                                STATE OF WEST VIRGINIA

                              SUPREME COURT OF APPEALS


Alex Energy, Inc., Petitioner Below,
Petitioner
                                                                                   FILED
                                                                                September 3, 2013

                                                                             RORY L. PERRY II, CLERK

vs) No. 12-1112 (Kanawha County 12-AA-15)                                  SUPREME COURT OF APPEALS

                                                                               OF WEST VIRGINIA


Board of Review of Workforce West Virginia,
and Jeremy E. Smith, Respondents Below,
Respondents

                                 MEMORANDUM DECISION

       Petitioner Alex Energy, Inc., by counsel William E. Robinson and Brian J. Moore,
appeals the Circuit Court of Kanawha County’s August 14, 2012 order affirming the Board of
Review of Workforce West Virginia’s (“Board of Review) prior decision regarding
unemployment benefits for Respondent Jeremy E. Smith. Respondent Smith, by counsel Travis
A. Griffith, filed a response, to which petitioner filed a reply. The Board of Review made no
appearance in this matter. On appeal, petitioner alleges that the circuit court erred in affirming
the Board of Review’s prior decision.

       The Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate
Procedure.

        Respondent Smith worked for Highland Mining for approximately five years as a blasters
helper without being cited for any misconduct. In the summer of 2011, Respondent Smith began
notifying his employer of certain safety issues, including the fact that he was required to perform
the duties of a lead blaster despite not being trained as such and that blasting patterns were being
improperly set on the job. On August 26, 2011, Respondent Smith was cited by his employer for
allegedly smoking a cigarette within fifty feet of a container of explosive material. At the time of
the incident, Respondent Smith had completed his work shift and was in his personal vehicle in a
parking lot. Despite citing Respondent Smith for this alleged violation, a representative of the
employer later admitted that there was no written policy regarding a fifty-foot smoking distance
until after Respondent Smith was cited. As a result of this citation, Respondent Smith was
required to sign a “Last Chance Agreement” admitting to the infraction or be fired. The “Last
Chance Agreement” also stated that “any safety violation or infraction may be grounds for
termination of employment.”

      Shortly thereafter, Respondent Smith was transferred from Highland Mining to a new
employer; Petitioner Alex Energy, Inc. On September 29, 2011, the West Virginia Office of

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Miners’ Health, Safety and Training cited Respondent Smith for violating a regulation regarding
primers on blasting caps. However, the citation states that there was no negligence on
Respondent Smith’s part and that it was not a knowing violation. In fact, according to later
testimony, Respondent Smith had performed the procedure in exactly the manner that his
employer had trained him, though the procedure had changed and Respondent Smith was
scheduled for training on the new procedure the following October. Petitioner fired Respondent
Smith the same day the citation was issued.

        Thereafter, Respondent Smith filed for unemployment benefits and a deputy for
Workforce West Virginia denied his request on October 17, 2011, based upon a finding that he
had been discharged for gross misconduct.1 Respondent Smith appealed this decision and on
November 17, 2011, an administrative law judge (“ALJ”) reversed the deputy’s decision.
According to the ALJ, Respondent Smith engaged in no misconduct and was entitled to
unemployment benefits. Petitioner then appealed the ALJ’s decision to the Board of Review. On
January 3, 2012, the Board of Review affirmed the ALJ’s decision and adopted the ALJ’s
findings in their entirety, prompting petitioner to appeal to the circuit court. The circuit court
affirmed the Board of Review’s decision by order entered on August 14, 2012. It is from this
order that petitioner appeals.

       This Court has previously held that

       “[t]he findings of fact of the Board of Review of the [West Virginia Bureau of
       Employment Programs] are entitled to substantial deference unless a reviewing
       court believes the findings are clearly wrong. If the question on review is one
       purely of law, no deference is given and the standard of judicial review by the
       court is de novo.” Syl. Pt. 3, Adkins v. Gatson, 192 W.Va. 561, 453 S.E.2d 395
       (1994).

Syl. Pt. 1, Dailey v. Bd. Of Review, W.Va. Bureau Of Emp’t Programs, 214 W.Va. 419, 589
S.E.2d 797 (2003). Upon our review, we find no error in the circuit court denying petitioner’s
appeal from the Board of Review’s January 3, 2012 order. While petitioner argues that the circuit
court erred in affirming the Board of Review’s order because it was based upon clearly wrong
findings of fact and erroneous conclusions of law, the Court disagrees.

        Petitioner’s main argument is that Respondent Smith committed gross misconduct within
the meaning of West Virginia Code § 21A-6-3(2) because he was previously reprimanded for
committing a safety violation, signed the “Last Chance Agreement,” and was subsequently cited
by the West Virginia Office of Miners’ Health, Safety and Training. According to petitioner,
these acts constitute gross misconduct because, under West Virginia Code § 21A-6-3(2), gross
misconduct includes “any act or acts of misconduct where the individual has received prior
written warning that termination of employment may result from the act or acts.” However, the
ALJ, the Board of Review, and the circuit court all correctly refused such application of the
statute to the facts of this case.
       1
        Prior to 2007, Workforce West Virginia was known as the Bureau of Employment
Programs. See W.Va. Code § 21A–l–4.
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        Upon our review, the Court agrees that Respondent Smith’s conduct does not constitute
gross misconduct. Our conclusion is supported by the “Notice of Violation” that the West
Virginia Office of Miners’ Health, Safety and Training issued in connection with Respondent
Smith’s actions, which clearly states that Respondent Smith committed no negligence and that
the violation was not a knowing violation. In addition, the circuit court found that petitioner
“made no attempt to refute that [Respondent Smith] was trained to perform the job assigned in
the manner in which he was performing the job assignment” that resulted in the “Notice of
Violation,” or that petitioner “made no attempt to express that [Respondent Smith] was ever
disciplined or warned that he was performing the job assigned in an improper manner.” Since
Respondent Smith was never disciplined or warned that he was completing this job in an
improper manner, he could not have received the prior written warning that termination may
result from the act, as required by West Virginia Code § 21A-6-3(2). Therefore, his actions
cannot be considered gross misconduct under that statute.

        Essentially, petitioner is requesting that Respondent Smith be denied unemployment
benefits for performing his job in the exact manner that petitioner instructed because he was
previously cited for violating the safety procedures of a different employer. However, the Court
declines to interpret the applicable statute in such a way as to construe Respondent Smith’s
actions as “gross misconduct” based upon this set of facts. Additionally, we have previously held
that “‘[u]nemployment compensation statutes, being remedial in nature, should be liberally
construed to achieve the benign purposes intended to the full extent thereof.’ Syl. pt. 6, Davis v.
Hix, 140 W.Va. 398, 84 S.E.2d 404 (1954).” Herbert J. Thomas Mem’l Hosp. v. Bd. Of Review
of W.Va. Bureau Of Emp’t Programs, 218 W.Va. 29, 32, 620 S.E.2d 169, 172 (2005). As such,
we agree with the circuit court’s finding that Respondent Smith “engaged in no misconduct
which resulted in his termination.”

      For the foregoing reasons, we find no error in the decision of the circuit court and its
August 14, 2012 order affirming the Board of Review’s decision is affirmed.

                                                                                        Affirmed.

ISSUED: September 3, 2013


CONCURRED IN BY:

Chief Justice Brent D. Benjamin
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II




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