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HALL TANK COMPANY APPELLANT
vs.
DIRECTOR ARKANSAS EMPLOYMENT SECURITY DEPARTMENT APPELLEE
 
Case:
No. E 93-63
 
Location:
COURT OF APPEALS OF ARKANSAS DIVISION TWO
 
Attorneys:
For Appellant: MATTHEWS SANDERS LILES & SAYES MARCI TALBOT LILES AND MEL SAYS LITTLE ROCK. For Appellee: ALLAN PRUITT LITTLE ROCK.
 
Court:
JENNINGS MAYFIELD ROGERS
 
Author:
The Hon. Justice John E. Jennings
 

Hall Tank Company appeals a decision of the Arkansas Board of Review which held that Gary D. Farley was entitled to benefits after finding that Farley was discharged from last work for reasons other than misconduct connected with work. Appellant argues that the Board's decision is not supported by substantial evidence. We affirm.

Arkansas Code Annotated section 11-10-514 (Supp. 1991) provides that an individual shall be disqualified for benefits if he is discharged from his last work for misconduct in connection with the work. In order for an employee's action to constitute misconduct so as to disqualify him the action must be a deliberate violation of the employer's rules an act of wanton or willful disregard of the employer's best interests or a disregard of the standard of behavior which the employer has a right to expect from his employees. Exson v. Everett 9 Ark. App. 177 656 S.W.2d 711 (1983). Whether an employee's actions constitute misconduct in connection with work sufficient to deny unemployment benefits is a question of fact for the Board. Grace Drilling Co. v. Director of Labor 31 Ark. App. 81 790 S.W.2d 907 (1990).

On appeal of unemployment compensation cases the findings of fact by the Board of Review are deemed conclusive if they are supported by substantial evidence. A. Tenenbaum Co. v. Director of Labor 32 Ark. App. 43 796 S.W.2d 348 (1990). We view the evidence in the light most favorable to the successful party and give that party the benefit of every inference that can be drawn from the evidence. Feagin v. Everett Director 9 Ark. App. 59 652 S.W.2d 839 (1983).

At the hearing before the appeals referee Mike Perin the plant manager testified on behalf of the employer and Gary Farley appeared in his own behalf. The evidence in this case shows that Hall Tank Company had a drug and alcohol policy when Gary Farley was hired in September of 1991 and Farley gave written consent to drug testing. In November of 1991 Farley suffered a work-related injury and pursuant to the company's drug policy was required to submit a urine sample for the purpose of a drug test. The sample was taken at a Medi-Stat clinic and forwarded to a testing laboratory. The company received a lab report indicating that Farley's sample tested positive for cannabinoids. Farley was suspended for two weeks.

On May 7 1992 Farley suffered another work-related injury a broken arm. He was again required to submit a urine sample for the purpose of a drug test. The company again received a lab report indicating that Farley's sample had tested positive for cannabinoids. Farley was discharged effective May 14 1992.

Farley testified that he had not been smoking marijuana but that he did socialize on a regular basis with a friend who did smoke marijuana in his presence. The record also contains copies of the employer's policy as well as the two separate lab reports.

In evaluating the evidence the Board of Review stated in its decision:

The plant manager testified that he was not aware of facts surrounding the chain of custody of the samples. He submitted a copy of the test results on each specimen. Both copies indicate the "screening limit" and "confirmation limit" of the test and both indicate that "any drugs listed as positive confirmed by GC/MS." Neither copy contains a signature of the certifying scientist nor does either copy indicate the level of the substance in the claimant's urine.

After summarizing this and the other evidence the Board found that the employer's evidence was not sufficient to show misconduct connected with the work. The Board stated:

Notwithstanding the aforementioned however a more fundamental problem exits as to the drug test results and the way in which they were obtained. The evidence which is hearsay is scant in regard to some aspects of the drug screen test and non-existent as to other aspects. Even though there is no evidence to suggest how long the active ingredients of marijuana remain in the body after using it the Board of Review might have entertained evidence that the claimant intentionally ingested marijuana near the time of the samples. However even that is not shown here. While the efforts of the employer in promoting a drug-free environment can be considered laudable its evidence in this case fails to establish misconduct.

In arguing that the Board's decision is not supported by substantial evidence appellant asserts that the tests results "are valid and are the only substantial evidence in the record and that the Board's objections to the test results were based on technicalities" of the Rules of Evidence regarding hearsay that are not applicable to hearings in unemployment compensation cases. While it is true that the Appeals Tribunal and the Board of Review are not bound by the Rules of Evidence it is also clear that the Board did not refuse to consider the test results because they were hearsay. Rather the Board found the employer's evidence including the reports of the test results to be "scant in regard to some aspects of the drug screen test and nonexistent as to other aspects." It is for the administrative agency sitting as factfinder to determine the weight to be accorded the evidence before it. See e.g. Beeson v. Landcoast 43 Ark. App. 132 862 S.W.2d 846 (1993); AT&T Communications of the Southwest Inc. v. Arkansas Public Service Comm'n 40 Ark. App. 126 843 S.W.2d 855 (1992); The Green House Inc. v. Arkansas Alcoholic Beverage Control Div. 29 Ark. App. 229 780 S.W.2d 347 (1989); Carder v. Hemstock 5 Ark. App. 115 633 S.W.2d 384 (1982). The credibility of witnesses and the drawing of inferences from the testimony are for the Board of Review not this court. Baker v. Director 39 Ark. App. 5 832 S.W.2d 864 (1992). We do not substitute our findings for those of the Board even though we might have reached a different conclusion had we made the original determination upon the same evidence. Shipley Baking Co. v. Stiles 17 Ark. App. 72 703 S.W.2d 465 (1986).

We cannot say that the Board of Review's finding that Gary Farley was discharged for reasons other than misconduct connected with the work is not supported by substantial evidence.

Affirmed.

MAYFIELD and ROGERS JJ. agree.