                                 Cite as 2015 Ark. App. 337

                 ARKANSAS COURT OF APPEALS
                                         DIVISION I
                                         No. E-14-956


CHARLES HOLMES                                     Opinion Delivered   MAY 20, 2015
                                APPELLANT
                                                   APPEAL FROM THE ARKANSAS
V.                                                 BOARD OF REVIEW
                                                   [NO. 2014-BR-02321]

DIRECTOR, DEPARTMENT OF
WORKFORCE SERVICES, and BENT
CREEK PARTNERS, LLC
                    APPELLEES                      AFFIRMED



                                CLIFF HOOFMAN, Judge

       Appellant Charles Holmes appeals from the Arkansas Board of Review’s (Board)

decision, which affirmed and adopted the opinion of the Appeal Tribunal (Tribunal) finding

that Holmes was disqualified from receiving unemployment benefits because he was

discharged from last work for misconduct connected with the work and because he willfully

misrepresented a material fact in filing his initial claim for benefits. On appeal, Holmes argues

that he was not discharged for misconduct and that he was instead laid off due to a lack of

work. We affirm.

       Holmes began working for appellee Bent Creek Partners, LLC (Bent Creek) as a part-

time maintenance person in May 2013, and he was discharged in June 2014. Holmes filed

a claim for unemployment benefits on June 24, 2014, indicating that his last day of work was

on June 12, 2014, and that he was laid off on June 16, 2014, due to a lack of work. Bent

Creek responded and contested Holmes’s claim, stating that he had been discharged for failing
                                 Cite as 2015 Ark. App. 337

to show up for work for three days in a row, on June 18, 19, and 20. Holmes was denied

unemployment benefits by the Department of Workforce Services (Department) on the basis

that he had been discharged from his last work for misconduct connected with the work. The

Department also determined that Holmes had willfully made a false statement or

misrepresented a material fact when filing his initial claim for benefits. Holmes timely

appealed these determinations to the Tribunal, which held a telephone hearing on September

2, 2014.

       At the hearing, Holmes testified that he worked an average of between fifty and

seventy hours per month for Bent Creek and that he was told to call the employer each

morning to find out if he was needed on that day. He stated that his last day of work was on

June 20, 2014, and that he was not supposed to return to work until the following Monday,

June 23. However, when he phoned Bent Creek on Monday morning, he testified that he

was informed by Tamika Pulliam, the manager, that he was being laid off because there was

no work for him to do. When Holmes was questioned as to whether he had received a copy

of Bent Creek’s policy stating that employees were required to call in two hours prior to the

start of their scheduled work shift if they were going to be late or absent, Holmes admitted

that he had received a copy of the policies. He testified, however, that he had never been late

or absent without notifying Bent Creek beforehand, despite several specific incidents that had

been reported by Bent Creek in its statements to the Department. With regard to Bent

Creek’s claim that he had been a “no show” on June 18, 19, and 20 despite Pulliam’s attempts

to contact him via text or phone call, Holmes denied this; he testified that he had called his


                                              2
                                  Cite as 2015 Ark. App. 337

employer on those days but had been notified that there was no work for him. He admitted

that his phone may have been disconnected during this time frame but claimed that he had

either borrowed someone’s phone to call in each morning or had physically checked in with

the office, which was near his home.

       Following the hearing, the Tribunal affirmed the Department’s denial of

unemployment benefits under Arkansas Code Annotated sections 11-10-514 and 11-10-

519(a)(1) (Supp. 2013). The Tribunal stated that Holmes was aware of Bent Creek’s policies

with regard to maintaining contact with management and giving notification two hours prior

to the start of the workday if he was going to be late or absent. The Tribunal found that

Holmes had violated these policies on prior occasions and had been reprimanded, yet he had

again been absent from work on June 18, 19, and 20 without notifying Bent Creek. Thus,

the Tribunal found that Holmes’s action amounted to a willful disregard of a standard of

behavior that his employer had a right to expect and that he was discharged for misconduct

in connection with the work. The Tribunal further found that Holmes had misrepresented

the circumstances of his separation to obtain benefits and that he had therefore willfully

misrepresented a material fact in filing his initial claim.

       Holmes appealed the Tribunal’s decision to the Board, which affirmed and adopted the

Tribunal’s decision, with one modification to the Tribunal’s finding with respect to a date on

which Holmes was contacted by his supervisor. The Board’s opinion was mailed on October

14, 2014, and Holmes has timely appealed to this court.

       On appeal in unemployment cases, findings of fact by the Board are conclusive if


                                                3
                                   Cite as 2015 Ark. App. 337

supported by substantial evidence, and review is limited to determining whether the Board

could reasonably reach its decision based upon the evidence before it, even if there is evidence

upon which the Board might have reached a different decision. Hiner v. Dir., 61 Ark. App.

139, 965 S.W.2d 785 (1998). The reviewing court may not substitute its findings for the

Board’s, even though the court might have reached a different conclusion had it made an

original determination upon the same evidence. Thomas v. Dir., 55 Ark. App. 101, 931

S.W.2d 146 (1996). Also, the credibility of witnesses and the weight to be accorded their

testimony are matters to be resolved by the Board. Johnson v. Dir., 84 Ark. App. 349, 141

S.W.3d 1 (2004).

