Tin Man Enterprises, Inc. v. Labor and Indus. Relations Com'n of Missouri, 64159

• Decision Date: 16 November 1993
• Docket Number: No. 64159,64159
• Parties: TIN MAN ENTERPRISES, INC., Appellant, v. LABOR AND INDUSTRIAL RELATIONS COMMISSION OF MISSOURI, et al., Respondent.
• Court: Missouri Court of Appeals

Page 147

866 S.W.2d 147

TIN MAN ENTERPRISES, INC., Appellant, v. LABOR AND INDUSTRIAL RELATIONS COMMISSION OF MISSOURI, et al., Respondent.

No. 64159.

Missouri Court of Appeals,

Eastern District,

Division One.

Nov. 16, 1993.

Rehearing Denied Dec. 16, 1993.

Anderson, Gilbert & Garvin, Craig A. Sullivan, St. Louis, for appellant.

Alan J. Downs, Div. of Employment Sec., St. Louis, Victorine R. Mahon, Labor and Indus. Relations Com'n, Jefferson City, for respondent.

CRANDALL, Presiding Judge.

Tin Man Enterprises, Inc., appeals from a Circuit Court judgment which affirmed the decision of the Missouri Labor and Industrial Relations Commission (Commission) that claimants, Stephanie Messmer, Nancy Prusinowski, and Ken Rapp, were entitled to unemployment compensation benefits. We affirm.

In an unemployment compensation case, the findings of the Commission as to the facts, if supported by competent and substantial evidence and in absence of fraud, are conclusive; judicial review then is confined to questions of law. § 288.210 RSMo 1986. Within that scope of judicial review, we consider the record in this case.

Stephanie Messmer, Nancy Prusinowski, and Ken Rapp voluntarily terminated their employment with defendant. Each one filed a claim for unemployment compensation benefits. Stephanie Messmer quit on March 4, 1991, after approximately four and a half years of employment with defendant. Messmer was an audio duplicator. Messmer testified that she resigned because of the crowded conditions at the plant; the employees were not trained properly; she had to work with dangerous chemicals with strong odors and the nearest exit to her work station was bolted shut. When she complained to the boss's son, John Bussen, about the chemical xylene he told her it wasn't harmful. The reason she did not complain to the Occupational Safety and Health Administration (OSHA) until after she quit was a fear of retaliation by defendant. When Messmer resigned she did not state her reason for quitting to the defendant.

Nancy Prusinowski resigned on March 3, 1991, after being employed by defendant for approximately eleven months. She was an assistant printer. Prusinowski testified that she resigned because of hazardous working conditions. She complained that the press she used was held together with pieces of tape and frequently broke and misfired. She complained to Mr. Bussen, her boss, who said he would have it fixed. Also, the chemicals she worked with, especially xylene, ate through her rubber gloves. She complained of the heavy fumes from the xylene to one of her bosses, Mrs. Bussen, who told her that she was tired of her "whining and crabbing." Mr. Bussen told her that the fumes were at her feet and therefore not where Prusinowski would be breathing them.

Prusinowski took the Friday before she quit off to go to the doctor. She was asked to work Sunday to make up the time she missed. She said that she could not work on Sunday due to a prior commitment. Mr. Bussen told her that he would get back to her but never did. Not sure if she was expected to work on Sunday, she called in on Sunday to say that she could not work. She called back a second time to quit because she believed that she would be fired anyway for not coming in on Sunday. After she quit, Prusinowski contacted OSHA about the working conditions at defendant's company. She stated that the reason she did not contact OSHA sooner was that she did not think it would do any good.

Ken Rapp resigned March 3, 1991. He had been a discontinuous employee of defendant for approximately five years. He was employed as a printer. He testified that he quit because of unsafe working conditions. He complained of hazardous chemicals, being crowded in a small workplace, incorrect wiring and lack of ventilation. Rapp had complained to management at least four times concerning the lack of ventilation. Rapp had asked for the Friday before he quit off to register for school. He was told that he would have to work Sunday during the day to make up the lost time. He called in that Sunday and resigned.

Defendant first contends that the Commission erroneously applied a subjective standard of "good cause" in concluding that claimants were justified in terminating their employment.

The Commission determined that claimants quit their jobs for good cause attributable to the work or to the employer. Section 288.050.1(1) RSMo Cum.Supp.1992, requires the Division of Employment Security to deny unemployment benefits if a worker voluntarily quits his or her job absent good cause. But, there is no disqualification if there is found to be good cause attributable to the work or employer as in this case. A claimant has the burden of proving good cause. § 288.050.1(1); Division of Employment Security v. Labor and Industrial Relations Commission, 636 S.W.2d 361, 363 (Mo.App.1982).

Good cause is a standard of reason applied to the average person, not to the supersensitive. Rothschild v....