Allen Thomas v. Director, Department of Workforce Services, and Weyerhaeuser Nr Company
587 S.W.3d 612
Ark. Ct. App.2019Background:
- Allen Thomas worked for Weyerhaeuser from 1989 until his 2018 discharge as an operator on a stacker-stick-layer machine.
- Weyerhaeuser had a written lockout/tagout (LOTO) safety policy, reviewed annually, requiring shutdown and locking of power before entering machine interiors.
- Video showed Thomas inserting his arm nearly to his shoulder into a machine with moving parts without cutting power or using LOTO; he admitted knowing the policy and the risks.
- Weyerhaeuser suspended Thomas, conducted an investigation (video review and coworker interviews), and terminated him; the Tribunal and the Arkansas Board of Review denied unemployment benefits under Ark. Code § 11-10-514(b)(1) as a willful safety-rule violation.
- Thomas argued the employer failed to follow its first-offense disciplinary policy (which requires considering surrounding circumstances), pointed to production pressure, past similar conduct, and long tenure; the Board found the employer had considered circumstances and that customary practice only allowed limited reaching into the first "pan."
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Thomas was discharged for misconduct (willful violation of safety rule) | Thomas: momentary lapse; not willful; common practice among operators | Employer: Thomas knowingly violated LOTO, risk was catastrophic; investigation confirms violation | Held: Yes — substantial evidence supports willful violation and disqualification from benefits |
| Whether employer failed to follow its written first-offense disciplinary policy | Thomas: employer did not properly consider circumstances as required | Employer: conducted investigation, reviewed video, interviewed workers, and considered circumstances/customs | Held: No — Board reasonably found employer considered circumstances |
| Whether supervisor tolerance of limited reaching negates misconduct | Thomas: supervisor witnessed similar conduct without reprimand | Employer: supervisor testified Thomas reached farther than permitted; credibility is for the Board | Held: Credibility resolved for Board; prior practice did not excuse this conduct |
| Whether long tenure negates intentional misconduct | Thomas: long service shows lack of intentional wrongdoing | Employer: safety-rule violation is sufficient to show required intent for misconduct | Held: Tenure does not negate misconduct; violation satisfies intent element |
Key Cases Cited
- Blanton v. Dir., 575 S.W.3d 186 (Ark. Ct. App. 2019) (standard that Board decisions are upheld if supported by substantial evidence)
- Jones v. Dir., 470 S.W.3d 277 (Ark. Ct. App. 2015) (employer bears burden to prove misconduct by preponderance)
- Keith v. Dir., 564 S.W.3d 296 (Ark. Ct. App. 2018) (elements defining misconduct for unemployment-compensation purposes)
- Follett v. Dir., 530 S.W.3d 884 (Ark. Ct. App. 2017) (distinguishing ordinary negligence or isolated errors from disqualifying misconduct)
- Wilson v. Dir., 517 S.W.3d 427 (Ark. Ct. App. 2017) (safety-rule violations can satisfy intent element for misconduct)
- Hopkins v. Dir., 571 S.W.3d 524 (Ark. Ct. App. 2019) (when employer has no written policy or fails to follow it, facts must be evaluated for willful disregard)
- Whitmer v. Dir., 525 S.W.3d 45 (Ark. Ct. App. 2017) (same principle regarding evaluation when policies are absent or not followed)
- Weinstein v. Dir., 428 S.W.3d 560 (Ark. Ct. App. 2013) (credibility and weight of witness testimony are matters for the Board)