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

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Arbitration award held to be “irrational and defiescommon sense” for a second time remanded to a different arbitratorSocial Servs. Employees Union Local 371 v City of New YorkAdmin. for Children's Servs., 2012 NY Slip Op 07403, Appellate Division, FirstDepartment
A Child Protection Specialist Supervisor II with the NewYork City Administration for Children's Services (ACS), pleaded guilty to grandlarceny in the fourth degree, for filing false income tax returns usingconfidential ACS client information to fraudulently claim entitlement to stateand 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 tohis former position.
On appeal of the lower court's confirmance, the AppellateDivision vacated the arbitrator's award as "irrational and defies common sense" because"[r]einstated to the position of ACS supervisor, [the employee] againwould have access to the ACS database from which he extracted the informationhe 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 todo so, the arbitrator again restored employee tohis former position.
Supreme Court denied Local 371’s CPLR 7510 petition toconfirm the second award of the arbitrator reinstating the employee to hisformer position and granted the City’s cross petition to vacate the awardinsofar 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 thematter to a different arbitrator for reconsideration of the appropriate penaltyexplaining that it found, “once again and for the same reasons, that thearbitrator's award is irrational and defies common sense,” citing City SchoolDistrict of the City of New York v Campbell, 20 AD3s 313.
Accordingly, the Appellate Division, approving SupremeCourt’s “vacated the award reinstating the grievant,” said that it wasremanding the matter to a different arbitrator only for reconsideration of theappropriate penalty.
* See 56 AD3d 322, 322 [1stDept 2008], lv dismissed 12 NY3d 867.
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2012/2012_07403.htm