Court of Appeals of Missouri, Southern District, Second Division
APPEAL fro THE LABOR AND INDUSTRIAL RELATIONS COMMISSION.
For Appellant: John P. Hurley of Kansas City, MO.
For Missouri Division of Employment Security, Respondent: Larry R. Ruhmann of Jefferson City, MO.
Employer EaglePicher Technologies, LLC, Acting Pro se, Joplin, MO.
Nancy Steffen Rahmeyer, P.J. -- Opinion Author. Gary W. Lynch, J. -- Concurs. Mary W. Sheffield, P.J. -- Concurs.
Nancy Steffen Rahmeyer,
David Jackson (" Claimant" ) appeals a decision of the Labor and Industrial Relations Commission (" Commission" ) that denied him unemployment benefits on the ground that EaglePicher Technologies, LLC (" Employer" ) discharged him for misconduct connected with his work. Claimant raises two points in this appeal: (1) that the Commission erred as a matter of law in finding that Claimant was discharged for misconduct connected with his work because Employer did not apply its written policy " in a fair and even manner," and (2) that the Commission erred in finding that Claimant was discharged for deliberately violating Employer's written policy because that violation involved a " single act" and was " a mere pretext for the Employer to discriminate against [Claimant] by discharging him because of his position with, and activities on behalf of, the Union." With due regard to our standard of review, we affirm the Commission's decision.
Facts and Procedural History
On January 14, 2014, Claimant filed a claim for unemployment benefits following his discharge by Employer. Employer protested Claimant's claim on the ground that Employer " [s]uspended [Claimant] for violating employee conduct policy" in that Claimant was " eating in a production area (unauthorized)," and " [h]ad been previously warned about eating in his work area (2008)." A deputy for the Missouri Division of Employment Security determined that Claimant was disqualified for unemployment benefits because Employer discharged Claimant for misconduct connected with Claimant's work.
The following evidence was presented. Employer hired Claimant in June 1981; Claimant was suspended on January 10, 2014, and discharged on January 13, 2014. At the time he was suspended and then discharged, Claimant " was a group leader of the parts fabrication area" in Employer's business, which " produce[s] . . . medical and aerospace and defense batteries."
an anonymous complaint that several employees that worked in the same area as [Claimant] did--were eating and not working in the dry room area. It specifically mentioned [Claimant] and another employee in that area.
A review of surveillance film confirmed the complaint. The surveillance film showed Claimant eating chips in the dry room on January 9, 2014, and, at the hearing, Claimant admitted he did so. Claimant's conduct violated Employer's written policy and Claimant had received a written warning in June 2008, that eating in the dry room was prohibited. Employer claimed it is " important not to eat in the dry room" because a " chemical" used in the dry room could explode and a single particle of food could " affect the quality of the batteries" manufactured.
The policy was in the employee handbook, and was " mentioned [in the employee handbook] as . . . a serious violation." The policy was last revised in July 2012, and provided that " [f]ood or drink in unauthorized areas" is a " serious violation, which may be grounds for immediate dismissal." The policy also was posted inside a glass bulletin board located " outside the area where [Claimant] worked." " [T]he areas where [employees] are not to eat are clearly marked." Employer discharged Claimant for violating the policy by eating in the dry room. Earlier in the claim process, Employer told a deputy over the telephone " [t]he fact that [Claimant] is the union president did not have anything to do with why he was fired for this."
Claimant testified " [i]t's not--it's--eating chips was not as dangerous as liquids. Liquids will cause the explosion." Claimant also testified that other employees " eat in the dry room including the foreman and the supervisor" and Claimant's supervisor brought " candy bars" into the dry room to sell, and, if Employer believes eating food in the dry room may affect the quality of the batteries produced, " it's going to be a problem allover the plant. Because every area eats." Claimant's prior warning was limited " to bring[ing] . . . liquids into any of [Employer's] dry rooms." Claimant acknowledged that the written policy was " updated" after 2009 to prohibit " food or drink in an unauthorized area." Claimant also stated " I'm thinking everybody's probably was aware [you were not supposed to eat or drink in the dry room] but everybody does it."
Earlier in the claim process, Claimant told a deputy over the telephone " [t]he area in which I was supposed to have been eating was an area that is officially designated as an area in which you cannot eat. I cannot remember eating anything in there other than a piece of candy that I might pop in my mouth from time to time and keep working like everybody else did or a piece of gum." Claimant also told the deputy over the telephone:
I would never have a cookie or anything like that as I knew that was a no eating area and a piece of candy or gum did not interrupt the work flow. I never had anything to drink in there as that is an area where lithium is used and you just can't have ...