NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

MARGARET MEADS, JUDGE

DIVISION IV

NANCY JO MARION

APPELLANT

V.

DIRECTOR OF ARKANSAS EMPLOYMENT SECURITY DEPARTMENT AND DEPARTMENT OF COMMUNITY PUNISHMENT

APPELLEES

E99-216

January 12, 2000

APPEAL FROM THE ARKANSAS BOARD OF REVIEW

[NO. 99-BR-01003]

REVERSED AND REMANDED

Nancy Marion was denied benefits by the Board of Review on the basis that she voluntarily left her last work without good cause connected to the work. The Board of Review affirmed and adopted the Appeal Tribunal's denial of benefits. We reverse and remand for an award of benefits.

In appeals of unemployment compensation cases, the findings of fact by the Board of Review are conclusive if supported by substantial evidence, and this court's 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, 965 S.W.2d 785 (1998). However, that is not to say that our function on appeal is merely to ratify whatever decision is made bythe Board of Review; when the Board's decision is not supported by substantial evidence, we will

reverse. Boothe v. Director, 59 Ark. App. 169, 954 S.W.2d 946 (1997). We must review the evidence and all reasonable inferences deducible therefrom in a light most favorable to the Board of Review's findings. Brooks v. Director, 62 Ark. App. 85, 966 S.W.2d 941 (1998). Substantial evidence is such evidence as a reasonable mind might accept as adequate to support a conclusion. Id. Even when there is evidence on which the Board might have reached a different decision, this court's review is limited to whether the Board could have reasonably reached its decision based upon the evidence before it. Id.

Appellant was the only witness at the hearing; the employer, although notified, failed to appear. Appellant was a parole and probation officer who worked in Arkadelphia. She had experienced problems with her supervisor, and she had made what she believed was a grievance complaint to one of her supervisor's superiors. Although the superior "investigated" the complaint, he neither interviewed appellant, nor let her know the results of the investigation. When asked if she had gone back to that superior to inquire about her complaint, appellant stated that she had not. She testified that the supervisor knew the nature of her complaints and if he wanted to inquire further he would talk to her. Appellant also testified that she contacted the personnel supervisor about this problem, and he told her that he could not help her.

Appellant testified that her supervisor continued to treat her unfairly, including talking about appellant's personal problems with other staff members in her office. Appellant's supervisor then transferred her to the Malvern office after a fire in the Arkadelphia office inwhich the supervisor believed appellant played a part. Appellant was not consulted with regard to this transfer, and her personal belongings were packed under the direction of the supervisor and shipped to the Malvern office. When appellant arrived at the Malvern office, she found her belongings on the floor in an office. Appellant decided to quit due to what she believed to be unfair treatment from her supervisor; however, she did not file a formal grievance prior to quitting. She stated that she was unsure of the grievance process, and there is no indication in the record that the grievance process was explained to her. An employee is not eligible for unemployment benefits if she, voluntarily and without good cause connected with the work, left her last work. Ark. Code Ann. § 11-10-513(a)(1) (Supp. 1999). "Good cause" has been defined as a cause that would reasonably impel the average able-bodied, qualified worker to give up his or her employment. Teel v. Daniels, 270 Ark. 766, 606 S.W.2d 151 (Ark. App. 1980). What constitutes good cause is ordinarily a question of fact for the Board to determine from the particular circumstances of the case. Wenzl v. Director, 60 Ark. App. 21, 959 S.W.2d 63 (1997).

In denying appellant's request for unemployment benefits, the Board of Review cited Ahrend v. Director, 55 Ark. App. 71, 930 S.W.2d 392 (1996), which held, "[A]n attempt at the employer's grievance procedure is part and parcel of the `reasonable efforts to preserve job rights' under the statute. This is so even if the prospects for resolution under the available grievance procedure may not appear promising from the employee's perspective." Id. at 74, 930 S.W.2d at 394.

However, this court has also held that an employee is not required to make an effort to preserve his job rights when such an action would be a futile gesture. Brooks v. Director, supra; Boothe v. Director, supra; Oxford v. Daniels, 2 Ark. App. 200, 618 S.W.2d 171 (1981). Reasonable efforts to preserve job rights include taking measures to prevent unsatisfactory working conditions from continuing. Boothe v. Director, supra. In this case, appellant had already spoken to her supervisor's superior about her concerns without any result; in fact, the superior had not even bothered to question appellant about her problems. After appellant complained, she was placed on leave pending an investigation of a fire in the office, and she was then transferred from Arkadelphia to Malvern without her knowledge. We hold that the evidence indicates that it would have been a futile gesture to complain yet again, and that appellant left her last work for good cause connected with the work.

Reversed and remanded for an award of benefits consistent with this opinion.

Griffen and Roaf, JJ., agree.