ARBITRATION
DECISION NO.:
460
UNION:
OCSEA, Local 11, AFSCME, AFL-CIO
EMPLOYER:
Department of Mental Retardation
and Developmental Disabilities
DATE OF
ARBITRATION:
May 5, 1992
DATE OF
DECISION:
July 18, 1992
GRIEVANT:
Russell Boyce,
Alvin Whyte and
Thomas LoPresti
OCB
GRIEVANCE NO.:
24-01-(91-06-26)-0073-01-14
ARBITRATOR:
Anna DuVal Smith
FOR THE
UNION:
Donald W. Conley, Advocate
John Gersper, Second Chair
FOR THE
EMPLOYER:
David S. Norris,
Advocate & Witness
Meril Price,
Second Chair
KEY WORDS:
Layoff
Job Abolishment
ARTICLES:
Article 18 - Layoffs
§18.01-Layoffs
FACTS:
Over the years,
the focus of the Department of Mental Retardation and Developmental
Disabilities has changed from large residential institutional populations to
community-based, locally-administered group and independent supported-living
arrangements. A reorganization plan was
undertaken to standardize the structure of the organization and to eliminate
non-essential programs, services and personnel where functions performed were
no longer required. As a result, a
number of positions in Central Office were abolished, among them three Planner
2 positions held by the grievants in this case. Pursuant to O.R.C. Section 124.321(D), the rationale for the
abolishment was provided to the Department of Administrative Services. The Union was notified of MR/DD's intentions
and pre-abolishment meetings were held.
On June 21, employees were notified that their jobs were being
eliminated and that they were to be laid off effective July 13.
UNION'S
POSITION:
The Union argued
that the Employer did not carry its burden to prove justification for the
abolishment. The Employer's rationale
was founded on an anticipated reduction of work because of a philosophical
shift and legislative change, and it was not permissible to base abolishment on
a projected lack of work. The Union
presented testimony and documents which it said demonstrated that the
anticipated drop in work had not occurred by the time of the layoff and did not
occur thereafter, and that the Employer relied on an obsolete Table of
Organization in targeting one grievant's position for abolishment.
EMPLOYER'S
POSITION:
The Employer
stated that it carried its burden of proof for justifying the abolishment of
the grievants, jobs. The Rationale is
based on a necessary reorganization to eliminate nonessential personnel
following statutory, systemic and philosophical changes, and to standardize the
structure. This action was consistent
with rights reserved to Management through Article 5 of the Agreement.
The Employer presented testimony stating
that the Division of Policy and Planning was eliminated since its
responsibility was largely completed with the publication of the long-range
plan and distribution of videotapes.
Other functions were reassigned to other divisions. As a result, the functions performed by one
of the grievants were no longer needed, and his position was subsequently abolished.
The State further
testified that the need for Planners in the Office of Project Approval and
Budget Management was affected by legislation which eliminated the
responsibility of the Department for reviewing and approving County Board
plans, the shift in the Department from expansion to modification of existing
facilities, and the lack of authorizations to develop major expansion projects
since 1986 and 1987. The abolishment of
the Planners, positions was the result of elimination of job duties and
functions and a simplification of job processes. The Employer stated that it complied with all procedural
requirements of Article 18 and exceeded its obligation in holding
pre-abolishment meeting and providing outplacement assistance.
ARBITRATOR’S
OPINION:
The Employer
carried its burden to prove by a preponderance of the evidence that the job
abolishment and subsequent layoffs were justified in both the Division of
Policy and Planning and in the Office of Project Approval and Budget
Management. The State demonstrated that
in the Division of Policy and Planning, the completion of the ten-year plan and
distribution of videotapes concluded the principal mission of the Division,
warranting absorption of its remaining functions into other divisions. Assumption of policy and procedure
development by other Deputy Directors further reduced the functions performed
by this Planner 2. The Union presented
no evidence to refute the conclusion that there was no further need for this
position.
Philosophical and
legislative changes affected the Planner 2 positions in the Office of Project
Approval and Budget Management. The
emphasis shifted to supported living rather than institutionalized living and
the development of group homes through the purchase of service. The result for the Office has been a
substantial decline in development.
