55 Pa. Commw. 517 | Pa. Commw. Ct. | 1980
Opinion by
Petitioner (employer) appeals from an order of the Unemployment Compensation Board of' Review (Board) affirming a referee’s award of benefits to employer’s former employee, Donald B. Luxa (claimant) .
Claimant worked for employer as an electronic engineer technician until June 29, 1979. On that day, between 1:00 p.m. and 1:15 p.m., claimant was observed at his desk with his eyes closed and, as a result, was placed on a five-day suspension beginning July 2, 1979 which was converted into a discharge on July 9, 1979. Employer discharged claimant specifically for sleeping on the job. After applying for benefits, the Office (then Bureau) of Employment Security denied such
Where the employer alleges misconduct on the part of the employee, it is the employer’s burden to prove that fact with substantial evidence. Philadelphia Geriatric Center v. Unemployment Compensation Board of Review, 46 Pa. Commonwealth Ct. 357, 406 A.2d 1177 (1979) . The alleged misconduct here was sleeping on the job. We acknowledge that such conduct, if proven or admitted and absent proof that the employer condones such behavior, can constitute willful misconduct. See Johnson v. Unemployment Compensation Board of Review, 54 Pa. Commonwealth Ct. 220, 420 A.2d 794 (1980); Markley v. Unemployment Compensation Board of Review, 47 Pa. Commonwealth Ct. 148, 407 A.2d 144 (1979); Unemployment Compensation Board of Review v. Simone, 24 Pa. Commonwealth Ct. 248, 355 A.2d 614 (1976). We agree, however, with the Board’s conclusion that the employer has not met its burden of producing substantial evidence proving that claimant was sleeping. The employer’s only proof of this alleged misconduct was the testimony of a Mr. Robert Meister,- employer’s Assistant Personnel Director, who stated that he was not in the plant on June 29, 1979 but that a supervisor later reported to bim that he (the supervisor) saw claimant asleep at his desk. This testimony on the key issue was hearsay. Even though the testimony was admitted without objection at the time, it could not have supported a finding that claimant had been sleeping because it was un
Employer argues that proof of the alleged misconduct comes from an “admission” by claimant during the hearing that he was sleeping.
Accordingly, we will enter the following
Order
And Now, December 19, 1980, the order of the Unemployment Compensation Board of Review, Decision No. B-178048, dated November 21, 1979, awarding unemployment compensation benefits to Donald B. Luxa is affirmed.
Even if we were to consider the hearsay testimony to be competent, probative evidence, it is not within our province to balance the conflicting evidence concerning whether claimant was asleep or not. Questions of credibility and the resolution of testimonial conflicts are for the Board, not the reviewing court. Affalter v. Unemployment Compensation Board of Review, 40 Pa. Commonwealth Ct. 482, 397 A.2d 863 (1979).
The testimony referred to is as follows:
Q: Now, Mr. Luxa, what do you have in rebuttal? On the 29th were you asleep at one o’clock in the afternoon?
A: Yes, but that was my lunch period.