In the Missouri Court of Appeals Eastern District DIVISION TWO
JOHN D. WALKER III, ) No. ED110346 ) Respondent, ) Appeal from the Labor and ) Industrial Relations Commission vs. ) ) JOHN J. SMITH MASONRY ) COMPANY, ) ) Appellant, ) ) and ) ) DIVISION OF EMPLOYMENT ) SECURITY, ) ) Respondent. ) FILED: October 18, 2022
Introduction
John J. Smith Masonry Company (“Employer”) appeals from the decision of the Labor
and Industrial Relations Commission (the “Commission”) awarding John D. Walker (“Walker”)
unemployment benefits. In its two points on appeal, Employer argues the Commission erred in
awarding Walker unemployment benefits because the facts found by the Commission do not
support its decision and the record lacks sufficient competent evidence to warrant the decision.
Because the Commission’s factual finding that Walker was involuntarily discharged due to a
lack of work was not supported by competent and substantial evidence, the Commission erred in
awarding Walker unemployment benefits. Accordingly, we reverse the Commission’s decision. Factual and Procedural History
The Bricklayers and Allied Craftworkers Local Union No. 1 of Missouri (the “Union”)
and the Mason Contractors Association of St. Louis (the “MCA”) created a summer work
program (the “Program”) to develop a pool of workers for possible future apprentices in the
Union. The Program ran from June 1 through August 31, 2019. Employers could hire Summer
Permit Workers (“SPWs”) throughout the duration of the Program. Among other requirements,
SPWs had to be enrolled in a secondary school, community college, trade school, or university
and could not have any prior work experience in the bricklaying industry. The collective
bargaining agreement (“CBA”) between the Union and MCA applied to SPWs and their
employers. The Union granted SPWs temporary work permits effective only until August 31,
2019.
Employer hired Walker, and the Union issued him a temporary work permit. Walker
began working for Employer on June 10, 2019, and his last day of employment was August 30,
2019. Walker knew his temporary permit expired on August 31 and that a permit was required
for continued employment under the CBA. Employer would have violated the CBA by
employing Walker without a permit. When the Program ended, Walker was not actively looking
for work because he was enrolled in a trade school, the Missouri Welding Institute.
Walker filed his initial claim for unemployment benefits with the Division of
Employment Security (“Division”) in April 2020, eight months after his last day of work.
Employer objected to Walker’s claim and stated that Walker voluntarily left his job with
Employer so that he could return to school. A deputy with the Division (the “Deputy”) found
Walker was not disqualified from receiving unemployment benefits because his “separation was
not for misconduct connected with work.” Additionally, the Deputy found Walker separated
from Employer for “reasons attributable to a lack of work because the [Program] ended.” The 2 Deputy determined that Walker was eligible for unemployment benefits. Employer appealed the
Deputy’s determination, challenging the finding that Walker’s separation was due to a lack of
work. Employer argued that Walker voluntarily quit to return to school and that work was
available had Walker wanted to continue working with Employer beyond the Program. The
Appeals Tribunal (the “Tribunal”) conducted a telephone hearing on July 20, 2021. Only Walker
and John J. Smith (“Smith”), president-owner of Employer, participated as witnesses and both
attended the hearing without counsel.
During the brief telephone hearing, Smith testified that Walker voluntarily left to return
to school. Walker testified that had Employer offered him an apprenticeship, he would have
accepted it and dropped out of school. Walker testified that he told “everyone” that he wanted to
continue working with Employer as an apprentice following the Program. When asked to
elaborate whom he told, Walker testified he told two co-workers, neither of whom were his
foreman, direct supervisor, or Smith. The “Memorandum of Understanding” (“Memorandum”)
was introduced at the telephone hearing and details the agreement between Employer and the
Union regarding SPWs. The Memorandum allows Employer to indenture SPWs as apprentices
following the Program but does not explain how that process is initiated. The record does not
suggest that either of the two co-workers with whom Walker claimed to have spoken about his
desire to continue working as an apprentice had any authority or involvement indenturing
apprentices for Employer.
Walker testified that he was not actively looking for work on his last day in the Program
because he was enrolled at the Missouri Welding Institute. Further, Walker testified he did not
need unemployment benefits prior to April 2020, but that the COVID-19 pandemic caused him
to apply for them. Employer testified that Walker never contacted it for additional work as an
3 apprentice either before or after the Program ended. Walker explained that “it didn’t cross [his]
mind” to contact Employer for a job because he was looking for welding jobs not bricklaying
jobs.
