TAMKO BUILDING PRODUCTS, INC.,             )
                                           )
        Employer-Appellant,                )
                                           )
v.                                         )
                                           )
DANIEL PICKARD,                            )      No. SD33025
                                           )      Filed: 9-24-14
        Claimant-Respondent,               )
                                           )
and MISSOURI DIVISION OF                   )
EMPLOYMENT SECURITY,                       )
                                           )
        Respondent.                        )

     APPEAL FROM THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

AFFIRMED

        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



        1
             All statutory references are to RSMo Cum. Supp. (2012) unless otherwise
specified.
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 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).




                                           2
       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




                                             3
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

separating an employee from the production line. Inside the fence, there was an elevated

walkway on which an employee would stand to unclear any jams. An employee would

use a safety gate to access the walkway. The gate was equipped with an electric eye that

stopped the conveyor belt.

         Around 2:30 a.m., Employee was working both lines alone because the other

driver was on break. There had been upset conditions on both lines that night. A roll of

roofing felt got lodged along the other driver’s line, which prevented other rolls from

advancing. Employee stepped over the safety fence, removed his hard hat and covered

the electric eye with his hard hat to prevent the line from shutting down. Employee then

reached over the accumulator table, quickly dislodged the roll of roofing felt so that

production could continue and returned to work on his line. The incident was recorded




         2
        Employee signed a USCS Training Acknowledgment stating the he understood
USCS standardized consequences for working in an unsafe manner. This
acknowledgment was part of several documents admitted in evidence concerning
Employer’s safety policies and procedures.


                                            4
on a video at the facility.3 Employee testified that he responded to the jam the way he

had been trained to react when he was hired in 1994:

        [W]hen I started there wasn’t none of this stuff. That’s how I was trained
       when I started. You got a problem with machine, that’s before all the new
       safety, you know, came up. You put your hat on that [e]ye, and usually I have
       a hook there where you can grab the roll and, in fact, a guy six foot two or
       three could do basically the same thing I could do by standing right here, he
       could reach across. As you notice I did not stand on this accumulator table,
       there’s a little catwalk on this side. I wasn’t in the line of fire of anything ….
       That was – when [I] started that’s how we did that. You could walk right up
       underneath the thing. You could, you know, if you had trouble you’d put your
       hat on the eye then you straighten the roll, took your hat off and went on. So,
       none of that fence was there. I know that’s irrelevant to all of this but none of
       it was there and that, you know, I’ve done – everybody did that for years
       that’s how I was trained to do that when I came in, you know, cause you
       could walk right up to it, stand under it, you know.

Employee also was covering both production lines that night due to a lack of personnel to

watch each production line:

       [There were] upset conditions on both lines that night …. That’s another
       thing, a shortage of people back there. We have to start covering to go to
       breaks, you know. So, I was trying to cover both lines. That wasn’t even my
       machine, the guy was on break that runs that machine and we were having
       trouble with drivers coming along from both lines so I was, you know, and I
       made a wrong decision. I didn’t sit there and plot it, I just did it. I mean I
       didn’t sit there and I – I’m on break or – I’m not like that. I believe in safety
       too. I didn’t get in the path where I was going to get hurt, you know.

Additionally, Employee was standing in the same spot where employees were routinely

stationed while the line was running when certain products were being produced:

       I understand the safety policy, but there’s two certain products we run that
       you guys know we station people right here to reach out on that table and to
       push rolls down in this up ender. Slate surface is one of them, the rolls won’t
       roll, you usually have a guy stationed there to push the rolls down. So, he’s
       leaning over this thing on this little accumulator table and he’s shoving the
       rolls plum down in the up ender here. That’s what that’s called and when that
       clears – roll clears this up ender there, that’s when they come up and the guys
       there are shoving the last roll cause, you know, sometimes if the filler is not
       right in the roll the rolls will get real soft and they won’t roll. So, I’ve seen
       lots of instances where there’s been a guy stationed there and we all know
       that so.

