ARBITRATION
DECISION NO.:
522
UNION:
OCSEA, Local 11, AFSCME, AFL-CIO
EMPLOYER:
Civil Rights Commission
Cleveland Regional Office
DATE OF
ARBITRATION:
November 4, 1993
DATE OF
DECISION:
November 16, 1993
GRIEVANT:
Lon Brown
OCB
GRIEVANCE NO.:
06-04-(92-12-14)-0022-01-14
06-04-(93-03-04)-0002-01-14
ARBITRATOR:
Mollie H. Bowers
FOR THE
UNION:
Steve Lieber, Staff Rep.
FOR THE
EMPLOYER:
Sharon Hilliard, Advocate
Rodney Sampson, 2nd Chair
KEY WORDS:
EAP
Just Cause
Progressive Discipline
Suspension
ARTICLES:
Article 2 - Non-Discrimination
§ 2.01 -
Non-Discrimination
§ 2.02 -
Agreement Rights
Article 5 - Management Rights
Article 9 - Employee Assistance Program
§ 9.01 - Joint
Promotion
§ 9.02 - EAP
Advisory Committee
§ 9.03 - EAP
Steward Training
§ 9.04 - Employee
Participation in EAP
Article 24 - Discipline
§ 24.01 -
Standard
§ 24.03 -
Supervisory Intimidation
§ 24.05 -
Imposition of Discipline
§ 24.09 -
Employee Assistance Program
FACTS:
The grievant, a
Civil Rights Representative for OCRC, was suspended for three days in February
of 1992 and for five days on December 8, 1992 for allegedly violating work
rules pertaining to tardiness and extended lunch breaks.
On February 18,
1993, the grievant was suspended for ten days for violation of the same work
rules. In addition, from July 1989
through September 15, 1992, the grievant was disciplined for thirteen other
incidents involving absenteeism, tardiness, and failure of good behavior.
Prior to all of
this, on September 29, 1990, the grievant and OCRC entered into an EAP
agreement which held in abeyance discipline that had been proposed for
tardiness. The grievant violated the
agreement and thus received discipline for some of his prior tardiness. When his problems continued, the grievant
claimed that he was having personal and family problems and on December 2,
1992, he completed a Request for Reasonable Accommodation Form whereon he
stated that his problem was alcohol dependence. During this time period the grievant made additional requests for
EAP. On December 7, 1992, the grievant
received a memo indicating that any leave time for wellness counseling would be
granted so long as documentation was substantiated and that the grievant made
sure he had time to cover the absence.
The Union brought
forth this grievance claiming that the five and ten day suspensions (December
8, 1992 and February 18, 1993) should not be upheld because the grievant had
been denied access to EAP.
EMPLOYER'S
POSITION:
The state claimed
that the five and ten day suspensions were for just cause. The instances which gave rise to the
discipline are undisputed. The state
stressed that the grievant was aware of the progressive discipline procedures
for violations of work rules and that no claim had been made that these rules
are unreasonable.
The state pointed
out that it made a good faith effort to help the grievant and afforded him an
EAP agreement in 1990, holding two disciplinary actions in abeyance despite the
fact that the grievant continued to be tardy and failed to meet deadlines. Thus, the state argued, the appropriate
response to the grievant's Request for Accommodation was to afford him leave
without pay to attend wellness counseling.
UNION’S
POSITION:
The union
contended that the state did not conduct a fair and objective investigation and
consequently failed to meet one of the essential elements of proving just
cause. It also asserted that most of
the infractions which gave rise to the ten day suspension occurred while the
five day suspension was being processed, which meant that the grievant was
wrongfully denied an opportunity to correct his behavior between disciplinary
actions.
The union further
argued that the state violated the Americans With Disabilities Act and Article
24.09 of the contract by failing to afford reasonable accommodation and by
denying the grievant's repeated requests for EAP. As a remedy, the union asks that the grievances be sustained,
that the discipline be rescinded and that the grievant be made whole for all
lost wages and benefits.
ARBITRATOR'S
OPINION:
The state
provided sufficient evidence to prove just cause for the five and ten day
suspensions. The union failed to
provide any support for its allegation that a full and fair investigation was
lacking with respect to either suspension.
Given that the
grievant had tardiness and attendance-related problems prior to the imposition
of the two suspensions, the Arbitrator held that the grievant was on notice
that he had to correct his behavior.
