In re the Claim of Llano

Appeal from a decision of the Unemployment Insurance Appeal Board, filed June 3, 1975 and resettled June 16, 1975, disqualifying claimant from benefits because he lost his employment through misconduct, and imposing a forfeiture because of a willful misstatement to obtain benefits. Claimant, a machine operator, was discharged for reporting to work with the odor of alcohol on his breath after having previously been warned not to do so. In a prior appeal (Matter of 621 Llano [Levine], 46 AD2d 841), we remitted this case to the appeal board for a determination of whether claimant’s conduct constituted misconduct in the light of Matter of James (Levine) (34 NY2d 491). On the present record, there is no evidence that claimant was guilty of drinking on the job. In fact, the board has specifically found that claimant’s consumption of alcohol occurred on the previous evening. There is no evidence that claimant was intoxicated, or in any way impaired so as to create a dangerous situation or affect his ability to function. In Matter of James (Levine) (supra, p 497), by contrast, the claimant reported to work "under the influence of alcohol”. Moreover, the claimant in James was in a position where she had contact with customers. Here, there is no testimony that claimant had contact with customers or made the working environment unpleasant for coemployees, and the board has not found that the mere odor on claimant’s breath adversely affected the employer’s interests (see Matter of Paulsen [Cather-wood] 27 AD2d 493). In fact, claimant has testified without contradiction that he was not discharged until the end of the work day, which suggests that claimant’s "condition” was not adverse to his employer’s interests. It may well be said that claimant’s personal traits provided a basis for discharge, but unless those traits rise to the level of misconduct, they are not a proper basis for the denial of unemployment insurance benefits (see Matter of Raven [Levine] 40 AD2d 128, 129). Decision reversed, with costs, and matter remitted to the Unemployment Insurance Appeal Board for further proceedings not inconsistent herewith. Herlihy, P. J., Greenblott, Sweeney, Koreman and Main, JJ., concur.