The Tribunal affirmed the Deputy’s determination that Walker was not disqualified for
benefits because he was discharged from work not for misconduct. In its findings of fact, the
Tribunal stated that “[a]lthough the employer believed [Walker] quit and work was still
available, the employer admitted that the contract was completed, and his temporary work permit
had expired.” The Tribunal concluded Walker was effectively discharged due to the completion
of his employment contract. Employer then appealed the Tribunal’s decision to the Commission,
which affirmed the award. This appeal follows.
Points on Appeal
Employer raises two points on appeal challenging the award of unemployment benefits to
Walker. Point One argues the facts found by the Commission do not support an award of
unemployment benefits because Employer had work available for Walker if he had obtained the
required work permit. Because Walker did not obtain the required work permit, his separation
from Employer was a voluntary quit, disqualifying him from receiving unemployment benefits.
Point Two contends there is insufficient competent evidence in the record to support the
Commission’s decision in that the record shows Walker knew his position was temporary and
contingent upon the Union’s issuance of a work permit and that Walker could continue his
employment with Employer following completion of the Program only if he obtained the
required work permit. Because Walker did not obtain a work permit from the Union, his work
separation was a voluntary quit, which disqualified him from receiving unemployment benefits.
4 Standard of Review
Section 288.2101 governs our review of appeals from the Commission’s decision
awarding or denying unemployment benefits. We 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. An appeal shall not act as a supersedeas or stay unless the commission shall so order.
Section 288.210; Ekres v. Div. of Emp. Sec., 641 S.W.3d 411, 416 (Mo. App. W.D. 2022)
(citing 417 Pet Sitting, LLC v. Div. of Emp. Sec., 616 S.W.3d 350, 358 (Mo. App. W.D. 2020)).
We consider the Tribunal’s decision to be the Commission’s for purposes of our review when the
Commission adopts their findings and conclusions as their own. Id. at 417 (citing Ashford v.
Div. of Emp. Sec., 355 S.W.3d 538, 541 (Mo. App. W.D. 2011)).
Discussion
Employer raises two related points on appeal, both of which collectively argue that the
record contains insufficient competent evidence to support the Commission’s decision to award
benefits because the evidence shows that Walker was not discharged by Employer but
voluntarily quit his employment. We address these points together.
“The question of whether an employee left work voluntarily or was discharged is
generally a factual determination.” Ekres, 641 S.W.3d at 417 (citing Kimble v. Div. of Emp.
Sec., 388 S.W.3d 634, 639 (Mo. App. W.D. 2013)). “In reviewing the factual findings, this court
is to determine whether the Commission, based upon the whole record, could have reasonably
made its findings and reached its result.” Id. (citing Kimble, 388 S.W.3d at 639). “[T]he
1 All Section reference refer to RSMo (2016), unless otherwise indicated.
5 standard of review is de novo when the issue is whether the facts found by the Commission can,
as a matter of law, be considered to constitute a voluntary departure from employment.” Kimble,
388 S.W.3d at 639 (quoting Harris v. Div. of Emp. Sec., 350 S.W.3d 35, 39 (Mo. App. W.D.
2011)). “We will affirm a factual determination by the Commission as to whether an employee
voluntarily left his employ or was discharged if it is supported by competent and substantial
evidence on the record as a whole.” Lentz v. Home Sec. of Am., 380 S.W.3d 1, 4 (Mo. App.
E.D. 2012) (internal citations omitted). “The evidence is viewed objectively, ‘not in the light
most favorable to the decision of the Commission. However, on matters of witness credibility
and resolution of conflicting evidence, the appellate court defers to the Commission’s
determinations.’” Ekres, 641 S.W.3d at 417 (quoting Barron v. Div. of Emp. Sec., 435 S.W.3d
654, 657 (Mo. App. W.D. 2014)). “Whether the award is supported by competent and
substantial evidence is judged by examining the evidence in the context of the whole record.” Id.
(citing 417 Pet Sitting, 616 S.W.3d at 358).
“A claimant leaves work voluntarily when he leaves of his own volition.” Valdez v.
MVM Sec., Inc., 349 S.W.3d 450, 456 (Mo. App. W.D. 2011) (internal citation omitted). “The
Missouri Supreme Court has concluded that ‘voluntary’ should be given its plain and ordinary
meaning: ‘proceeding from the will: produced in or by an act of choice.’” Chavis v. Wal-Mart
Assoc., Inc., 646 S.W.3d 703, 706 (Mo. App. E.D. 2022) (quoting Difatta-Wheaton v. Dolphin
Cap. Corp., 271 S.W.3d 594, 598 (Mo. banc 2008)).
Employer maintains that the Commission’s determination that Walker was involuntarily
discharged is not supported either by the Commission’s own findings of fact or by sufficient
competent evidence on the record as a whole. We review the record de novo to determine if
6 Walker’s work separation was an involuntary discharge or voluntary quit. See Kimble, 388
S.W.3d at 639 (quoting Harris, 350 S.W.3d at 39).
