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CHARLES T. REYNOLDS Appellant
vs.
UNEMPLOYMENT INSURANCE APPEAL BOARD and KENT-SUSSEX INDUSTRIES INC. Appellee.
 
Case:
C.A. No. 95A-05-003 HDR
 
Location:
SUPERIOR COURT OF DELAWARE KENT
 
Date:
March 12 1996 Decided
 
Attorneys:
Andre M. Beauregard Esq. Brown Shiels & Chasanov Rehoboth Beach Delaware Attorney for Appellant.
Nicholas H. Rodriguez Esq. Schmittinger and Rodriguez Dover Delaware Attorney for Appellee.
 
Court:
Henry duPont Ridgely President Judge
 
Author:
The Hon. Justice Henry duPont Ridgely
 

This 12th day of March 1996 upon consideration of the parties' briefs and the record in the case it appears that:

(1) Appellant Charles T. Reynolds ("Reynolds") was employed by Kent-Sussex Industries Inc. ("KSI") from December 1 1994 until January 27 1995. His employment was terminated when he arrived at work on January 26 1995 smelling of alcohol and acting lethargically. Reynolds applied for unemployment benefits. The Claims Deputy found that KSI had just cause to terminate Reynolds' employment and denied his application for benefits. Upon appeal the Claims Referee heard evidence from a KSI representative who had no personal knowledge of the circumstances but read a memo prepared by Reynolds' supervisor regarding the events in issue. That evidence showed that Reynolds had been sent home on a previous occasion after a supervisor detected the odor of alcohol on his breath. At that time he was informed of KSI's alcohol policy prohibiting working under the influence and consuming alcohol during working hours. Allegedly he was also informed that KSI forbade employees from working with an odor of alcohol on their breath as well. Reynolds testified and admitted he had consumed alcohol and beer the previous night but he denied he was under the influence when he arrived at work. The Referee reversed the Deputy's denial of benefits. He held that KSI's evidence was not competent since not presented by someone with personal knowledge of the situation.

KSI appealed to the Unemployment Insurance Appeal Board ("the Board") and a hearing was held on April 19 1995. In addition to the record from the previous proceedings the Board heard eyewitness testimony that on the day in question Reynolds' eyes were red his speech was slurred and he had the smell of alcohol on his breath. One witness also stated that Reynolds appeared "uncoordinated." The Board subsequently denied Reynolds' claim for benefits finding just cause for his termination.

(2) Reynolds has appealed the Board's decision to this Court. He claims that the Board committed legal error in hearing the additional evidence by the eyewitnesses and in finding just cause for his termination. Reynolds argues that his conduct was not in violation of KSI's alcohol policy. Further he claims there was no substantial evidence on which the Board could conclude he was under the influence of alcohol when he reported to work. Reynolds alternatively argues that if this Court upholds the Board's determination that he was under the influence then he is nevertheless entitled to benefits because the evidence fails to show that his conduct was willful or wanton.

(3) Upon appeal from a decision of the Unemployment Insurance Appeal Board this Court must determine if substantial evidence exists in the record to support the Board's decision and if the decision is free from legal error. Stoltz Management Co. Inc. v. Consumer Affairs Board Del. Supr. 616 A.2d 1205 1208 (1992). Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Olney v. Cooch Del. Supr. 425 A.2d 610 (1981). If there is substantial supporting evidence for the Board's decision and no mistake in law the decision will be affirmed. Longobardi v. Unemployment Ins. Appeal Bd. Del. Super. 287 A.2d 690 692 (1971) aff'd Del. Supr. 293 A.2d 295 (1972).

Under Delaware law an employee may be disqualified from receiving unemployment benefits if the employer has "just cause" in terminating his employment. 19 Del. C. SEC. 3315(2). The employer has the burden of proving "just cause" by a preponderance of the evidence. Pavusa v. Tipton Trucking Co. Inc. Del. Super. C.A. No. 92A-12-009 Cooch J. (Dec. 1 1993) Mem. Op. at 3. "Just cause" has been defined as a "willful or wanton act in violation of either the employer's interest or of the employee's duties or of the employee's expected standard of conduct." Abex Corp. v. Todd Del. Super. 235 A.2d 271 272 (1967). Negligent performance may also constitute just cause where it occurs despite warnings and is not excusable as an expected result of either the nature of the job or the ability of the employee. Delaware Administration v. Jones Del. Super. C.A.No. 94A-04-027 Babiarz J. (Jan. 23 1995) Mem. Op. at 7 (citing Hudson Transfer & Construction Co. Inc. v. Vick No. 161; 1976 O'Hara J. (Feb. 1 1977) Letter Op. at 2).

(4) Reynolds first contends that the Board committed legal error in hearing additional eyewitness testimony. When determining if the Board committed legal error the standard of review this Court must apply is whether the Board abused its discretion. Flowers v. Carpenter Transp. Del. Super. C.A. No. 92A-11-015 Barron J. (Sept. 15 1993) (Order) at 3 (citing Funk v. Unemployment Ins. Appeal Bd. Del. Supr. 591 A.2d 222 (1991)); Dept. of Labor v. Medical Placement Services Inc. Del. Super. 457 A.2d 382 (1982). An abuse of discretion will be found if "'the action taken below was arbitrary or capricious.'" Flowers supra at 3 (quoting D.D. Rappa Inc. v. Hanson Del. Supr. 42 Del. Ch.273 209 A.2d 163 (1965)).

