Thursday, August 8, 2013

NEW YORK UNEMPLOYMENT INSURANCE - MISCONDUCT

The question of whether to have arbitration as per union contract first or unemployment insurance hearing has been recently addressed by the Appellate Division, Third Department:

IN THE MATTER OF THE CLAIM OF CHOHAN v. COMMISSIONER OF LABOR, 515899 (3d Dept 7-11-2013)

2013 NY Slip Op 05280

In the Matter of the Claim of ADIL J. CHOHAN, Appellant v. COMMISSIONER OF
LABOR, Respondent.

515899

Appellate Division of the Supreme Court of New York, Third Department.

Calendar Date: June 6, 2013 Decided and Entered: July 11, 2013

Appeal from a decision of the Unemployment Insurance Appeal Board, filed
March 8, 2012, which ruled that claimant was disqualified from receiving
unemployment insurance benefits because his employment was terminated due to
misconduct.

Adil J. Chohan, Coram, Appellant Pro Se.

Before: PETERS, P.J., LAHTINEN, McCARTHY and EGAN JR., JJ.

  MEMORANDUM AND ORDER

  Claimant, a mail carrier, lost his employment following an incident
whereby he was found to have left the employer's vehicle unattended with the
engine running in violation of the employer's known policy. Claimant
contested his discharge and, following an evidentiary hearing, an arbitrator
concluded that there was just cause for his termination. The Unemployment
Insurance Appeal Board subsequently ruled that claimant was disqualified
from receiving unemployment insurance benefits on the basis that he lost his
employment due to misconduct. This appeal ensued.

  We affirm. Significantly, "as there was a full and fair opportunity to
litigate the issue in the prior proceeding, collateral estoppel effect must
be given to the arbitrator's factual findings regarding claimant's
misconduct" (Matter of Redd [Commissioner of Labor, 98 AD3d 791, 791 [2012],
lv denied20 NY3d 857 [2013] [internal quotation marks and citation omitted];
see Matter of Mordukhayev [Commissioner of Labor], 104 AD3d 1005, 1006
[2013]). Here, inasmuch as the Board appropriately took into account the
arbitrator's factual findings and made "an independent evaluation as to
whether that conduct constitutes `misconduct' for the purposes of
unemployment insurance" (Matter of Nwaozor [City of New York — Commissioner
of Labor], 82 AD3d 1475, 1475 [2011]), we find no basis to disturb the
Board's ruling. While claimant maintains that, at worst, the alleged conduct
constituted an excusable error in judgment, the Board disagreed, noting that
claimant had been counseled by the employer prior to this incident "for
various safety violations." Notably, "[a] claimant's disregard of an
employer's established procedures and policies, particularly where it is
potentially detrimental to the employer's best
Page 2
interest" (Matter of Song [Commissioner of Labor], 105 AD3d 1241, 1241
[2013]), may, as in this instance, be sufficient to constitute disqualifying
misconduct (see Matter of Cedrone [Warren County Head Start ACC Childcare
Ctr. — Commissioner of Labor], 69 AD3d 1251, 1252 [2010]).

  Peters, P.J., Lahtinen, McCarthy and Egan Jr., JJ., concur.

  ORDERED that the decision is affirmed, without costs.

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