Opinion
Argued September 8, 1980
October 8, 1980.
Unemployment compensation — Findings of fact — Substantial evidence — Unemployment Compensation Law, Act 1936, December 5, P.L. (937) 2897 — Wilful misconduct — Violation of rules — Sleeping on the job.
1. Findings of fact of the Unemployment Compensation Board of Review supported by substantial evidence are binding on a reviewing court. [221]
2. An employe discharged for sleeping on the job in violation of rules of the employer is properly found to have been discharged for wilful misconduct, precluding his receipt of benefits under the Unemployment Compensation Law, Act 1986, December 5, P.L. (1937) 2897. [221-2]
Argued September 8, 1980, before Judges WILKINSON, JR., ROGERS and CRAIG, sitting as a panel of three.
Appeal, No. 812 C.D. 1979, from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Gussie Johnson, No. B-170130.
Application to the Bureau of Employment Security for unemployment compensation benefits. Application denied. Applicant appealed to the Unemployment Compensation Board of Review. Denial affirmed. Applicant appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Clinton L. Johnson, for petitioner.
Elsa D. Newman-Silverstine, Assistant Attorney General, with her Richard Wagner, Chief Counsel, and Harvey Bartle, III, Acting Attorney General, for respondent.
Petitioner (claimant) appeals from an order of the Unemployment Compensation Board of Review (Board) affirming the referee's denial of benefits 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).
Claimant was employed as a truck driver by the County of Delaware (employer) until November 1, 1978. On that day claimant was discharged for sleeping while on duty, which action violated an express provision of the labor-management agreement governing claimant's job. Further, claimant was aware of the express work rule which he violated.
Claimant contests his notice of the specific rule violated and certain other factual matters found by the Board. However, as the Board's findings of fact are supported by substantial evidence in the record, the findings are binding on us. Hill v. Unemployment Compensation Board of Review, 52 Pa. Commw. 141, 415 A.2d 711 (1980).
In particular the claimant asserts that at the time he was found sleeping he was on his lunch break. This is contrary to the claimant's testimony that he had returned from his lunch break and was "sitting in the chair, waiting until, you know, the truck gets loaded, and you have to pull it up."
Beyond violating an express work rule, sleeping on the job constitutes a wanton or willful disregard of the standards of behavior that an employer has the right to expect of his employees, or negligence which manifests culpability, wrongful intent or evil design exhibiting an intentional and substantial disregard of the employer's interest or the employees' duties and obligations to the employer. Markley v. Unemployment Compensation Board of Review, 47 Pa. Commw. 148, 407 A.2d 144 (1979). In Markley the Court stated:
the employer twice found the claimant sleeping during working hours and expressed his dissatisfaction, and we have previously held that absent proof that the employer either permits or tolerates sleeping at work, such conduct constitutes willful misconduct.
Id. at 151, 407 A.2d at 146.
In Unemployment Compensation Board of Review v. Simone, 24 Pa. Commw. 248, 355 A.2d 614 (1976), this Court was previously presented with the appeal of a truck driver terminated for sleeping while on duty. There, as here, the employee asserted a period of forced idleness. The Court stated:
Even if Simone could show that his sleeping occurred only during a period of slack time or forced idleness, that would not be sufficient to sustain his burden. As a matter of public policy, an employer has a right to expect that his employees will not go to sleep when they have a short period of forced idleness.
Id. at 251, 355 A.2d at 616.
Accordingly, we will enter the following
ORDER
AND NOW, October 8, 1980, the order of the Unemployment Compensation Board of Review, Decision No. B-0170130, dated March 16, 1979, affirming the denial of Benefits to Gussie Johnson is affirmed.