       3   A copy of the video was admitted in evidence and viewed at the hearing.

                                               5
       On February 27, 2013, Employee was suspended because he violated four of

Employer’s safety policies. Employee was assessed 50 points for the following conduct:

(1) 20 points for crossing the safety fence; (2) 20 points for blocking the electric eye with

his hard hat; (3) 5 points for removing his hard hat; and (4) 5 points for throwing a

wrapper and scrap piece of felt to the floor after dislodging the roll of felt. Employee was

discharged on March 4, 2013.

       At the hearing, Employee acknowledged that what he did to clear the jam violated

Employer’s safety rules. Employee testified that he was not “using his head,” made “a

bad choice,” an “idiotic mistake” and “didn’t ... intentionally” break the rules. Employee

further testified that “[i]t’s 2:30 in the morning or whatever, I’ve got upset conditions,

I’m just trying to keep the lines going ....” This was the first time in 19 years of

employment that Employee had violated a safety rule.

       The Appeals Tribunal reversed the deputy’s decision and concluded that

Employee was not disqualified for unemployment benefits by reason of misconduct

connected with work. The Appeals Tribunal found that:

       [Employee] knows that what he did on February 26, 2013, was contrary to
       safety policies of the employer. [Employee] knows that he should have
       entered the area through the safety gate, and shut down the machine before
       proceeding to dislodge the [roll] of felt. [Employee’s] only thought was
       keeping the production line running. [Employee] had no prior rule
       violations of any kind throughout the nineteen years he worked for this
       employer.

The Appeals Tribunal therefore concluded:

       [E]mployer has not shown that [Employee] acted in willful disregard for
       the employer’s safety rules, or the standards of behavior that the employer
       had a right to expect of an employee. [Employee] made a bad judgment
       call. His single act of indiscretion is not as a matter of law misconduct to
       disqualify him from receiving unemployment compensation.




                                             6
       Thereafter, Employer appealed to the Commission.       The Commission affirmed

the decision of the Appeals Tribunal and adopted its findings, except as supplemented

below. The Commission explained:

       As the Appeals Tribunal pointed out, [Employee] had no history – during
       his 19 years of working for employer – of breaking employer’s rules.
       [Employee] was “not the kind of guy that breaks rules ....” On the other
       hand, he was the kind of employee who tried to serve his employer’s
       interests well by doing everything he could to keep its production lines
       moving.

       On the date of the incident that led to his discharge, [Employee] was
       working under pressure. He was having to keep two production lines
       moving instead of one. Machines were “messing up” on both lines. It was
       early in the morning, and he had been working a lot of hours. [Employee]
       testified that he was not “using his head,” made an “idiotic mistake” that
       he never would have made again if employer had allowed him to keep
       working, and that he did not intentionally break employer’s rules.

       Since [Employee’s] work history supports his testimony regarding a lack
       of intent, we conclude that employer did not satisfy its burden of proving
       that [Employee’s] behavior was the willful and wanton type normally
       encompassed within the definition of misconduct connected with work.
       Therefore, [Employee] should not be disqualified from the receipt of
       benefits under § 288.050.2 as a result of this work separation.

This appeal followed.

                                Discussion and Decision

       Employer contends the Commission erred in finding that Employee was not

disqualified from receiving unemployment benefits.        According to Employer, the

evidence established that Employee was “discharged for misconduct connected with [his]

work.” See § 288.050.2. We disagree.

       Pursuant to § 288.050.2, an employee is disqualified from unemployment

compensation benefits when he or she is discharged for “misconduct” connected with the

claimant’s work. Section 288.030.1(23) identifies four separate categories of work-

related behavior that qualify as “misconduct” for purposes of § 288.050.2:


                                            7
       [1] an act of wanton or willful disregard of the employer’s interest,

       [2] a deliberate violation of the employer’s rules,

       [3] a disregard of standards of behavior which the employer has the right
       to expect of his or her employee, or

       [4] negligence in such degree or recurrence as to [a] manifest culpability,
       wrongful intent or evil design, or [b] show an intentional and substantial
       disregard of the employer’s interest or of the employee’s duties and
       obligations to the employer[.]”