       Pursuant to Arkansas Code Annotated section 11-10-514(a), if an individual is

discharged from last work for misconduct in connection with the work, the individual is

disqualified for benefits until, subsequent to filing a claim, he or she has had at least thirty days

of covered employment. An employee’s actions constitute misconduct sufficient to warrant

denial of unemployment benefits if they deliberately violate an employer’s rules, or if they

wantonly or willfully disregard the standard of behavior that the employer has a right to

expect of its employees. Thomas, supra. Mere unsatisfactory conduct, ordinary negligence,

or good-faith errors in judgment or discretion are not considered misconduct unless it is of

such a degree or recurrence as to manifest wrongful intent or an intentional or substantial

disregard of an employer’s interests or the employee’s duties and obligations. Id. Whether

an employee’s actions constitute misconduct in connection with the work sufficient to deny

unemployment benefits is a question of fact for the Board. Id.


                                                 4
                                  Cite as 2015 Ark. App. 337

       In addition, under Arkansas Code Annotated section 11-10-519(a)(1) (Supp. 2013),

an individual shall be disqualified for benefits if he or she willfully makes a false statement or

misrepresentation of a material fact, or willfully fails to disclose a material fact in filing an

initial claim or a claim renewal. This disqualification shall continue from the date of filing the

claim until the individual has ten weeks of employment in which he or she has earned wages

equal to at least the weekly benefit amount. Id.

       Holmes argues on appeal that he was never told he was fired and that he was instead

told that he was laid off due to lack of work. In support of his argument, he points to an

affidavit of a co-employee who stated that she and Holmes were informed by Pulliam at Bent

Creek that there was no work available during the week of June 16, 2014, and that they were

then laid off on June 23, 2014.

       Holmes’s testimony clearly conflicted with the statements of his employer. We note

that Holmes’s statements were also inconsistent with each other, as he testified at the hearing

that his last day of work was June 16 and that he was notified that he was laid off on June 23;

however, his initial claim and other statements to the Department indicated that his last day

of work was on June 12 and that he was laid off on June 16. It is for the Board to resolve

conflicts in the testimony and to decide matters of credibility. Johnson, supra; W.C. Lee Constr.

v. Stiles, 13 Ark. App. 303, 683 S.W.2d 616 (1985). In this case, the Board obviously

resolved these conflicts in favor of the employer. Thus, there was substantial evidence to

support the Board’s finding that Holmes was discharged from his last work for misconduct

connected with the work. Furthermore, because the Board found that Holmes was aware


                                                5
                                   Cite as 2015 Ark. App. 337

that he had not been laid off due to a lack of work and that he misrepresented the

circumstances of his separation when filing his initial claim for benefits, there is also substantial

evidence to support the finding that he was disqualified under Arkansas Code Annotated

section 11-10-519(a)(1).

       Affirmed.

       KINARD, J., agrees.

       WHITEAKER, J., concurs.

       PHILLIP T. WHITEAKER, Judge, concurring. I agree with the majority that

substantial evidence supports the Arkansas Board of Review’s decision. I write separately,

however, to express concern about the adversarial tone of the questioning by the hearing

officer for the Arkansas Appeal Tribunal.

               Under Arkansas Code Annotated section 11-10-526(a)(1) (Repl. 2012), the

Appeal Tribunal is not bound by common law or statutory rules of evidence or by technical

rules of procedure, but any hearing or appeal before the tribunal shall be conducted in such

manner as to ascertain the substantial rights of the parties. Moreover, the Arkansas Code of

Judicial Conduct applies to members of the administrative law judiciary. See Ark. Code Jud.

Conduct Part I.B (Application). “A judge shall uphold and apply the law, and shall perform

all duties of judicial office fairly and impartially.” Ark. Code Jud. Conduct R. 2.2 (2014)

(emphasis added).

               In this case, I believe that the hearing officer’s line of questioning went beyond

merely ascertaining the substantial rights of the parties; it became confrontational and


                                                 6
                                  Cite as 2015 Ark. App. 337

accusatory, taking on the tenor of cross-examination at times. The appellant, Charles Holmes,

was the only person to testify, as the employer did not participate in the hearing to present

its version of events. On several occasions, however, as Holmes was attempting to explain his

absences from work, the hearing officer interrupted him to ask pointed, almost prosecutorial

questions, appearing to attempt to discredit him. Although the weight and credibility of the

evidence are for the administrative agency to determine, see Beeson v. Landcoast, 43 Ark. App.

132, 862 S.W.2d 846 (1993), the fact-finder must be careful not to take on the role of an

adversary in considering and assessing that evidence.

               Under section 11-10-526(a)(1), unless the hearing is conducted in such a way

as to make it impossible to ascertain the substantial rights of the parties, we cannot properly

reverse on procedure. See Stagecoach Motel v. Krause, 267 Ark. 1093, 593 S.W.2d 495 (Ark.

App. 1980). Because it is not “impossible” in this case to ascertain the rights of the parties, this

court’s decision to affirm is the correct one. I would simply caution all hearing officers in this

state to be mindful that they must be impartial arbiters, not prosecutors.

       Charles Holmes, pro se appellant.

       Phyllis Edwards, for appellee.




                                                 7
