by Contract Number (PDF) - OCSEA

disciplinary hearing. No waiver was found on the
part of the union, thus the arbitrator held that the
employer violated the contract and reinstated the
grievant without back pay. 383
The grievant was a field employee who was
required to sign in and out of the office. He
began to experience absenteeism in 1990 and
entered drug abuse treatment. He continued to be
excessively absent and was removed for periods
of absence from October 2nd through the 10th
and October 26th to the 30th, during which he
called in sporadically but never spoke to a
supervisor. The grievant was found to have
violated the employer’s absenteeism rule.
Additionally, the employer was found not to be
obligated to enter into a last chance agreement
nor to delay discipline until the end of the
grievant’s EAP. Mitigating circumstances
existed, however, to warrant a reduced penalty.
The arbitrator noted the grievant’s length of
service from 1981 to 1990, and the fact that he
sought help himself, therefore the arbitrator
reinstated the grievant with no back pay pursuant
to a last chance agreement after a physical
examination which must show him to be free of
drugs. 391
While on disability leave in October 1990 the
grievant, a Youth Leader, was arrested in Texas
for possession of cocaine. After his return to
work, he was sentenced to probation and he was
fined. He was then arrested in Ohio for drugrelated
domestic violence for which he pleaded
guilty in June 1991 and received treatment in
lieu of a conviction. The grievant was removed
for his off-duty conduct. The grievant’s guilty
plea in Texas was taken as an admission against
interest by the arbitrator and the arbitrator also
considered the grievant’s guilty plea to drug
related domestic violence. The arbitrator found
that the grievant’s job as a Youth Leader was
affected by his off-duty drug offenses because of
he coworkers’ knowledge of the incidents. The
employer was found not to have violated the
contract by delaying discipline until after the
proceedings in Texas had concluded, as the
contract permits delays pending criminal
proceedings. No procedural errors were found
despite the fact that the employer did not inform
the grievant of its investigation of him, nor
permit him to enter an EAP to avoid discipline.
No disparate treatment was proven as the
employees compared to the grievant were
involved in alcohol related incidents which were
found to be different than drug-related offenses.
Thus, the grievance was denied. 410
The arbitrator recognized the employer's right to
implement and enforce a drug policy but
cautions that enforcement of such a policy
cannot be done in violation of the provisions of
the Contract. First, the arbitrator pointed out that
the employer was not required to remove an
employee upon his/her first drug offense. The
arbitrator concluded that the discipline was not
progressive in light of the grievant's past
discipline. Further, the arbitrator found that the
phrase "in any way" does not include possession
of drugs. As for the absenteeism problem, there
was no doubt that it exists. However, removal
was too severe a punishment for such actions.
The grievance was sustained. The removal was
set aside and reduced to a ten day suspension.
The award was conditioned upon the grievant's
participation in and compliance with her
Employer's Employee Assistance Program. The
grievant was further placed on notice that a
second violation of the drug policy would
warrant her removal. 429
The grievant became involved in an EAP
program prior to receiving notice of pending
discipline, and as such, this was a mitigating
circumstance in modifying his removal. 456
(1992-94 contract)
The Employer and grievant signed a last chance
agreement, which included EAP completion,
after the Employer ordered the removal of the
grievant based on a charge of patient abuse, a
charge which was not grieved. The grievant
failed to meet the conditions of the last chance
agreement, and so the Employer had just cause to
activate the discipline held in abeyance,
regardless of any mitigating circumstances. 465
(1992-94 contract)
The fact that the grievant enrolled in the EAP is
irrelevant, particularly because the grievant
inquired about EAP only after disciplinary action
had begun. 466 (1992-94 contract)
The State was under no obligation to offer the
grievant an EAP agreement under Article 24.09
of the collective bargaining agreement. The
language of the shows that the State is not
obligated to, but rather has the discretion to enter
into EAP agreements in lieu of discipline under
certain circumstances. In this case there was no
evidence or testimony to show that the State