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Weppner v. Shade Tree Service Co.

Court of Appeals of Missouri, Eastern District, Third Division

June 13, 2017

KRISTOPHER WEPPNER, Respondent,
v.
SHADE TREE SERVICE CO., Appellant, and DIVISION OF EMPLOYMENT SECURITY, Respondent.

         Appeal from the Labor and Industrial Relations Commission

          ROBERT G. DOWD, JR., Judge.

         Shade Tree Service Company ("Employer") appeals from the decision of the Labor and Industrial Relations Commission ("Commission") holding that Kristopher Weppner ("Claimant") is not disqualified from receiving unemployment benefits because he was not terminated from his employment for misconduct connected with his work. We affirm.

         Claimant and Claimant's foreman set out to trim trees around high voltage power lines. Claimant was instructed to operate the aerial lift, or boom, of the truck over a road. Claimant did so without a spotter and momentarily became distracted when he observed an oncoming semi-truck that looked as though it was going to collide with Claimant's truck. At that moment, Claimant caused the boom to come into contact with the power lines resulting in damage to Employer's boom and the power lines and knocking out power to a nearby factory.

         Claimant was discharged following an investigation because Employer believed his operation of the boom disregarded Employer's policies, safety standards and practices. In particular, the following Employer policies were potentially implicated in this case:

17. Before going aloft the operator should make a complete survey of overhead conditions to familiarize himself with the location of lines, poles, buildings, tree limbs, guy wires, or other obstructions which might present a hazard to the operation.
18. When trimming trees near electric conductors, all wires should be considered energized at all times. The operator should never touch the wires with his body, tools, or any part of the boom . . . .
19. The operator should always face the direction he is moving and carefully observe the intended path of the lower boom when it is moved in any direction.
20. Consider stopping or diverting traffic by use of barricades or signalman before maneuvering the boom over a street or highway.

         Employer's policies also identify "serious offenses" for which an employee is subject to immediate dismissal, including both insubordination and "[g]ross disregard of [Employer's] safety standards and practices, " which includes "rules set by the customer." A section entitled "On-the-Job Conduct" also indicates that "[i]nsubordination will not be tolerated." In addition, Employer's performance manager testified to a rule requiring the presence of a spotter when the boom comes within a specified distance of the power lines or when it is operated over a roadway.

         After Claimant filed a claim for unemployment benefits, a deputy for the Division of Employment Security ("Division") determined Employer discharged Claimant for misconduct connected with work and, therefore, determined Claimant was disqualified from receiving unemployment benefits. The Appeals Tribunal heard the appeal via telephone conference. Claimant and two witnesses on behalf of Employer testified. By decision dated May 13, 2016, the Appeals Tribunal affirmed the deputy's determination.

         Claimant filed his application for review before the Commission via facsimile on June 13, 2016. The Commission reversed the decision of the Appeals Tribunal and held that Claimant was not disqualified from receiving unemployment benefits because he was not terminated from his employment for misconduct connected with his work. In particular, the Commission found the following. With respect to disputed facts, Claimant was credible. Claimant "asked his supervisor[1]to be his spotter prior to operating the boom, " and the "[s]upervisor refused and instructed [Claimant] to operate the boom, regardless of the spotter's presence." While Claimant knew he was required to have a spotter, he "proceeded operating the boom as instructed by supervisor fearing that he would be discharged for insubordination by supervisor if he did not do so." Employer provided insufficient evidence establishing Claimant's "momentary distraction was of such severity as to manifest culpability." Claimant did not grossly disregard Employer's policies, standards and practices. To the extent Claimant may have violated a policy, "where an employee is following a supervisor's instructions, an employer's enforcement of a contrary 'rule' is unfair." Employer failed to establish that Claimant's conduct was frequent or severe enough to constitute misconduct under Missouri law, and Claimant was not discharged for misconduct connected with work. This appeal follows.

         Employer alleges the Commission erred in three ways: (1) by acting without or in excess of its powers because it lacked jurisdiction to review the Appeals Tribunal's decision since Claimant's request for review to the Commission was untimely filed thirty-one days after the mailing of the Appeal Tribunal's decision, (2) in ruling that Claimant was not disqualified from receiving unemployment compensation based upon its determination that Claimant's foreman "refused" to act as a spotter and (3) in ruling that Claimant was not disqualified from receiving unemployment compensation in that it concluded that Claimant's violation of a safety protocol was not of such severity as to manifest culpability despite evidence that Claimant's conduct resulted in significant property damage and a power outage and had the potential to cause severe injury or death.

         In Point I, Employer claims that the Commission acted in excess of its powers because it did not have jurisdiction to review the Appeal Tribunal's decision since Claimant's request for review to the Commission was untimely filed thirty-one days after the mailing of the Appeal Tribunal's decision. Under Section 288.210(1), we can "modify, reverse, remand for hearing, or set aside the decision of the commission" where the Commission "acted without or in excess of its powers." While claimant's "failure to file a timely application for review divests the Commission of jurisdiction, " Phillips v. Clean-Tech, 34 S.W.3d 854, 855 (Mo. App. E.D. 2000), we find no lack of jurisdiction and, therefore, no action in excess of the Commission's powers under the facts of this case.

         Employer asserts Claimant filed his application for review by the Commission thirty-one days after the issuance of the Appeals Tribunal decision and, because the law provides for thirty days, the Commission lacked jurisdiction to issue any decision or hear the appeal. The regulations specifically provide that "[a]ny interested party to a decision of an appeals tribunal of the division may file an application to have the decision reviewed by the commission by filing the application . . . within thirty (30) days following the date of notification or mailing of the decision . . . ." 8 CSR 20-4.010(1)(A).[2] However, the regulations also provide that "[i]n instances where the last day for the filing of [any notice of appeal, application or other paper required under the law to be filed with the commission] falls on a Saturday, Sunday or legal holiday, the filing shall be deemed timely if accomplished on the next day which is not a Saturday, a Sunday or legal holiday." 8 CSR 20-2.010(4).

         Here, there is no dispute that the Appeals Tribunal issued its decision on May 13, 2016, and that Claimant filed his application for review via facsimile on June 13, 2016. Thirty calendar days from May 13, 2016, would have been June 12, 2016, which was a Sunday. Accordingly, under Section 20-2010(4), Claimant had until Monday, June 13, 2016, to timely file his application for review, which he did, and the Commission, therefore, had jurisdiction to hear the case.

         Employer argues that Section 20-2.010(5) "specifically carves out an exception" for applications for review filed in connection with employment security claims by providing that such applications are governed by 8 CSR 20-4.010. Section 20-4.010(1)(C) provides that "[a] fax received on a Saturday, Sunday or legal holiday will be considered filed on the next regular division workday, " and Employer argues that this language applies instead of rather than in addition to the language in Section 20-2.010(4) noted above because the regulations both govern filing practice and procedure. Employer further argues that to read the regulations ...


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