ARBITRATION DECISION NO.:
685
UNION:
OCSEA,
Local 11, AFSCME, AFL-CIO
EMPLOYER:
Ohio
Department of Transportation
DATE OF ARBITRATION:
July
30, 1998
DATE OF DECISION:
September
16, 1998
GRIEVANT:
Frank
D. Davis
OCB GRIEVANCE NO.:
31‑04‑(97‑10‑10)‑0020‑01‑07
ARBITRATOR:
Anna
DuVal Smith
FOR THE UNION:
Lynn
Kemp, Staff Representative
FOR THE EMPLOYER:
Edward
A. Flynn, Assistant Admin., Labor Relations
Rhonda
Bell, OCB
KEY WORDS:
Employee Assistance Program
Just Cause
Removal
ARTICLES:
Article 24 – Discipline
§24.01 - Standard
FACTS:
The grievant was employed by
the Ohio Department of Transportation (ODOT) as a Project Inspector I at the
Boston Heights garage. Management removed him effective October 3, 1997 for
excessive absenteeism and unauthorized absence for three or more consecutive
days. These charges were a result of the grievant failing to comply with the
terms of his Employee Assistance Program (EAP) participation agreement. The
grievant signed the agreement when he failed a mandatory random drug test. The
EAP was the grievant's only option to being removed. The EAP stated that the
grievant was to participate in a plan for a period of 365 days. It further
stated that ODOT agreed that, so long as this contract was complied with in its
entirety, the discipline recommended would be held in abeyance. One of the
conditions of the agreement was that the grievant assist the agency in securing
information pertaining to his progress if the Employer was unable to obtain it.
He was also required to contact the Employer within thirty days from the day he
executed the agreement. It was agreed that violation of the EAP would result in
removal for the grievant.
In
addition to the EAP, the grievant was to sign a last chance agreement giving
him 180 days to complete a drug treatment program. Otherwise, he would be
removed. The grievant never saw or signed this agreement due to his absence at
the pre‑disciplinary hearing. However, Doolittle, a steward, testified
that he conveyed the 180‑day limit to complete the program to the
grievant.
The Employer scheduled a
second pre‑disciplinary hearing to present the last chance agreement to
the grievant. Again, the grievant did not attend. On August 21st, nearly six
months after the grievant's random drug test, the Employer had not heard from
the grievant in four months, and it had information that he had been dismissed
fon‑n several rehabilitation programs. The Employer, therefore, concluded
that the grievant was not in compliance with his EAP agreement or the last‑chance
agreement he would have signed had he attended his predisciplinary meeting.
The Employer then decided to proceed with removing the grievant. The Employer
held a third pre‑disciplinary hearing to commence the removal process.
Again, the grievant was not in attendance.
POSITION OF THE EMPLOYER:
The Employer argued that the
grievant was removed for just cause. The evidence showed that the grievant was
informed of the requirements for returning to work, but he chose to disregard
them. He failed to abide by his EAP agreement, missed three pre‑disciplinary
hearings, was in and out of treatment, and did not follow his counselor's
advice. The grievant also failed his most fundamental employee responsibility
of communicating with his employer.
Even though the grievant had
failed his EAP agreement, the State decided to wait 180 days from the time if
the second pre‑disciplinary meeting to give him every chance to get
medically fit for duty. Therefore, this grievance should be denied.
POSITION OF THE UNION:
The Union argued that just
cause did not exist to remove the grievant. The Employer changed the rules in
midstrearn without informing the grievant. First, it entered into an EAP
agreement with him for 365 days, and told him he was on authorized leave. Then,
it removed him for his absences though he was never in an unauthorized leave
status, and he was never told to use normal call‑off procedures.
In addition, although the
Employer was aware that the grievant was administratively discharged from a
program on May 23rd, it chose not to initiate discipline until September. The
State's failure to act in May led the grievant to believe that as long as he
was making attempts to recover, he had 365 days to return to work. He never saw
the last‑chance agreement; therefore, he was unaware of a 180‑day
limit. Finally, the grievant was absent from the last pre‑disciplinary
hearing due to his enrollment in a treatment program at the time. Therefore,
the Union asks that the grievant be reinstated, granted back pay and made
whole.
