Guccione v. Ray's Tree Service

• Decision Date: 26 January 2010
• Docket Number: No. ED 93097.,ED 93097.
• Citation: 302 S.W.3d 252
• Parties: Bradford GUCCIONE, Appellant, v. RAY'S TREE SERVICE, and Division of Employment Security, Respondents.
• Court: Missouri Court of Appeals

302 S.W.3d 252

Bradford GUCCIONE, Appellant, v. RAY'S TREE SERVICE, and Division of Employment Security, Respondents.

No. ED 93097.

Missouri Court of Appeals, Eastern District, Division Four.

January 26, 2010.

Portia C. Kayser, John J. Ammann, St. Louis University Law Clinic, St. Louis, MO, for Appellant.

Ray's Tree Service, Valley Park, MO, pro se.

Shelly A. Kintzel, Dept. of Labor and Indus. Relations, Div. of Employment Sec., Jefferson, MO, for Respondent Div. of Employment Sec.

KURT S. ODENWALD, Presiding Judge.

Introduction

Bradford Guccione (Claimant) appeals from the judgment of the Labor and Industrial Relations Commission (Commission), denying Claimant unemployment benefits. The Commission adopted the decision of the Appeals Tribunal, which reversed the deputy of the Division of Employment Security's (Division) decision entitling Claimant to unemployment benefits. The Division found that the Claimant was discharged for reasons other than misconduct connected with work. The Division further found that the employer did not provide specific information to the Division regarding employer's belief that Claimant was insubordinate when given the opportunity to do so. We reverse the Commission's decision to disqualify Claimant from receiving unemployment benefits and remand the case for entry of an appropriate award.

Factual and Procedural Background

Claimant, an employee of Ray's Tree Service, Inc. (Employer), began working for Employer on June 18, 2008, as a climber, either trimming or removing trees. Claimant testified that he had been doing tree-climbing work for twenty-five years. Employer's Vice President, Don Mohler (Mohler), testified that when Claimant went on job sites, it was clear to Employer that he knew how to use the ropes and "move in the tree safely."

On October 24, 2008, Claimant set out to prune a silver maple or Bradford pear tree with his driver/supervisor, Louis Williard (Williard), who does not climb at all. Williard testified that he explained to Claimant the job situation, which included some light trimming and small limb removals. Williard testified that the tree was about 30 to 40 feet tall, and Claimant probably had to climb 20 to 25 feet. Claimant testified that the tree was about 80 feet tall, and that he had to climb "all the way to the top of the tree to cut the tips off the end of the limbs that were dead." Claimant testified that the tree had been topped before and had several shoots growing out from where it had been cut previously, with no strong lateral limbs on them.

Claimant informed Williard that he could not do the job unless he wore his spikes. Williard told Claimant that he was not allowed to wear spikes because he could cause damage to the tree. Williard said that Claimant "threw a little fit a little bit," and Williard called his supervisor, Mohler, to make him aware of the situation.

Mohler told Williard to remind Claimant that he was not permitted to use climbing spikes when pruning a tree. Mohler also told Williard that if Claimant could not do the job correctly, then he was not able "to do the job period." However, Williard testified that before he concluded his call to Mohler, Claimant had already climbed the tree, partially with a ladder and partially with spikes. Williard said Claimant was using the chain saw, so it took a few minutes to catch Claimant's attention after the call to Mohler. When Williard told Claimant to come down from the tree, Claimant "was up there in the tree cursing at [Williard] about it." Williard testified that when the homeowners came outside and voiced their objections with the work Claimant was doing, Claimant finally came out of the tree. Williard called again on the radio and told Mohler that Claimant had used the climbing spikes when he climbed the tree. Mohler told them to leave the job site.

Claimant testified that he put the ladder in the tree, and stood beneath the tree, talking to the homeowner and waiting for Williard to finish talking to Mohler before climbing the tree. Claimant said that Williard returned and stated that the job had to be done that day and there was no one else to do it. Claimant testified that he knew he was not allowed to wear spikes on live trees on the day in question. Claimant said Williard did not discuss the spikes with him, but Claimant told Williard that if he had to do the job, he had to wear spikes. Claimant added that the homeowner did not seem to have a problem with the spikes. Claimant put on the spikes and climbed the tree. He said he limited his use of the spikes to that which the job required. He said that the female homeowner eventually came out and began complaining about Claimant cutting too much green off the tree, so Claimant came down from the tree. Having nearly completed the job, Claimant told Williard he was finished, and Claimant simply moved on to the next job that day. Later that afternoon, Mohler took another climber back to complete the work that Claimant had not completed.

