Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Donald B. Luxa, No. B-178048.
Rick R. Melson, II, with him Scott F. Zimmerman, James S. Cheslock, Reed, Smith, Shaw & McClay, for petitioner.
Steven Marcuse, Assistant Attorney General, with him Richard Wagner, Chief Counsel, and Edward G. Beister, Jr., for respondent.
Judges Wilkinson, Jr., Blatt and MacPhail, sitting as a panel of three. Opinion by Judge Wilkinson, Jr.
[ 55 Pa. Commw. Page 518]
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
[ 55 Pa. Commw. Page 519]
on the basis of willful misconduct, a disqualification under 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. § 802(e). On appeal, the referee and the Board found that the claimant was not asleep on the job but had closed his eyes to rest them because he had a headache. Therefore, the referee and the Board awarded benefits. Employer brings this appeal.
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 him 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 uncorroborated
[ 55 Pa. Commw. Page 520]
by competent evidence and, therefore, stands alone as the only evidence offered to prove claimant was indeed asleep. This hearsay was not relied upon by the Board. Indeed, a finding of fact based solely on hearsay will not stand. Walker v. Unemployment Compensation Board of Review, 27 Pa. Commonwealth Ct. 522, 367 A.2d 366 (1976). The Board, therefore, made the correct and only conclusion possible when it held that employer did not sustain its burden of proof.*fn1
Employer argues that proof of the alleged misconduct comes from an "admission" by claimant during the hearing that he was sleeping.*fn2 The referee and the Board, however, did not consider this isolated answer an "admission" and in view of the directive that questions of credibility and resolution of evidentiary conflicts are within the sound discretion of the Board, not subject to re-evaluation on judicial review, Miller v. Unemployment Compensation Board of Review, 45 Pa. Commonwealth Ct. 539, 405 A.2d 1034 (1979), we cannot decide otherwise. We also note that the balance of claimant's testimony centered around his contention that he was merely resting his eyes due to an excruciating headache and ...