Shelby v. Hayward Baker, Inc.

• Decision Date: 25 February 2004
• Docket Number: No. 25784.,25784.
• Parties: Norman L. SHELBY, Claimant-Appellant, v. HAYWARD BAKER, INC., employer, and Division of Employment Security, Respondents.
• Court: Missouri Court of Appeals

128 S.W.3d 164

Norman L. SHELBY, Claimant-Appellant, v. HAYWARD BAKER, INC., employer, and Division of Employment Security, Respondents.

No. 25784.

Missouri Court of Appeals, Southern District, Division Two.

February 25, 2004.

Donald Rhodes, Bloomfield, MO, for Appellant.

Larry R. Ruhmann, St. Louis, MO, for Respondent Missouri Department of Labor and Industrial Relations Division of Employment Security.

Hayward Baker, Inc., Odenton, MD, Pro Se.

JEFFREY W. BATES, Judge.

Norman Shelby ("Shelby") appeals from a decision of the Labor and Industrial Relations Commission ("Commission") denying his claim for unemployment benefits pursuant to Missouri's Employment Security Law, § 288.010, et seq.¹ The Commission decided that Shelby was not entitled to such benefits because he left work voluntarily without good cause attributable to such work or to his employer. In three interrelated points of error, Shelby contends that the Commission's decision was not supported by competent and substantial evidence and that the Commission misapplied the law in deciding Shelby left work "without good cause" so as to come within the disqualifying language of § 288.050.1(1). We affirm the Commission's decision.

I. Standard of Review

The scope of our review of the Commission's decision is delineated both by our state constitution and by statute. We are required by Mo. Const. art. V, § 18 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."² Pulitzer Publishing Co. v. Labor and Industrial Relations Comm'n, 596 S.W.2d 413, 417 (Mo. banc 1980). The manner in which we carry out these constitutional mandates, however, is limited by § 288.210. This statute states, in pertinent part as follows:

Upon appeal no additional evidence shall be heard. The findings of the commission as to the facts, if supported by competent and substantial evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the appellate court shall be confined to questions of law. The court, on appeal, may modify, reverse, remand for rehearing, or set aside the decision of the commission on the following grounds and no other: (1) That the commission acted without or in excess of its powers; (2) That the decision was procured by fraud; (3) That the facts found by the commission do not support the award; or (4) That there was no sufficient competent evidence in the record to warrant the making of the award.

Id.

In determining whether the decision is authorized by law, we are not bound by the Commission's conclusions of law or its application of law to facts. George's Processing, Inc. v. Ottendorf, 57 S.W.3d 923, 925 (Mo.App.2001). We review questions of law independently without any deference to the Commission's findings. Lost in the Fifties, LLC v. Meece, 71 S.W.3d 273, 277 (Mo.App.2002); Smith v. U.S. Postal Service, 69 S.W.3d 926, 928 (Mo. App.2002). The Commission's factual findings, on the other hand, are accorded a much more deferential standard of review. Determining the credibility of witnesses is one of the Commission's functions. Burns v. Labor & Industrial Relations Comm'n, 845 S.W.2d 553, 555 (Mo. banc 1993); England v. Regan Marketing, Inc., 939 S.W.2d 62, 66 (Mo.App.1997). Therefore, we review the evidence in a light most favorable to the findings and decision of the Commission and disregard all opposing and unfavorable evidence. Burns, 845 S.W.2d at 555; Pulitzer, 596 S.W.2d at 417.³ Absent fraud, the Commission's factual findings are conclusive on appeal if they are supported by competent and substantial evidence upon the whole record and are not clearly against the overwhelming weight of the evidence. See Burns, 845 S.W.2d at 554-55; Pulitzer, 596 S.W.2d at 417; Baby-Tenda Corp. v. Hedrick, 50 S.W.3d 369, 377 (Mo.App.2001). Thus, where the Commission as the trier of fact has reached one of two possible conclusions from the evidence, this Court will not reach a contrary conclusion even if such a conclusion might reasonably have been reached. Clark v. Labor & Industrial Relations Comm'n, 875 S.W.2d 624, 626-27 (Mo.App.1994). If the evidence before the Commission would warrant either of two opposed findings, we are bound by the administrative determination, and it is irrelevant that there is evidence to support the contrary finding. See Pulitzer, 596 S.W.2d at 417. Our summary of the facts has been prepared in accordance with these principles.

