decided: April 29, 1981.
MELVIN RAGLAND, PETITIONER
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT
Appeal from the Order of the Unemployment Compensation Board of Review in the case of In Re: Claim of Melvin Ragland, No. B-179920.
Andrew F. Erba, for petitioner.
Francine Ostrovsky, Assistant Attorney General, with her, Richard Wagner, Chief Counsel, and LeRoy S. Zimmerman, Attorney General, for respondent.
Judges Mencer, Rogers and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail. Judge Wilkinson Jr. did not participate in the decision in this case.
[ 59 Pa. Commw. Page 49]
Melvin Ragland was a probationary employee performing the duties of Maintenance Supervisor. Prior to the termination of his probationary period, Claimant was discharged after his superior accused him of sleeping on the job. The record indicates that this was the last incident in a series of problems which included lateness and absenteeism and which led his employer to conclude that Claimant was going "progressively downhill." Company regulations of which the Claimant was aware provide that any violation of company regulations during the probationary period constitutes grounds for dismissal.
At the hearing before the referee, the Claimant denied that he was sleeping. The employer presented the witness who saw the Claimant when he was alleged to be sleeping. The referee and the Board found the
[ 59 Pa. Commw. Page 50]
testimony presented by the employer to be more credible than that offered by the Claimant. This Court has held that sleeping on the job is prima facie an act of willful misconduct, for it falls within either "wanton and wilful disregard of the employer's interest," or "disregard of standards of behavior which an employer can rightfully expect." Unemployment Compensation Board of Review, v. Simone, 24 Pa. Commonwealth Ct. 248, 355 A.2d 614 (1976). Once a prima facie case is set forth, the burden of proof shifts to the employee to prove that, under the facts of the particular case, sleeping on the job does not constitute willful misconduct. Simone, supra. The Board is the fact-finder. Lake v. Unemployment Compensation Board of Review, 48 Pa. Commonwealth Ct. 138, 409 A.2d 126 (1979). The Board resolved the conflict in testimony in favor of the employer and found that the Claimant failed to meet his burden of showing that his conduct did not constitute willful misconduct. The Board then denied benefits to the Claimant under the provisions of Section 402(e) of the Unemployment Compensation Law*fn1 which provides that an employee who is discharged for willful misconduct connected with his work is disqualified from receiving benefits.
The Board also found that the Claimant falsified his time card. Again the Board rejected Claimant's explanation for this misconduct and again we say that this was within the Board's province.
Our discussion thus far disposes of the first issue presented to us by the Claimant, i.e., did the employer meet its burden of proving willful misconduct? The only other issue presented to us is whether the Board erred when it did not conclude that Claimant was discharged for poor job performance rather than willful
[ 59 Pa. Commw. Page 51]
misconduct. The Board conceded at oral argument that its finding that Claimant was discharged for violation of company regulations was in error because the Board now says it is clear that Claimant was discharged for deteriorating work performance. Notwithstanding this concession, our review of the record satisfies us that the Board's original finding was not erroneous. The testimony of the employer's witness*fn2 satisfies us that Claimant was discharged for violating company regulations and that his lack of attentiveness to the job and deteriorating job performance were "noted" and "taken into account" but nothing more.
And Now, this 29th day of April, 1981, the order of the Unemployment Compensation Board of Review, dated January 2, 1980, denying benefits to Melvin Ragland is hereby affirmed.
Judge Wilkinson Jr. did not participate in the decision in this case.
And Now, this 11th day of May, 1981, it having been brought to our attention that at the end of our Order in this matter of April 29, 1981, we inadvertently
[ 59 Pa. Commw. Page 52]
used the date January 2, 1980 instead of the proper date of January 21, 1980; it is ordered that our said Order shall be and it is hereby amended to effect said correction and so that it shall be and read as follows:
And Now, this 29th day of April, 1981, the order of the Unemployment Compensation Board of Review, dated January 21, 1980, denying benefits to Melvin Ragland is hereby affirmed.