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undermines the purpose of the EAP program.
159
Section 24.08 does not place an absolute
obligation on the employer to place a
disciplinary action in abeyance as a
contemplated or actual participation in an
Employee Assistance Program. The language
provides that “the disciplinary action may be
delayed until completion of the program.” 162
Section 24.08 contains the work “elect.” The
employee must “elect” to participate in the EAP.
The grievant did not make that election. The
employer lacks contractual authority to force the
employee to participate in EAP. Had the grievant
done so, the “serious consideration to modifying
the...disciplinary action” contemplated by the
agreement might have occurred. By her won
actions, the grievant deprived the state of the
opportunity to modify the discharge penalty.
186
The arbitrator held 24.08 did not apply even
thought he grievant considered himself to be in
EAP because he had signed up for EAP and had
gone to talk with a Social Program Specialist.
The Grounds for the holding were: (1) the Social
Program Specialist was not qualified to counsel
but only to find placements with outside centers,
(2) the grievant had not signed a formal EAP
agreement, (3) the employee had entered
detoxification treatment after being fired, (4) the
detoxification program he entered was not part of
the official EAP program. 236
Under 24.08, the State has discretion to delay
disciplinary action until completion of EAP. It is
not require to do so. 251
The arbitrator found that the Employee
Assistance Program referral is to be entirely at
the employee’s volition; the employer may not
direct an employee into the program. Because of
this the arbitrator would not order the reinstated
grievant to enter the EAP. 305
The grievant was a Corrections Officer who was
enrolled in an EAP and taking psychotropic
drugs. He got into an argument with an inmate
who had used a racial slur and struck the inmate.
The grievant was removed for abuse of an
inmate and use of excessive force. The arbitrator
found that the grievant struck the inmate with no
justifying circumstances such as self defense, or
preventing a crime. The employer, however,
failed to prove that the grievant knowingly
caused physical harm as required by Ohio
Revised Code section 2903.33(B)(2), because
the grievant was taking prescription drugs. The
grievant’s removal was reduced to a thirty day
suspension because the employer failed to
consider the grievant’s medication. The grievant
was not faulted for not notifying the employer
that he was taking the psychotropic drugs
because he had no knowledge of their possible
side effects. Thus, the use of excessive force was
proven, but excessive use of force is not abuse
per se. 368
The grievant began his pattern of absenteeism
after the death of his grandmother and his
divorce. The grievant entered an EAP and
informed the employer. He had accumulated
104 hours of unexcused absence, 80 hours of
which were incurred without notifying his
supervisor, and 24 hours of which were incurred
without available leave. Removal was
recommended for job abandonment after he was
absent for three consecutive days. The
predisciplinary hearing officer recommended
suspension, however the grievant was notified of
his removal 52 days after the pre-disciplinary
hearing. The arbitrator found that the employer
violated the contract because the relevant notice
dates are the hearing date and the date on which
the grievant receives notice of discipline. Other
arbitrators have looked to the hearing date and
decision date as the relevant dates. Additionally,
the employer was found to have given “negative
notice” by overlooking prior offenses. The
arbitrator reinstated the grievant without back
pay and ordered him to enter into a last chance
agreement based upon his participation in EAP.
371
The grievant attended a pre-disciplinary hearing
for absenteeism at which his removal was
recommended, but deferred pending completion
of his EAP. He failed to complete his EAP and
was absent from December 28, 1990 to February
11, 1991. The grievant was then requested to
attend a meeting with a union representative to
discuss his absence and failure to complete his
EAP. The grievant was removed for
absenteeism. The arbitrator found the grievant
guilty of excessive absenteeism and prior
discipline made removal the appropriate penalty.
The employer was found to have committed a
procedural error. Deferral because of EAP
participation as found proper, however the
second meeting was not a contractual proper pre-