White v. Director, Arkansas Employment Security Department

924 S.W.2d 823, 54 Ark. App. 197, 11 I.E.R. Cas. (BNA) 1660, 1996 Ark. App. LEXIS 463

• Court: Court of Appeals of Arkansas
• Decided: June 26, 1996
• Docket: E 94-297
• Status: Published

Opinions

JAMES R. Cooper, Judge.

The appellant in this unemployment compensation case was employed by the appellee, Duff-Norton Yale Hoists Co., on February 3, 1994. On that date she consented to be tested for drug abuse pursuant to the employer’s policy. The employer asserted that her test was positive, and she was subse-quendy discharged for failure to comply with company policy regarding actions to be taken following a positive drug test. After a hearing, the Board of Review found that the appellant was disqualified for unemployment benefits because she had been discharged for misconduct connected with the work. From that decision, comes this appeal.

For reversal, the appellant contends that there is no substantial evidence to support the Board’s finding that she was discharged for misconduct connected with the work. We do not agree, and we affirm.

On appeal, the findings of fact of the Board of Review are conclusive if supported by substantial evidence, i.e., by such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. George’s Inc. v. Director, 50 Ark. App. 77, 900 S.W.2d 590 (1995). Our review is limited to determining whether the Board could reasonably reach its decision upon the evidence before it, and in making that determination, we review the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Board’s findings. Id.

Viewed in that light, the record shows that the employer’s drug policy required employees testing positive for drug use to accept treatment for substance abuse; failure to accept treatment was expressly provided to be insubordination subjecting the employee to discharge. In the event that an employee should disagree with the test results, the policy permitted a second test to be performed at employee expense, using the original specimen, within 30 days of the original test.

In the case at bar, there was evidence that the employer notified the appellant that a positive result was obtained on her drug test, and that the appellant neither obtained a retest within 30 days nor accepted treatment pursuant to the employer’s policy. Although there was evidence that would support a finding that the appellant had not been insubordinate, the scope of our review is limited to determining whether the Board could reasonably reach its decision on the evidence before it. Perry v. Gaddy, 48 Ark. App. 128, 891 S.W.2d 73 (1995). We hold that it could, and consequendy, we must affirm.¹

Affirmed.

Jennings, C.J., and Stroud, J., agree. Mayfield, Neal, and Griffen, JJ., dissent.

1 The “facts” referred to in the dissenting opinions, it should be noted, were not facts found by the Board, but consist instead of evidence that the Board had before it to accept or reject. The Board rejected that evidence.