Cowan v. Director

Barry G. COWAN v. DIRECTOR, Arkansas
Employment Security Department and Forsgren,
Inc.

E 96-11                                            ___ S.W.2d ___

                  Court of Appeals of Arkansas
                       Divisions I and III
               Opinion delivered February 5, 1997


1.   Unemployment compensation -- appeal from Board of Review --
     factors on review. -- There is no de novo review of an appeal
     of a decision of the Board of Review; the findings of fact of
     the Board of Review are conclusive if they are supported by
     substantial evidence; the appellate court reviews the evidence
     and all reasonable inferences deducible therefrom in the light
     most favorable to the Board's findings; even when there is
     evidence upon which the Board might have reached a different
     decision, the scope of judicial review is limited to a
     determination of whether the Board could reasonably reach its
     decision upon the evidence before it.  

2.   Unemployment compensation -- good cause to terminate
     employment -- one element considered. -- One of the elements
     in determining whether good cause exists for an employee to
     terminate his employment within the meaning of unemployment
     compensation law is whether the employee took appropriate
     steps to prevent the mistreatment from continuing. 

3.   Unemployment compensation -- appellant failed to take all
     appropriate steps to prevent continuation of mistreatment --
     Board of Review affirmed. -- While the appellant did talk to
     his direct supervisor about the problems he was having with
     another worker, it would have been appropriate to take his
     complaint to the president before giving up his job, and this
     he failed to do; therefore, the Board found that appellant
     voluntarily left his last work without good cause connected
     with the work within the meaning of the law; these findings
     were supported by substantial evidence; therefore, the Board's
     decision that appellant left his last work voluntarily and
     without good cause connected with the work was affirmed.
     

     Appeal from Arkansas Board of Review; affirmed.
     Appellant, Pro Se.
     Allan Pruitt, for appellee.

     John B. Robbins, Chief Judge.
     Appellant Barry G. Cowan appeals the Board of Review's denial
of unemployment compensation benefits in accordance with Ark. Code
Ann.  11-10-513 (Repl. 1996), upon finding that appellant left his
last work voluntarily and without good cause connected with the
work.  He argues that the decision is not supported by substantial
evidence.  We affirm.
     We do not conduct a de novo review on the appeal of a decision
of the Board of Review.  The findings of fact of the Board of
Review are conclusive if they are supported by substantial
evidence.  Ark. Code Ann.  11-10-529(c)(1) (Repl. 1996); Perdix-
Wang v. Director, 42 Ark. App. 218, 856 S.W.2d 636 (1993).  We
review the evidence and all reasonable inferences deducible
therefrom in the light most favorable to the Board's findings.  Id. 
Even when there is evidence upon which the Board might have
reached a different decision, the scope of judicial review is
limited to a determination of whether the Board could reasonably
reach its decision upon the evidence before it.  Id.
     The Board of Review adopted the findings of fact and
conclusions of law made by the Appeal Tribunal.  The Appeal
Tribunal found that appellant quit his job because of problems with
another worker, Kenny Stern.  Stern had hidden the appellant's
lunch, took keys out of equipment that appellant was operating, and
threw the appellant's hat.  The appellant believed that they were
about to fight and complained to the superintendent, Joe Holland,
who instructed the appellant to fight it out.  Appellant did not
approach the president of the company prior to quitting because he
had rarely seen him and he had always answered to Holland.  The
Appeal Tribunal found that the employer encouraged its employees to
resolve problems among themselves or through the superintendent,
but that the president would meet with employees to discuss
problems if he was approached.  One of the elements in determining
whether good cause exists for an employee to terminate his
employment within the meaning of unemployment compensation law
is whether the employee took appropriate steps to prevent the
mistreatment from continuing.  See McEwen v. Everett, Director,
6 Ark. App. 32, 637 S.W.2d 617 (1982); Teel v. Daniels, Director,
270 Ark. 766, 606 S.W.2d 151 (Ark. App. 1980).  The Appeal Tribunal
concluded that while the appellant did talk to his direct
supervisor, it would have been appropriate to take his complaint
to the president before giving up his job. Therefore, appellant
voluntarily left his last work without good cause connected with
the work within the meaning of the law.  From our review of the
record, there is substantial evidence to support these findings and
decision.  Therefore, we affirm the Board's decision that appellant
left his last work voluntarily and without good cause connected
with the work.
     Affirmed.
     Pittman and Jennings, JJ., agree.
     Rogers, Stroud, and Griffen, JJ., dissent.

=================================================================
                 Judith Rogers, Judge, dissents.


     I respectfully dissent from the majority's opinion because the
result in this case places an unreasonable requirement on an
employee to preserve his job rights.  In a situation where an
employee is threatened by another co-worker, and the resolution of
this problem by the employee's supervisor is to "fight it out" with
the co-worker, I do not believe that our law requires the employee
to physically subject himself to harm to protect his job rights. 
     Although our standard of review restricts us from determining
questions of fact, I find it unrealistic in this case that
appellant should have gone through the chain of command of a
company to speak with the president before quitting.  Appellant was
unable to perform his job because a co-worker had removed the keys
from the equipment that appellant was operating.  Also, appellant
was being taunted and provoked into a fight by a co-worker. 
Instead of engaging in a fight at work, appellant approached his
supervisor and reported the incidents.  The supervisor's only
response was for appellant to "fight it out."  Also, the evidence
reflects that the president of the company was not readily
available to the employees and that employees were encouraged to
resolve problems between themselves and their supervisors.  If this
affirmance becomes the law, we might be faced with problems in very
large or multi-state jurisdictions where it is not possible to
reach the president because his office may be in another state. 
Surely our laws do not require that we give up civility, safe work
environments, or responsibility in the chain of command before an
employee's rights to a safe work place is guaranteed.  Based on the
facts of this case, I would reverse.
     Griffen and Stroud, JJ., join in this dissent.