In re the Claim of Solanikow , 67 A.D.2d 793 ( 1979 )

— Appeal from a decision of the Unemployment Insurance Appeal Board, filed April 12, 1977, which disqualified claimant from receiving unemployment insurance benefits. Claimant commenced work with the employer as a laborer on October 27, 1976. He worked a five-day week commencing each day at 4:00 a.m. at the unloading area. Claimant was absent from work on November 29, November 30 and December 1, 1976. Claimant did not call his employer on November 29, 1976, but contends he called on November 30, 1976, and told the operator that he was sick, but he did not speak to his supervisor. He returned to work on December 2, 1976 at 4:00 a.m. and when his supervisor became aware he was working, he discharged him at 5:30 a.m. because he absented himself from his employment without notification to the employer as required by the company rules that any employee unable to work must call his supervisor each day. Claimant knew that he had to call his employer in the event of absence from work. At the hearing, claimant testified as follows: "Q. Alright, [sic] now, what do you know yourself if you’re going to be absent, what are you supposed to do? A. I have to call in the company. Q. You didn’t call the first day, is that right? A. I called the second day. Q. Why didn’t you call the first day? A. I was in doctor. Q. So what difference does that make? You started at 4 o’clock in the morning? A. Right. Q. You can’t get to the doctor at 4 o’clock in the morning. A. I go to a doctor at 9 o’clock. Q. 9 o’clock? A. Yes. Q. So from 4 o’clock until 9 o’clock why didn’t you call the company? A. I don’t know, sir. I no call because I think I have to go to doctor. After — after doctor, I call company, it was not too late.” The employer called as a witness, Samuel Grossman, the accounting manager. He testified that an employee who called about an absence was supposed to talk directly to the supervisor which was company policy, and that he was sure claimant knew the company policy. He further testified that the reason claimant was discharged, "Well, I think the big reason, and this is my personal opinion, is the fact that he smelled of alcohol.” This conclusion is based upon the fact that claimant allegedly appeared at Grossman’s office about 8:15 a.m. on December 2, 1976, and acted belligerent with loud behavior. The time was corrected by the witness to 2:00 p.m. or 3:00 p.m. in the afternoon when claimant came for his check, and that claimant smelled of alcohol when the witness drew the check. Grossman testified that at the time claimant came for his check, "He was already fired, true, but if the man wasn’t belligerent and smelled of alcohol, it might have worked out.” It is obvious that claimant was discharged at 5:30 a.m. on December 2, 1976, and that the discharge was by reason of his conduct in failing to notify his employer of absences on the three successive days. The board has repeatedly held that under similar circumstances, a claimant should be denied unemployment benefits because he was discharged from his employment for misconduct. At the time of claimant’s discharge, the evidence upon which his discharge was based constituted substantial evidence, and the board’s determination of misconduct based on such substantial evidence, must be affirmed (Matter of Markowitz [Levine], 51 AD2d 619; Matter of Mankowski [Levine], 50 AD2d 962; Matter of Patterson [Levine], 50 AD2d 703). Decision affirmed, without costs. Greenblott, J. P., Staley, Jr., and Main, JJ., concur.