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Tamko Bldg. Prods., Inc. v. Pickard

Court of Appeals of Missouri, Southern District, Second Division

September 24, 2014

TAMKO BUILDING PRODUCTS, INC., Employer-Appellant,
v.
DANIEL PICKARD, Claimant-Respondent, and MISSOURI DIVISION OF EMPLOYMENT SECURITY, Respondent

APPEAL FROM THE LABOR AND INDUSTRIAL RELATIONS COMMISSION.

For Appellant: Ronald G. Sparlin of Joplin, MO.

For Respondent: Christopher R. Miller of Springfield, MO.

JEFFREY W. BATES, P.J. -- OPINION AUTHOR. GARY W. LYNCH, J. -- CONCUR. ON E. BURRELL, J. -- CONCUR.

OPINION

JEFFREY W. BATES, P.J.

Page 69

Tamko Building Products, Inc. (Employer) appeals from a decision by the Labor and Industrial Relations Commission (Commission) awarding unemployment benefits to Daniel Pickard (Employee). The Commission determined that Employee was not disqualified from receiving unemployment benefits because his discharge was not for misconduct connected with work. See § 288.050.2.[1] In a single point relied on, Employer contends the Commission erred in its determination because the facts found by the Commission do not support the award and/or the award was not supported by sufficient competent evidence in the record. We disagree and affirm.

Standard of Review

Review of the Commission's decision is governed by constitutional provision and by statute. Finner v. Americold Logistics, LLC, 298 S.W.3d 580, 581 (Mo. App. 2009). The Missouri Constitution directs this Court to determine whether the Commission's decision is " authorized by law" and whether it is " supported by competent and substantial evidence upon the whole record." Mo. Const. art. V, § 18; Finner, 298 S.W.3d at 581. Pursuant to § 288.210 RSMo (2000), we may modify, reverse, remand for rehearing, or set aside the decision of the Commission only where, inter alia, the facts found by the Commission do not support the award, or there was not sufficient competent evidence in the record to warrant the making of the award. Id.; see Seck v. Department of Transp., 434 S.W.3d 74, 78 (Mo. banc 2014). In reviewing the Commission's factual findings, § 288.210 further requires that this Court must: " (1) defer to the Commission's credibility determinations and, (2) in the absence

Page 70

of fraud, accept all factual determinations made by the Commission that are supported by the evidence on the record as a whole." Seck, 434 S.W.3d at 79; § 288.210 RSMo (2000).

" In determining whether the Commission's decision is authorized by law, we are not bound by its conclusions of law or its application of law to the facts." Finner, 298 S.W.3d at 581. While we defer to the Commission on issues of credibility and weight of the evidence, the issue of whether an employee's actions constitute misconduct related with work is a question of law, which we review de novo. Seck, 434 S.W.3d at 78; Fendler v. Hudson Services, 370 S.W.3d 585, 588-89 (Mo. banc. 2012).

In general, a claimant bears the burden of demonstrating that he is entitled to unemployment benefits. Fendler, 370 S.W.3d at 589. When the employer claims that the claimant was discharged for misconduct, however, the burden shifts to the employer to prove misconduct connected to work by a preponderance of the evidence. Id.; see Seck, 434 S.W.3d at 82.

Factual and Procedural Background

Employer manufactures building products. In April 1994, Employee was hired by Employer to operate a forklift and monitor a palletizer machine for a production line at Employer's High Street facility (the facility) in Joplin. In March 2013, nearly 19 years later, Employee was terminated for violating safety rules. A deputy of the Division of Employment Security initially determined that Employee was disqualified from unemployment benefits because he was discharged for misconduct connected with his work. Employee appealed that determination, and a hearing was held before the Appeals Tribunal in April 2013. Testimony was received from Employee and Matt Parrish (Parrish), Employer's assistant general manager at the facility.

Parrish gave the following testimony. Until approximately 2007, safety was not a priority at the facility. " [I]f someone got hurt that was deemed okay or a part of the process as long as we got production out the door." That changed in 2007. Employer implemented a safety policy that included the Uniform Safety Conduct Standard (USCS). The USCS categorizes safety violations on the basis of severity so that more dangerous violations result in a higher assessment of points. Under this system, an employee may be terminated if he accumulates 40 or more points. Employee underwent training on the USCS and understood the consequences of working in an unsafe manner.[2]

Employee gave the following testimony. He had worked for Employer since 1994. In the early morning hours of February 26, 2013, Employee was working his production line, which is one of two production lines at the facility. Each line has a forklift driver. When a driver goes on break, the other driver is expected to work both lines. Rolls of roofing felt advance down a conveyor belt along each line to an accumulator table. The table lifts the rolls, turns them and stacks them vertically onto a pallet where they are stretch-wrapped for shipping. There was a perimeter safety fence ...


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