Williard testified that when Claimant was on a previous job site, Williard saw him in a tree with spikes when Claimant was not supposed to be wearing them, and Williard informed Claimant's supervisor. Mohler said that he had previously told Claimant that climbing spikes were not permitted while pruning a tree, but Mohler did not explain to Claimant why they were prohibited because Mohler assumed that Claimant was aware of the practice. Mohler testified that Employer adheres to the American National Standard for Tree Care Operations guidelines, set forth by the Tree Care Industry, because climbing spikes cause damage to the trees and can spread disease that may ultimately kill the trees.

Claimant was discharged by Employer on October 27, 2008. Mohler testified that when he discharged Claimant, he informed Claimant that Employer would not be able to use employees who did what they wanted rather than what they were told. The only explanation Mohler heard from Claimant was that "he was not able to do the work without using the spikes."

On December 3, 2008, the deputy of the Division mailed its decision to Claimant, granting Claimant benefits because "Employer did not provide specific information to the Division when given the opportunity" regarding Employer's belief that Claimant was insubordinate. The deputy found that Claimant was not disqualified from benefits because the discharge was "not for misconduct connected with work." On December 10, 2008, Employer appealed the deputy's decision.

On January 14, 2009, the Appeals Tribunal held a telephone conference on the appeal, at which time Claimant, Mohler, and Williard relayed the above sequence of events. On January 23, the Appeals Tribunal reversed the deputy of the Division's decision. The Appeals Tribunal found that Claimant worked for several months for Employer before he was discharged for insubordination. The Appeals Tribunal's findings of fact stated that Claimant was previously warned that he was not to use climbing spikes to trim live trees, but on October 24, 2008, Claimant disregarded those instructions and trimmed a tree while wearing climbing spikes. Pursuant to Section 288.030(23) and Section 288.050.2, RSMo Cum.Supp.2008, regarding misconduct connected with a claimant's work, the Appeals Tribunal concluded that Claimant was "discharged for violation of a known reasonable employer policy or rule" and thus, was discharged for misconduct connected with work.

Claimant filed his timely application for review with the Commission on February 11, 2009. On May 19, 2009, the Commission affirmed and adopted the Appeals Tribunal's decision "because it is fully supported by the competent and substantial evidence on the whole record and it is in accordance with the relevant provisions of the Missouri Employment Security Law."

One of the three commissioners filed a dissenting opinion, stating that Claimant was faced with a judgment call, weighing his own safety against Employer's directive to get the job done against its rule prohibiting Claimant from using spikes to climb the live tree. Citing Murphy v. Aaron's Automotive Products, 232 S.W.3d 616, 621 (Mo.App. S.D.2007), the dissent found that "an exercise of poor judgment is not an act involving the type of intentional behavior encompassed within the definition of misconduct connected with work." The dissent was not persuaded that Employer met its burden of proving Claimant's misconduct.

On June 12, 2009, Claimant filed his notice of appeal with this Court. This appeal follows.

Point on Appeal

In his sole point on appeal, Claimant alleges that the Commission erred in denying unemployment benefits to Claimant under Section 288.050.2 because Employer failed to meet its burden of proof that Claimant committed misconduct by willfully violating the rules or standards of the employer or knowingly acting against the employer's interests. Claimant argues that the rule was unreasonable when applied to these circumstances, Claimant's refusal was reasonable when he told the employer the work could not be completed safely without the use of climbing spikes, and Claimant was acting in the employer's interest by attempting to complete the job when there was no one else available.

Standard of Review

Appellate review of an award made by the Labor and Industrial Relations Commission is governed by Section 288.210, RSMo 2000.¹ According to the statute, this Court's jurisdiction is limited to questions of law. Id. This Court will affirm the Commission's decision unless: the Commission acted without or in excess of its powers; the award was procured by fraud; the facts do not support the award; or there was not sufficient competent evidence in the record to warrant the award. Section 288.210.

While deference is paid to the Commission's findings of fact, this Court does not defer to the Commission's conclusions of law. Div. of Employment Sec. v. Taney County Dist. R-III, 922 S.W.2d 391, 393 (Mo....