ARBITRATOR'S HOLDING:
The Arbitrator held that
just cause existed to remove the grievant. The Arbitrator was impressed with
the fact that the grievant was finally making progress with his addition.
However, the Employer has a legitimate interest in ensuring that employees
fulfill the conditions of their EAP agreements.
The Arbitrator held that the
grievant did violate his EAP agreement. The grievant was aware that a condition
of his reinstatement was that he would have to execute a last chance agreement.
When the grievant did not attend his pre‑disciplinary hearing to execute
the agreement, the Employer could have terminated him at this point, but choose
not to in order to give the grievant every opportunity to recover. Missing the
rescheduled pre‑disciplinary hearing and failure to execute the required
last chance agreement was an act of noncompliance with the EAR Therefore, the
grievant was absent without leave from that time forward.
The Arbitrator held that the Employer did not abuse
its discretion when it gave the grievant 180 days to turn to work once it made
the decision not to terminate him when he failed to appear and enter into a
last chance agreement. The 365‑day deadline is the length of the
agreement, not the return‑to‑work deadline; the grievant was so
informed. To not hold the grievant to a 180‑day time limit would allow
him to be better situated than an employee who did sign a last‑chance
agreement. The Employer showed leniency when it gave the grievant 180 days. The
grievant had tried and failed in several other programs; therefore, the
Employer had no basis to expect that the grievant's current treatment would
bring success.
AWARD:
The grievance was denied in its entirety.
TEXT OF THE OPINION: * * *
VOLUNTARY LABOR ARBITRATION
TRIBUNAL
*****************************************
In the Matter of Arbitration *
Between *
* OPINION AND AWARD
OHIO CIVIL SERVICE *
EMPLOYEES ASSOCIATION * Anna DuVal Smith,
Arbitrator
LOCAL
11, AFSCME, AFL-CIO *
* Case No‑31‑04‑971010‑0020‑01‑07
and *
* Frank D. Davis, Grievant
OHIO
DEPARTMENT OF * Removal
*
TRANSPORTATION *
*****************************************
Appearances
For
the Ohio Civil Service Employees Association:
Lynn Kemp, Staff
Representative
Ohio Civil Service Employees
Association
For
the Ohio Department of Transportation:
Edward A. Flynn
Assistant Administrator, Labor
Relations
Ohio Department of
Transportation
Rhonda G. Bell
Ohio Office of Collective
Bargaining
* * *
Hearing
A hearing on this matter was
held at 9:00 a.m. on July 30, 1998, at the Ohio Department of Transportation
garage in Boston Heights, Ohio before Anna DuVal Smith, Arbitrator, who was
mutually selected by the parties, pursuant to the procedures of their
collective bargaining agreement. The parties stipulated the matter is properly
before the Arbitrator and presented one issue on the merits, which is set forth
below. They were given a full opportunity to present written evidence and
documentation, to examine and cross‑examine witnesses, who were sworn or
affirmed and excluded, and to argue their respective positions. Testifying for
the State were Charles Miner (former Safety Supervisor), Bryan Doolittle
(Highway Worker R and Union Steward, by subpoena), and Greg Zemla (Labor
Relations Officer). Testifying for the Union were Lorraine Ellithorp, LISW,
CCDC III of Family Services, Akron, Ohio, and the Grievant, Frank Davis. Also
in attendance was Sandra Rienzi, Chapter President. A number of documents were
entered into evidence: Joint Exhibits I ‑ 11, State Exhibits 1‑4
and Union Exhibits 1‑3. The oral hearing was concluded at 3:30 p.m.,
whereupon the record was closed. This opinion and award is based solely on the
record as described herein.
Stipulated Issue
Was the Grievant removed for
just case? If not, what shall the remedy be?
Statement of the Case
This case concerns the
removal of a nine‑year employee of good record for his absence while he
was attempting to recover from drug and alcohol dependence after failing a
random drug test. The Grievant was employed by the Ohio Department of
Transportation (ODOT) on March 31,1988. At the time of his removal on October
3,1997, he was a Project Inspector 1, a job whose duties are performed during
construction season, April to November, During the off months, these employees
**2**
are assigned Other duties, some of which necessitate
a commercial drivers license, hence subjecting them to random drug testing under
the Federal Omnibus Transportation Employee Testing Act Employer policy and the
Collective Bargaining Agreement. The Grievant met or exceeded his employer's
expectations and had only one discipline on his record, a written reprimand for
sick leave occasions.
