Court of Appeals of Missouri, Western District, Second Division
from the Labor and Industrial Relations Commission
Karen King Mitchell, Presiding Judge, Cynthia L. Martin,
Judge and Gary D. Witt, Judge
Cynthia L. Martin, Judge.
Odom ("Odom") appeals from the Labor and Industrial
Relations Commission's ("Commission") order
denying his claim for unemployment benefits following his
termination from Glazer's Distributors of Missouri, Inc.
("Glazer"). Odom argues that the Commission erred
in concluding that he committed misconduct and in denying his
claim for unemployment benefits because the decision was not
supported by sufficient competent evidence. We affirm the
and Procedural Background
is a liquor distributor. Odom worked for Glazer as a day
warehouse worker, and Odom was also a member of the union
that represents certain workers at the facility. Every year
Odom received Glazer's Employee Handbook, which contained
the attendance policy. The attendance policy included the
following rule: "Failure to report to work for two (2)
consecutive scheduled working days without notifying the
Company will result in immediate termination." The
Handbook also contained a corrective action guideline, which
stated: "First no call/no show in any rolling 12-month
period will result in a FINAL warning or next level of
corrective action. A second occurrence of no call/no show in
any rolling 12-month period will result in TERMINATION of
to the collective bargaining agreement Odom signed, he was
entitled to 40 hours of vacation leave and 32 hours of
"personal time" on January 1, 2015, and an
additional 40 hours of vacation leave on his union
anniversary date, November 6, 2015. All vacation leave had to
be consumed by November 30 of the year it accrued and did not
roll over to the next year.
January 2015, Odom requested and was approved for 40 hours of
vacation leave to commence July 13, 2015. In March, Odom
requested another 40 hours of vacation leave to commence on
July 20, 2015, which his supervisor mistakenly approved. On
June 16, 2015, Odom was given a verbal warning regarding his
attendance. Around that time, it was discovered that Odom had
consumed all of his sick leave, all of his vacation leave,
and all but eight hours of his personal leave. Since Odom had
used all his vacation leave, Glazer withdrew its prior
approval for vacation for the weeks of July 13 and July 20.
Odom then requested to take 40 hours of vacation leave he was
not able to use during 2014 and 40 hours of vacation leave
that would have accrued on November 6. Both requests were
denied because they were contrary to the attendance policy.
At the suggestion of his supervisor, Odom requested a leave
of absence for the two weeks, but that request was still
pending on July 13.
was thus scheduled to work the weeks of July 13 and July 20.
Odom was absent from work the weeks of July 13 and July 20,
and did not call his supervisor at any time during that
period. Odom's request for a leave of absence was denied
on July 21. On July 22, Odom's supervisor called him to
ask why he was not at work. On July 24, Odom received a call
from his supervisor, the warehouse supervisor, and the union
shop steward. During the conversation, Odom was discharged
because he failed to call or show up to work on July 14 and
July 15. Odom then filed a union grievance, which was
rejected because it was not timely filed.
his termination, Odom applied for unemployment benefits.
Odom's application was denied because it was determined
he was ineligible for benefits in that he was discharged for
misconduct. Specifically, a Division of Employment Security
deputy determined that Odom had violated Glazer's
no-call, no-show policy.
appealed the deputy's decision to the Appeals Tribunal
("Tribunal"). During a telephone hearing, Odom
testified on his own behalf, while his supervisor testified
on behalf of Glazer. The Tribunal found the supervisor's
testimony more credible than Odom's. The Tribunal
concluded that Odom had violated Glazer's no-call,
no-show policy by being absent from work on July 14 and July
15 without contacting his supervisor. Accordingly, the
Tribunal found that Odom was not eligible for benefits
because he was discharged for misconduct connected with his
filed an application for review with the Commission. On
December 4, 2015, the Commission affirmed the Tribunal's
decision and adopted the Tribunal's findings. Odom
Court may modify, reverse, remand for rehearing, or set aside
the decision of the Commission if we find "[t]hat there
was no sufficient competent evidence in the record to warrant
the making of the award." Section
288.210(4). "Whether the award is supported by
competent and substantial evidence is judged by examining the
evidence in the context of the whole record."
Hampton v. Big Boy Steel Erection, 121 S.W.3d 220,
223 (Mo. banc 2003). "This Court defers to the
Commission on issues involving the credibility of witnesses
and the weight given to testimony." Johnson v.
Denton Constr. Co., 911 S.W.2d 286, 288 (Mo. banc 1995).
"Whether the Commission's findings support the
conclusion that a claimant engaged in misconduct connected
with his or her work is a question of law" and reviewed
de novo. Fendler v. Huson Servs., 370
S.W.3d 585, 588-89 (Mo. banc 2012). Where the Commission
adopts the findings ...