Gary R. Tacker v. Director, Employment Security Department and Crittenden Gin Company

DIVISION III

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN E. JENNINGS, JUDGE

E01-121

February 27, 2002

GARY R. TACKER

APPELLANT APPEAL FROM THE BOARD OF

REVIEW, ARKANSAS EMPLOYMENT

SECURITY DEPARTMENT

VS.

DIRECTOR OF THE ARKANSAS

EMPLOYMENT SECURITY DEPARTMENT AFFIRMED

AND CRITTENDEN GIN COMPANY

APPELLEES

The appellant, Gary R. Tacker, appeals from a decision of the Board of Review denying his claim for unemployment compensation based on a finding that he voluntarily quit his job without good cause connected with the work. For reversal, appellant contends that the Board's decision is not supported by substantial evidence and that the Board erred in denying his request to present additional evidence. We find no error and affirm.

For over three years, appellant worked as a module truck-driver for Crittenden Gin Company. His duties also included welding and general repair-work at the gin. Appellant testified that, on the day he quit, he had worked hard all day and had notbeen given a lunch or any other breaks and that he had two more jobs waiting for him to do. He said that he was sitting down, tired, and "disgusted with it," when his boss walked by and "gave me a pretty hard grin." Appellant testified that this made him mad and that he quit after his shift was over without telling his boss of his intention to quit.

Appellant further testified that in the past his boss had been verbally abusive by directing foul language and threats to him, but he said that this situation had improved after he had complained to his boss about a year ago. Appellant also testified that his two brothers had been fired about a month before he quit and that he had assumed much of their job responsibilities. Appellant said that he had complained to his boss about the excessive work he was being required to do and that he told his boss that he would quit if he did not get any help.

The Board found that appellant quit in a fit of anger over being grinned at by his boss. The Board also found that appellant had failed to take reasonable steps to prevent the perceived mistreatment from continuing before quitting his job. Conse quently, the Board determined that appellant was ineligible for benefits.

Arkansas Code Annotated section 11-10-513 (Supp. 2001) provides that an individual shall be disqualified for benefits if he voluntarily quits his job without good cause connected with thework. "Good cause" has been defined as a cause that would reasonably impel the average, able-bodied worker to give up his or her employment. Teel v. Daniels, 270 Ark. 766, 606 S.W.2d 151 (Ark. App. 1980). It is dependent not only on the reaction of the average employee, but also on the good faith of the employee involved, which includes the presence of a genuine desire to work and to be self-supporting. Id. The taking of appropriate steps to prevent a perceived mistreatment from continuing is an element to be considered in determining whether an employee had good cause to quit work. Brown v. Director, 54 Ark. App. 205, 924 S.W.2d 492 (1996).

What constitutes good cause for leaving employment is ordinarily a question of fact for the Board to determine based on the particular circumstances of each case. Ahrend v. Director, 55 Ark. App. 71, 930 S.W.2d 392 (1996). On appeal, we review the findings of fact of the Board of Review in a light most favorable to the successful party and affirm if the findings are supported by substantial evidence. Khan v. Director, 48 Ark. App. 64, 892 S.W.2d 513 (1994). Substantial evidence is such evidence as a reasonable mind might accept as adequate to support a conclusion. Brooks v. Director, 62 Ark. App. 85, 966 S.W.2d 941 (1998). 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 itsdecision upon the evidence before it. Fleming v. Director, 73 Ark. App. 86, 40 S.W.3d 820 (2001).

In this case, appellant admittedly quit his job after being angered by a "look" that his boss gave him. Although appellant's complaints of being mistreated in the past had resulted in a successful outcome, appellant chose in this instance to quit without any discussion and without giving the employer a meaningful opportunity to correct the problem. We hold that there is substantial evidence to support the Board's findings.

In his second point, appellant contends that the Board erred in denying his request to put on additional evidence. In this request, appellant claimed that he had quit his job because his employer required him to illegally dump diesel fuel. It is well-settled that the Board of Review may order another hearing for the taking of additional evidence, but this is discretionary with the Board. Arkansas Game & Fish Comm'n v. Director, 36 Ark. App. 243, 821 S.W.2d 69 (1992). Nothing in the law requires a second hearing so long as each side had notice of and a fair opportunity to rebut the evidence of the other party. Maybelline Co. v. Stiles, 10 Ark. App. 169, 661 S.W.2d 462 (1983). The Board denied appellant's request, reasoning that appellant had a fair opportunity to present any and all evidence he desired at the hearing before the appeals tribunal. We find no abuse of discretion in the denial of appellant's request.

Affirmed.

Hart and Neal, JJ., agree.