Paul A. Brooks v. Director, Employment Security Department and Rocky's Corner, Inc.

Paul A. BROOKS v. DIRECTOR, Arkansas
Employment Security Department; 
and Rocky's Corner, Inc.

E 97-284                                           ___ S.W.2d ___

                  Court of Appeals of Arkansas
                           Division I
                  Opinion delivered May 6, 1998


1.   Unemployment compensation -- factors on review. -- In appeals of unemployment
     compensation cases, the findings of fact by the Board of
     Review are conclusive if supported by substantial evidence;
     appellate review is limited to determining whether the Board
     could reasonably reach its decision upon the evidence before
     it; the appellate court reviews the evidence and all
     reasonable inferences deducible therefrom in a light most
     favorable to the Board of Reviewþs findings; the court does
     not conduct a de novo review in appeals from the Board of
     Review; even when there is evidence upon which the Board might
     have reached a different decision, the appellate court's
     review is limited to a determination whether the Board could
     have reasonably reached its decision based upon the evidence
     before it.

2.   Evidence -- substantial evidence defined. -- Substantial evidence is such
     evidence as a reasonable mind might accept as adequate to
     support a conclusion.

3.   Unemployment compensation -- preservation of job rights -- reasonable efforts required -
     - futile gesture not required. -- Arkansas Code Annotated section 11-
     10-513(b) (Repl. 1996) provides that, as a prerequisite to
     receiving unemployment benefits, an employee is required to
     make every reasonable effort to preserve his job rights before
     leaving employment; such reasonable efforts include taking
     appropriate measures to prevent an unsatisfactory situation on
     the job from continuing; but the employee is not required to
     take measures to resolve a problem with his employer if they
     would constitute nothing more than a futile gesture.

4.   Unemployment compensation -- no substantial evidence supported Board's finding that
     appellant had voluntarily quit employment without good cause -- reversed and remanded.
     -- Viewing the evidence in the light most favorable to the
     Board of Review, the appellate court held that there was not
     substantial evidence to support the finding that appellant had
     voluntarily quit his employment without good cause connected
     to the work where both appellant and the employer's
     representative testified that the air conditioner was not
     working in the kitchen area, that the temperature outside was
     at least one hundred degrees on the day appellant quit, that
     the door to the kitchen where appellant worked as a daytime
     pizza cook was closed on orders from the owner, who was well
     aware of the problem, and that the problem with the kitchen
     air conditioning had persisted all summer; where, although
     appellant had complained about the problem several times to
     the owner of the business, the problem had not been corrected
     by the date on which he quit his job; and where appellant took
     appropriate measures to rectify the intolerable working
     conditions by complaining several times to the owner and,
     under the circumstances, could have reasonably believed that
     making further complaints would have been a futile gesture;
     the matter was reversed and remanded. 


     Appeal from State of Arkansas Board of Review; reversed and
remanded.
     No briefs.

