Arbitrator erred in refusing to consider evidence of blood alcohol content

The cba between the Monroe County Sheriff's office and the Monroe County Deputy Sheriff's Association provided that in reviewing disciplinary action, "the arbitrator shall review the record of the disciplinary hearing and determine if the finding of guilt was based upon clear and convincing evidence."

Grievant, a Deputy Sergeant, was terminated after his involvement in a one car, rollover accident, after which it was determined that he was driving while intoxicated. He was charged with five violations:

(1) failure to obey Vehicle and Traffic Law § 1192 (3), DWI; (2) failure to obey Vehicle and Traffic Law § 1192 (2-a) (a), aggravated DWI with a blood alcohol content of .18 percent or greater; (3) failure to obey Vehicle and Traffic Law § 1192 (2-a) (b), aggravated DWI with a child in the car; (4) failure to obey Penal Law § 260.10 (1), endangering the welfare of a child; and (5) engaging in conduct unbecoming of his position.

A disciplinary hearing was conducted during which grievant was represented by the Sheriffs' Association. The hearing panel unanimously sustained all five charges. On review, the arbitrator found certain evidence, including the chemical test establishing grievant's blood alcohol content at .18 percent, was inadmissible.  As a result, the arbitrator dismissed charges 1 and 5. On the remaining charges, the arbitrator found that other employees engaging in similar conduct had not been terminated, and reduced the termination to a demotion. 

The Sheriff's Office appealed the award, and the trial court vacated the award, finding that the arbitrator had exceeded his authority by improperly neglecting to consider evidence received at the disciplinary hearing. Accordingly it vacated the award and ordered a rehearing before a different arbitrator. 

On the Union's appeal the Appellate Division has recently affirmed the lower court's decision. The Court held:

...we conclude that the arbitrator clearly exceeded his authority as provided by the CBA. The CBA mandated that "[t]he arbitrator shall review the record of the disciplinary hearing and determine if the finding of guilt was based upon clear and convincing evidence." Rather than comply with that mandate and review the record from the hearing, the arbitrator considered a portion of the record only, deciding to exclude certain evidence from his review. Having failed to review that which he was required to review, the court properly concluded that the arbitrator exceeded his authority and vacated the arbitration award ...

The court also rejected the Union's claim that the court erred in ordering a rehearing before a different arbitrator.

The Court's opinion can be found here.