dissenting. In this case, the employer had the option of accepting the claimant from the union in a temporary assignment as an “on loan” employee as was her status while she worked in the “GPS” program for eighteen months. The employer, however, refused to accept claimant as a temporary employee in the offered position as a bill collector. Here, it was solely the employer who conditioned the offer of employment only as a permanent and non-union position. By its unilateral act, the employer imposed on appellant as a condition of her employment the requirement that she lose the benefits provided by her union membership and lose more than eighteen years of seniority in her ability to bid on opening jobs within the company.
As noted by the majority, our law does not disqualify a claimant from obtaining unemployment benefits “ [i]f as a condition of being employed, the individual would be required to join a company union or to resign from or refrain from joining any bonafide labor organization.” Ark. Code Ann. § ll-10-515(d)(3) (Repl. 2002). In my opinion, the facts clearly establish that the employer by its acts conditioned appellant’s acceptance of employment on her losing her union benefits and, therefore, fulfilled the provision that she was required to resign from the union.
The facts of this case are clearly distinguishable from those set out in Thornbrough v. Stewart, 232 Ark. 53, 334 S.W. 2d 699 (1960). In that case, the facts did not establish that the employer made any conditions of employment or had the ability to change the job from non-union to union. Here, the employer chose to offer the job to claimant on the condition that she resign from the union although they had the ability to accept claimant in the position of a temporary assignment that would have allowed her to maintain the benefits in that organization. Therefore, I would affirm.
Neal, J., joins.
Wendell L. Griffen, Judge,dissenting. The result announced by the majority opinion violates principles of judicial review applied to decisions from the Board of Review since the first day our court began reviewing appeals in unemployment cases. We are supposed to decide appeals involving questions about Board findings regarding suitability of available work, or even whether there is good cause for refusing work deemed suitable, by determining if the findings reached by the Board of Review are supported by substantial evidence. The majority opinion does not even pay polite reference to the substantial evidence standard of review in reversing the finding by the Board of Review that the appellee was not offered suitable work. Instead, the result announced today amounts to a naked exercise in fact-finding, albeit undertaken in reliance on a forty-two-year-old decision by our supreme court involving facts that were clearly different from those in the record before us. Moreover, in undertaking that fact-finding, the majority has ignored the public policy considerations that the Arkansas General Assembly, the body that represents the collective will of the Arkansas people, analyzed before enacting the legislation codified at Arkansas Code Annotated section 11-10-515 (d). Based on the sound principles that have governed our exercise of judicial review in unemployment compensation cases throughout the history of this court, I conclude that substantial evidence supports the finding made by the Board of Review in this case. Thus, I would affirm the decision reached by the Board.
The standard of appellate review for decisions of the Board of Review has been stated so often that it is superfluous to cite case authority for it. Arkansas law holds that the findings of the Board of Review are conclusive, absent fraud, if supported by evidence. Ark. Code Ann. § 11-10-529(c)(1) (Repl. 2002). We have long held that the standard of evidentiary review in such appeals is substantial evidence. See Shipley Baking Co. v. Stiles, 17 Ark. App. 72, 703 S.W.2d 465 (1986). We have defined “substantial evidence” as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Sims v. Everett, 2 Ark. App. 336, 621 S.W.2d 229 (1981). Our appellate review is limited to determining whether the Board of Review could reasonably arrive at the result it reached on the evidence before it, notwithstanding that there may be evidence in the record upon which our court might have reached a different conclusion had it been functioning as trier of fact in the first instance and confronted with the same evidence considered by the Board. Dillaha Fruit Co. v. Everett, 9 Ark. App. 51, 652 S.W.2d 643 (1983). This principle flows from our recognition that the Board of Review has the right to determine witness credibility and to draw inferences from their testimony. See Grigsby v. Everett, 8 Ark. App. 188, 649 S.W.2d 404 (1983). And, at the top of our analytical pyramid, rests the often cited principle that in reviewing the sufficiency of evidence on appeals from the Board of Review, the Court of Appeals is to consider the evidence in the light most favorable to the successful party below and affirm that decision if there is substantial evidence to support the Board’s decision. See Feagan v. Everett, 9 Ark. App. 59, 652 S.W.2d 839 (1983).