On February 25, 1997, the
Grievant was administered a random drug test, testing positive for marijuana.
District Safety Supervisor Charlie Miner met with him and Union Steward Bryan
Doolittle on March 7, at which time Miner explained the policy and procedure by
which the Grievant could be returned to duty. The Grievant signed an Employee
Assistance Program (EAP) Participation Agreement, which states in part,
The employee agrees to
participate in a plan for a period of 365 days. Said plan will be developed by
the Health Care Provider. The employee agrees to meet all the requirements set
forth in that plan .... A Participation Outline, including the lengths of the
various aspects of service and the frequency of appointments or treatment
sessions, shall be attached to and made a part of this agreement as soon as
possible, but not later than thirty (30) days from the date of signing. If the
agency is unable to secure information from the Case Monitor, it shall be the
employee's responsibility to provide the employer representative with such
information .... ODOT agrees that, so long as this contract is complied with in
its entirety, the discipline recommended for this employee pursuant to the
letter dated 3‑11‑97 shall be held in abeyance. Should the employee
violate this contract, in any part, the recommended disciplinary procedure will
be implemented. (Joint Ex. 7a)
Labor Relations Officer Greg Zemla testified 365
days was used to allow for aftercare or other requirements imposed by the
employee's Substance Abuse Professional (SAP) after he is returned to work.
Miner testified he told the Grievant that he would get a pre‑disciplinary
meeting notice, but that if he signed a last‑chance agreement, the
discipline would be held in abeyance. He also gave the Grievant a copies of the
Participation Outline and Substance Abuse Professional Certifications that were
to be completed and returned, had him sign acknowledgment of having read and
**3**
understood the Ohio EAP Client Confidentiality
policy and authorize release of information from the Ohio EAP to Minor. A final
document provided to the Grievant was a memorandum outlining the requirements
for returning to work. This document states, "you are immediately relieved
of your duties and placed on a mandatory authorized leave of absence until re‑qualification
procedures are complied with” and tells the employee of his rights to use paid
leave balances or FMLA leave during his absence. It further directs him to make
"an immediate contact with the Ohio Employee Assistance Program"
(emphasis in the original), outlines other treatment options, states that the
employee will be asked to execute a last‑chance agreement at his pre‑disciplinary
hearing, and provides information on return‑to‑duty and follow‑up
testing (Joint Ex. 7d). Union Steward Doolittle confirmed that Miner told the
Grievant that at his pre‑disciplinary hearing he would be required to
sign a last‑chance agreement giving him 180 days to get through a drug
program and return to work. Otherwise he would be terminated.
On March 27. Miner received
a telephone call from Julie Yacobucci of the Ohio EAP in which she stated that
she had no record of the Grievant having been treated. The notice of the
Grievant's April 3 pre‑disciplinary hearing for the positive test set was
sent by certified mail the next day and signed for by a Jeff Watson on March 29
(Joint Ex. 3a). The Grievant testified he never saw it and does not know who
Jeff Watson is. Accompanying this document was a copy of the Last Chance
Agreement the Grievant was going to be asked to sign. This Agreement states in
part,
It is agreed by the parties that the employee shall be considered on leave of absence (or the employee can use accrued leave) until such time that he/she returns to work under the above conditions or 180 calendar days whichever is shorter. Should the employee fail to properly be certified to return to work by the Substance Abuse Professional and return to work within 180 calendar days he/she shall be terminated from employment. Should the employee not cooperate fully with the directives of the Substance Abuse Professional or fail to return to work, the employer may terminate his/her employment and seek repayment, from the employee's last
**4**
paycheck, of any medical
premiums paid on his/her behalf during their period of
unpaid leave. (Employer Ex.
4)
The Grievant failed to appear for his April 3 pre‑disciplinary
hearing, so the Union steward got a 48hour extension for the hearing and
called the Grievant, who said he would attend the rescheduled hearing.
Meanwhile, Yacobucci still had not heard from him, so Miner sent another letter
reminding him that he must maintain contact with EAP personnel and stay in
compliance with the agreement he signed on March 7. He was directed to contact
the EAP immediately (Joint Ex. 10). This letter, dated April 4, was returned as
unclaimed.
