There is substantially no dispute as to the facts. It is primarily an interpretation of the terms of a contract and its application to the Unemployment Insurance Law (Labor Law, art 18).
The test of rationality (substantial evidence) must take into account the legislative intent to compensate the “innocent victim” of unemployment. It is admitted that the contract of employment requires time off equivalent to overtime time. To say that the result is “unemployment” is unrelated to reality since these are the terms contracted for. At the very least the claimant is on a period of agreed time *297off without salary. However, he has neither lost his employment nor been paid money previously earned. In all actuality he is fully employed but need not physically report to work.
It is certain that on an annual basis the claimant is receiving the entire compensation contracted for as commissions plus time off at an hourly rate.
His seniority is not altered; he continues to accumulate vacation credits; receives paid vacation unrelated to the traded time system and the employer continues to make pension and welfare contributions on the employee’s behalf.
Affirming the board in this case is to embrace the theory that, as a matter of law, compensatory time off is the equivalent of unemployment and that the contract of employment may be simply disregarded. While contracts are not binding on the board as to the substance of the employment relationship, the present record contains no evidence whereby it can be disregarded as to route drivers.
To uphold the board, in my opinion, establishes an unwarranted extension of the Unemployment Insurance Law and is in complete disregard of subdivision 1 of section 591 of the Labor Law which provides in part: “Benefits shall be paid only to a claimant who is totally unemployed”. (See Matter of Van Teslaar [Levine], 35 NY2d 311, 315, 316.)
The decision of the board is arbitrary and capricious and lacks the support of substantial evidence. Accordingly, it should be reversed.
Sweeney, J. R, Kane and Casey, JJ., concur with Main, J.; Herlihy, J., dissents and votes to reverse in a separate opinion.
Decision affirmed, without costs.