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RYMER FOODS INC. APPELLANT
vs.
DIRECTOR OF LABOR APPELLEE.
 
Case:
No. E91-141
 
Location:
COURT OF APPEALS OF ARKANSAS DIVISION ONE
 
Date:
September 9 1992 Delivered
 
Attorneys:
For Appellant: Whaw Ledbetter Hornberger Cogbill & Arnold - by: Charles R. Ledbetter and Gill A. Rogers Fort Smith. For Appellee: Ronald A. Calkins Counsel for Director of Labor Little Rock.
 
Court:
DANIELSON Cracraft Jennings
 
Author:
The Hon. Justice Elizabeth W. Danielson
 

Appellant Rymer Foods appeals from a decision of the Board of Review that the claimant was discharged from his last work for reasons that did not constitute misconduct connected with the work. Appellant contends that the Board abused its discretion in not considering a positive drug test in deciding the misconduct issue. We affirm.

On January 11 1991 claimant Michael Richey was injured while working for appellant. Pursuant to a drug-free workplace policy in effect at Rymer Foods Richey was required to submit to a drug test at the time he obtained treatment for his injury. On January 14 1991 Richey was notified that he had tested positive for cannabinoids on the drug test. He was terminated on January 18 1991 because he tested positive on the drug test.

Richey applied for unemployment compensation and was disqualified from receiving benefits under Ark. Code Ann. SEC. 11-10-514 (Supp. 1991). Upon appeal the referee for the Appeals Tribunal noted that the drug test results submitted by appellant were not certified (not signed by the testing physician) and that the results did not indicate any concentration amounts. The referee stated that even if concentration amounts were included he would have needed an explanation of the findings. The referee concluded that the claimant's denial of the use of marijuana was therefore unrebutted and that the claimant was discharged from his last work for reasons that were not misconduct connected with the work. The Board of Review affirmed and adopted the decision of the Appeals Tribunal.

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. Section 11-10-514(b) provides that the disqualification shall be for eight (8) weeks of unemployment unless the claimant was discharged for misconduct on account of dishonesty drinking on the job reporting to work while under the influence of intoxicants including a controlled substance or willful violation of the rules or customs of the employer pertaining to the safety of fellow employees or company property; in such cases the disqualification shall be for a period of ten (10) weeks. In order for an employee's actions to constitute misconduct so as to disqualify him from receiving benefits the action must be a deliberate violation of the employer's rules an act of wanton or willful disregard of the standard of behavior that the employer has a right to expect from his employees. Sadler v. Stiles 22 Ark. App. 117 735 S.W.2d 708 (1987). We have said that "mere inefficiency unsatisfactory conduct failure of good performance as the result of inability or incapacity inadvertence ordinary negligence or good faith error in judgment or discretion are not considered misconduct for unemployment insurance purposes unless it is of such a degree or recurrence as to manifest culpability wrongful intent evil design or an intentional or substantial disregard of an employer's interests or an employee's duties and obligations." Id.

Appellant argues that the Board's decision is not supported by substantial evidence and that its decision is arbitrary capricious and an abuse of discretion. Findings of fact by the Board of Review are conclusive on appeal if they are supported by substantial evidence. Victor Industries Corp. v. Daniels 1 Ark. App. 6 611 S.W.2d 794 (1981). In Singleton v. Smith 289 Ark. 577 715 S.W.2d 437 (1986) we stated:

An administrative agency like a jury is free to believe or disbelieve any witness. . . . We give the evidence its strongest probative force to support the administrative decision. . . . To establish an absence of substantial evidence to support the decision the appellant must demonstrate that the proof before the administrative tribunal was so nearly undisputed that fair-minded men could not reach its conclusion.

[Citing Williams v. Scott 278 Ark. 453 647 S.W.2d 115 (1983).] This court cannot substitute its findings for those made by the Board even though we might reach a different conclusion on the same evidence that was before the Board. Dillaha Fruit Co. v. Everett 9 Ark. App. 51 652 S.W.2d 643 (1983).

We are not unmindful of the holding in Grace Drilling Co. v. Director of Labor 31 Ark. App. 81 790 S.W.2d 907 (1990) and do not intend by this opinion to call it into question in any way. Given our standard of review and the particular circumstances of this case we feel we must affirm the decision of the Board. Whether an employee's actions constitute misconduct in connection with the employment sufficient to deny unemployment benefits is a question of fact for the Board and the credibility of witnesses and the weight to be accorded their testimony are matters to be resolved by the Board. Sadler 22 Ark. App. 117 735 S.W.2d 708; Jacks v. Stiles 19 Ark. App. 129 717 S.W.2d 828 (1986). Here the Board considered the claimant's testimony under oath and the results of a drug test which although positive were not certified and did not specify the level of cannabinoids detected. The Board found the claimant's testimony to be more credible and we cannot say this decision was not supported by substantial evidence.

Affirmed.

Cracraft C.J. and Jennings J. agree.