dissenting. I would affirm this case. I cannot agree with the majority that there is no substantial evidence of misconduct in this record. As I view it, the appellant’s own statement to the Agency, together with his testimony before the Appeal Tribunal, contains substantial evidence of misconduct connected with his work within the meaning of the statute.
The fact that the employer, Kroger Company, did not appear for the hearing or contest the claim should not be decisive of the matter. The public has an interest in all unemployment insurance claims. The Employment Security Administration owes a duty to the public to protect the unemployment insurance fund from claims by persons who are disqualified to receive benefits, and this is so whether the employer involved contests the application or not.
Arkansas Statutes § 81-1107(d)(7) states:
“. . . In any proceeding under this subsection the findings of the Board of Review as to the facts, if supported by evidence and in the absence of fraud, shall be conclusive and the jurisdiction of said Court shall be confined to questions of law.”
That has been amplified by case law:
“. . . In a proceeding of this kind the Board’s findings of fact are conclusive if supported by evidence; which of course means substantial evidence. [Ark. Stats. 1947, § 81-1107 (d)(7)].” Terry Dairy Products company, Inc. v. Cash, 224 Ark. 576, 577.
Like the decision of any other administrative tribunal, a decision of the Board of Review is reversible on appeal to the courts only if found to be arbitrary, capricious, unreasonable, and without substantial evidence to support it or in cases of fraud or corruption. City of Fort Smith v. Southwestern Bell Tel. Co., 274 S.W. 2d 474, 220 Ark. 70, 77-78.
In the recent case of Harris v. Daniels, et al, 263 Ark. 897, 567 S.W. 2d 954, 957 (1978), the Arkansas Supreme Court stated:
“In appellate review ... we must give the successful party the benefit of every inference that can be drawn from the testimony, viewing it in the light most favorable to the successful party, if there is any rational basis for the board’s findings based upon substantial evidence, (cases cited). Even though there is evidence upon which the Board of Review might have reached a different result, the scope of judicial review is limited to a determination whether the board could reasonably reach its results upon the evidence before it and a reviewing court is not privileged to substitute its findings for those of the board even though the court might reach a different conclusion if it had made the original determination upon the same evidence considered by the board, (cases cited). Even if the evidence is undisputed, the drawing of inferences is for the board, not the courts. Kessler v. Industrial Commission, 21 Wis. 2d 398, 134 N.W. 2d 412 (1965).”
Section 5(b)(1) of the Employment Security Law is codified at Ark. Stat. Ann. § 81-1106(b)(1) and reads as follows:
“81-1106. Disqualification for benefits — For all claims filed on and after July 1, 1978, if so found by the Director, an individual shall be disqualified for benefits:
# # *
(b) Discharged for misconduct. (1) If he is discharged from his last work, for misconduct in connection with the work, such disqualification shall be for eight (8) weeks of unemployment as defined in subsection (i) of this section . . .”
In this case, the Agency, the Employment Security Appeal Tribunal, and the Arkansas Employment Security Board of Review all found that appellant was not eligible for benefits because he had been discharged from employment with Kroger for misconduct connected with his work within the meaning of the law. Our duty as a court is to determine only if there is substantial evidence in the record to support the, decision of the Board of Review. Harris v. Daniels, supra. We are not to determine what parts of appellant’s statements are reasonable and to be believed, or what parts are to be rejected. That is the duty and function of-the Board of Review.
Considering the record in the light most favorable to the decision of the Board of Review, as this court must do, I think there is substantial evidence to support the determination made by the Board of Review. Therefore, I respectfully dissent.