The grievant had been progressively disciplined to the level of a five
day suspension and knew or should have known by that time that his attendance
problems had to be corrected or more severe discipline would result. Thus, the grievant was not wrongfully denied
an opportunity to correct his behavior between the two disciplinary actions in
question.
The Arbitrator
further found that the state did not single out the grievant. The action was consistent with the state's
consistent efforts to enforce lunch and break schedules and although some other
people had gotten more than one chance at EAP, the evidence did not show that
the grievant had been subjected to disparate discipline as compared to anyone
else who was similarly situated. The
state did not violate the contract by refusing to enter into a second EAP
agreement.
Finally, the
Arbitrator concluded that the state did not violate the Americans With
Disabilities Act by refusing the grievant reasonable accommodation for his
problem with alcohol. To the contrary,
the evidence shows that the state reasonably accommodated the grievant's
disability by allowing him leave without pay to pursue wellness
activities. The term "reasonable
accommodation" does not mean that the employer loses the right to control
the workforce, including the requirement that employees account for their time
during scheduled hours.
AWARD:
The grievances
are denied and the suspensions upheld.
TEXT OF
THE OPINION:
IN THE MATTER OF THE ARBITRATION BETWEEN
Ohio Civil Rights Commission
-and-
Ohio Civil Service Employees Association,
AFSCME Local 11, AFL-CIO
Grievance No.s:
06-04-921214-0022-01-14
06-04-930304-0002-01-14
ARBITRATOR:
Mollie H.
Bowers
APPEARANCES:
For the State:
Sharon
Hilliard, Advocate
Rodney
Sampson, Second Chair
Terry
Crawford, Labor Relations Officer, OCRC
Eva Bess,
Supervisor, OCRC
Nancy
Stir, Manager, Human Resources, OCRC
For the Union:
Steve
Lieber, Staff Representative
Lon Brown,
Grievant
The Hearing was
held on November 4, 1993, at 9:00 a.m. in Conference Room 703 at the Office of
Collective Bargaining in Columbus, Ohio.
Both parties were represented at this proceeding. They had a full and fair opportunity to
present evidence and testimony in support of their case and to cross-examine
that presented by the other party.
At the outset of
the Hearing, the Ohio Civil Rights Commission (hereinafter, "the
State" or "the OCRC”), the Ohio Civil Service Employees Association,
AFSCME Local 11, AFL-CIO (hereinafter, "the Union") and Mr. Lon Brown
(hereinafter, "the Grievant") agreed to consolidate the grievances
over his five and ten day suspensions into one proceeding.
ISSUE
The
parties stipulated to the following issues:
Were the
five and ten day suspensions imposed upon the Grievant for just cause?
If not, what
should the remedy be?
RELEVANT CONTRACT CLAUSES AND RULES
CONTRACT CLAUSES
ARTICLE 2
- NON DISCRIMINATION
2.01 -
Non-Discrimination
Neither the
Employer nor the Union shall discriminate in a way inconsistent with the laws
of the United States or the State of Ohio or Executive Order 83-64 of the State
of Ohio on the basis of race, sex, creed, color, religion, age, national
origin, political affiliation, handicap or sexual orientation. Nor shall either party discriminate on the
basis of family relationship. The
Employer shall prohibit sexual harassment and take action to eliminate sexual
harassment in accordance with Executive Order 87-30, Section 4112 of the Ohio
Revised Code, and Section 703 of Title VII of the Civil Rights Act of 1964 (as
amended).
The Employer
shall not solicit bargaining unit employees to make political contributions or
to support any political candidate, party or issue.
2.02 -
Agreement Rights
No employee shall
be discriminated against, intimidated, restrained, harassed or coerced in the
exercise of rights granted by this Agreement, nor shall reassignments be made
for these purposes.
ARTICLE 5
- MANAGEMENT RIGHTS
Except to the
extent expressly abridged only by the specific articles and sections of this
Agreement, the Employer reserves, retains and possesses, solely and
exclusively, all the inherent rights and authority to manage and operate its
facilities and programs. Such rights
shall be exercised in a manner which is not inconsistent with this
Agreement. The sole and exclusive
rights and authority of the Employer include specifically, but are not limited
to, the rights listed in The Ohio Revised Code, Section 4117.08(C), Numbers
1-9.