Technological changes also affected the activities of these
positions: the Residential Development
Committee no longer meets face-to-face but votes by electronic mail, and
standardized language was developed to make composition of approval letters
more efficient. Of the thirty separate
functions listed as being performed by the Planner 2's in 1990, sixteen are no
longer done, seven are performed less, two are performed in fluctuating volume,
and one is executed by request. The
duties that must be performed have been transferred to the remaining
Residential Project Manager who now handles the entire process without
overtime.
AWARD:
The grievance is
denied in its entirety.
TEXT OF
THE OPINION:
In the
Matter of Arbitration
Between
STATE OF OHIO,
DEPARTMENT OF MENTAL
RETARDATION AND
DEVELOPMENTAL DISABILITIES
and
OHIO CIVIL SERVICE EMPLOYEES
ASSOCIATION, LOCAL 11,
A.F.S.C.M.E., AFL/CIO
OPINION and AWARD
Arbitrator:
Anna DuVal
Smith
Case:
24-01-910626-0073-01-14
Grievants:
Russell
Boyce, Alvin Whyte &
Thomas
LoPresti
Layoff
Appearances
For OCSEA Local 11, AFSCME:
Donald W.
Conley;
Associate
General Counsel,
OCSEA
Local 11, AFSCME; Advocate
John
Gersper;
OCSEA
Local 11, AFSCME;
Second
Chair
Russell
Boyce; Grievant
Alvin
Whyte; Grievant
For the State of Ohio:
David S.
Norris;
Deputy
Director, Division of Human
Resources,
Ohio Department of Mental
Retardation
& Developmental Disabilities;
Advocate
& Witness
Meril
Price;
Ohio
Office of Collective Bargaining;
Second
Chair
Marilyn
Reiner;
Personnal
Officer, Ohio Department of Mental
Retardation
& Developmental Disabilities
William
Sven Lindberg;
Chief,
Office of Project Approval/Budget
Management;
Ohio Department of Mental
Retardation
& Developmental
Disabilities;
Witness
Michael D.
French;
Residential
Development Manager
Hearing
Pursuant to the procedures of the
parties a hearing was held on May 5, 1992, at the offices of the Ohio Civil
Service Employees Association, Columbus, Ohio, before Anna DuVal Smith,
Arbitrator. The parties were given a
full opportunity to present written evidence and documentation, to examine and
cross-examine witnesses, who were sworn and excluded. Briefs were exchanged through the Arbitrator on June 15, 1992,
and the record closed on that date.
This opinion and award is based solely on the record as described
herein.
Issue
The parties stipulated that the
issue to be decided by the Arbitrator is:
“Did the Employer meet the contractual obligations of
Article 18, Section 18.01 when it abolished [the jobs of] and laid off Russell
Boyce, Alvin Whyte and Thomas LoPresti?
If not, what shall be the remedy?”
Joint
Exhibits and Stipulations
Stipulations of Fact
1. Valecia Davis, Word Processing Specialist 2 and Deborah Hoffine,
Account/Examiner 2, lost no pay, benefits or seniority, but bumped into the
same pay range they held prior to the abolishment, and are not a part of this
arbitration.
2. Barbara Spikes, Contract Evaluator/Negotiator requested a
voluntary demotion to the Classification of Client Advocate, located at the
Warrensville Developmental Center effective July 28, 1991, and is no longer
part of this Grievance.
3. The grievance is properly before the Arbitrator.
Joint Exhibits
1. 1989-91 Collective Bargaining Agreement
2. Grievance Trail
3. Department Rationale for Abolishment
4. Sections 123.321-327 O.R.C. and Chapter 123:1-41 O.A.C.
5. Position Description of Projects Management Supervisor (Planner
2), held by Russell Boyce prior to abolishment.
Relevant
Contract Provision
Article 18
- Layoffs
§18.01 -
Layoffs
Layoffs of employees covered by
this Agreement shall be made pursuant to Ohio Revised Code Sections
124.321-.327 and Administrative Rule 123:1-41-01 through 22, except for the
modifications enumerated in this Article.
Case
Background
The Employer in this case is a
state agency whose mission involves ensuring that services are available to
assist the mentally retarded and developmentally disabled to live successfully
in environments of their choice. Over
the years, the philosophy guiding the activities of the Department has
undergone change, resulting in a greatly diminished large residential
institutional population as clients are increasingly served through
community-based, locally-administered group and, more recently, independent
supported-living arrangements.