The Commission found that Walker was discharged “due to a lack of work due to [his]
contract being completed.” The record lacks evidence to support this finding. See id. Employer
never testified that no work was available, and Walker similarly made no such claim. Walker
argues only that even though work was available, it was not offered to him. Indeed, Employer
stated in its initial appeal that work was available had Walker remained employed. Critically,
however, the CBA prevented Employer from continuing to employ Walker without a work
permit. The record is clear that without a work permit, Walker was ineligible to work for
Employer, a union shop, regardless of the availability of work. The Commission’s findings and
conclusions of law lack any discussion or even acknowledgment of this requirement. The record
lacks any reasonable explanation or support for a finding that the completion of Walker’s
temporary contract equated to a lack of available work from Employer. The Commission’s
finding that Walker was discharged due to a lack of available work simply is not supported by
competent and substantial evidence on the record. See Lentz, 380 S.W.3d at 4.
Contrary to the Commission’s finding, the record plainly shows Walker’s work
separation resulted from the expiration of his temporary work permit. Important to our analysis,
Missouri courts have held that an employee voluntarily quits their position by failing to obtain or
retain a specialized license, permit, or other certification when the employee knew it was
required. See O’Neal v. Marantha Village, Inc., 314 S.W.3d 779, 785 (Mo. App. S.D. 2010);
Bd. of Educ. of City of St. Louis v. Labor and Indus. Rel. Comm’n, 633 S.W.2d 126, 133 (Mo.
App. W.D. 1982). The Commission’s decision does not discuss or even acknowledge Walker’s
7 failure to obtain the work permit required for him to become indentured and work as an
apprentice in Employer’s union shop.
In both O’Neal and Bd. of Educ., the claimant accepted a job knowing that a specialized
license was required. See O’Neal, 314 S.W.3d at 785 (citing Bd. of Educ., 633 S.W.2d at 133).
Additionally, the employer in both cases would have violated the law by continuing to employ
the claimant without the required license. See id. In Bd. of Educ., a teacher failed to obtain a
permanent teaching certification before the expiration of her temporary certification. Bd. of
Educ., 633 S.W.2d at 133. Her temporary certification permitted her to teach for only ninety
days. Id. The teacher’s employment ceased after ninety days when she did not obtain a
permanent teaching certification and she then sought unemployment benefits. Id. Bd. of Educ.
affirmed the Commission’s denial of unemployment benefits, holding the claimant’s separation
was voluntary because she did not take the necessary steps to obtain the required license, despite
her knowledge that failure to acquire the requisite license would result in termination. Id.
Similarly, we find instructive other cases in which Missouri courts have applied the same
rationale as in O’Neal and Bd. of Educ. to find a claimant did not voluntarily quit. See, e.g.,
Ekres, 641 S.W.3d at 419; Lentz, 380 S.W.3d at 6; Valdez, 349 S.W.3d at 459. Ekres held that
the Commission’s finding that the claimant no longer met a condition of her employment after
moving out-of-state to work remotely did not support a conclusion that the claimant voluntarily
quit her employment. Ekres, 641 S.W.3d at 419. In finding the claimant was discharged, the
Western District distinguished the facts from those in O’Neal and Bd. of Educ., noting that those
claimants knew that their respective certifications were required for continued employment and
“the employers, by continuing to employ both claimants, would have violated state laws[.]” Id.
Neither of those factors were present in Ekres. Id.
8 In Lentz, the employer terminated the claimant, a plumber, after he lost his driver’s
license. Lentz, 380 S.W.3d at 2–4. The claimant was assigned to work in the office pulling
work permits while his driver’s license was revoked. Id. Although the claimant took the
necessary steps to reinstate his license, doing so took longer than the employer expected, and the
employer terminated him. Id. at 3. The employer argued the claimant voluntarily quit because
he no longer had a driver’s license, which was necessary to respond to calls for service, and cited
Bd. of Educ. in support. Id. This Court distinguished the claimant’s case from Bd. of Educ.
finding significant that (1) the employer was not prohibited by law from employing the claimant;
(2) the claimant did not take the job knowing that it would end on a certain date because he
lacked a driver’s license; and (3) the claimant did not fail to take the necessary steps to reacquire
his driver’s license after it was revoked. Id. at 6. In all of the aforementioned cases, whether or
not the claimant at least attempted to obtain the necessary permit, certification, or license was
critical to the voluntariness of the separation from employment. See id.; see also Valdez, 349
S.W.3d at 459 (holding claimant did not voluntarily quit when he failed a firearms certification
test that was required for employment because he took the necessary steps to renew his
certification, despite ultimately failing the test).