§ 288.030.1(23) (bracketed numbers and letters added for clarity); Seck, 434 S.W.3d at

82; see Ernst v. Sumner Group, Inc., 264 S.W.3d 669, 672 (Mo. App. 2008) (finding of

misconduct under any one of the four definitions is sufficient to disqualify a claimant

from benefits). “Each of the foregoing criteria for finding misconduct involves an

element of intent or culpability.” Finner, 298 S.W.3d at 583.

        “Work-related misconduct requires a willful violation of the employer’s rules or

standards, and the violation must be intended.” Robinson v. Courtyard Mgmt. Corp.,

329 S.W.3d 736, 740 (Mo. App. 2011); Butrick v. Peterbilt of Springfield, Inc., 373

S.W.3d 473, 479 (Mo. App. 2012). “Willful is defined as ‘[p]roceeding from a conscious

motion of the will; voluntary; knowingly, deliberate; intending the result which actually

comes to pass; designed; intentional; purposeful; not accidental or involuntary.’ BLACK’S

LAW DICTIONARY 1599 (6th ed.1990).” McClelland v. Hogan Personnel, LLC, 116

S.W.3d 660, 666 (Mo. App. 2003).          “To willfully disregard Employer’s interests,

Employee had to be aware of the requirement and knowingly or consciously violate it.”

Id.   “A single instance of intentional disobedience of an employer’s directive can

constitute misconduct.” Finner, 298 S.W.3d at 584 (emphasis added). Further, there is a

“vast distinction” between the violation of a rule of an employer that would justify the

discharge of the employee and a violation of such rule that would warrant a determination


                                             8
of misconduct connected with the employee’s employment so as to disqualify him for

unemployment compensation benefits. McClelland, 116 S.W.3d at 665; see Butrick, 373

S.W.3d at 479.      The determination of misconduct is dependent on the facts and

circumstances of each case. Richardson v. Division of Employment Sec., 361 S.W.3d

425, 430 (Mo. App. 2011); see Barnes v. Jasper Products, L.L.C., 418 S.W.3d 530, 538

(Mo. App. 2014).

       Employer contends it met its burden of showing misconduct under the first three

of the four categories outlined above. Employee argues that Employee’s actions: (a)

willfully disregarded Employer’s interests in employee safety; (b) deliberately violated

Employer’s well-established and reasonable safety rules; and (c) disregarded the clear

standards of behavior that Employer expects and requires of all of its employees. Based

upon this premise, Employer then argues that the facts found by the Commission do not

support the award and/or the award is not supported by sufficient competent evidence in

the record. We disagree with Employer’s factual premise, and we will address each

argument in turn.

       First, Employer argues that Employee’s actions were “willful” because Employee

admitted, and the Commission found, that Employee knew “what he did on February 13,

2013, was contrary to the safety policies” of Employer. We disagree. To “willfully

disregard” an employer’s interests, an employee not only must be aware of the policy, but

must “knowingly or consciously violate it.” McClelland, 116 S.W.3d at 666.         Here,

Employee testified that he knew of the safety policies, but was not “using his head” and

made an “idiotic mistake” in failing to follow the more recent safety policies and

procedures.   The Commission obviously believed Employee and made a factual

determination that Employee’s actions were not willful, and we defer to that that


                                           9
determination.    See § 288.210 RSMo (2000); Seck, 434 S.W.3d at 79; see, e.g.,

McCracken v. Branson Airport, LLC, 352 S.W.3d 629, 630 (Mo. App. 2011)

(Commission resolved conflicts in the evidence and decided which witnesses were

credible; we defer to those factual determinations).

       We similarly reject Employer’s argument that because Employee knew the safety

rules and “chose not to follow” those rules, he “deliberately violated” them. The term

“deliberate” is defined as “[i]ntentional; premeditated; fully considered; ... [u]nimpulsive;

slow in deciding.” BLACK’S LAW DICTIONARY 459 (18th ed. 2004). Here, the evidence

showed that Employee was working under pressure and made a quick decision, an

impulsive response to clear the jam, reverting back to his previous training – certainly not

“fully considered” as the definition requires. Further, a “deliberate” violation must be

“intentional,” requiring an employee not only has to be aware of the rule, but like willful

behavior, “to knowingly or consciously violate it.” McClelland, 116 S.W.3d at 666

(defining “willful” to include “deliberate” and “intentional” conduct). Here, there is

ample evidence to support the Commission’s finding that that Employee “did not

intentionally break employer’s rules.”

