Opinion
Argued December 11, 1980
March 6, 1981.
Unemployment compensation — Scope of appellate review — Burden of proof — Uncontradicted testimony.
1. In unemployment compensation cases, conflicts in testimony are resolved by the Unemployment Compensation Board of Review not the Commonwealth Court of Pennsylvania. [362]
2. An unemployment compensation claimant has the burden of establishing good cause to justify violation of an employer's rule. [362]
3. In an unemployment compensation case, the Unemployment Compensation Board of Review need not accept even uncontradicted testimony as true. [362]
Argued December 11, 1980, before Judges MENCER, ROGERS and BLATT, sitting as a panel of three.
Appeal, No. 1488 C.D. 1979, from the Order of the Unemployment Compensation Board of Review in the case of In Re: Claim of Barbara K. Vasquez, No. B-169836.
Application to the Bureau of Employment Security for unemployment compensation benefits. Application denied. Applicant appealed to the Unemployment Compensation Board of Review. Appeal denied. Applicant appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Michael Goldberg, for petitioner.
John T. Kupchinsky, Assistant Attorney General, with him Richard Wagner, Chief Counsel, and Harvey Bartle, III, Acting Attorney General, for respondent.
Barbara K. Vasquez (claimant) appeals from an order of the Unemployment Compensation Board of Review (Board) which denied her benefits because of willful misconduct, pursuant to 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). We affirm.
The Board made the following findings of fact:
1. The claimant was last employed as a classroom aide by the School District of Lancaster for approximately one and one-half years at a final rate of $3.32 per hour, and her last day of work was June 7, 1978.
2. During the course of her employment, the claimant had a history of tardiness and absenteeism without reporting off.
3. The claimant was counselled and warned about her attendance problems and her failure to report off.
4. The claimant was tardy on May 17, 1978, and on May 24, 1978, she left her assigned work station at noon without reporting her absence to or requesting permission from the proper superior.
5. At a meeting of the School Board on June 23, 1978, the claimant was discharged for her conduct on May 17, 1978 and May 24, 1978, in light of her record.
Claimant first argues that finding of fact 4 is based solely upon hearsay testimony and, therefore, not supported by substantial evidence. We disagree. Claimant herself admitted that she was late on May 17 and that she left her assigned work station at noon. Although there was a dispute over whether claimant reported her absence to the proper superior, conflicts in testimony are resolved by the Board, not this Court. Hinkle v. Unemployment Compensation Board of Review, 9 Pa. Commw. 512, 308 A.2d 173 (1973). We conclude that there is substantial evidence in the record to support this finding.
The school district's representative, who was the director of personnel, testified that the rules required claimant to obtain the approval of the principal before leaving the classroom. Claimant testified that she had reported to her immediate supervisor, the teacher, and that the principal, on past occasions, had permitted such a procedure.
Claimant further argues, however, that her lateness on May 17 was justified because it was due to automotive failure. In this context, claimant has the burden of establishing good cause to justify violation of an employer's rule. Holomshek v. Unemployment Compensation Board of Review, 39 Pa. Commw. 503, 395 A.2d 708 (1979). In light of claimant's admitted history of tardiness, her testimony that most of the instances of tardiness were caused by car problems, and of the fact that the Board need not accept even uncontradicted testimony as true, Lavely Unemployment Compensation Case, 163 Pa. Super. 66, 60 A.2d 352 (1948), we cannot conclude that the Board capriciously disregarded competent evidence. Cf. Scheel v. Unemployment Compensation Board of Review, 42 Pa. Commw. 609, 401 A.2d 417 (1979) (claimant's repeated excuse of mechanical failure was not sufficient to justify her repeated failure to arrive for work on time).
Accordingly, we enter the following
ORDER
NOW, this 6th day of March, 1981, the order of the Unemployment Compensation Board of Review in the above captioned case, dated June 13, 1979, denying benefits to Barbara K. Vasquez, is hereby affirmed.