ARTICLE 9
- EMPLOYEE ASSISTANCE PROGRAM
9.01 -
Joint Promotion
The Employer and
the Union recognize the value of counseling and assistance programs to those
employees who have personal problems which interface with their job duties and
responsibilities. The Union and the
Employer, therefore, agree to continue the existing EAP and to work jointly to
promote the program.
9.02 - EAP
Advisory Committee
The parties agree
that there will be a committee composed of nine (9) union representatives that
will meet with and advise the Director of the EAP. This committee will review the program and discuss specific
strategies for improving access for employees.
Additional meetings will be held to follow up and evaluate the
strategies. The EAP shall also be an
appropriate topic for Labor-Management Committees.
9.03 - EAP
Steward Training
The Employer
agrees to provide orientation and training about the EAP to union
stewards. All new stewards shall
receive EAP training within a reasonable time of their designation. Such training shall deal with the central
office operation and community referral procedures. Such training will be held during regular working hours. Whenever possible, training will be held for
stewards working second and third shifts during their working time. If the Employer initiates programmatic
changes which would impact upon the EAP programs, all stewards shall receive
training on the new program within a reasonable time.
9.04 -
Employee Participation in EAP
A. Records regarding treatment and
participation in the EAP shall be confidential. No records shall be maintained in the employee's personnel file
except those that relate to the job or are provided for in Article 23. In cases where the employee and the Employer
have entered into a voluntary EAP participation agreement in which the Employer
agrees to defer discipline as a result of employee participation in the EAP
treatment program, the employee shall be required to waive confidentiality to
the extent required to provide the Employer with reports regarding compliance
or non-compliance with the EAP treatment program.
B. If an employee has exhausted all available
leave and requests time off to have an initial appointment with a community
agency, the Agency shall provide such time off without pay.
C. The Employer or its representative shall not
direct an employee to participate in the EAP.
Such participation shall be strictly voluntary.<PAGE NAME="4">
D. Seeking and/or accepting assistance to
alleviate an alcohol, other drug, behavioral or emotional problem will not in
and of itself jeopardize an employee's job security or consideration for
advancement.
ARTICLE 24
- DISCIPLINE
24.01 -
Standard
Disciplinary
action shall not be imposed upon an employee except for just cause. The Employer has the burden of proof to
establish just cause for any disciplinary action. In cases involving termination, if the arbitrator finds that
there has been an abuse of a patient or another in the care or custody of the
State of Ohio, the arbitrator does not have authority to modify the termination
of an employee committing such abuse.
Employees of the Lottery Commission shall be governed by O.R.C. Section
3770.02.
24.03 -
Supervisory Intimidation
An Employer
representative shall not use the knowledge of an event giving rise to the
imposition of discipline to intimidate, harass or coerce an employee.
In those
instances where an employee believes this section has been violated, he/she may
file a grievance, including an anonymous grievance filed by and processed by
the Union in which the employee's name shall not be disclosed to the Employer
representative allegedly violating this section, unless the Employer determines
that the Employer representative is to be disciplined.
The Employer
reserves the right to reassign or discipline Employer representatives who
violate this section.
Knowingly making
a false statement alleging patient abuse when the statement is made with the
purpose of incriminating another will subject the person making such an
allegation to possible disciplinary action.
24.05 -
Imposition of Discipline
The Agency Head
or, in the absence of the Agency Head, the Acting Agency Head shall make a
final decision on the recommended disciplinary action as soon as reasonably
possible but no more than forty-five (45) days after the conclusion of the
pre-discipline meeting. At the
discretion of the Employer, the forty-five (45) day requirement will not apply
in cases where a criminal investigation may occur and the Employer decides not
to make a decision on the discipline until after disposition of the criminal
charges.
The employee
and/or union representative may submit a written presentation to the Agency
Head or Acting Agency Head.
If a final
decision is made to impose discipline, the employee and Union shall be notified
in writing. The OCSEA Chapter President
shall notify the agency head in writing of the name and address of the Union
representative to receive such notice.
Once the employee has received written notification of the final
decision to impose discipline, the disciplinary action shall not be increased.
Disciplinary
measures imposed shall be reasonable and commensurate with the offense and
shall not be used solely for punishment.