     Andree Layton Roaf, Judge.
     This is an unbriefed employment security case.  Paul A. Brooks
appeals from the Board of Reviewþs decision that he voluntarily
left his last work without good cause connected to the work.   We
hold that the Boardþs decision is not supported by substantial
evidence, and reverse and remand for an award of benefits.
     Brooks was employed by appellee Rockyþs Corner in Hot Springs
as a daytime pizza cook from December 1995 until August 1997.  At
the hearing before the Appeals Tribunal, Brooks testified that he
quit his job on August 30, 1995, because the air conditioning was
not working, the temperature outside was one hundred degrees, the
heat in the kitchen where the pizza ovens were located was
unbearable, there was no circulation because the manager refused to
allow the outside door to the kitchen to be opened to provide some
relief, and also would not allow a door between the kitchen and the
dining area, where the air conditioning was working, to be opened
while customers were on the premises.
     Brooks further testified that the problem with the air
conditioning had been going on all summer, that he had complained
to the owner three to four times about the heat in the kitchen, and
that the owner had attempted without success to have the air
conditioner repaired. Brooks testified that he had to work right
next to the pizza ovens, and that on the day in question, the
kitchen was so hot that sweat was running down his face into the
pizzas.
     The manager at Rockyþs Corner, Patty Bates, testified at the
hearing and stated that they were continually calling people to
work on the air conditioners, that it was a constant problem that
summer, that she closed and locked the outside kitchen door on the
ownerþs instructions, and admitted that the temperature was one
hundred degrees outside on the day Brooks quit.
     Brooks appealed the denial of unemployment benefits by the
Employment Security Department, and the Appeal Tribunal reversed
the agency determination, finding that Brooks left because of good
cause connected with the work, and that he had made reasonable
efforts to resolve the problem.  The Board of Review reversed the
decision of the Appeal Tribunal, stating that þ[w]orking in a
kitchen is hot.  That is the nature of the work.þ  The Board also
found that Brooks had not presented sufficient evidence of his
working conditions, such as the exact temperature in the kitchen,
the amount of time left on his shift, amount of time he had worked
on his last day, whether any other employees complained, and
whether there were other remedies to the problem besides quitting.
     In appeals of unemployment compensation cases, the findings of
fact by the Board of Review are conclusive if supported by
substantial evidence, and our review is limited to determining
whether the Board could reasonably reach its decision upon the
evidence before it.  Hiner v. Director, 61 Ark. App. 139, ___
S.W.2d __, (1998); Rodriguez v. Director, 59 Ark. App. 8, 952 S.W.2d 186 (1997).  Substantial evidence is such evidence as a
reasonable mind might accept as adequate to support a conclusion. 
This court reviews the evidence and all reasonable inferences
deducible therefrom in a light most favorable to the Board of
Reviewþs findings.  Rucker v. Director, 52 Ark. App. 126, 915 S.W.2d 315 (1996).  We do not conduct a de novo review in appeals 
from the Board of Review.  Even when there is evidence upon which
the Board might have reached a different decision, our review is
limited to a determination of whether the Board could have
reasonably reached its decision based upon the evidence before it. 
Hiner, supra, Cowan v. Director, 56 Ark. App. 17, 936 S.W.2d 766
(1997).
     Arkansas Code Annotated section 11-10-513(b) (Repl. 1996)
provides that, as a prerequisite to receiving unemployment
benefits, an employee is required to make every reasonable effort
to preserve his job rights before leaving employment, Boothe v.
Director, 59 Ark. App. 169, 954 S.W.2d 946 (1997); Ahrends v.
Director, 55 Ark. App. 71, 930 S.W.2d 392 (1996).  In Boothe,
supra, this court said: 
          such reasonable efforts include taking
          appropriate measures to prevent an
          unsatisfactory situation on the job from
          continuing.  Teel v. Daniels, 270 Ark. 766,
          606 S.W.2d 151 (Ark. App. 1980).  But the
          employee is not required to take measures to
          resolve a problem with his employer if such
          measures would constitute nothing more than a
          futile gesture.  Oxford v. Daniels, 2 Ark.
          App. 200, 618 S.W.2d 171 (1981).

Boothe, 59 Ark. App. at 173-74, 954 S.W.2d  at 949.

     Viewing the evidence in the light most favorable to the Board
of Review, we hold that there is not substantial evidence to
support its finding that Brooks voluntarily quit his employment
without good cause connected to the work.  Both Brooks and the
employerþs representative testified that the temperature outside
was at least one hundred degrees on the day Brooks quit, that the
door to the kitchen was closed on orders from the owner, who was
well aware of the problem, and that the problem with the kitchen
air conditioning had persisted all summer.  Although Brooks
complained about the problem several times to the owner of the
business, the problem had not been corrected by August 30, during
the hottest part of the summer.  Brooks took appropriate measures
to rectify the intolerable working conditions by complaining
several times to the owner, and under the circumstances, he could
have reasonably believed that making further complaints would have
been a futile gesture. 
     Reversed and remanded.
     Robbins, C.J., and Bird, J., agree.