In the face of this established set of principles for undertaking judicial review, today the majority has decided to reverse a finding of the Board of Review that “the position offered to the claimant [Delores Gross] was unsuitable.” The Board found the position unsuitable because although the position involved an offer of comparable pay, it “would have removed the claimant from the protection and security provided by union membership and repre^ sentation, from which she had benefitted for twenty-one years.” The majority opinion does not cite the substantial evidence standard or any of the other longstanding rules that govern our appellate review of findings made by the Board of Review. Instead, it reverses the Board’s finding that Arkansas Oklahoma Gas Corporation offered Gross a job that was not suitable by undertaking what amounts to de novo review. In short, the majority reverses the Board because it believes that the collector job, which Delores Gross refused to accept, was “suitable.”
Our court does not exist to decide whether the collector job offered by the employer and refused by Gross was suitable; we decide whether the Board’s finding on that question is supported by substantial evidence. If so, we are supposed to affirm the Board of Review even if we would have reached a different result had we been deciding the case below. Our court does not decide what inferences should be drawn from the evidence presented to the Board of Review, or what conclusions should be drawn from those inferences for that matter. Our function is to decide whether the conclusions drawn from the inferences have the support of substantial evidence. And if we conclude that substantial evidence is lacking, we should say so rather than reach a decision as if we are the trier of fact. But we are supposed to analyze the substantial evidence question by giving the result reached by the Board of Review the deference due a decision made by a competent trier of fact presented with live witnesses and the duty of assessing credibility and weighing evidence.
There are two questions presented by this appeal. The first question is whether the finding by the Board of Review that Gross refused an offer of available suitable work is supported by substantial evidence. If substantial evidence supports that finding, we should then consider if there is substantial evidence to support the Board’s finding that Gross had good cause to refuse an offer of suitable work so as to be entitled to unemployment benefits on account of her discharge by the employer.
Arkansas Code Annotated Section ll-10-515(a)(l) (Repl. 2002) states, in pertinent part, as follows:
If so found by the Director of the Arkansas Employment Security Department, an individual shall be disqualified for benefits if he has failed, without good cause: . . . (B) To accept available suitable work when offered.
Arkansas Code Annotated section 11-10-515 (d) (Repl. 2002) states:
Notwithstanding any other provisions of this chapter, no work shall be deemed suitable and benefits shall not be denied under this chapter to any otherwise eligible individual for refusing to accept new work under any of the following conditions:
(1) If the position offered is vacant due to a strike, lockout, or other labor dispute;
(2) If the wages, hours, or other conditions of the work offered are substantially less favorable to the individual than those prevailing for similar work in the locality;
(3) If as a condition of being employed, the individual would be required to join a company union or to resign from or refrain from joining any bona fide labor organization.
The Board of Review found that the collector job that the employer offered Gross was unsuitable because “the position would have removed [Gross] from the protection and security provided by union membership and representation, from which she had benefitted for twenty-one years.” We are supposed to review that finding in the light most favorable to Gross, the successful party below, and in a manner that defers to the Board’s recognized role in weighing evidence and evaluating witness credibility.
We need only look to the Board’s opinion to know what evidence, if any, it relied on in reaching its decision.
The claimant testified that she worked for the employer for approximately twenty-one years. She indicated that she is a member of Teamsters Local 373, which represents members who work for the employer. The claimant worked as a meter reader for nineteen years. She stated that the meter reader position is a bargaining unit position, which means that the position can only be obtained by bidding on it pursuant to the union bargaining agreement.
