Choose Your Words Carefully: Bargaining Over The Order Of Layoffs

When layoffs occur within an agency, unions may grieve the order of layoffs if they do not follow the order specified in the union contract. Ohio Civil Service law requires that layoffs occur in a certain order, but allows the appointing authority to decide in which classifications layoffs will occur. However, an employer and a union may supersede civil service law, to some extent, through collective bargaining. In one case, peculiar language in a collective bargaining agreement led to arbitration over the order of layoffs city-wide, not just in the bargaining units covered by the agreement.

The City of Wellston, Ohio and Fraternal Order of Police, Ohio Labor Council, Inc. are parties to a collective bargaining agreement. Two sentences in the agreement read: “All probationary, temporary, intermittent, part-time and seasonal employees of the City will be laid off before members of the Bargaining units. Furthermore, the City recognizes that safety force personnel are a priority need for the community and shall attempt to lay off all non-essential employees before safety force personnel and will not subcontract out the services of these personnel.”

The parties agreed to this language in 2003.

On October 1, 2009, the Auditor of State declared the City to be in fiscal emergency. Per the Ohio Revised Code, the City was required to develop and implement a Financial Recovery Plan. The City’s Recovery Plan required the layoff of personnel city-wide, as well as taking other measures to cut costs, such as turning off half of its street lights.

After three patrol officers were laid off, the police union grieved. At arbitration, the Union had two primary contentions: (1) The City did not lay off all part-time employees first as required, because the Fire Department still had 20 “part-time” firefighters on staff; and (2) the City did not lay off all non-essential personnel in the service departments before it laid off the two police officers, who were “safety force personnel.” The Arbitrator ruled for the City.

First, the Arbitrator found that the alleged “part-time” employees of the Fire Department were paid on-call fire staff who could choose whether or not to respond to an emergency call and worked no set schedule. The Wellston Fire Department uses an amalgam of three full-time firefighters, 20 paid on-call, eight volunteers and mutual aid firefighters. If the Union’s position was accepted, the City would be left with three full-time firefighters and eight volunteers. The Arbitrator found that those staffing levels would be unacceptably low. It would be “tantamount to forcing the City to hire more full-time firefighters at a time when the City is in fiscal emergency and to decrease already sparse City budgets in other departments in order to fund increased Fire Department expenditures.” The Arbitrator found that the use of these unscheduled personnel to respond to emergencies and occasionally fill in for the three full-time firefighters did not constitute a breach of the City’s agreement with the police Union.

Second, the Arbitrator rejected the Union’s argument that the City failed to lay off all non-essential personnel before safety force personnel. In anticipation of the Recovery Plan, the City began reducing service-department staff by attrition. Then, after the Recovery Plan, it continued reducing staff by layoff. For instance, the City eliminated the janitor position and agreed to contract the work to the same individual at a reduced rate; it also laid off employees in the water, streets, garbage and cemetery departments, and in the Clerk and Mayor’s offices. The Arbitrator found that the City cut many departments to the bone before it laid off police officers, and that the City was attempting to deal with its financial problems in a reasonable manner.

While the Arbitrator ruled for the City, the city-wide impact of the language is important to consider. For instance, the Arbitrator stated that had the City kept the Parks Department open while it laid office police officers, he would have found a violation of the agreement. Coincidentally, a majority of the City workers who were laid off before police, as required in the collective bargaining agreement with the Police Department, are members of a different union.

The language in this agreement and its consequences illustrate the importance of carefully scrutinizing language in the agreement during bargaining.

In re: The City of Wellston and FOP, OLC, FMCS No. 030411-08835-6 (Byrne, 2010).

Reprinted with permission from the Columbus, Ohio firm of Downes, Fishel, Hass & Kim.

This article appears in the October 2010 issue