety policies. She was unaware of any employer policy regarding falsification or dishonest actions.
The Board found that Cochran's failure to report the incident in compliance with the employer's policy evidenced a carelessness of such a degree to manifest wrongful intent or evil design. The Board outlined the safety policy, which required that "all accidents, including near misses" be reported immediately to "your supervisor" and an incident report be completed "prior to leaving the facility." The Board further found that his denial of knowledge about an incident with employee Woods was "dishonest" because it did not matter if the pipe carried natural gas or whether it showed any damage.
We hold that the Board's decision is not supported by substantial evidence of record. Woods reported the incident to his superior, appellant Cochran. Thereafter, Cochran did not report the incident further up the supervisory chain until informed that he needed to because it was a gas line. Cochran stated that he knew of no policy that required him to do so. The employer's own witness, its human resources coordinator, could not verify the existence or extent of any such safety policy or procedure. This does not rise to the level of misconduct sufficient to disqualify Cochran from unemployment benefits. See Clark v. Dir., Emp't Sec. Dep't, 83 Ark. App. 308, 126 S.W.3d 728 (2003).
Furthermore, there is no substantial evidence to support that Cochran's "dishonesty" rose to a level sufficient to disqualify him from benefits contemplated by our unemployment- compensation law. In King v. Dir., Employment Sec. Dep't, 80 Ark. App. 57, 92 S.W.3d 685 (2002), our court held that Mr. King's erroneous belief that his criminal record had been expunged, which resulted in King representing on his job application that he had never been convicted of a crime, was not substantial evidence of dishonesty for purposes of unemployment benefits. There, our court reversed the Board because there was no substantial evidence that King's representation was made with the intent to deceive his employer. The same is true in the appeal before us today.
Reversed and remanded for an award of benefits.
WOOD and BROWN, JJ., agree.
Robert Cochran, pro se appellant.
Phyllis Edwards, Associate General Counsel, for appellee.