The rescheduled pre‑disciplinary
hearing was convened on April 7, and again the Grievant did not appear (because
be knew he would be discharged and, he testified, he was high). After waiting
some time, the hearing went forward without him, but with the union steward in
attendance. The hearing officer found just cause for discipline (Joint Ex. 3),
but the State held discipline in abeyance because, according to Minor and Labor
Relations Officer Greg Zemla, it wanted to give the Grievant every chance to
return to work.
Meanwhile, the Grievant had
contacted Lorraine Ellithorp, LISW, CCDClIl, of Family Services, who saw him on
March 25. She made an initial diagnosis of Cocaine Dependence, Alcohol
Dependence and Marijuana Abuse (later modified to Marijuana Dependence) and
referred him to St. Thomas Hospital for intensive outpatient treatment (Joint
Ex. 6). This was reported to Yacobucci who, in turn, informed Miner on April
11. Ellithorp also executed and mailed the required Participation Outline and
Substance Abuse Professional Certification, and had the Grievant sign a Family
Services release of information on treatment payment options (Union Ex. 3), but
Miner W96fied he never received these documents, **5**
By April 18,
Yacobucci still had not heard from the Grievant, so she sent him a letter
telling him that she had to hear from him by April 25 in order to report him in
compliance with the EAP agreement (Joint Ex. 11). The Grievant testified he
received this letter and did as directed. He finally checked in to St. Thomas
on April 23, informing Miner of this fact in a phone call on April 24. This was
the last communication Miner received from him before he was terminated, though
he did hear about him second‑hand after that. The Grievant's last day of
inpatient treatment at St. Thomas was April 28 when he was referred to
outpatient after asking to be released. Ellithorpe testified the Grievant had
accepted that he had a cocaine problem, but was still minimizing his problems
with alcohol and marijuana. Out of the hospital, he abused alcohol and missed
two appointments with his SAF, Ms. Ellithorp. On May 19, he entered Edwin Shaw
Hospital for three days, and then transferred to their outpatient program. He
was administratively discharged from this program. on May 23 for excessive,
unexcused absences, which he and Ellithorp testified were because of financial
difficulties and his need to obtain basic necessities and attend to other
personal business. He re‑entered the program on June 24, but was again
administratively discharged on July 15 for dirty drug screens. According to
Ellithorp, Edwin Shaw staff thought he needed an extended care program for at
least six months. He was able to arrange this, entering the Interval
Brotherhood Home (IBH) Alcohol Rehabilitation Center on August 18 when a bed
became available. While there, he finally surrendered to his alcoholism,
accepted that he needed to change his life style, and began to work very
seriously at a program of recovery.
However, by
August 2 1, nearly six months had passed since the Grievant's random drug test,
the State had not heard from him in four months, and had information that he
had been dismissed from several rehabilitation programs and was not in
compliance with his EAP Agreement or the lastchance agreement he would have
signed had he attended his pre‑disciplinary
meeting. Therefore,
**6**
Zerrila instituted new discipline proceedings, A pre‑discipline
meeting notice charging him with violation of ODOT Directive WR‑1 01,
Item 14, Excessive absenteeism and Item 17, Unauthorized absence for 3 or more
consecutive days was sent on August 28, but it, too, was returned as unclaimed,
the Grievant being in IBH at the time
(Joint Ex. 3b). The hearing was held September 3, again without the Grievant
but with Union Steward Doolittle in attendance. The hearing officer again found
just cause for discipline (Joint Ex. 3d). On September 29, the Grievant was
sent a letter by certified and regular mail to inform him he was terminated
effective October 3 (Joint Ex. 3e). The Grievant testified he was surprised by
the news that he had been discharged when he received the copy sent by regular
mail, delivered to him with other accumulated mail by a neighbor. He had been
told, he said, that he could not come back to work until his problem was taken
care of and he had made sure, by signing releases, that ODOT would be notified
of his whereabouts.
