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was determined. If she fails to obtain the position
she occupied, the employer was ordered to place
her back into the office which she had left so as
to prevent any lost wages due to the transfers. If
a person other than the transferred employee
receives the position, that employee must be
made whole for any lost wages and benefits. 399
The grievant took a magnetic tape containing
public information home, which was against
agency rules. She intended to return the tape but
it became lost, and she was charged with theft of
state property. The tape was later recovered by
the Highway Patrol during an unrelated
investigation. The grievant was transferred to
another position without loss of pay or reduction
in rank and suspended for 30 days. The arbitrator
held that the employer failed to prove that the
grievant intended to steal the tape (Hurst
arbitration test applied) rather than borrow it.
Taking the tape home without authorization was
found to be a violation of the employers’ rules.
The employer was found not to have applied
double jeopardy to the grievant as only one
disciplinary proceeding had been brought and the
transfer was found not to be disciplinary in
nature. The 30 day suspension was found not to
be reasonably related to the offense, nor
corrective and was reduced to a 1 day suspension
with full back pay for the remaining 29 days.
417
ARTICLE 18 – LAYOFFS
18.01 – Layoffs
The arbitrator has the power to review whether
the job abolishment and layoff was proper. 280
The State has the burden to prove the layoff was
proper. 280
Lack of Work: Employer must show specific
lack of work with comparisons of the individual
duties of the employees before and after the job
abolishments. 280
See Esselburne v. Ohio Department of
Agriculture,49 Ohio App. 3d 37, 41 (1988). 280
Economy and Efficiency: Employer must show
specific day to day function shat since they have
been abolished have provided economy and
efficiency. 280
See Bispeck v. Trumbull County, 37 Ohio St. 3d
26 (1988). The State may not erode the
bargaining unit through the layoff procedure.
Supervisors and other employees working out of
class may not take over the laid off employee’s
duties. 280
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 emphasized 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