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MAX J. KELLEY v. COMMONWEALTH PENNSYLVANIA (05/28/81)

decided: May 28, 1981.

MAX J. KELLEY, PETITIONER
v.
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 Max J. Kelley, No. B-168955.

COUNSEL

John B. Dunn, for petitioner.

John T. Kupchinsky, Assistant Attorney General, with him Richard Wagner, Chief Counsel, and LeRoy S. Zimmerman, Attorney General, for respondent.

Judges Rogers, Williams, Jr. and Palladino, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 59 Pa. Commw. Page 304]

Max J. Kelley has appealed from an order of the Unemployment Compensation Board of Review (Board) affirming the decision of a referee that Kelley is ineligible for unemployment compensation benefits on the ground of willful misconduct. 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.

[ 59 Pa. Commw. Page 305]

The facts of this case are not in dispute. Kelley was last employed by Rodale Square D as a molding machine operator, assigned to the 11:30 P.M. to 7:30 A.M. shift. On July 9, 1978,*fn1 at approximately 2:00 A.M., the plant supervisor discovered Kelley sleeping in a room separate and approximately ten yards from his designated work area. The machines to which Kelley was assigned were in full operation at the time. Kelley was thereafter discharged for sleeping on the job while his machines were operating.

Kelley's application to the Office of Employment Security for unemployment compensation benefits was denied on the ground that his sleeping at work while the machines entrusted to his care were operating constituted willful misconduct. A referee, after a hearing, affirmed the Office's determination. The Board affirmed the referee's decision. Kelley then appealed to this Court. By agreement of the parties, we remanded the matter to the Board so that it might conduct oral argument. Oral argument was had after which the Board issued a new decision and order, again affirming the referee's decision denying Kelley benefits. This appeal followed.

Kelley does not dispute that sleeping during working hours without permission constitutes willful misconduct. See, e.g., 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, 151, 407 A.2d 144, 146 (1979). Kelley testified that he was sleeping during his ten minute "break" period and that such conduct was permitted, or at least tolerated by his employer. However, the plant

[ 59 Pa. Commw. Page 306]

    supervisor testified that employees on Kelley's night work shift when there are no relief operators are not permitted to sleep during their breaks and that on the contrary they are required to remain awake and at their assigned work areas. The Board noted this conflict of testimony and specifically stated that it found the employer's evidence to be credible and it clearly sufficiently carries the employer's burden.

Kelley next contends that he cannot be found guilty of willful misconduct because he was unaware of his employer's rule against ...


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