The director of employee relations (hereafter “director”) stated that, in 1999, the claimant bid" on a position as dispatcher, also a bargaining unit position, and she was subsequently awarded the position. The director indicated that the claimant worked as dispatcher for eight months, after which she was “disqualified” for the position, due to unsatisfactory performance. The director testified that the claimant was offered a temporary position in the “GPS” program, whereby the claimant would assist in locating and charting customer meters on a map.
The director pointed out that, although the GPS position was temporary and non-union, the employer offered the claimant the position in order to retain her as an employee. She further stated that, per an agreement with the union, the claimant was “on loan” while she was temporarily assigned to the non-union position, which allowed the claimant to retain the right to bid on a union position and return to her former union status when the GPS position expired. The director testified that the claimant’s pay increased from $12.83 per hour to $13.07 per hour in the GPS position.
The director stated that the claimant worked in the GPS position for approximately eighteen months, until September 11, 2001, when the program expired. The director testified that the claimant was given the right to bid on another position within the company, but nothing was available except a collector position. She stated that the collector position paid only two cents more than the claimant earned in the GPS program, but accepting the position would allow the claimant to retain employment and keep her employee benefits.
The director also indicated that the claimant would gain eligibility to participate in the 401K plan, to which the employer contributed. She stated that the collector position was full-time and non-union. The director stated that the claimant asked if this “was just a job to place her in until she could be moved to another position,” and the director responded no. The director stated that the claimant refused the position, saying she wanted to retain her status within the union.
The claimant testified that the collector position was a non-union position, which meant she could be discharged without cause, as she would no longer be covered under the union bargaining agreement. She stated that she asked the director if the collector position would be considered temporary until she could find another position, but the director indicated that the position would be permanent. She stated that the director indicated that her pay would be “around the same”, and did not indicate that it would actually increase two cents. The claimant pointed out that, although her GPS position was also non-union, she retained her seniority and bidding rights within the union.
The claimant testified that accepting the collector position would have permanently removed her from status as a union employee, unless she was able to bid back into a union position. She indicated that this would be difficult to do because she would have lost her seniority and therefore, she would receive consideration for a union position only after all union employees had an opportunity to bid on the job. The claimant indicated that, as a collector, she would have been expected to call customers who were delinquent in paying their gas bills and to demand immediate payment; she would then be required to go to the customer’s home and collect the delinquent payment or turn off the gas service.
The claimant stated that the position was considered stressful and, as a result, it experienced a high turnover of employees. She stated that the position had become more stressful in recent years due to an increase in the price of natural gas, which caused a significant increase in the number of delinquent accounts. In addition, the claimant pointed out that the company’s new policy required that she shut off service immediately, rather than allowing the customer to make arrangements on a delinquent bill, as had been done in the past. The claimant testified that she had reservations about taking the collector position and she did not want to lose her representation as part of the union. She refused the job.
I burden this opinion with the foregoing lengthy quotation to emphasize what should be obvious. The majority opinion does not even hint, let alone explain, why this evidence is somehow not “substantial” so as to justify reversing the Board’s finding that the collector job was not suitable. We do not know whether the evidence is not substantial because the collector job paid more, or because the collector job was permanent rather than a temporary position, or because it was one in which Gross would have been eligible to participate in the employer’s pension and profit-sharing plan, or for some other reason. We do not know what judicial precedent supports the notion that this proof is not substantial. This predicament occurs when we attempt to decide appeals without regard for the standard of review.
Instead of deciding the substantial-evidence question, the majority has adopted the appellant’s argument that the outcome of this appeal from the Board’s finding that the collector job was unsuitable “is controlled by the supreme court’s decision in Thornbrough v. Stewart, 232 Ark. 53, 334 S.W.2d 699 (1960).” Thorn-brough involved an appeal from a circuit court’s finding that a union member who lost his job was not disqualified from receiving unemployment benefits after he refused to accept a job offer from another employer because the job paid less than the union scale and might have exposed the claimant to sanctions from the union had he accepted it. Although the claimant in Thornbrough argued that he had good cause to refuse the job and that he was protected from disqualification by the statute now codified as Ark. Code Ann. § ll-10-515(d)(3), our supreme court held that the mere threat of sanctions by the union did not make the job unsuitable and that refusal to accept the job for that reason did not constitute “good cause.” Thornbrough, supra.
