FROM THE ARKANSAS BOARD OF REVIEW [NO. 2016BR-00198]
S. Tschiemer, for appellant.
Phyllis A. Edwards, for appellee.
J. GLADWIN, Judge
Fowlkes appeals the denial of his application for
unemployment benefits, asserting four points on appeal: (1)
the Arkansas Board of Review ("Board") erred in
concluding that Fowlkes quit his job; (2) Fowlkes's
action did not constitute misconduct and did not preclude an
award of benefits; (3) the Board erred in concluding that
Fowlkes was not available for work; and (4) the Board erred
in finding that Fowlkes's delay in filing his initial
claim was without good cause or due to extraordinary
circumstances. We affirm.
December 14, 2015, Fowlkes filed an application for
unemployment-insurance benefits with appellee Daryl Bassett,
Director, Arkansas Department of Workforce Services
("Department"). He stated that he had last worked
for WK Contractors, Inc. ("WK"), on October 20,
2015, and that he was discharged for "general"
reasons. He also noted that he was not eligible to return to
work immediately. However, on a separate but identical form,
Fowlkes indicated that he was available for work immediately.
WK responded to the notice, alleging that Fowlkes quit for
"general" reasons and that he was discharged for
"Able and Available-Claimant Statement, " Fowlkes
asserted that he was not able or available for work beginning
October 20, 2015, through November 18, 2015, because of
childcare/other dependent-care arrangements and a death in
the family. He stated that his brother had died on October
23, 2015, and that he would not have reported to work during
the time indicated if work had been available. In a
"Backdating-Claimant Statement, " Fowlkes requested
backdating his claim filed on December 14, 2015, to October
24, 2015, through the week ending December 12, 2015,
indicating that his brother and his father had died within
"a couple of weeks of each other."
filed unemployment-benefit claims for the following weeks,
stating that he had not been able and available to work
during each of the following weeks in 2015: October 24;
October 31; November 7-14; November 14-21; and November
21-28. However, for his claim for the weeks of November
28-December 5, December 5-12, and December 12-19, he
indicated that he had been able and available to work.
was denied benefits because he was "away from [the]
labor market for personal reasons and [was] not available for
suitable work." Fowlkes appealed to the Arkansas Appeal
Tribunal, and a telephone hearing was held on January 25,
2016. Fowlkes testified that he was terminated from his job
as an equipment operator; his work included performing labor,
pouring concrete and finishing it; and he last worked for WK
on October 20, 2015. He said,
My brother died October 26, and then on November 18, about a
month later, my dad died of cancer, and I was helping take
care of them. There is other stuff more important at the
time, and I began looking for a job soon after November 26.
It was not until a couple of weeks later that I applied or
verbally spoke to people about jobs, in applying for the job,
but no one is hiring in my positions during the winter.
I did not keep working for WK because I was fired. We had
gotten in an argument . . . he was belittling one of my
coworkers that morning, and I stepped in since I did not like
the way he was talking to him. Andy Kelly was one of my
bosses. WK stands for Chad Wyatt and Andy Kelly. Andy Kelly
was belittling one of my coworkers, and I kind of stepped in
and said, there is no reason to be talking to him like that.
He turned on me and started cursing at me, and we were
outside. Chad Wyatt, the other boss, was trying to cool
things down with Andy Kelly and told us to all come in the
office. We went in the office and we were talking over the
situation and everything was fine, and Andy Kelly started
cursing me again, and I said, I am out of here.
I just walked out of the office and was going to let him cool
down and come back later. I had a company truck and on my way
to the truck, he said, just leave your "f'ing truck,
" and I took it that I was terminated, so I got my
personal stuff out of the truck and started walking. I tried
to call them later that week, but no one answered. Then, a
coworker brought me my last two checks, so I took it that I
was fired. No one told me I was fired. I did not tell anyone
that I was quitting. When I walked out of the office, I was
just going to leave the situation since I was getting cursed
and I did not appreciate the way I was being talked to. I was
going to let him cool down and come back. I was going to
leave in the truck and come back. I did not ask to leave. I
was not told I could leave. I was not told to leave. I did
not ask why when they said to leave the truck. I just walked
to my truck, and no one came outside and tried to stop me. I
was just getting my personal things out of the truck. . . . .
I filed my initial claim on December 14. I did not file it
sooner although I had not been working since October 20,
because I was dealing with my dad and brother dying and
things that were more important, as I thought I had worked
for these people for eight years, and my work was never
unsatisfactory until now, I guess, I do not know. . . . .
When I filled out the application on December 14, and a
question asked if I could begin working immediately and I
answered no, I think we went back and changed that because
Ms. Lomerson had told me the same thing that I could begin
work immediately, and I think she had me change that because
I misunderstood the question. I did not understand what it
was talking about after the other questions about the
situation, with my dad and stuff. This was the time I was
helping my dad and everything was going back and then I was
able to work then, and before that is when I had meant to put
no, I could not go back to work immediately and she changed
that from that date on that I could go to work immediately. I
talked to a couple of people verbally about jobs before I
filed my unemployment claim, but no one was hiring, and I do
not know the dates I did so.
the hearing, the administrative law judge ("ALJ")
found that Fowlkes voluntarily left his work without good
cause connected with the work. Further, the ALJ found that
Fowlkes was not available for suitable work, and he had not
shown good cause for delay in filing an initial claim.
Fowlkes appealed to the Board, which affirmed the ALJ's
denial. The Board found as follows:
Here, the claimant's testimony indicated that another
party (the other owner) had already "cooled things
down" by the time the claimant left work. By leaving
work, the claimant failed to give the employer an opportunity
to resolve any continuing problems. As such, the claimant did
not take appropriate steps to prevent any alleged
mistreatment from continuing and thus has not proven by a
preponderance of the evidence that he left ...