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UNEMPLOYMENT COMPENSATION BOARD REVIEW COMMONWEALTH PENNSYLVANIA v. HILTON HOTELS CORP. (01/21/77)

decided: January 21, 1977.

UNEMPLOYMENT COMPENSATION BOARD OF REVIEW OF THE COMMONWEALTH OF PENNSYLVANIA
v.
HILTON HOTELS CORP., T/A PITTSBURGH HILTON HOTEL, APPELLANT



Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Jerry Hughes, No. B-124418.

COUNSEL

Robert Engel, with him Lloyd W. Patross, and Berkman, Ruslander, Pohl, Lieber & Engel, for appellant.

Charles G. Hasson, Assistant Attorney General, with him Sydney Reuben, Assistant Attorney General, and Robert P. Kane, Attorney General, for appellee.

Judges Crumlish, Jr., Kramer and Mencer, sitting as a panel of three. President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Crumlish, Jr.

Author: Crumlish

[ 28 Pa. Commw. Page 292]

Hilton Hotels Corporation, t/a Pittsburgh Hilton Hotel (Appellant) appeals the order of the Unemployment Compensation Board of Review (Board) which affirmed the referee's award of benefits to its former employee, Jerry Hughes (Claimant), after finding that Claimant had not engaged in wilful misconduct, under the terms of Section 402(e) of the Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. ยง 802(e). We affirm.

Claimant, a houseman at an hourly rate of $3.08, was discharged when his supervisor discovered him lying on a bench in the hotel locker room. Claimant's department employees by regulation took their morning break between 10:00 A.M. and 10:30. However, Claimant was found lying on the bench at 10:45 A.M. His justification was that he had prior approval from the supervisor's assistant to take a break at a later time if he had worked through the regularly scheduled break, and further that a back problem necessitated him to lie down periodically. Whether Claimant was asleep on the bench and whether he had prior approval to digress from the regulation is in dispute, but the referee refused to make a finding of wilful misconduct.

Appellant raises two issues for our determination:

1. Should there be a finding of wilful misconduct where the testimony has established a past history of

[ 28 Pa. Commw. Page 293]

    warnings for behavior troubles including sleeping on the job during working hours and where testimony established that Claimant was asleep during working hours?

2. Were the findings of fact supported by competent evidence?

It is clear that the crux of the employer's complaint, and the basis for which Claimant was discharged was the fact that he was found "asleep" while "not on break time." It is all too well established that questions of credibility and the resolution of conflicts in testimony are for the Board, see Smith v. Unemployment Compensation Board of Review, 17 Pa. Commonwealth Ct. 304, 331 A.2d 217 (1975), and where, as here, the Board has adopted the referee's finding of fact, those findings become binding on this Court. See Chambers v. Unemployment Compensation Board of Review, 13 Pa. Commonwealth Ct. 317, 318 A.2d 422 (1974). The referee obviously accepted as more credible than that offered on behalf of Appellant, Claimant's testimony that 1) he was not asleep, 2) he had a back infirmity which necessitated him lying down on occasion, and 3) that he had obtained prior approval to take this break outside the time span of 10:00 A.M. to 10:30 A.M. if, in fact, he worked during that time. As Appellant points out at length in its brief, there is a great deal of testimony ...


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