A grievance was filed by the
Union and the Grievant on October 10, 1997, protesting the Grievant's
discharge. Approximately one month later, on November 7, the Grievant was
discharged from IBM "with staff approval and a good relapse plan"
(Union Ex. 2). He continued to attend Alcoholics Anonymous meetings and
eventually found other employment. Being unresolved at lower steps of the
grievance procedure, his case came to
arbitration, where it presently resides, free of procedural defect, for final
and binding decision. At his hearing, almost nine months after his release from
IBM, he was still clean, sober and attending
AA meetings. His SAP, Ms. Ellithorp, testified his prognosis was good as
he had almost a year of sobriety, a sober mind set, and had probably had to
deal with cravings and done so despite his stressful circumstances.
**7**
Arguments of the Parties
Argument of the State
The State argues the
evidence shows the Grievant was informed of the requirements for returning to
work but chose to disregard them. He failed to abide by his EAP agreement,
missed three pre‑disciplinary hearings, was in and out of treatment, did
not follow his counselor's advice and, as late as September, was just marking
time to get his job back. The Grievant's last contact with the Department was
April 28, thereby failing utterly in the most fundamental employee
responsibility of communicating with his employer.
Even though the Grievant bad
failed his EAP agreement, the State decided to wait 180 days from the time of
the second pre‑disciplinary meeting, as it had before, so as to give the
Grievant every chance to get medically fit for duty. The Employer must have a
time period for employees to rehabilitate. 180 days is reasonable and has never
been challenged by the Union.
Although the Department is
extremely aggressive in rehabilitating employees, it is equally aggressive when
employees violate their EAP agreements, as three similar cases show. D. Love
was separated for job abandonment and this was not grieved. C. Sayer was
discharged under similar circumstances. Although this action was grieved, it
was not appealed to arbitration. Morrow failed his second drug test and chose
to resign rather than be terminated. If the Arbitrator returns the Grievant to
work, this will send a powerful message to the workforce that they can evade
their responsibilities and still got their jobs back.
Citing two previous
arbitration decisions [ODRC v. OCSEAIAFSCME (Davis, Grievant), 2707‑891215‑0028‑01‑03
(Smith, Arb.) and ODRC v. OCSEA/AFSCME (Hargrave, Grievant), 27‑15910705‑170‑01‑03
(Rivera, Arb.)] on job abandonment and absenteeism, the State contends the
**8**
Grievant was on unauthorized absence for an extended
period and so it had no choice but to terminate his employment. It asks that
the grievance be denied in its entirety.
Argument of the Union
The Union argues the
Employer changed rules in midstream without informing the Grievant. First, it
entered into an EAP agreement with him for 365 days and told him he was on
authorized leave. Then it removed him for his absences though he was never in
unauthorized leave status and was never told he had to use normal call‑off
procedures.
In addition, although the
State was aware he was administratively discharged from a program on May 23, it
chose not to initiate discipline until September, The State's failure to act in
May led the Grievant to believe that as
long as he was making attempts to recover, he had 365 days to return to work.
He never saw the last‑chance agreement and was therefore unaware of a 180‑day
limit.
In fact, the Grievant has a
serious substance abuse problem of which he was in deep denial at the time. He
continuously sought treatment from March to November and was ultimately
successful in getting the long term program he needed. If the State was giving
him 180 days to return to work, why terminate him if he was enrolled in a
program as he hit the I 80‑day mark?
Management is not even clear
about the specific dates the Grievant was allegedly in AWOL status, contends
the Union. The pre‑disciplinary notice does not cite specific dates and
State witnesses disagree whether they initiated the 180‑day period on
April 7 or April 14.
The Union takes issue with
cases cited by the State. The Sayer case was appealed to arbitration and did
not involve any kind of EAP agreement or drug screen. Lawrence Davis was
terminated for job abandonment, not for an unauthorized absence of three or
more consecutive days as here. And, finally, the Grievant's absence from his
September pre‑disciplinary hearing is explained by being enrolled at IBH
at the time. **9**
The Union concludes that the
Grievant was not terminated for just cause. It asks that reinstated and granted
full back pay, benefits and seniority, and made whole.
