dissenting. The Board of Review found that appellant was discharged from his last work for misconduct connected with the work, resulting in his disqualification for unemployment benefits for a period of eight weeks pursuant to Ark. Code Ann. §ll-10-514(a)(3) (Repl. 1996). This finding was made despite the admission by appellant’s supervisor that the employer considered appellant to have voluntarily quit his job when he failed to report for work the week of January 22-28, 1995, because he had gone to California to be with his pregnant daughter-in-law. Because I am convinced that substantial evidence was not presented to support the finding of misconduct, I would reverse and remand.
The findings of fact made by the Board of Review are conclusive upon judicial review if supported by substantial evidence. Edwards v. Stiles, 23 Ark. App. 96, 743 S.W.2d 12 (1988); Reddick v. Scott, 217 Ark. 38, 228 S.W.2d 1008 (1950). Whether the findings of the Board of Review are supported by substantial evidence is a question of law, and the Court of Appeals may reverse a finding of the Board of Review which is not supported by substantial evidence. Edwards v. Stiles, supra. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Perdrix-Wang v. Director, Emp. Sec. Dep’t, 42 Ark. App. 218, 856 S.W.2d 636 (1993).
The issue of misconduct is a question of fact for the Board of Review, and, on appeal, the Board’s findings are conclusive if supported by substantial evidence. A. Tenenbaum Co. v. Director of Labor, 32 Ark. App. 43, 796 S.W.2d 348 (1990). Yet, it is well-setded in Arkansas that there is an element of intent associated with a determination of misconduct. Mere inefficiency, unsatisfactory conduct, failure of good performance as the result of inability or incapacity, inadvertencies, ordinary negligence or good-faith errors in judgment or discretion are not considered misconduct for unemployment insurance purposes unless it is of such degree or recurrence as to manifest culpability, wrongful intent, evil design, or an intentional or substantial disregard of an employer’s interests or of an employee’s duties and obligations. Perry v. Gaddy, 48 Ark. App. 128, 891 S.W.2d 73 (1995).
I would hold that the Board of Review’s finding that appellant was discharged because of misconduct in connection with his last work is not supported by substantial evidence. Although the record contains conflicting testimony from appellant and the employer concerning what was said during telephone conversations about his request for time off to be with his son and daughter-in-law, his supervisor testified that appellant phoned him on January 22, 1995, and announced that he was going to California for the birth of his grandchild. The manager testified that he told appellant that his position on the request was unchanged (that appellant was not authorized to be off work), but that if appellant went to California, the decision on his request would be reserved if appellant could document a family emergency. According to the manager, appellant agreed to call back in a week. Appellant phoned on February 1, 1995, ten days afterwards, and stated that the baby had not yet been born. The manager testified that the employer deemed appellant to have quit his job. Indeed, appellant’s claim was initially denied on the finding that he voluntarily left his last work without good cause connected with the work.1
I find nothing in the record that shows where appellant was notified that the basis for his disqualification was being considered as misconduct before the Board of Review issued its decision, nor does the record show that the employer alleged misconduct as the basis for discharge so that appellant would have known or had reasonable notice that evidence on that issue was warranted. There is a material difference in a finding of disqualification because one has voluntarily left the last work without good cause connected to the employment and disqualification due to misconduct related to the work. A worker deemed disqualified due to having voluntarily left work shall continue disqualified until he has been employed for at least thirty days covered by an unemployment compensation law of Arkansas, another state, or the United States. Ark. Code Ann. §11-10-513(a)(2). Disqualification due to misconduct is for eight weeks of unemployment. Ark. Code Ann. § ll-10-514(a)(3). Because it does not appear that appellant had an opportunity to present evidence on the misconduct issue, or that he even knew that misconduct was a potential ground on which his claim was being considered for denial, I believe that the Board of Review erred by denying his claim on that basis.
Moreover, the record does not support the finding of misconduct. As previously mentioned, appellant’s manager testified that the employer deemed the appellant to have resigned. There is no proof that the employer deemed appellant’s absence from work as a manifestation of culpability, wrongful intent, evil design, or an intentional or substantial disregard of the employer’s interests or the employee’s duties and obligations. Rather, Ernie Ritta (appellant’s supervisor) testified that when appellant failed to report for work the week of January 22 through 28, 1995, the employer considered him to have voluntarily quit, conditioned on reconsidering its position if appellant was able to document that his presence in California was necessary due to a family emergency. There was no proof that anything fitting the meaning of misconduct occurred. Therefore, I would reverse the Board of Review and remand this case to it for a ruling not inconsistent with this opinion.
I am authorized to state that Mayfield and Stroud, JJ., join in this opinion.
Appellant appealed that determination by the Arkansas Employment Security Department to the Appeal Tribunal which found that appellant was deemed by the employer to have resigned when he did not return to work the week of January 22,1995, and that the evidence was insufficient to show a personal emergency despite appellant’s assertion that his daughter-in-law needed a relative with her in the closing days of her pregnancy. Although appellant’s appeal to the Board of Review challenged the determination that he voluntarily left his last work, the Board of Review modified the determination of disqualification by holding that appellant was discharged due to misconduct.