The Employer will
not impose discipline in the presence of other employees, clients, residents,
inmates or the public except in extraordinary situations which pose a serious,
immediate threat to the safety, health, or well-being of others.
An employee may
be placed on administrative leave or reassigned while an investigation is being
conducted, except that in cases of alleged abuse of patients or others in the
care or custody of the State of Ohio, the employee may be reassigned only if
he/she agrees to the reassignment.
24.09 -
Employee Assistance Program
In cases where
disciplinary action is contemplated and the affected employee elects to
participate in an Employee Assistance Program, the disciplinary action may be
delayed until completion of the program.
Upon successful completion of the program, the Employer will meet and
give serious consideration to modifying the contemplated disciplinary
action. Participation in an EAP program
by an employee may be considered in mitigating disciplinary action only if such
participation commenced within five (5) days of a predisciplinary meeting or
prior to the imposition of discipline, whichever is later. Separate disciplinary action may be
instituted for offenses committed after the commencement of an EAP program.
DISCIPLINARY GRID
Violation 1st 2nd 3rd 4th
10. Extending Break or Oral Written Suspension Removal
lunch period without
authorization.
12. Unexcused tardiness Oral Written Suspension Removal
or leaving work early.
BACKGROUND
The Grievant
began work for the OCRC on April 25, 1989, and was a Civil Rights
Representative (or Investigator II) at the time the events occurred which gave
rise to the instant case. He
investigated charts of alleged discrimination by collecting appropriate data
and by preparing analytical reports of findings for submission to the OCRC.
Most of the facts
of this case are undisputed. In
February of 1992, the Grievant served a three day suspension for violation of
work rules 10. and 12. cited above. He
was suspended for five days, beginning on December 7, 1992, for violation of
these same work rules. The instances of
extending the lunch period and or tardiness cited as basis for this discipline
were as follows:
Extending
Lunch
August 20 and 27, 1992
September 4, 8, 10, 17, and 21, 1992
October 7 and 14, 1992
Tardiness
August 26, 1992
September 11, 1992
October 15, 1992
On December 8, a
grievance was filed protesting this discipline. Various sections of Articles 2, 5, 9 and 24 of the collective
bargaining agreement (Agreement) were cited specifically as having been
violated as well as "all pertinent articles of the contract.” The grievance alleged that the Grievant had
been denied access to the Employee Assistance Program (EAP) "which would
have mitigated
disciplinary action. As remedy, the
Union asked that the Grievant be reimbursed for the five day suspension and
otherwise be made whole and that management adhere to the Agreement. The parties agree that this grievance was
properly processed through the negotiated procedure and is now before this
Arbitrator for decision.
The Grievant was
suspended for ten days, beginning on February 18, 1993, for violation of work
rules 10 and 12. The instances of
extending the lunch period and of tardiness cited as basis for this discipline
were as follows:
EXTENDING LUNCH
November
18, 1992
November
24, 1992
November
25, 1992
December
30, 1992
January
15, 1993
On March 1, 1993, a grievance was filed protesting this
discipline. Articles of the Agreement
alleged to have been violated were the same as in the grievance against the
five day suspension. In the statement
of facts, the "Grievant alleged that mitigating circumstances were ignored
by management which would have been addressed through EAP." The remedy requested was the same as for the
five day suspension. The parties agree
that this grievance was properly processed through the negotiated procedure and
is now before this Arbitrator for decision.