This Court finds that the Board did not abuse its discretion in allowing KSI to present the eyewitness testimony. 19 Del. C. SEC. 3320 explicitly gives the Board authority to consider additional evidence. This provision has been interpreted broadly allowing the Board substantial latitude as to what evidence it may consider in reaching a decision. Robbins v. Deaton Del. Super. 1994 WL 45344 Steele J. (Feb. 7 1994) (Order) at 4. Thus as long as the Board complies with the requirements of due process and fundamental fairness as set forth in 19 Del. C. SEC. 3318(c) no error of law will be found. Id. In this case the new evidence presented by KSI merely included first hand testimony of the events in issue. There is no evidence that the Board's action was arbitrary or capricious accordingly this Court finds no abuse of discretion.

(5) This Court also finds no legal error in the Board's finding just cause for Reynolds' termination. In Delaware reporting to work in violation of an employer's no-alcohol policy may constitute "just cause" for termination. Pavusa supra at 3 (quoting Johnson v. Unemployment Ins. Appeal Bd. Del. Super. C.A. No. 92A-09-004 Steele J. (July 9 1993) (Order) at 4). Therefore to affirm the Board's finding of just cause the evidence must show that KSI had a policy regarding alcohol usage prohibiting certain conduct and that Reynolds was apprised of this policy (and specifically of the prohibited conduct). Pavusa supra at 4 (citing Johnson v. Unemployment Ins. Appeal Bd. Del. Super. C.A. No. 92A-09-004 Steele J. (July 9 1993) (Order) at 506).

The evidence in this case shows that at a minimum KSI had a written policy prohibiting the use or consumption of alcohol while working as well as reporting to work under the influence of alcohol. Reynolds' signature on the acknowledgment form evidences his awareness of these requirements. However the evidence also shows that KSI did not tolerate an employee working with an odor of alcohol on his breath. Reynolds knew this policy as well since he was sent home on a previous occasion for such conduct. Based on these facts this Court concludes that the Board committed no legal error in finding just cause for Reynolds' termination.

(6) In its decision the Board held that Reynolds was under the influence of alcohol when he arrived at work on January 26 1995. This Court finds substantial evidence to support this determination. Although 'under the influence' has not been precisely defined in the context of an unemployment insurance appeal case, this Court found sufficient evidence to conclude one claimant was 'under the influence' when she reported to work with alcohol on her breath, slurred speech, and difficulty walking. Johnson v. Unemployment Ins. Appeal Bd. Del. Super. C.A. No. 92A-09-004 Steele J. (July 9 1993) (Order) at 3 (citing Whitten v. Unemployment Ins. Appeal Bd. And Retirement Living Inc. Del. Super. C.A. No. 82A-OC-14 Taylor J. (Sept. 22 1983)).

At the hearing the Board heard witnesses testify to seeing Reynolds swagger acting lethargically and smelling of alcohol. Under Delaware law the "'credibility of witnesses the weight of their testimony and the reasonable inferences to be drawn therefrom are for the Board to determine.'" Gandy v. Dept. of Labor of the State of Del. Del. Super. C.A. No. 93A-01-006 .Barron J. (Sept. 20 1993) (Order) at 2 (quoting Coleman v. Dept. of Labor Del. Super. 288 A.2d 285 287 (1972)). Judgments regarding witnesses' honesty and candor fall squarely within the purview of the Board and will not be disturbed by this Court in the absence of fraud or other similarly egregious misconduct on the part of the Board. Id. This Court finds no reason to disturb the Board's decision.

(7) Last Reynolds argues that the Board could not find that his conduct was willful or wanton. Willful has been defined by our courts as acting voluntarily intentionally or deliberately. Unemployment Insurance Appeal Board v. Martin Del. Supr. 431 A.2d 1265 1267 (1981). It implies actual specific or evil intent. Delaware Administration v. Jones Del. Super. C.A. No. 94A-04-027 Babiarz J. (Jan. 23 1995) Mem. Op. at 6 (cite omitted). On the other hand wanton does not require proof of bad motive or intent to cause harm; it means conduct which is heedless malicious or reckless. Id. (cites omitted).

This Court finds substantial evidence to support the Board's determination that Reynolds' actions were wanton. The Board found that Reynolds was aware that KSI would not tolerate working under the influence and that having an odor of alcohol on one's breath would be cause for disciplinary action yet he heedlessly disregarded the consequences of his actions.

(8) Based on the foregoing this Court finds that the Board committed no legal error and that substantial evidence exists to support the Board's decision.

NOW THEREFORE IT IS ORDERED that the decision of the Unemployment Insurance Appeal Board is AFFIRMED.

Henry duPont Ridgely

President Judge