       In addition, with respect to “deliberate violation” of Employer’s rules, Employer

asserts the Commission improperly relied on Employee’s “past history” of no prior rule

violations of any kind in the 19 years he worked for Employer. Employer argues that the

Commission placed “undue emphasis” on Employee’s past history, which is “wholly

irrelevant” because the “unsafe and rule-violating acts by [Employee] on February 26,

2013 were so egregious that they alone merited termination and constituted misconduct.”

Contrary to Employer’s argument, past history is relevant to determining “misconduct” as

defined by § 288.030.1(23) because the “criteria for finding misconduct involves an


                                             10
element of intent or culpability.” Finner, 298 S.W.3d at 583; see Seck, 434 S.W.3d at

83-84. Here, Employee’s history of no prior rule violations in 19 years was relevant in

determining Employee’s lack of intent. The Commission’s finding that Employee was

“not the kind of guy that breaks rules” is supported by sufficient competent evidence, and

tends to show that Employee did not deliberately violate safety rules. For this reason,

Employer’s reliance on several cases in which misconduct was found based on deliberate

rule violations is misplaced because unlike this case, these cases involve repeated

violations of employer’s rules. See, e.g., Fendler, 370 S.W.3d at 590 (terminated after

repeated violation of a known, understood and reasonable work rule); Butrick, 373

S.W.3d at 475 (disciplined several times during employment with employer for his

driving or issues relating to his driving); Finner, 298 S.W.3d at 582 (terminated after

three safety violations).4

        Lastly, Employer argues Employee disregarded the “clear standards of behavior”

that Employer expects and requires of all of its employees. Recently our Supreme Court

in Seck clarified, however, that this particular category of misconduct is “restricted to

those basic ‘standards of behavior’ that apply universally in the workplace” and generally

“not included in the employer’s express rules.” Seck, 434 S.W.3d at 83 (emphasis

added). The Court explained:




        4
           Employer also relies on Ernst v. Sumner Group, Inc., 264 S.W.3d 669 (Mo.
App. 2008), which is distinguishable on other grounds. There, the eastern district of this
Court concluded that the employee “deliberately violated” employer’s computer usage
policy by transmitting multiple “personal, frivolous and sexual” emails over time. The
Court rejected employee’s arguments that although employee was generally aware of the
policy, the language of the policy did not “clearly prohibit the type of activity” in which
he engaged, and “everyone else [was] doing it.” Id. at 672-73. Neither argument applies
here, where Employee fully acknowledged that he knew the safety rules at issue but made
an “idiotic mistake” on the day in question, indicating that his actions were not deliberate.

                                             11
       Unlike the second category, therefore, which applies only to violations of
       express rules of which the employee has been given notice, the third
       category applies only to those standards of behavior for which no such
       notice is needed because they are fairly understood by both the employer
       and the employee even where not included in the employer’s express
       rules.

Id.   Here, this third category does not apply because Employer has consistently

maintained throughout these proceedings that Employee violated express safety rules and

policies, all of which he had been given notice.

       We further note that, according to the testimony of both Employee and Employer,

Employee’s actions in removing the jam in this case would have been appropriate, or

even expected behavior, during the first 13 years of his employment. The fact that

Employee reverted back to his prior training in an emergency does bear on our decision

in this case, which is based only on the record before this Court. See Barnes, 418 S.W.3d

at 538. We emphasize that a determination of misconduct is dependent on the facts and

circumstances of each case. See id.; Richardson, 361 S.W.3d at 430.

       In sum, contrary to Employer’s various arguments, the Commission’s

determination – that Employee was not disqualified from receiving unemployment

benefits because his discharge was not for misconduct connected with work, is supported

by the facts, as found by the Commission, and by sufficient competent evidence in the

whole record. Accordingly, we deny Employer’s point and affirm the Commission’s

decision awarding unemployment benefits.



JEFFREY W. BATES, P.J. – OPINION AUTHOR

GARY W. LYNCH, J. – CONCUR

DON E. BURRELL, J. – CONCUR



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