The parties agree
that the Grievant also received other discipline as follows:
Written falsification of official document;
September 15,
1992
3 day suspension, failure to meet deadlines;
April 29, 1991
3 day suspension, Work Rules 10 and 12;
March 6, 1991
1 day suspension, Inattentive to Duties, Failure of Good
Behavior, Acts of Discrimination;
January 31, 1991
Written reprimand, Failure to meet deadlines;
September 10,
1990
Written reprimand, Use of Insulting Language;
September 6, 1990
Written reprimand, Failure to meet deadlines;
August 28, 1990
Written reprimand, Inefficient Use of time; Dishonesty;
August 21, 1990
Written reprimand, Failure to meet deadlines;
August 16, 1990
Oral warning, Failure to meet deadlines, Inattentive to
duties, Leaving work area without permission of Supervisor;
April 23, 1990
Written reprimand, Unexcused Tardiness, AWOL-1Day, Excessive
Absenteeism;
April 4, 1990
Written reprimand, Work Rule 12;
August 9, 1989
Oral warning, Work Rule 12;
July 13, 1989
There is no
dispute that the Grievant was aware of the tardiness policy set forth in Joint
Exhibit 6 and of the policy on hours of work set forth in State Exhibit 2 (see
also, State Exhibit 13). Joint Exhibit
7 shows that the Grievant received the disciplinary Grid in effect as of
September 30, 1991. Joint Exhibit 8
confirms that the Grievant received the revised work rules on April 17,
1989. With respect to lunch periods,
Ms. Eva Bess, the Grievant's immediate Supervisor, testified that employees
have one hour to be taken between 11:00 a.m. and 2:00 p.m. for lunch. If more than an hour is needed, she stated
that a leave form must be filled out and Supervisory approval gotten in
advance. Ms. Bess further stated
that, if an employee was out and found he/she could not get back in time, the
employee could call his/her supervisor and request additional time. The Grievant admitted that he had been late for
work and late returning from lunch. He
said that, "For a long period of time there was a grace period.” The Grievant agreed that he had received the
memos from Greg Vincent on "Attendance in the Office - Break
Schedules," dated August 5, 1991, on "Enforcement of Work Rules,”
dated October 18, 1991, and on "Attendance in the Office - Lunch and Break
schedules (Re-issuance - see Attached," dated August 4, 1992.
On September 29,
1990, the Grievant and the OCRC entered into an EAP participation agreement in
accordance with Article 24.09 of the Agreement. The participation agreement held in abeyance discipline that had
been proposed for tardiness. Ms. Nancy
Stir gave unrebutted testimony that, while this agreement was in effect, the
Grievant was tardy on other occasions.
She also stated that the Grievant was scheduled for a pre-disciplinary
hearing in November of 1990, for failure to meet deadlines and that this
discipline, too, was held in abeyance.
Ms. Stir testified that the Grievant violated the participation
agreement and, thus, he received the discipline indicated above for the dates
of March 6 and April 29, 1991.
According to Ms.
Stir, the Grievant talked to her a number of times thereafter about the EAP. She testified that she advised the Grievant
that he could get into the EAP at any time, and, offered to
make the contact for him, but he never got back to her. She also stated that "his [the
Grievant' s] main interest was in holding discipline in abeyance a second and
third time.” This witness acknowledged
that there were employees whose discipline had been held in abeyance more than
once and that, in September of 1993, Jerry Washington was offered a
participation agreement when no request had been made.
Joint Exhibit 10a
shows that as of June 25, 1991, the Grievant was hospitalized in Huron Hospital
and the duration of his stay had not been determined. Joint Exhibit 10b advises that the Grievant was in Huron Hospital
from June 20 through July 5, 1991, and that "He is able to return to work
at full capacity on July 22, 1991.”
Joint Exhibit 10c indicates that the Grievant was unable to work since
August 23, 1991, was admitted to Stella Mars, Inc. thirty day treatment program
on September 9, 1991, and "He will be able to return to work on Wednesday,
Oct. 9th, 1991.”
The Grievant
admitted that he had been having personal and family problems. He stated that he saw Dr. Edward J. Lessin,
a clinical psychologist, (see Joint Exhibit 11b) on one occasion but was unable
to continue because he could not afford the co-payment for the treatment. The Grievant testified that he was currently
going to "more" AA meetings and was getting "help" from his
church. On December 2, 1992, the
Grievant completed a Request for Reasonable Accommodation form whereon it was
stated that the reason for the request was "alcohol dependence.” The accommodation requested was as follows:
“Allow staff to use leave time for doctor's appointments
during work hours. Allow staff to enter
into volentary (sic) EAP participation agreement pursuant to Article 9 of the
collective bargaining agreement for the purposes (sic) of deferring pending
discipline.”
The accommodation
was requested for the period December 2, 1992 through March 2, 1993. At the Hearing, the Grievant testified that
he "needed help," he had a "serious financial burden for all the
suspensions" it was near Christmas and he "just wanted a break so I
[he] could get back on track.”
Ms. Bess wrote a
memorandum, dated December 7, 1992, responding to the request for
accommodation. This document states:
“Lon, be advised that any leave time that you need to attend
your wellness counseling sessions for your condition/disability will be
granted. However, you are asked to make
sure that you have the time to cover the absence and you must provide
documentation to substantiate the visit.”
