53 A.D.2d 950 (1976)

In the Matter of the Claim of Daniel Levick, Appellant. Philip Ross, as Industrial Commissioner, Respondent

Appellate Division of the Supreme Court of the State of New York, Third Department.

July 8, 1976

The board found that on two separate occasions the claimant made threatening and intimidating remarks about his employer's executive director. These findings are supported by substantial evidence and cannot be disturbed (Labor Law, § 623; Matter of Fisher [Levine], 36 N.Y.2d 146). The evidence was in conflict, but resolution of the conflict and credibility of witnesses is within the exclusive province of the board (Matter of Phelka [Levine], 41 A.D.2d 982; Matter of Lester [Catherwood], 30 A.D.2d 1025). An employee's threats and insults to his supervisor constitute misconduct within the meaning of subdivision 3 of section 593 of the Labor Law (Matter of Hoh [Levine], 39 A.D.2d 620; Matter of Kreager [Catherwood], 34 A.D.2d 1033). At claimant's request, his union instituted an arbitration proceeding against his employer to contest his discharge. In that proceeding, the arbitrator found that disciplinary action against claimant was warranted, but that in view of claimant's length of service (about nine years) discharge was an excessive penalty and the arbitrator ordered claimant reinstated to his employment without pay. The claimant contends on the appeal that the board failed to properly consider the effect of the binding arbitration award involving the same occurrence, which set aside the claimant's discharge and reduced the penalty to suspension without pay. The denial of unemployment benefits during the period of claimant's suspension is consistent with the award. The award determined that a penalty of loss of wages for claimant's misconduct in his employment was warranted. The board was correct in not awarding unemployment benefits to reduce the penalty established by the award. Matter of Slade (Levine), (41 A.D.2d 800) is not in conflict with the board's determination. In Slade, this court did not hold that benefits are mandated for the period of claimant's suspension. In Slade, after the claimant was reinstated with total loss of pay during suspension and returned for work, there was no work available as his employer was going out of business. The claimant then became unemployed and eligible for benefits.

Decision affirmed, without costs.


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