by Contract Number (PDF) - OCSEA
by Contract Number (PDF) - OCSEA
by Contract Number (PDF) - OCSEA
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was determined. If she fails to obtain the position<br />
she occupied, the employer was ordered to place<br />
her back into the office which she had left so as<br />
to prevent any lost wages due to the transfers. If<br />
a person other than the transferred employee<br />
receives the position, that employee must be<br />
made whole for any lost wages and benefits. 399<br />
The grievant took a magnetic tape containing<br />
public information home, which was against<br />
agency rules. She intended to return the tape but<br />
it became lost, and she was charged with theft of<br />
state property. The tape was later recovered <strong>by</strong><br />
the Highway Patrol during an unrelated<br />
investigation. The grievant was transferred to<br />
another position without loss of pay or reduction<br />
in rank and suspended for 30 days. The arbitrator<br />
held that the employer failed to prove that the<br />
grievant intended to steal the tape (Hurst<br />
arbitration test applied) rather than borrow it.<br />
Taking the tape home without authorization was<br />
found to be a violation of the employers’ rules.<br />
The employer was found not to have applied<br />
double jeopardy to the grievant as only one<br />
disciplinary proceeding had been brought and the<br />
transfer was found not to be disciplinary in<br />
nature. The 30 day suspension was found not to<br />
be reasonably related to the offense, nor<br />
corrective and was reduced to a 1 day suspension<br />
with full back pay for the remaining 29 days.<br />
417<br />
ARTICLE 18 – LAYOFFS<br />
18.01 – Layoffs<br />
The arbitrator has the power to review whether<br />
the job abolishment and layoff was proper. 280<br />
The State has the burden to prove the layoff was<br />
proper. 280<br />
Lack of Work: Employer must show specific<br />
lack of work with comparisons of the individual<br />
duties of the employees before and after the job<br />
abolishments. 280<br />
See Esselburne v. Ohio Department of<br />
Agriculture,49 Ohio App. 3d 37, 41 (1988). 280<br />
Economy and Efficiency: Employer must show<br />
specific day to day function shat since they have<br />
been abolished have provided economy and<br />
efficiency. 280<br />
See Bispeck v. Trumbull County, 37 Ohio St. 3d<br />
26 (1988). The State may not erode the<br />
bargaining unit through the layoff procedure.<br />
Supervisors and other employees working out of<br />
class may not take over the laid off employee’s<br />
duties. 280<br />
Layoffs are to be made pursuant to the Ohio<br />
Revised Code, Section 124.321-327 and the<br />
Administrative Rules 123:1-41-01 through 22.<br />
Other sections of the Revised code and<br />
Administrative Rules are incorporated <strong>by</strong><br />
Section 43.02 of the Agreement. In the situation<br />
where state statutes and regulations confer<br />
benefits upon employees in areas where the<br />
Agreement is silent, the benefits shall continue.<br />
It was a benefit to employees prior to the<br />
institution of collective bargaining that the State<br />
Personnel Board of Review heard appeals from<br />
layoffs. Under Section 25.01 the grievance<br />
procedure is the “exclusive method” of resolving<br />
grievances. Employees covered <strong>by</strong> the<br />
Agreement no longer have access to the State<br />
Personnel board of Review in order to contest<br />
layoffs. The employees must grieve under the<br />
plain language of the Agreement. The parties<br />
altered the forum of review. The grievance<br />
procedure, including arbitration, now serves as<br />
the avenue of appeal. When appeals were taken<br />
to the Board of Review they were made pursuant<br />
to rules that are not specifically set out in the<br />
Agreement. One rule placed the burden upon the<br />
employer to demonstrate <strong>by</strong> “a preponderance of<br />
the evidence that a job abolishment was<br />
undertaken due to the lack of the continuing need<br />
for the position, a reorganization, for the efficient<br />
operation of the appointing authority, for reasons<br />
of economy or for a lack of work expected to last<br />
more than twelve months.” ORC 124-701(A)(1)<br />
This rule represents a benefit to employees and is<br />
continued under the language of Section 43.02 of<br />
the Agreement. The two major decisions in the<br />
area of layoffs are Bispeck and Esselburne.<br />
Bispeck emphasized that the burden is on the<br />
employer and Esselburne sets out the standard of<br />
proof the employer must show to carry its<br />
burden. The arbitrator decided that the employer<br />
must compare current work levels for the<br />
employees to a period when a lack of work did<br />
not exist. The State did not show that a lack of<br />
work existed in either of the layoffs. The State’s<br />
reference to the money that could be saved <strong>by</strong><br />
not paying the grievants does not prove that there<br />
existed a lack of funds. As Bispeck states,<br />
“Evidence of not having to pay the salaries on its