In early 1991, a new director
assumed his role and undertook to reorganize the Department "to
standardize the structure of the organization;" "to eliminate
non-essential programs, services and personnel where functions performed are no
longer required due to statutory changes, systemic changes, or changes in
philosophy and direction of the Department;" and "to standardize the
existing structure through the use of appropriate classifications....” (Joint
Ex. 3). As a result of this
reorganization, a number of positions in the Central Office were abolished,
among them three Planner 2 positions held by the Grievants in this case, Thomas
LoPresti,
Russell Boyce, and Alvin Whyte.
Pursuant to 124.321(D) O.R.C., rationale for the abolishment was
provided to the Department of Administrative Services. This paragraph of the Code provides that
“Employees may be laid off as a result of abolishment of
positions. Abolishment means the
permanent deletion of a position or positions from the organization or
structure of an appointing authority due to lack of continued need for the
position. An appointing authority may
abolish positions as a result of a reorganization for the efficient operation
of the appointing authority, for reasons of economy, or for lack of work....”
The Union was notified of the
Department's intentions and pre-abolishment meetings were held. To mitigate the impact on affected
employees, various forms of outplacement assistance were provided by the
Department. One of the grievants,
Russell Boyce, feels that the Department reneged on one form of assistance he
heard promised at that meeting. On June
21, employees were notified that their jobs were being eliminated, that they
were to be laid off effective July 13, and advised of their layoff rights. Six of these filed a class action grievance
on June 26, claiming that the abolishments were not justified and seeking
reinstatement to their former positions.
While the grievance was being processed, three of the grievants secured
other employment and withdrew their claims.
The remaining three persisted to arbitration, where the case presently
resides, free of procedural defect, for final and binding resolution.
Arguments
of the Parties
The Union
The Union contends that the
Employer has the burden to prove, by a preponderance of the evidence,
justification for the abolishment. It
further argues that the Employer has not carried its burden. In support of the first, the Union relies on
a holding by Arbitrator Graham (OCSEA v. OBES (1990) Case Nos.
11-09-(891026)-0119-01-06 and 11-09-(891023)-0120-01-06) interpreting the same
contractual language before this arbitrator and a unanimous Ohio Court of
Appeals decision (No. 91AP-1174, 10th Dist Ct App, 4-28-92) affirming
Arbitrator Graham's award:
“Naturally, the employer would have all of the evidence and
information concerning its budget, its current and projected needs, its reasons
for the layoff, and so on. Typically,
the burden of proof is placed on the party that has the access to the
evidence. Here, that party is the
employer.”
In support of its position that
the Employer failed to carry its burden of proof, the Union points out that the
Department's rationale was founded on an anticipated reduction of work because
of a philosophical shift and legislative change. The Union contends that it is not permissible for an employer to
base abolishment on a projected lack of work, citing Esselburne v. Ohio
Department of Agriculture (1988) 49 Ohio App. 3d 37. Moreover, Union testimony and documents show
that the anticipated drop in work had not occurred by the time of the layoff
and did not occur thereafter. Fiscal
year 1991 development was occurring at the same or greater rate than in fiscal
year 1990, and the Employer failed to consider on-going work on previously
approved multi-phase projects.
The Union further states that the Employer relied on an obsolete Table
of Organization in targeting Russell Boyce's position for abolishment.
For these reasons, the Union asks
that the grievance be granted. As a
remedy, it requests disaffirmation of the abolishment of the three Planner 2
positions, reinstatement of the three employees to their former positions, and
an award of all back pay and benefits.
It specifically requests that as part of a make-whole remedy, the
Department be ordered to make the employer PERS contribution it would have made
had it not been for the improper abolishment.
The Employer
The Employer does not argue that
it does not have the burden to justify job abolishment, but asserts that it has
carried the burden of proof. It states
that the Rationale (Joint Ex. 3) describes a Department structure that evolved
as former directors put their structures in place over preceding ones. In 1991, reorganization was necessary, it
asserts, to eliminate nonessentials following statutory, systemic and
philosophical changes, and to standardize the structure. This action, it claims, is consistent with
rights reserved to Management through Article V of the Agreement.