Opinion of the Arbitrator
The State paints a picture
of a man engaging in evasive tactics to avoid his responsibilities under
federal law and his employer's policy. I do not think that is a complete
picture, While it is true that the Grievant missed meetings and appointments,
did not claim mail sent to his address, and was in and out of treatment
programs, what the record reveals to me is a man struggling with addiction,
eventually overcoming hopelessness, powerful denial, and what must have been
intense cravings to deal with the
wreckage of his life caused by the substances he used. Viewed in this
light, his story is a testament to the human spirit. One must respect the
Grievant and those who helped him for their persistence through the repeated
false starts that ultimately resulted in his commitment to lifelong recovery a
day at a time. Sadly, the fact that this was finally achieved, does not lead to
the conclusion that the State discharged him without just cause.
If probability of
rehabilitation were the sole consideration, this would be an open‑and‑shut
case, for the Grievant's claim of recovery is supported by his post‑discharge
history, his demeanor in the hearing, and the judgment of the expert chemical dependency counselor who
testified in his b6halt However, one must also give due consideration to the
legitimate employer need for working, not absent, employees. It is unreasonable
to expect an employer to hold jobs open indefinitely while employees continue
to use the substances that made them unfit for duty or otherwise act in disregard of the professional advice
targeted to return them to duty, even if this conduct is a feature of the
disabling condition. Indeed, the Arbitrator notes that open‑ended and
long‑term agreements enable **10**
continued substance abuse because they provide no
incentive for the affected employee to deal with his condition in an
expeditious fashion.
As I understand it, the
Union's position essentially is that the State violated the expectations it
created for the Grievant on March 7,1997. These expectations, the Union claims,
were that he had 365 days of authorized leave to re‑qualify for return to
work. I disagree that was the case. To begin with, I do agree that there is
room for confusion about the various deadlines, for they and their relationships
to each other are not clearly spelled out on the documents provided during the
meeting with the Safety Supervisor. Notably absent is any explicit reference to
a return‑to‑duty deadline because it is stated in writing only in
the last‑chance agreement, which the employee does not receive until he
gets his pre‑disciplinary meeting packet. Were it not for the fact that
the Safety Supervisor orally informed the Grievant that he had 180 days to
complete a program of rehabilitation and that there was a corroborating
witness, this could be a flaw in the State's case. The State may want to
clarify the deadlines and their relationships to each other on documents
provided to employees.
Be that as it may, it is
clear from Joint Ex. 7d that authorized leave was extended "until requalification
procedures are complied with." The conditions for re‑qualifying are
then set forth. The implication is that authorized leave is contingent on
complying with the re‑qualifying conditions. That is, there are two
paths. The first, compliance, places the employee in an authorized leave status
and results in the employee's return to work. The alternative, noncompliance,
places the employee in unauthorized absence and subjects the employee to
termination. It is certainly clear that the EAP Participation Agreement, which
requires participation in a plan of rehabilitation for 365 days (Joint Ex. 7a),
is only one of the several conditions for being returned to service. The
employee has to be following a qualified program of rehabilitation and execute
releases for verification. He also has a
**11**
pre‑disciplinary hearing and must execute a
last‑chance agreement. Finally, there are return‑to‑duty and
follow‑up tests. If the employee fails any one of these, he leaves the
path of compliance, loses his authorized leave status and becomes subject to
termination. All of these were explained to the Grievant and he signed Joint
Ex. 7d in acknowledgment.
The question now becomes
whether and when the Grievant became noncompliant. The State made much of the
Grievant not returning the completed Participation Outline to the Safety
Supervisor. In point of fact, the Participation Outline was executed by the SAP
and I have no reason to believe it was not sent as she testified. Also in point
of fact, all documentation, from the Ohio EAP Participation Agreement Procedure
(Employer Ex. 3, p. 1) to the memo to the Treatment Provider/Counselor
(Employer Ex. 3, p. 6), to the Participation Outline itself directs the SAP to
file the outline directly to the Ohio EAP. It does not direct the SAP to return
the documents to the employee or to ODOT. Moreover, the EAP Participation
Agreement itself states merely that the Participation Outline will be made
a part of the Agreement no later than
30 days from date of signing, but it goes on to say that if the agency cannot
secure information from the EAP case monitor, then the employee is to provide
it. The clear implication is that the expected flow of information was from the
SAP through the Ohio EAP to the agency, in this case, ODOT. If ODOT wanted a
direct channel from the SAP, bypassing EAP, it needed to provide different
instructions to the SAP. Since there is no evidence otherwise, I must assume
Ellithorpe followed directions when she mailed these documents and I can hardly
fault the Grievant when his SAP followed the only directions she had.
