AWARDS 97 - VOLUNTARY ENTER EAP PROGRAM - THEN FILE CLAIM FOR TIME LOST - DENIED

Third Division Award No. 28845 (Zamperini)

"If an employee is alleged to have a substance abuse problem, he can be identified by another employee, a supervisor or voluntarily. When approached by management, s/he can choose whether or not s/he wants to submit to an Investigation and possible discharge for a Rule G violation or voluntarily enter into an EAP Program. If s/he chooses the latter, there is no stigma attached to the incident; the employee's record remains clear. However, in exchange for this alternative, the employee who chooses the EAP Program relinquishes an element of control. Basically, s/he allows an EAP counselor to determine when and actually if, s/he will return to work.

"In the present case, the Claimants involved were given a choice of submitting to an Investigation or going through the program. They chose the latter. Once they did, they placed themselves under the rules governing the program. One such rule was that they would not file any claims over time and/or wages and benefits lost as a result of being held out of service.

"This Board is not only reticent, but without authority to alter the provisions of the By-Pass Agreement. It is an instrument negotiated by the Parties. There can be no modification on the negotiated terms of that Agreement without ratification by both sides. Admittedly, there may occur, from time to time, some administrative problems with the program. If that is the case, the Parties must decide whether or not the problems are serious enough to bring the provisions of the program `back to the table.'

"Generally, when there is a dispute concerning the handling of individual cases, those matters should be dealt with on the property. Not only will this enhance the relationship of the Parties, but will preserve the nature of the negotiated EAP Program.

"In the instant matter, it is simply inappropriate to allow the Claimants to file a Claim one they voluntarily entered the program."