Zalmar Berlin had been a lecturer in a nontenure position in the Brooklyn College art department between 1964 and 1967. She was appointed as an instructor for the academic year 1967-68 and was reappointed for the two succeeding academic years. Appointment for a fourth year would automatically confer tenure upon her. (Education Law, § 6206.)
By letter of October 30, 1969, she was notified by the chairman of the art department that the departmental appointments committee had voted not to recommend her for reappointment.
She then instituted grievance procedures pursuant to a collective bargaining agreement, alleging violations of the Board of Higher Education by-laws, etc., with respect to evaluation procedures. It is conceded that the requirements for observation of instructors, evaluation conferences, and the opportunity to comply with criticism, etc., pursuant to the rules, were not followed in her case. She also charged discrimination against women.
In accordance with appropriate grievance procedures, the Bresident of Brooklyn College decided against Ms. Zalmar Berlin at Step 1 level, and the designee of the Chancellor, Vice-Chancellor Bernard Mintz, decided against her at Step 2. She then went on to arbitration, and it' is the award of the arbitrator, confirmed by the court at Special Term, which is the subject *483of this appeal by the respondent Board of Higher Education of the City of New York.
At Step 2, the Vice-Chancellor decided that she should resign and then be appointed as a full time lecturer for a single terminal year at a salary substantially the same. The effect of this was to recognize that the usual evaluation procedures had not been followed and to provide that Ms. Berlin, rather than being in a sense fired, start over as a lecturer.
The arbitrator decided in her favor and directed that she be reappointed as an instructor for the next academic year, the effect of which would be to give her tenure.
The board contends that the arbitrator had no power thus to do because a Nota Bene attached to the Formal Procedure for Handling Grievances (§ 6.4) contains the following sentence: ‘ ‘ In such case the power of the arbitrator shall be limited to remanding the matter for compliance with established procedures.” (Cf. Board of Educ. of Union Free School Dist. No. 3 v. Associated Teachers of Huntington (36 A D 2d 753 [2d Dept., 1971], mod. 30 N Y 2d 122).
It seems incongruous that an arbitration should be had, attended by counsel for both sides and the vice-chancellor for administration of the board and his assistant, as well as the dean of faculty at Brooklyn College, the co-ordinator for faculty labor relations, and the former chairman of the art department of Brooklyn College, as well as the chairman (chairlady, as the case happens to be, Professor Belle Zeller) of the Legislative Conference, its executive director, and also the chairman of its Grievance Committee, simply to come to the conceded conclusion that the Board of Higher Education did not enforce its rules in the first place, and that it could only be told now that there must be “ compliance with established procedures ”.
The same Nota Bene has the following last sentence: “In the event that the grievant finally prevails, he shall be made whole.” This the arbitrator did in the only way possible by directing that the instructor be reappointed.
The board objects to what amounts to granting tenure by default, contending that the solution does not fit the nonfeasance, and it offers to follow a course, which the majority adopts, which would start Ms. Berlin through a new series of appointments in a corresponding position as to which, hopefully, there may be compliance with procedure.
We do not pass upon the instructor’s qualifications, although it may be pointed out that she was employed at the college for a long time, and that it was only within reach of the finish line *484that she was brought up short. We do, however, affirm the judgment confirming the arbitration award. The offer made by the board, while possibly satisfactory from a settlement point of view, gives no assurance that procedures will be followed, and it would require the instructor to retrace her employment route. What’s more, she does not accept the offer, which leaves us with no alternative other than to direct a reappointment or to adopt the default of the Boárd of Higher Education in following its own rules as a natural concomitant of its existence.
When criminal law standards of justice and due process are not followed, even malefactors go free. (See Criminal Law of New York, by Henry B. Rothblatt, ch. 24, Suppression of Evidence [1971]; A New York Criminal Law Refresher, by J. Irwin Shapiro, 37 Brooklyn L. Rev. 35 [1970].)
If ‘ ‘ the grievant finally prevails ’ ’, as here, she should be reappointed.
Stevens, P. J., concurs with McGivern, J.; McNally, J., concurs in the result in an opinion; Kupferman, J., dissents in an opinion, in which Tilzer, J., concurs.
Judgment, Supreme Court, New York County, entered on or about June 19, 1971, modified, on the law, by striking from the last paragraph of the judgment the words ‘ ‘ and the respondent is hereby directed to reappoint Zalmar Perlin retroactively to her position as Instructor of Art in Brooklyn College for the academic year 1970-1971 ” and by providing that the following quoted words be struck from the award of the arbitrator: ‘ ‘ and which requires that she shall be reappointed as an Instructor for the academic year 1970-1971 to effectuate the remand and to make Miss Perlin whole in accordance with the Section 6.4 Nota Bene.” As so modified, the judgment is otherwise affirmed, without costs and without disbursements.