Nothing in the record before us supports the conclusion that there was anything contingent or uncertain about the consequences to Delores Gross if she accepted the collector job. As the extensive quotation from the Board of Review makes abundantly clear, both Gross and the employer’s director of employee relations testified that the collector job was permanent and a non-union position to which Gross would not be able to enjoy the job protection rights afforded union members. To again quote from the Board of Review:
She [the director of employee relations] stated that the collector position was full-time and non-union. The director stated that the claimant asked if this was ‘just a job to place her in until she could be moved to another position’, and the director responded no. . . . The claimant testified that . . . she asked the director if the collector position would be considered temporary until she could find another union position, but the director indicated that the position would be permanent. (Emphasis added.)
Unlike in Thornbrough, where the claimant refused available work based on what the supreme court reasoned was merely the “possibility of being fined or discharged by his union if he accepted work for less than union wages,” all the evidence before us shows that the claimant in the present appeal knew that she would lose her seniority rights and union protection from unfair dismissal or workplace treatment if she accepted the collector job. Thornbrough is not controlling on this case because the facts are clearly different.
The appellant cites Thornbrough as authority for the proposition that available work is not unsuitable under Arkansas law because it removes an employee from union protection or security or because it “essentially” requires resignation from a union. That argument persuaded my colleagues in the majority, but rings quite hollow to me. Aside from the fact that Thornbrough is factually distinguishable from this case because there was no contingency about whether Gross would lose her union protection by accepting the collector job, this case has yet another important factor that sets it apart from Thornbrough. Thornbrough involved a claim for unemployment benefits by an unemployed worker. Yet, it is uncontroverted that Gross was employed by Arkansas Oklahoma Gas Corporation before the collector job was offered and that she was employed when she refused the collector job. The record plainly shows that the employer terminated Gross from its employ after she refused to accept the collector position. Based on this uncontradicted proof and in view of the straightforward declaration in Ark. Code Ann. § ll-10-515(d)(3) that “benefits shall not be denied under this chapter to any otherwise eligible individual for refusing to accept new work . . . [i]f as a condition to being employed, the individual would be required to . . . resign from . . . any bona fide labor organization,” I find nothing persuasive about the appellant’s argument or its reliance upon Thornbrough.
Finally, the majority decision mocks as well the public policy considerations the General Assembly had in mind when it enacted the statute before us. Section 11 — 10-515(d)(l) was enacted to ensure that unemployment benefits would not be withheld from union members who refused to accept offered work made available due to a strike, lockout by employers, or other labor dispute. Subsection (d) (2) was enacted to protect the rights of unemployed workers to receive unemployment benefits rather than be forced to accept work offered where the “wages, hours, or other conditions of the work offered are substantially less favorable to the individual than those prevailing for similar work in the locality.” And, subsection (d)(3) operates to protect the rights of unemployed workers to receive unemployment benefits where they have refused job offers conditioned on the requirement that they “join a company union or . . . resign from or refrain from joining any bona fide labor organization.”
The General Assembly, composed of elected representatives of Arkansans from all incomes, employment situations, and relationships, enacted this statute to address real problems such as the one Gross faced when her employer intentionally offered her work as a collector knowing that she would lose her protection as a union member upon accepting that job, and made accepting the job a prerequisite for continued employment. It is wrong for our court to decide this appeal as if the General Assembly had not enacted the statute. It is wrong for us to decide her appeal as if the facts in this case do not squarely fall within the statute. It is wrong for us to treat her case as if we are functioning as the trier of fact rather than engaged in judicial review subject to the substantial evidence standard. And it is wrong for us to decide her case as if the uncontradicted facts in this record resemble anything close to the situation our supreme court addressed in Thornbrough.
I dissent.
I am authorized to state that Judge Neal joins in this dissent.