The next point of alleged
violation was the missed pre‑disciplinary hearing and execution of last‑chance
agreement. Here the State is on solid ground. The Grievant was clearly informed
and knew the consequences. Both the Safety Supervisor and Union Steward
testified Miner went over 12
**12**
this requirement on March 7, and it is itemized as a
condition for returning to duty on Joint Ex. 7d, The Steward got the April 3
pre‑disciplinary meeting rescheduled, contacted the Grievant, and
obtained his assurance he would appear. He then failed to do so because he knew
he would lose his job and was high. It was not unreasonable for the State to
require a last‑chance agreement as a condition of holding discipline in
abeyance and such a condition is contemplated by Appendix M of the Collective
Bargaining Agreement. The State might have proceeded at this point to terminate
the Grievant on these grounds alone and its decision to do so may have been
upheld in arbitration. But the State was lenient, possibly in consideration for
the Grievant's long, good service, possibly because of its view of substance
abuse as a complex but treatable disorder and/or its compassion for employees
so afflicted. 1bus, instead of discharging the Grievant forthwith, it took no
action, giving the Grievant additional time to qualify for duty. But even
though the State elected not to discharge the Grievant at that time, it was
still entitled to carry his absence as unauthorized once he was clearly out of
compliance with the conditions for re‑qualification. Missing the
rescheduled pre‑disciplinary hearing and thereby failing to execute the
required last‑chance agreement was just such an unambiguous act of
noncompliance, The State was therefore not wrong to deem him absent without
authorization from that date forward.
The next question is whether
the State abused its discretion in giving the Grievant 180 days to return
to
work once it made the decision not to terminate him when he failed to appear
and enter into a last‑chance agreement. The Union argues he should have
been given 365 days because that is what the EAP Agreement gave him and what he
was led to believe when the State failed to act in May, he was unaware of the
I80‑day deadline, he was actually in treatment at the 180‑day mark,
and State witnesses did not agree which
was the first day of unexcused absence. As ruled above, the State is not
bound by the 365 deadline on the EAP Agreement. That is the length of that
agreement,
**13**
not the return‑to‑work deadline,
and the Grievant was so informed. As for the rest, the State is
between a rock and a hard place. If an
employer acts too soon, it is argued the employee has not
been given a fair chance to overcome a
condition with features of denial and relapse.
If it waits too
long, it is argued, as here,
the employee has been lulled into a false sense of security. In my opinion,
the State's choice of 180 days cannot be faulted on either count. It was generous because it gave the Grievant the same length of time he would have had if he had executed the last‑chance agreement. The State ought not to be penalized for its leniency. It was also not an arbitrary, capricious or discriminatory length of time to apply for it was based on the standard return‑to‑work deadline applied to others that was, itself, not an unreasonable balance of the employer's need to have working employees and the employee's need to have adequate opportunity to rehabilitate. As far as the Grievant's expectations are concerned, it seems to me once the Grievant was not fired at the 30‑day mark or when he missed the pre‑disciplinary hearing (which is what his testimony repeatedly indicates was his belief on the time he had), he could not have reasonably expected to be treated more generously than those who did execute a last‑chance agreement. Nor will this Arbitrator
require that of the State, for it would
permit employees to evade their responsibilities simply by not
showing up for their pre‑disciplinary
hearings. Finally, there is the matter of the Grievant being
enrolled in a program on the 180th
day. Again I cannot fault the
State. It showed leniency when it
gave the Grievant 180 days. Given that the
Grievant had tried and failed in several other programs,
then dropped out of sight (thereby being out
of compliance with his EAP Agreement), it had no basis
to expect this treatment would bring success.
Moreover, the State's concern regarding the message
this sends to the workforce is well‑founded. For those employees needing the wake‑up
call of
serious consequences for failure to meet a
deadline, a soft deadline merely postpones the day of
**14**
reckoning. Having shown leniency in the first place, it
was not an abuse of discretion to be firm in
its
application.
Award
For
all these reasons, the grievance is denied in its entirety.
_____________________
Anna
DuVal Smith, Ph.D.
Arbitrator
Cuyahoga County, Ohio
September 16, 1998 **15**