Here, the pivotal question is whether Walker was involuntarily discharged or voluntarily
quit his position by failing to obtain or retain the work permit that he knew was required for
continued employment with Employer. See Ekres, 641 S.W.3d at 419; Lentz, 380 S.W.3d at 6;
O’Neal, 314 S.W.3d at 785; Bd. of Educ., 633 S.W.2d at 133. The record shows that Walker
knew his employment was temporary and that he was ineligible to work after his temporary
permit expired on August 31. See O’Neal, 314 S.W.3d at 785; Bd. of Educ., 633 S.W.2d at 133;
see also Ekres, 641 S.W.3d at 420 (“Knowledge that an act could cause the cessation of
9 employment is essential in order to conclude that an employee voluntarily quit their
employment.”). The record also shows that Employer would have violated the CBA had it
continued to employ Walker without a permit. See O’Neal, 314 S.W.3d at 785; Bd. of
Educ., 633 S.W.2d at 133. The record reveals that Walker knew a permit was required to
continue working for Employer beyond the temporary employment provided through the
Program, but lacks any evidence that Walker either tried to acquire a work permit upon the
expiration of the Program or requested any assistance of Employer to obtain the required permit.
See Lentz, 380 S.W.3d at 6 (noting that a claimant’s failure to take steps to reacquire a necessary
work permit contributes to a finding that the claimant voluntarily quit); Valdez, 349 S.W.3d at
459 (same); O’Neal, 314 S.W.3d at 785 (same); Bd. of Educ., 633 S.W.2d at 133 (same).
There is no evidence in the record from which the Commission could find that Walker
ever attempted to acquire the necessary work permit from the Union. The record lacks any
evidence that Walker requested that Employer indenture him as an apprentice and acquire the
necessary work permit for him. The record contains no evidence from which the Commission
reasonably could find that Employer had any reason to believe Walker was available for an
apprenticeship. Notably, Walker claims only that he would have accepted an apprenticeship
rather than attend welding school as planned had one been offered. Although Walker testified
that he told two co-workers that he wanted to be indentured as an apprentice, neither of these co-
workers were Walker’s foreman or direct supervisor. The record lacks any evidence that Walker
communicated this desire to Smith or any employee involved in the process of indenturing
apprentices for Employer. Evidence that Walker expressed his desire for an apprenticeship to
two co-workers who lacked authority to offer him an apprenticeship is not competent and
substantial evidence that he communicated the same to his Employer. See Ekres, 641 S.W.3d at
10 417 (citing Kimble, 388 S.W.3d at 639). We acknowledge that nothing in the record suggests
that Employer could not have offered Walker an apprenticeship absent his request. But in the
absence of any such request, we are persuaded it was reasonable for Employer to treat Walker as
having voluntarily returned to school as envisioned under the Program. Had Walker told
Employer prior to the expiration of the Program that he wanted an apprenticeship, that
affirmative step would have forced Employer to either indenture him as an apprentice or reject
his request, thereby removing the voluntariness of his separation from employment. Without
evidence that Walker requested an apprenticeship from Employer or otherwise attempted to
remedy his lack of the required work permit, the evidence in the record does not and cannot
support a finding that Walker was discharged by Employer. See id. Rather, the record before us
dictates but one factual finding and conclusion of law—that Walker voluntarily left his
employment at the end of the Program in order to return to welding school. See Ekres, 641
S.W.3d at 417 (citing Kimble, 388 S.W.3d at 639); see also Chavis, 646 S.W.3d at 706 (citing
Difatta-Wheaton, 271 S.W.3d at 598); Valdez, 349 S.W.3d at 456. Reviewing the record as a
whole, Walker’s silent acquiescence with the intended purpose of the Program—allowing SPWs
to return to school—constitutes a voluntary quit. See Ekres, 641 S.W.3d at 417 (citing Kimble,
388 S.W.3d at 639). Accordingly, the Commission’s determination that Walker was
involuntarily discharged from his employment and thus entitled to unemployment benefits is not
supported by sufficient competent evidence. See id. (citing Kimble, 388 S.W.3d at 639).
Because the facts found by the Commission do not support the award and there was not
sufficient competent evidence in the record to warrant the award of unemployment benefits, we
reverse the decision of the Commission. See Section 288.210; Ekres, 641 S.W.3d at 416 (citing
417 Pet Sitting, 616 S.W.3d at 358). Points One and Two are granted.
11 Conclusion
The decision of the Commission is reversed.
_________________________________ KURT S. ODENWALD, Judge
Lisa P. Page, P.J., concurs. Thomas C. Clark II, J., concurs.