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The work was not consolidated or redistributed.
The abolishment was illegal. 340
The employer in this case did redistribute the
abolished duties correctly but this does not
complete an analysis of a job abolishment. The
employer must prove in this case its efficiency
argument. The employees who took over the
duties of a Health and Safety Inspector I, the
abolished position, were not shown to be
properly trained or knowledgeable. The Union’s
introduction of increased citations for not
properly filing accident reports shows how
inefficient this abolishment was; the State did
not prove its case and the abolishment was not
proper. 340
The employer replaced the abolished position’s
duties with the service of an outside private
institution. If the appointing authority decides to
subcontract the work it becomes almost
impossible to show that a lack of work existed
for this position. If the position is transferred,
either internally or externally, it cannot be said to
be permanently deleted. 340
The employer properly abolished the positions of
three Hospital Aide Coordinator I’s. The work
was distributed to other employees holding
different positions. The fact that one HAC was
working out of her classification prior to the
abolishment reinforces the employer’s argument
that this position was not linger required. The
employer’s need for more direct care staff to
follow a “normalization” program was legitimate
and the abolishments were a way to efficiently
pursue this goal. 340
The arbitrator was unwilling to substitute his
judgment for the employer’s in deciding between
managerial alternatives. 340
The Union can win a particular abolishment
claim without presenting any direct evidence
countering an employer’s efficiency justification.
In doing so, however, the Union faces the
possibility of failing to introduce sufficient
opposing testimony to dissuade a positive
impression created by the employer’s testimony.
Preponderance of the evidence, the standard that
the State must establish, is defined by Black’s
Law Dictionary as: “It rests with the evidence
which, when fairly considered, produces the
stronger impression, and has the greater weight,
and is more convincing as to its truth when
weighed against the evidence in opposition
thereto.” The arbitrator made the point that it
would be wise for the Union to introduce
evidences that could weigh against the State’s
case. 340
The federal government created established
hiring criteria, and funded job training positions
with in the Ohio Bureau of Employment
Services for Disabled Veterans’ Outreach
Specialists (DVOPS), and Local Veterans’
Employment Representatives (LVERS). The
OBES and Department of Labor negotiated
changes in the locations of these employees
which resulted in layoffs which were not done
pursuant to Article 18. Title 38 of the United
States Code was found to conflict with contract
Article 18. There is no federal statute analogous
to Ohio Revised Code section 4117 which allows
conflicting contract sections to supersede the
law, thus federal law was found to supersede the
contract. As the arbitrator’s authority extends
only to the contract and state law incorporated
into it, the DVOPS’ and LVERS’ claim was held
not arbitrable. Other resulting layoffs were found
to be controlled by the contract and Ohio
Revised Code sections incorporated into the
contract (see, Broadview layoff arbitration
#340). The grievance was sustained in part. The
non-federally created positions had not been
properly abolished and the affected employees
were awarded lost wages for the period of their
improper abolishments. 390
Nothing in any of the Article 18 sections .02
through .08 contradict, modify or eliminate the
Five Year Rule. The Arbitrator rejected the
argument that Article 18 supersedes the Ohio
Revised code and the Ohio Administrative Code.
The Article specifically states the ORC and OAC
sections are included. If the parties intended that
Sections 18.02 through 18.05 should completely
supersede the ORC and OAC, the Contract
would so state. In addition, nowhere is any time
limit stated on these rights. 450 (1992-94
contract)
The burden to demonstrate rationale for job
abolishment and layoff decisions rests on the
Employer. 454 (1992-94 contract)
The Employer fulfilled its burden to demonstrate
the rationale for its job abolishment and layoff
decisions. There was either a lack of work or the
duties had been absorbed by other bargaining
unit members. 454 (1992-94 contract)