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Aim was to continue financial and fringe benefits. 48
“Appointing authority directive” is an order defined by the
procedure of promulgation: an order from a director which
has to be journalized. 48
No smoking policy was found not to be an appointing
authority directive because no evidence was presented to be
shown that the policy was journalized. 48
There are a variety of approaches that arbitrators can take
when applying outside statutory law. Arbitrator Patricia
Thomas Bittel cites Arbitrator Bernard D. Meltzer’s
analysis:
1. Where the provision being interpreted or applied has been
loosely contrived, the arbitrator may consider all relevant
factors, including relevant law;
2. Where a provision suggests two interpretations, one
compatible with applicable law and the other not, the statute
is a relevant factor and the construction compatible with the
law should be favored; and
3. Where it is clear the parties anticipate the arbitrator will
render an advisory opinion as to the law, such opinion is
within the arbitrator’s role.ORC 4117.10 states the public
employer and its employees are subject to applicable
employment laws “where no agreement exists or where the
agreement makes no specification about the obligations of
the Agency, this controls. The method of filling bargaining
unit jobs is set out in the Agreement; the Agreement is not
silent in this area and ORC 4117.10 gives Article 17
precedence over Ohio Administrative Rule 123:1-24-03.
Section 43.02 of the Agreement preserves statutory benefits
“in areas where the Agreement is silent.” The language of
the Administrative Code, Ohio Revised Code 4117.10 and
Article 43 of the Agreement recognize the preeminence of
Article 17 over any rights to demotion into the bargaining
unit designated by the Administrative Code. The Agency
does not have to violate the Agreement to follow the
Administrative Code. 297
An agency rule may be fair on its face but unjust in its
particular application, especially when the employer applies
the rule without attention to mitigating factors. If the
discipline falls outside the scope of just cause the arbitrator
must intervene. 305
Layoffs are to be made pursuant to the Ohio Revised Code,
Section 124.321-327 and the Administrative Rules 123:1-
41-01 through 22. Other sections of the Revised Code and
Administrative Rules are incorporated by Section 43.02 of
the Agreement. In the situation where state statutes and
regulations confer benefits upon employees in areas where
the Agreement is silent, the benefits shall continue. It was a
benefit to employees prior to the institution of collective
bargaining that the State Personnel Board of Review heard
appeals from layoffs. Under Section 25.01 the grievance
procedure is the “exclusive method” of resolving
grievances. Employees covered by the Agreement no longer
have access to the State Personnel Board of Review in order
to contest layoffs. The employees must grieve under the
plain language of the Agreement. The parties altered the
forum of review. The grievance procedure, including
arbitration, now serves as the avenue of appeal. When
appeals were taken to the Board of Review they were made
pursuant to rules that are not specifically set out in the
Agreement. One rule placed the burden upon the employer
to demonstrate by “a preponderance of the evidence that a
job abolishment was undertaken due to the lack of the
continuing need for the position, a reorganization, for the
efficient operation of the appointing authority, for reasons of
economy or for a lack of work expected to last more than
twelve months.” ORC 124-701(A)(1) This rule represents a
benefit to employees and is continued under the language of
Section 43.02 of the Agreement. The two major decisions in
the area of layoffs are Bispeck and Esselburne. Bispeck
emphasizes that the burden is on the employer and
Esselburne sets out the standard of proof the employer must
show to carry its burden. The arbitrator decided that the
employer must compare current work levels for the
employees to a period when a lack of work did not exist.The
State did not show that a lack of work existed in either of
the layoffs. The State’s reference to the money that could be
saved by not paying the grievants does not prove that there
existed a lack of funds. As Bispeck States, “Evidence of not
having to pay the salaries on its own is not sufficient to
prove increased efficiency and economy as required.” Not
having to pay the grievant’s salaries is insufficient evidence
of the employer’s increased economy and efficiency. 311**
Public and private sector labor disputes are not identical.
Bargaining in private industry grew out of a perceived need
of employees to carve protections out of management’s
absolute authority. Bargaining in the State of Ohio did not
have the same need, at least not to the same degree.
Protections were already in place in the form of
longstanding Civil Service legislation. Ohio did not abandon
Civil Service Regulations when it enacted the Public
Employee Collective Bargaining Law; the regulations were
the only shelter for classified employees that were not
clothed with bargaining rights. In the private sector silence
is presumed to insure bargaining unit seniority against
outside encroachment. In Ohio the opposite conclusion is
required; where the Agreement makes no reference to a
subject, it incorporates preexisting law. The preexisting law
allows bumping rights for displaced supervisors. 336
Section 43.02 which deals with the preservation of
employee benefits also points towards abolishment
decisions being reviewable by an arbitrator. The benefits are
not limited to economic gains. An appeal from an
abolishment or layoff decision is a form of benefit and
arbitral review is preserved. 340**
When the Agreement is silent on who has the burden of
proof and the standard of proof, Section 43.02 prevails and
the relevant regulation and statutory law apply. In this case
that means the employer has the burden of proving by a
preponderance of the evidence that he job abolishments
were properly implemented. 340**