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won 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
The Union grieved the fact that displaced
supervisors bumped into the bargaining unit. The
arbitrator analyzed the bumping rights of
displaced supervisors by narrowing the issue into
one pivotal question: Whether or not the Union
obtained contractual language restricting
bumping to covered employees. If the
Agreement is silent or the State negotiators
preserved Civil Service bumping rights for
displaced supervisors, the grievance will be
denied. 336
A grievance dealing with job abolishment and
layoffs is arbitrable. The jurisdiction of an
arbitrator extends only to these matter which the
parties by their Agreement empower the
arbitrator. Article 5 is not without limitations,
“Such rights shall be exercised in a manner
which is not inconsistent with this Agreement.”
Section 25.01 enables an arbitrator to decide any
difference, complaint or dispute affecting terms
and/or conditions of employment regarding the
application, meaning or interpretation of the
Agreement. The procedural and/or substantive
underpinnings of an abolishment decision
dramatically impact employee’s terms and
conditions of employment. A limitation on the
powers of an arbitrator need to be clearly and
unequivocally articulated; a reserved rights
clause does not serve as an adequate bar. 340
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
of 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
regulations and statutory law apply. In this case
that means that the employer has the burden of
proving by a preponderance of the evidence that
the job abolishments were properly
implemented. 340
When the appointing authority decides to
implement an abolishment they must file a
statement of rationale with the Department of
Administrative Services. This rationale must
only specify the reason for the abolishment:
reorganization for efficient operation, reasons of
economy, or lack of work. No further
documentation is required. At this stage of the
abolishment process statistical data and
additional supporting material are unnecessary.
340
The arbitrator found that he was not bound by
the reasons given in the abolishment rationale in
deciding the propriety of the abolishments. 340
The arbitrator found that post abolishment data is
not only allowed into evidence, it may help the
employer meet its burden by comparing current
work levels versus work levels where the wok
did not exist. Both the Bispeck and Esselburne
decisions underscore the need to address
comparative data rather than the steady-state
analysis proposed by the employer. 340
A job abolishment contemplates the permanent
deletion of a position. It does not mean laying off
one person while leaving the position intact for
another person to fill. [same work previously
performed by the ousted employee is presently
performed, as a function of a mere transfer, by
others in a similar capacity.] Nothing in the
abolishment statutes however prohibits an
appointing authority from consolidating or
redistributing some of the employee’s duties to
other employees. Consolidation takes place when
job elements are assigned to others within the
organization but the consolidated job elements
do not represent a substantial percentage of the
“new” position. A valid redistribution takes
place when various aspects of the abolished
position are distributed amongst existing
positions. 340
A mere job transfer does not equal a job
abolishment; the position was not permanently
eliminated. The employer also violated Section
1.03 of the Agreement by having a supervisor
take over bargaining unit work. 340
The employer abolishing a position and having
the same employee become a part-time
employee doing the same work as she did
previously on a full-time basis points toward the
abolishment being improper. The original
position was still intact, the grievant instead of
working forty hors a week worked thirty nine.