These are the
circumstances that led to this proceeding.
POSITIONS OF THE PARTIES
State
Position:
The OCRC
maintains that the Grievant's five and ten day suspensions were for just
cause. It emphasizes that the instances
of tardiness and of lateness in returning from lunch which gave rise to this
discipline are undisputed. So too, the
OCRC points out, are the ten reprimands, oral and written, and four prior
suspensions the Grievant has on his record since he began work there
in April of 1988. The OCRC relies upon
the record to further assert that a significant amount of this prior discipline
resulted from violations of work rules 10 and 12; the same rules that are at
stake in the grievance at bar.
According to the
OCRC, the constructive and progressive discipline the Grievant received failed
to correct his attendance problems. The
OCRC contends that this discipline, coupled with the fact that the Grievant
acknowledges receiving the Disciplinary Grid and the policies on tardiness and
on hours of work, means that he was well aware of both the rules and the
penalties for violating them. It also
stresses that no claim has been made that the rules are unreasonable.
The OCRC further
asserts that it has made a good faith effort to help the Grievant overcome his
problems. It points out that he was
afforded an EAP participation agreement in 1990 and, although two disciplinary
actions were held in abeyance as a result, the Grievant continued to be tardy,
failed to meet deadlines, and failed to otherwise adhere to the terms of the
agreement. Nevertheless, the OCRC maintains
that it responded appropriately to the Grievant's request for reasonable
accommodation by affording him leave without pay to attend wellness counseling,
provided he has leave available and documentation of the visit is provided.
These facts
substantiate two things the OCRC claims.
First, the OCRC argues that the Union's contentions that the discipline
was meted out for the purpose of punishing the Grievant and that he was
subjected to disparate treatment are completely unfounded. Second, the OCRC maintains that the
discipline is appropriate for the offenses committed. It asks, therefore, that the five and ten day suspensions be
sustained as the outcome of this proceeding.
Union
Position:
With respect to
both disciplinary actions, the Union contends that the OCRC did not conduct
fair and objective investigations and, thus, failed to meet one of the
essential elements of proving just cause.
It also asserts that most of the infractions that gave rise to the ten
day suspension occurred while the five day suspension was processed. This means, the Union claims, that the
Grievant was wrongfully denied an opportunity to correct his behavior between
disciplinary actions.
According to the
Union, the OCRC has sought to punish the Grievant, and has violated the
Americans With Disabilities Act and Article 24, Section 24.09 of the Agreement
by failing to afford reasonable accommodation and by denying his repeated
requests for an EAP participation agreement.
That these actions were punitive, the Union contends, is further
confirmed by Ms. Stir's testimony that there have been employees who were
afforded more than one EAP participation agreement and one employee, Jerry
Washington, who was afforded such an agreement without even requesting one.
As a result of
the foregoing considerations, the Union argues that the OCRC has failed to meet
its burden of proving just cause for the Grievant's five and ten day
suspensions. As remedy, the Union
asks that the grievances be sustained, that the discipline be rescinded and
that the Grievant be made whole for all lost wages and benefits.
DECISION
The evidence and
testimony of record was considered carefully in reaching a decision in this
case. The Arbitrator concluded that the
OCRC presented sufficient evidence to prove just cause for the Grievant's five
and ten day suspensions. There is no
dispute that the Grievant incurred the incidents of tardiness and of returning
late from lunch which were the cause of disciplinary action. The Union failed to provide any support for
its allegation that a full and fair investigation was lacking with respect to
either suspension.
There is no
indication in the record that the policies pertaining to tardiness and to hours
of work were unreasonable. The evidence
does show, however, that the Grievant had received copies of these
policies. It is also a fact that the
Grievant had served a three day suspension for violation of work rules 10 and
12 in February of 1992. Based upon this
discipline, the Grievant's prior discipline for similar offenses in 1989, and
the information contained in the Disciplinary Grid, the Arbitrator concluded
that the Grievant was on notice that he had to correct his attendance-related
behavior.
Nevertheless, the
Union contends that the five and ten day suspensions were meted out in such
close proximity that the Grievant did not have an opportunity to correct
his behavior after the five day suspension.