According to the Employer, the
testimony of David Norris shows that the Division of Policy and Planning was
eliminated since its responsibility was largely completed with the publication
of the long-range plan and distribution of video tapes. Other functions were reassigned to other
divisions. The functions performed by
Mr. LoPresti were therefore no longer needed, and so his position was
abolished. The Union presented no
evidence to refute the Employer's testimony. Accordingly, the Employer says its decision
to abolish this position should be affirmed and the layoff of Mr. LoPresti
upheld.
The need for Planners in the
Office of Project Approval and Budget Management was affected by a number of
developments testified to by the Chief of the Office. Legislation eliminated the responsibility of the Department for
reviewing and approving County Board plans.
The focus of the Department shifted from expansion of residential homes
to modifications of existing facilities.
Documents and testimony show there have been no authorizations to
develop major expansion projects since 1986 and 1987. Any expansion since has been in supported living, which is
administered locally. Applications for
modifications have declined and the procedure for processing these applications
has been simplified. The Employer goes
on to say that the evidence shows there has been a significant reduction in
workload, despite the Grievants' claim to the contrary. It concludes that the abolishment of their
positions was the result of the elimination of job duties and functions,
reduction in amount of remaining duties and functions, and simplification of
job processes. The abolishment was not
based on an incorrect Table of Organization, but on a reduction of duties
caused by a change in philosophy, direction and governing statute, decreased
development, and simplification of procedures to provide more
efficient and economical operation.
The Employer further points out
that it complied with all procedural requirements of Article 18, encompassing
certain sections of the Code and Regulations.
It exceeded its obligation in holding pre-abolishment meetings and
providing outplacement assistance. It
summarizes that the positions were appropriately eliminated for reasons of
economy and efficiency and asks that the grievance be denied in its entirety.
Opinion of
the Arbitrator
The threshold issue--which party
has the burden of proof--appears to need no resolution as the Employer
presented no closing argument in opposition to the Union's position that the
burden is the Employer's. Additionally,
the Union argument and supporting authority are persuasive. That being the case, it need only be stated
that the Employer here does have the burden to prove by a preponderance of the
evidence that the layoffs through job abolishments were justified. Whether the Employer carried its burden will
be addressed in two parts, each covering a different structural unit of the
Department.
The Employer made its prima facie
case for abolishment of the Planner 2 position in the Division of Policy and
Planning. By the testimony of David
Norris, the completion of the ten-year plan and distribution of media concluded
the principal mission of the Division, warranting absorption of its remaining
functions into other divisions. The
work of the Planner 2 position relative to the plan was done. Assumption of policy and procedure
development by other Deputy Directors further reduced the functions performed
by this Planner 2. The Union presented
no evidence to refute the conclusion that there was no further need for this
position and that its abolishment was justified on the basis of reorganization
for economy and efficiency. Mr. LoPresti’s
claim must be and is denied.
The situation in the Office of
Project Approval and Budget Management is more complex. This Office approves and monitors
development of residential projects, monitors the budget impact of each, and
provides technical assistance to county boards and contractors. The evidence shows an impact of philosophical
and legislative changes on its functions.
Mr. Lindberg testified that legislation passed in 1988 eliminated
Departmental review of county board plans.
Philosophical changes resulted in a decline in population of large
institutional settings and development of group homes through the purchase of
service. More recently, the emphasis
has shifted to supported living. The
result for the Office has been a substantial decline in development: county and Department RFPs declined from 63
in FY 1987 and 84 in FY 1988 to 20 in FY 1990 and 4 in FY 1991 (Management Ex.
1). Evidence submitted by the Union
(Union Ex. 1 & 2 regarding fiscal years 1990 and 1991 respectively) supports
Mr. Lindberg's testimony that new development is small relative to total
residential development actions, consisting mostly of one bed additions to
existing facilities here and there. Mr.
Lindberg also testified that the large supported living conversions from
purchase-of-service have already occurred and that they no longer do any
emergency development that requires funding.
Modifications to existing facilities continue, but require less
technical assistance because of learning.
