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JAMES BIGGS v. COMMONWEALTH PENNSYLVANIA (04/14/82)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: April 14, 1982.

JAMES BIGGS, 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 James Biggs, No. B-194027.

COUNSEL

Germaine Ingrim, for petitioner.

John Kupchinsky, Associate Counsel, with him Steven J. Neary, Associate Counsel, and Richard L. Cole, Jr., Chief Counsel, for respondent.

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

Author: Crumlish

[ 66 Pa. Commw. Page 118]

James Biggs appeals from an Unemployment Compensation Board of Review (Board) order denying benefits. We affirm.

Biggs was found sleeping on the job by his foreman and was discharged. Biggs' excuse was illness, although he had failed to so advise his supervisors. The employer had no specific rules regarding sleeping on the job. The Board affirmed the referee's holding of the willful misconduct.*fn1

Where the burdened party*fn2 prevailed below, our scope of review is limited to legal questions and a determination of whether or not the Board's findings are supported by substantial evidence. Maxwell v. Unemployment Compensation Board of Review, 54 Pa. Commonwealth Ct. 604, 605, 423 A.2d 430, 431 (1980).

Willful misconduct, we have said, is an act of wanton or willful disregard of the employer's interest, a deliberate violation of the employer's rules, a disregard

[ 66 Pa. Commw. Page 119]

    of the behavioral standards which the employer has a right to expect of an employee, or negligence indicating an intentional disregard of the employer's interests or of the employee's duties and obligations to the employer. Sisack v. Unemployment Compensation Board of Review, 54 Pa. Commonwealth Ct. 366, 367 n. 1, 421 A.2d 512 n. 1 (1980); and sleeping on the job "is prima facie an act of willful misconduct, for it falls within either 'wanton and willful disregard of the employer's interest,' or 'disregard of standards of behavior which an employer can rightfully expect.'" Regland v. Unemployment Compensation Board of Review, 59 Pa. Commonwealth Ct. 48, 50, 428 A.2d 1019, 1020 (1981). Only if there is justifiable or reasonable cause under the circumstances would the willful misconduct taint be purged. See McLean v. Unemployment Compensation Board of Review, 476 Pa. 617, 620, 383 A.2d 533, 535 (1978). The burden, however, of establishing good cause is on the employee. Holomshek v. Unemployment Compensation Board of Review, 39 Pa. Commonwealth Ct. 503, 505, 395 A.2d 708, 709 (1979).

Both the Board and the referee here were unpersuaded by Biggs' testimony that his dozing was justified. The witnesses' credibility and the weight to be accorded to their testimony is for the unemployment compensation authorities to determine. Caterina v. Unemployment Compensation Board of Review, 43 Pa. Commonwealth Ct. 19, 21, 401 A.2d 852, 853 (1979). The authorities may reject any competent testimony, even if uncontradicted, Stockdill v. Unemployment Compensation Board of Review, 28 Pa. Commonwealth Ct. 516, 520, 368 A.2d 1341, 1343 (1977), and their fact findings, if supported by substantial evidence, are conclusive on appeal. Taylor v. Unemployment Compensation Board of Review, 474 Pa. 351, 355, 378 A.2d 829, 831 (1977).

[ 66 Pa. Commw. Page 120]

We also reject Biggs' contention that, the employer not having an established rule against sleeping on the job*fn3 and this being his first peccadillo,*fn4 his behavior did not amount to willful misconduct.

Affirmed.

Order

The decision of the Unemployment Compensation Board of Review, No. B-81-1-R-58, dated April 2, 1982, is affirmed.

Amending Order

And Now, April 19, 1982, the Order dated April 14, 1982, in the above captioned case is hereby amended to read as follows:

The decision of the Unemployment Compensation Board of Review, No. B-81-1-R-58, dated April 2, 1981, is affirmed.

Disposition

Affirmed.


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