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Monday, December 10, 2012

Arbitration award held to be “irrational and defies common sense” for a second time remanded to a different arbitrator

Social Servs. Employees Union Local 371 v City of New York Admin. for Children's Servs., 2012 NY Slip Op 07403, Appellate Division, First Department
A Child Protection Specialist Supervisor II with the New York City Administration for Children's Services (ACS), pleaded guilty to grand larceny in the fourth degree, for filing false income tax returns using confidential ACS client information to fraudulently claim entitlement to state and local tax credits.
This matter was ultimately assigned to disciplinary arbitrator Rose F. Jacobs, who imposed a penalty of suspension, after which employee was to be restored to his former position.
On appeal of the lower court's confirmance, the Appellate Division vacated the arbitrator's award as "irrational and defies common sense" because "[r]einstated to the position of ACS supervisor, [the employee] again would have access to the ACS database from which he extracted the information he used to perpetrate his crime."*
The court remanded the matter to the arbitrator for her reconsideration of the penalty to be imposed. Notwithstanding the clear directive by the Appellate Division not to do so, the arbitrator again restored employee to his former position.
Supreme Court denied Local 371’s CPLR 7510 petition to confirm the second award of the arbitrator reinstating the employee to his former position and granted the City’s cross petition to vacate the award insofar as it orders the reinstatement of the employee.
Local 371 appealed and the Appellate Division unanimously agreed with Supreme Court's ruling. It then remanded the matter to a different arbitrator for reconsideration of the appropriate penalty explaining that it found, “once again and for the same reasons, that the arbitrator's award is irrational and defies common sense,” citing City School District of the City of New York v Campbell, 20 AD3s 313.
Accordingly, the Appellate Division, approving Supreme Court’s “vacated the award reinstating the grievant,” said that it was remanding the matter to a different arbitrator only for reconsideration of the appropriate penalty.
* See 56 AD3d 322, 322 [1st Dept 2008], lv dismissed 12 NY3d 867.

The decision is posted on the Internet at:

Reprinted by permission New York Public Personnel Law

Mitchell H. Rubinstein

http://lawprofessors.typepad.com/adjunctprofs/2012/12/arbitration-award-held-to-be-irrational-and-defies-common-sense-for-a-second-time-remanded-to-a-different-arbitrator.html

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