Technological changes affecting the activities of the positions were
also described: the Residential
Development Committee no longer meets face-to-face, but votes by Electronic
Mail; boilerplate has been developed that makes composition of approval letters
more efficient. The impact of these
changes on the functions performed by the Planners is indicated on Management
Exhibit 2. Of the thirty separate
functions listed as being performed in 1990 (counting separately each type of
approval letter and report), sixteen are no longer done, seven are performed
less, two are still performed but in fluctuating volume, and one is executed by
request. The duties that still must be
performed including those in decreased volume have been transferred to the
remaining Residential Project Manager, who Mr. Lindberg testified now handles
the entire process, including her former duties, without overtime or weekend
work. Further evidence of the reduced
need for personnel at the time the abolishment occurred was the impact on the
Office of the light staffing created by Mr. Whyte's four month assignment to
fund-raising during 1990 and one Residential Project Manager's poor attendance
and ultimate resignation early in 1991.
Mr. Lindberg testified that during the reduced staffing no backlog was
created, nor was overtime or weekend work necessary to keep up.
Against this, the Union submits a
number of documents and testimony of the two Grievants to show that there was
no reduction of work and that the abolishment was based on an obsolete Table of
Organization. The Rosters of
Residential Actions for fiscal years 1990 and 1991 (Union Ex. 1 & 2) do
indicate that approximately the same number of authorization numbers were assigned
each of the two years preceding the abolishment, but since each authorization
number may involve one or more sites, one of the supervisors indicated is not a
Planner 2, and a variety of actions (relocations, change-of-ownership, etc.)
are involved requiring different degrees of Office involvement, the documents
are not reliable indicators of work load for the Planners. As far as evidence of new development is
concerned, the Department does not claim that new development ceased entirely,
but that increases were small in size and number, often involving an addition
of a respite or backup bed. Indeed, for
FY 1991 (Union Ex. 2), where the Union claims 64 beds were added, 41 were at
one site and this project was later rescinded, according to testimony of Mr.
Lindberg. Union Exhibit 3 indicates
approved ICF-MR projects coming on line after April 30, 1991, but no comparison
with previous periods or estimate of the former Planner 2 involvement on an
on-going basis was given. "Lots of
effort" is too imprecise, particularly since the 39 projected
certification dates stretch well into 1992 and even to 1993. Union Exhibit 14 was offered to show that
the relative amount of supported living beds compared to purchase-of-service
beds in FY 1991 was small, so that considerable work remained in conversions
of purchase-of-service to supported living.
It also was offered to show the volume of Department-administered
supported living that requires staff effort.
This is rebutted by Employer evidence of supported living base
allocations to the counties not appearing on the exhibit, and slow growth of
the supported living budget. In sum,
while the Union offered a fair amount of data, the Arbitrator is unable to
conclude that much remains for the Planners to do since new purchase-of-service
projects dropped dramatically several years ago, the large supported living
conversions occurred already, and technical changes have made remaining work
more efficient. Moreover, the weight of
the evidence is that this was the case when the abolishment occurred in
1991. This is shown by the reduction in
RFPs prior to 1991, the Office operating with reduced staff and without
overtime or backlogs in 1990, and testimony about changes in the functions of
the Planners (Management Ex. 2, e.g.).
Regarding the Table of Organization,
it is true that the Rationale says a Planner 2 can be eliminated since no
supervisor is needed for the one remaining Health Facility Standards
Representative. The Union correctly
points out that the Facility Standards Representatives reported to a position
other than the one Planner 2. However,
elimination of supervisory duties was not the sole basis for the abolishment of
the Planner 2 position. Reduction in
responsibilities because of the change in focus, decrease of required
Department approvals, technical assistance and tracking during development were
also cited (Joint Ex. 3). Besides,
whether any supervisory duties remain for the one Planner 2 depends on whether
the second Planner 2 position (which reports to the first) is eliminated. And the Employer has borne its burden of
proof that both positions were justifiably abolished when a reduction or
elimination of duties and responsibilities caused by statutory, philosophical
and operational changes resulted in a lack of continued need for the positions
and reorganization of the Department for economy and efficiency. Utilization of an obsolete Table of
Organization is a technical deficiency not fatal to the Employer's action. In sum, I find that the Employer met its
contractual obligations of Article 18, Section 18.01 when it abolished the
positions of and laid off Russell Boyce and Alvin Whyte, as well as Thomas
LoPresti.
Given these grievants'
qualifications and history of public service, it is with a sense of loss that
the Arbitrator must deny their grievance.
One can only hope that they will soon again be employed serving the
community.
Award
The grievance is denied in its
entirety.
Anna DuVal Smith, Ph.D.
Arbitrator
July 18, 1992
Shaker Heights, Ohio