The Arbitrator disagrees. The
Grievant had due notice of the policies on tardiness and on hours of work. He also had been progressively disciplined
to the level of a five day suspension and knew or should have known by or
before that time that his attendance problems had to be corrected or more severe
discipline would result. Indeed, by the
time the Grievant received the five day suspension, he had incurred enough
violations of work rules 10 and 12 to have been terminated.
The Union
introduced three memos from Mr. Vincent to the Cleveland Regional Office Staff,
two from 1991 and one from 1992, which deal with efforts to achieve adherence
to lunch and break schedules, among other things. It used this information to argue that there were on-going
problems with adherence with such schedules and that the Grievant was being
singled out for discipline. The Arbitrator
found for the OCRC and ruled that the Grievant's discipline was consistent with
its on-going and consistent efforts to enforce lunch and break schedules in the
office. This ruling is also based on
the fact that the Union presented no evidence that the Grievant had been
subjected to disparate discipline vis-à-vis anyone similarly situated.
Given the record
of attendance problems the Grievant accumulated, the Arbitrator found that the
five and ten day suspensions were certainly not penalties too harsh for the
offenses committed. To reiterate a
point made earlier, the OCRC would have had just cause for the Grievant's
termination given the attendance problems he had at the time of the five day
suspension.
As a mitigating
circumstance, the Union maintained that the OCRC violated Article 24, Section
24.09 of the Agreement by refusing to enter into a second EAP participation
agreement with the Grievant. It is a
fact that the OCRC and the Grievant entered into such an agreement in September
of 1990, to address discipline contemplated for the Grievant's tardiness. Ms. Stir's testimony is uncontroverted that,
actually, two disciplinary actions were held in abeyance as a result of that
participation agreement and that the Grievant did not fulfill the
agreement. The Arbitrator also
considered Ms. Stir's testimony that there were employees with whom the OCRC
had entered into more than one participation agreement. This testimony, in and of itself, is not
fatal to the OCRC's case. To weigh against
the OCRC, the Union would have had to have shown that such agreements were made
with employees who were similarly situated to the Grievant. The Union made no such showing.
Furthermore, the
testimony of Ms. Stir and the Grievant is similar that the main reason he
sought such an agreement was to obtain a "break" so he could get back
on his feet from the financial consequences of other suspensions. As noted in the Agreement and in the
participation agreement the Grievant signed in 1990, the purpose of such
agreements is to provide an opportunity for an employee to obtain assistance to
deal with a problem. This purpose seems
to have been overlooked by the Grievant in his effort purely and simply to avoid
appropriate discipline for offenses committed.
The OCRC, therefore, acted properly in refusing the Grievant a second
participation agreement under such circumstances.
Finally, the
Union claims that the OCRC refused the Grievant reasonable accommodation for
his problem with alcohol, in violation of the Americans With Disabilities Act,
42 U.S.C. Section 12101, et. seq.
The Arbitrator disagrees with the Union's claim. The evidence shows that the OCRC has
reasonably accommodated the Grievant's disability by allowing him leave without
pay to pursue wellness activities. The
stipulations that he have leave available to cover this time and that he
provide documentation to substantiate wellness activities are not unreasonable. The term ‘reasonable accommodation' does not
mean that management loses the right to control the workforce; including
requiring employees to account for their time during scheduled hours. In the instant case, documentation is
essential to ensure that the accommodation made is used for the purpose
intended. It could also be argued that
the Grievant has failed to demonstrate that he is able to perform some
essential functions of the job of Civil Rights Representative namely to come to
work on time and to return from lunch at the end of one hour. Moreover, no where has it been written, thus
far, that enabling an employee to utilize an EAP participation agreement in
lieu of legitimate discipline when that employee has failed to live up to a
previous agreement and under the other circumstances of this case is required
to meet the test of 'reasonable accommodation.' Lastly, the record contains two certifications that the Grievant
has experienced treatment and is ready to return to full duty. His testimony was that he is currently going
to AA and receiving counseling from his church (although no proof was
provided), so the Arbitrator concluded that the accommodation afforded the
Grievant was reasonable for his disability.
Based upon the
foregoing analysis, the Arbitrator determined that the grievances on both the
five and ten day suspensions should be denied.
AWARD
The
grievance is denied.
MOLLIE H. BOWERS, Ph.D.
Arbitrator
Date: November 16,
1993