Opinion
October 24, 1967
Appeal by claimant from a decision of the Unemployment Insurance Appeal Board which disqualified him from receiving benefits on the ground that he lost his employment through misconduct in connection therewith (Labor Law, § 593, subd. 3). Appellant asserts that the question involved is whether the record supports a finding of loss of employment through misconduct in connection with the employment when the loss of employment was due solely to an arrest on criminal charges subsequently dismissed; but the question thus framed does not accurately reflect the factual situation properly found by the board nor does it correctly define the issue posed by the appeal. At the first hearing, the employer's vice-president testified that claimant was discharged because of "the information of the police, he was selling narcotics to the people in the place [the employment premises] and book making during working hours"; and that (as is conceded) a list of names of fellow employees and numbers alleged to be a policy or book-making "payoff" slip was taken from claimant's person when he was arrested. This same witness then and subsequently testified that prior to the receipt of any information from the police he had at various times observed claimant with a list of names and had seen other employees pay money to him and at those times had considered the "possibility" that claimant was engaged in book-making while at work. Testifying before the Unemployment Insurance Appeal Board, claimant advanced at least three different explanations of the entries upon the slip. A full and complete record was developed by the board and the evidence clearly supports the board's finding of claimant's misconduct in connection with his employment, warranting his discharge. The board was also correct in holding that the dismissal of the criminal charge (under Penal Law, § 986-b) did not foreclose the board from finding misconduct on the evidence adduced before it, as it properly did. Interestingly enough, both briefs allude to the finding of the arbitrator in the arbitration proceeding between claimant's union and the employer that claimant's "conduct * * * constituted sufficient and reasonable cause for [his] discharge." Decision affirmed, without costs. Gibson, P.J., Herlihy, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Gibson, P.J.