                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: October 30, 2014                   518376
________________________________

In the Matter of the Claim of
   GARY I. BORETSKY,
                    Respondent.

NEW YORK CITY TRANSIT                       MEMORANDUM AND ORDER
   AUTHORITY,
                    Appellant.

COMMISSIONER OF LABOR,
                    Respondent.
________________________________


Calendar Date:   September 16, 2014

Before:   Stein, J.P., Garry, Egan Jr., Lynch and Devine, JJ.

                             __________


      Richard Schoolman, New York City Transit Authority, New
York City, for appellant.

     Gary I. Boretsky, New York City, respondent pro se.

                             __________


      Appeal from a decision of the Unemployment Insurance Appeal
Board, filed April 25, 2013, which ruled that claimant was
eligible to receive unemployment insurance benefits.

      Claimant, a train operator for the employer, stopped his
train short of a subway station when he observed a fire on the
track ahead. Relying on the train's "door enabler" – which
allowed claimant to prevent the doors from opening – claimant did
not instruct the train conductor to keep the doors closed as
required. However, the door enabler was inoperable and the
conductor opened the doors, which were immediately closed upon
claimant's direction. Claimant then pulled into the station
without first exiting the train to ensure that no passengers had
                               -2-                518376

fallen onto the railbed and failed to report that the doors had
opened, both of which were also required by the policies of the
employer. He was subjected to disciplinary action and, after a
full evidentiary arbitration hearing conducted under the
collective bargaining agreement, was terminated. The
Unemployment Insurance Appeal Board properly noted that it was
bound by the factual findings of the arbitrator but, after
conducting an "independent evaluation as to whether claimant's
behavior constituted disqualifying misconduct for the purposes of
unemployment insurance," the Board found that the behavior did
not (Matter of Samuels [New York City Tr. Auth.–Commissioner of
Labor], 118 AD3d 1206, 1207 [2014], lv denied 24 NY3d 905
[2014]). This appeal by the employer ensued.

      We reverse.1 "While the Board was free to make
'independent additional factual findings' and draw its own
independent conclusion as to whether claimant's behavior rose to
the level of disqualifying misconduct for purposes of entitlement
to unemployment insurance benefits, it was also bound by the
[arbitrator's] 'factual findings regarding claimant's conduct and
[her] conclusion' that claimant had" committed serious violations
of safety rules (Matter of Winters [Peekskill City Sch.
Dist.–Commissioner of Labor], 109 AD3d 1034, 1034 [2013], quoting
Matter of Guimarales [New York City Bd. of Educ.–Roberts], 68
NY2d 989, 991 [1986]). The arbitrator here found that claimant
had committed grave violations of the employer's policies that
had endangered the safety of his passengers, violations that were
rendered even more egregious by the fact that he had previously
been disciplined for similar conduct. The Board, in contrast,
inexplicably found that claimant had "substantially complied
with" the employer's policies and made no effort to consider
claimant's behavior within the context of his prior disciplinary
history. Thus, as the Board improperly contradicted factual
findings of the arbitrator, remittal is necessary for it to


     1
        As an initial matter, we have not considered additional
evidence submitted by claimant that was not part of the record
before the Board (see Matter of Green [Village of Hempstead–
Commissioner of Labor], 80 AD3d 954, 956 [2011]).
                              -3-                  518376

"reconsider[] upon appropriate findings" (Matter of Lester [Ilion
Water Commn.–Hartnett], 149 AD2d 880, 883 [1989]; see Matter of
Winters [Peekskill City Sch. Dist.–Commissioner of Labor], 109
AD3d at 1035; cf. Matter of Barresi [Sweeney], 232 AD2d 714, 714-
715 [1996]).

      Stein, J.P., Garry, Egan Jr., Lynch and Devine, JJ.,
concur.



      ORDERED that the decision is reversed, without costs, and
matter remitted to the Unemployment Insurance Appeal Board for
further proceedings not inconsistent with this Court's decision.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