II. Statement of Facts and Procedural History

Shelby's claim for unemployment benefits arose out of his employment by Hayward Baker, Inc. ("Hayward"). Hayward is a contractor that specializes in ground modification and soil stabilization. In September 2002, Hayward was awarded a contract by the Army Corps of Engineers to perform levee stabilization work in Pemiscot County near Portageville, Missouri. Tom Munday was Hayward's field superintendent for the project.

The levee stabilization project was divided into two different phases. The first phase of the project involved some initial dirt work, followed by the injection of a mixture of lime, ash and water into the levee bank to firm it up so landslides would not occur. This first phase of the project was called the injection process. The second phase of the project involved the performance of additional dirt work, followed by seeding and fertilizing of the disturbed areas.

The contract obligated Hayward to hire four union employees for this job. Shelby started working for Hayward in September 2002. He was a member of the St. Louis Local 513 Operating Engineers and was sent out by his union hall to be an equipment operator for Hayward for the duration of the project. During the first phase of the project, Shelby initially operated a piece of equipment and did dirt work at the site. Later, he was involved in the injection process. Shelby ran the pump that controlled the water flow to the machine which injected the lime, ash and water mixture into the levee.

It took approximately three months to complete the injection process. This first phase of the project was finished on Thursday, November 21, 2002. On Friday, November 22nd, Hayward employees rolled up the hoses and dismantled the equipment used to perform the injection process. At this point, the second phase of the project—consisting of additional dirt work, seeding and fertilizing—remained to be done.

That same day (November 22nd), Superintendent Munday had a meeting with Shelby and another operator, Hayward employee Floyd McKinsey. Since McKinsey lived in Kansas and wanted to go home for the Thanksgiving holiday, Munday told Shelby and McKinsey that no work would be performed the next week. However, they were told to come back to work the following week. Shelby knew that there was still dirt work that needed to be done on the project. Munday instructed McKinsey to return to Missouri on Sunday, December 1, 2002, and call Shelby. The purpose of the call was to remind Shelby that he needed to come to the job site on Monday, December 2nd, and help McKinsey with the dirt work by running one of the pieces of equipment. Shelby was supposed to go to work as soon as he arrived because he had a key to the machine and knew what to do.

As instructed, McKinsey called Shelby on Sunday night and told him that he needed to come to work on Monday morning. McKinsey said that he would not be at the job site until 10:00 or 11:00 a.m. Shelby asked if he could move cattle on Monday and come to work on Tuesday, December 3rd. McKinsey agreed to that request.

McKinsey then called Munday and told him about the change in plans. Munday instructed McKinsey to go ahead and get what he could done on Monday, even though McKinsey could not operate both machines at one time.

On Tuesday, December 3rd, Shelby arrived at the job site at 7:00 a.m. No other Hayward employees were there when he showed up. There were two pieces of equipment at the site, but they appeared to Shelby to have been cleaned up and prepared for loading. He drove around the job site, and it appeared to have been dressed like it was ready for seeding. Although Shelby observed four or five remaining mounds of dirt, he concluded that the job was finished. He assumed that the plan was to seed these mounds down and leave them until spring before knocking them down and spreading the dirt. He stayed at the job site for "a good while," but no other employees showed up. After an hour, or perhaps more, Shelby left a note on one of the machines acknowledging that he had been there and went home. He did not call anyone before leaving the job site. His explanation for not doing so was that he had no telephone numbers for Hayward, Munday or anyone else that he could have called. Shelby admitted that he could have gotten on one of the pieces of equipment and started running it, but he thought the job was finished.

Shelby's assumption that the job was finished was incorrect. McKinsey did come to work that day as planned. Before coming to the job site, however, he had stopped to pick up some supplies for the equipment. When McKinsey arrived, there was a note on one of the machines from Shelby that said, "Looks like you've got it under control." Shelby was not there. McKinsey continued doing dirt work so that Mr. Mirly, another Hayward employee who was working that day, could get the seeding and fertilizing done. An inspector for the Corps of Engineers also visited the job site that day.

Since Shelby was a local operator, Munday had intended to continue to use Shelby to keep monitoring the site and performing additional dirt work, weather permitting, during the winter months. However, Munday interpreted Shelby's note to mean that he had abandoned the project and quit his job. Shelby was paid for two hours of "show up" time for coming to the job site and leaving a note on the machine.

When Shelby filed his claim for unemployment benefits,...