IN RE: the Claim of Israel ACOSTA (1998)

Appeal from a decision of the Unemployment Insurance Appeal Board, filed October 10, 1997, which ruled that claimants were disqualified from receiving unemployment insurance benefits because their employment was terminated due to misconduct.

 Claimants were employed as banquet waiters for the employer for several years.   Suspecting that the employer was illegally calculating and withholding commissions and tips, claimants initiated a lawsuit against the employer.   Thereafter, it was discovered that claimants' attorney was in possession of numerous documents which had been wrongfully obtained from the employer.   Following an arbitration hearing, claimants were discharged from their employment for failing to return the allegedly misappropriated documents as demanded by the employer.   While claimants maintain that the employer failed to clarify which documents it sought to be returned, the record establishes that claimants' attorney had met with the employer's counsel and identified the documents in question.   The Unemployment Insurance Appeal Board, giving collateral estoppel effect to the arbitrator's factual findings, reversed the decision of the Administrative Law Judge and found that claimants' conduct of not returning property belonging to the employer amounted to disqualifying misconduct.   Contrary to claimants' contention, the Board was bound by the factual findings of the arbitrator regarding claimants' conduct given that claimants had a full and fair opportunity to litigate the issue of misconduct at the arbitration hearing (see, Matter of Guimarales [New York City Bd. of Educ.-Roberts], 68 N.Y.2d 989, 510 N.Y.S.2d 558, 503 N.E.2d 113;  Matter of Edie [New York City Tr. Auth.-Commissioner of Labor], 253 A.D.2d 952, 953, 677 N.Y.S.2d 821, 822).   Furthermore, inasmuch as the Board's conclusion that claimants engaged in disqualifying misconduct has a rational basis, it must be upheld (see, Matter of Timmons [Hudacs], 191 A.D.2d 922, 595 N.Y.S.2d 135).   The remaining arguments advanced by claimants have been reviewed and found to be without merit.

ORDERED that the decision is affirmed, without costs.

MEMORANDUM DECISION.