dissenting. I respectfully dissent.
Ark. Stat. Ann. § 81-1103(i)(D)(i)(I) and (II) exclude from coverage under the act persons employed by:
(I) a church or convention or association of-churches or
(II) an organization which is operated primarily for religious purposes and which is operated, supervised, controlled or principally supported by a church or convention or association of churches; or . . . .
Section (I) provides for an exclusion of those actually and directly employed by a church or association of churches. It contemplates exclusion from the act those directly employed by a religious organization but is not limited to those engaged in purely religious functions. It would also exclude from coverage secretaries, sexton, paid choir masters and other persons directly employed by a congregation or its hierarchy. Section (II) would exclude from coverage under the act any organization which is operated primarily for religious purposes or any operation being operated, supervised, controlled or principally supported by a church, convention or association of churches where it is operated primarily for religious purposes. Section (II), unlike Section (I), is limited to those activities which are purely religious in nature.
The Board of Review found that the claimant was not employed by the National Baptist Convention, but by the “National Baptist Hotel” and “National Baptist Sanitarium and Bathhouse” maintained in Hot Springs. They found that the hotel and bathhouse were supervised by a three man commission which was named by the Baptist Convention but was not operated by the Convention itself. In the operation of the hotel and bathhouse the supervisor hired other persons. The Board of Review expressly found that the claimant had not been hired by the National Baptist Convention but by an organization operated, supervised and controlled by that association but which was not operated primarily for religious purposes.
It has long been established that on an appeal from the Board of Review we are required to review the evidence in the light most favorable to the findings of the Board, and give the testimony its strongest probative value in favor of that Board. The issue on such appeals is whether the evidence supports the finding which the Board made. If that determination is supported by substantial evidence we must affirm. Rose v. Daniels, 269 Ark. 679, 599 S.W. 2d 762 (Ark. App. 1980); Harris v. Daniels, 263 Ark. 897, 567 S.W. 2d 954 (1978).
The majority opinion recognizes this standard of review but reaches its result through the back door by holding that the finding of the Board was not supported by substantial evidence. I find this to be inconceivable.
The evidence on which the Board reached its conclusions indicated that the claimant in this case was employed by the “National Baptist Hotel” and the “National Baptist Sanitarium and Bathhouse,” not the National Baptist Convention. These facilities consisted of a ninety-six room hotel and dining room with fourteen tubs and two whirlpools. They employed between thirty-two and forty employees, and in the year 1972 the hotel had gross income of $96,000 and the bath facility in excess of $54,000. During only one week of the year the facility was used for a church convention and was open to the public for the remaining fifty-one weeks on a commercial basis. There was no indication that even during the one week church convention the operation was other than commercial as to the guests. Both enterprises were operated, supervised and controlled by the church acting through a commission of three persons. Separate bank accounts were maintained by the hotel and bathhouse. None of the employees was hired or paid by the Convention but by the hotel and bathhouse operators from their own bank accounts. To me at least, the supportive evidence rises far above the status of “substantial.”
Nor do I agree with the majority that the case of Miller v. Employment Division, 290 Or. 285, 620 P. 2d 1377 (1980), holds anything other than what is stated in this dissenting opinion. In that case the court stated by referring to the findings of the Employment Appeals Board, the fact finding body under their law:
From July 1977 to March 1978 claimant worked for the Union Gospel Mission, an association of churches. He worked primarily as a truck driver, picking up articles donated to the Mission’s thrift store. Employees of the store sort, clean and sell donated articles for profit which is used to support the Mission’s religious activities. Claimant was not involved in any of the Mission’s religious activities.
[[Image here]]
The Employment Division referee found that the Mission is an association of churches. Thus, claimant’s employment by the Mission is clearly and specifically exempted by the language of ORS 657.072 (1) (a) (A) [a statute identical to our Section (I)] because it is ‘service performed . . . [i]n the employ of [an] association of churches.’ (Emphasis added.)
In upholding the finding of its Appeals Board, the court struck down an administrative regulation which, in the face of the dear wording of the statute, would have applied coverage to this claimant because even though directly employed by the association of churches, he was not engaged in religious pursuit. It holds nothing else.
I respectfully dissent.
I am authorized to state that Cooper, J., joins in this dissent.