Supreme Court’s imposing a “lesser disciplinary penalty” upon remand found to have usurped the authority of the arbitrator under the circumstances

Supreme Court’s imposing a “lesser disciplinary penalty” upon remand found to have usurped the authority of the arbitrator under the circumstances

Fernandez v New York City Tr. Auth., 2016 NY Slip Op 03435, Appellate Division, First Department

In an earlier appeal involving the same parties, the Appellate Division vacated the arbitration award that sustained the New York City Transit Authority's (NYCTA) decision to terminate Carlos Fernandez’s employment.* The Appellate Division then remanded the matter to the Arbitrator for imposition of a lesser penalty.

On remand, however, Supreme Court granted Fernandez’s petition to the extent of restoring him, “upon his successful completion of a medical examination, to his position as a bus operator, with full benefits and accrued vacation running from the date of his reinstatement.”

NYCTA appealed and the Appellate Division “unanimously reversed” the Supreme Court’s action on the law and the facts. The Appellate Division ruled that Supreme Court’s imposing “a lesser penalty” usurped the Arbitrator's authority and the lower court should have remitting the matter to the Arbitrator for a rehearing and new determination as to the appropriate lesser penalty.

The Appellate Division explained that the matter should have been remitted to the original Arbitrator as “there has been no showing that the original Arbitrator is biased or otherwise incapable of carrying out his duties.”

* NYPPL’s summary of the earlier Appellate Division ruling is posted on the Internet at: http://publicpersonnellaw.blogspot.com/2014/08/transcribing-hearing-in-disciplinary.html[In pertinent part, it reports that the penalty imposed by the arbitrator on the employee, termination, was vacated by the Appellate Division and the matter remanded to the arbitrator “for the imposition of a lesser penalty.” In that action the Appellate Division said that the termination of the employee, a NYCTA bus driver for 15 years, with an unblemished record of employment and who had consistently received positive performance evaluations, and had never been disciplined as the sanction “for a single, alleged transgression is grossly excessive and shocks our sense of fairness,” citing Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale and  Mamaroneck, Westchester County, 34 NY2d 222.]

The 2016 decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_03435.htm

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