Jack Nelson Jones Professional Association

November 18-24, 2019

Thomas v. Director, Dept. of Workforce Svcs., 2019 Ark. App. 468 (Oct. 23, 2019)

This case came on appeal from the Arkansas Board of Review of the Department of Workforce Services (“Board”). Allen Thomas appealed from the finding of the Board that he was disqualified from receiving unemployment benefits for willful violation of safety rules arising to misconduct in connection with his work. Because this finding was supported by substantial evidence, the Court of Appeals (“Court”) affirmed.

Thomas was employed with Weyerhaeuser NR Company (Weyerhaeuser) as an operator for a stacker-stick-layer machine. He first began working for Weyerhaeuser in 1989 and was discharged in 2018 for violating its “lock out/tag out” (LOTO) safety policy. The LOTO policy required operators to shut down the power to a machine and place a lock on the power source before entering the body of the equipment to work on it. The purpose of the policy was to prevent injury by ensuring that no bodily contact was made with any moving machine parts. The policy was in writing and was reviewed with employees once a year.

On July 24, 2018, the company sawmill lead and Thomas’s supervisor, Jason Russell, observed video footage that showed Thomas placing his arm up to his shoulder into an area of the machine with moving parts. The power had not been cut, and he did not follow the LOTO procedure. Thomas was subsequently suspended pending an investigation and was ultimately discharged. The Arkansas Department of Workforce Services denied Thomas’s application for unemployment benefits, and he appealed its decision to the Appeals Tribunal of the Department of Workforce Services (“Tribunal”).

During the telephone hearing held by the Tribunal, Thomas admitted that he knew about the safety policy. He could explain the policy in detail but asserted that he did not think to employ the safety procedures because he needed to straighten a “stick” in the machine, and it took “just a second.” In defense of his conduct, he stated that all operators straightened sticks without cutting power and that Russell had witnessed him do that without locking out the machine on other occasions but had never reprimanded him. When questioned about Thomas’s allegations, Russell explained that he had witnessed operators reach into only the first “pan” of the machine to straighten a stick but that Thomas had reached farther than that, with his arm almost up to his shoulder into the equipment. Russell said that if Thomas had contact with a moving part, the result would have been catastrophic, possibly causing death.

The Tribunal found that Thomas was disqualified from receiving unemployment benefits under Ark. Code Ann. section 11-10-514(b)(1) (Supp. 2017), reasoning that he had been “discharged from last work for misconduct in connection with the work on account of a willful violation of the employer’s written rules pertaining to the safety of persons.” On review, the Board determined that the Tribunal was correct as to the outcome and found that Thomas had been discharged for a “willful violation of the rules or customs of the employer pertaining to the safety of fellow employees, persons, or company property.” Section 514(b)(1) provides, in relevant part, that an individual who has been discharged for misconduct for willfully violating an employer’s bona fide written rules or customs – including those pertaining to the individual’s safety or the safety of fellow employees, persons, or company property – shall be disqualified from receiving unemployment benefits. Specifically, the Board determined that Thomas had violated the “customs of the employer pertaining to safety.” Thomas then appealed to the Court of Appeals.

As a preliminary matter, the Court noted that Board decisions are upheld if they are supported by substantial evidence, and substantial evidence is such relevant evidence that reasonable minds might accept as adequate to support a conclusion. Moreover, it observed that, in appeals of unemployment-compensation cases, the Court must view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Board’s findings. Even if there is evidence that could support a different decision, its review is limited to whether the Board could have reasonably reached its decision as a result of the evidence presented. 

However, the Court also noted that its function on appeal is not merely to rubber-stamp decisions arising from the Board. When an individual is discharged from employment, it emphasized that the employer has the burden of proving by a preponderance of the evidence that the employee engaged in misconduct which, 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 the employer has a right to expect of its employees, and (4) disregard of the employee’s duties and obligations to the employer. It noted that 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 do not rise to the level of misconduct. There must be 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.

On appeal, Thomas argued that Weyerhaeuser disregarded its own disciplinary policy because it did not consider “the circumstances surrounding the failure to utilize the procedures” as was required. He contended that Weyerhaeuser should have considered (1) the pressure employees were under to get product out, (2) his similar use of the machine in the past, and (3) his long work history with the company. He asserted that because it failed to follow the first-offense discharge policy by not considering the circumstances of the safety violation, Weyerhaeuser was not justified in terminating him under its policy, and as a result, the Board’s findings were not supported by substantial evidence. 

The Court rejected these contentions. It observed that, while the facts must be evaluated to determine whether the employee’s behavior was a willful disregard of the employer’s interest, here, the facts supported that conclusion. Weyerhaeuser’s disciplinary policy allowed for discharge after a first offense for failure to use LOTO safety procedures following consideration of the surrounding circumstances of the violation. The Court found the evidence was clear that Thomas failed to follow the required safety procedure and that his assertion that the Board determined that Weyerhaeuser had failed to follow its policy for a first-offense discharge was incorrect. The Court noted that the Board only found that it was Weyerhaeuser’s custom to allow “reaching into the first pan [of the machine]” without utilizing the lock-out procedure, but beyond that, a tool or the lock-out procedure was required. The Court also found that Weyerhaeuser thoroughly investigated the circumstances of Thomas’ safety violation and determined that termination was warranted.

The Court found this comprised substantial evidence supporting the Board’s finding that Thomas willfully violated the rules or customs of the employer pertaining to safety. Accordingly, the Court affirmed the Board’s denial of unemployment benefits.