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ARTICLE 17 - PROMOTIONS, TRANSFERS, DEMOTIONS AND RELOCATIONS

This is a labor agreement with annotations by the Office of Collective Bargaining.

PLEASE NOTE:
Language that is in bold typeface and underlined was added with this Agreement.
Language that is struckthrough was removed with this Agreement.
Language in Italics are annotations added by the Office of Collective Bargaining.

Arbitration Awards:

  

   OCB #730

   OCSEA #491

Arbitrator Rivera: Grievant Steve Williams; EPA, 12/9/91.  An EPA employee was reclassified from an Environmental Engineer 2 to Geologist 4.  The Agency did not post the Geologist 4 position as a vacancy.  The Grievant, who was senior to the incumbent employee grieved this action.  Arbitrator Rivera held that the Employer violated Article 17 when it “placed an employee in a job simultaneously with the job appearing in that location.”  This should have been declared a vacancy and posted according to Article 17.

   OCB #767

   OCSEA #437

Arbitrator Graham: Grievant Mary L. Babb; BWC, 5/8/92.  Arbitrator

Graham held that Article 17 requires that bidders for promotions must  “possess” and be “proficient” in the minimum qualifications.  Because the Grievant claimed only a “brief knowledge of the word processing techniques and procedures,” the Arbitrator found she did not meet the minimum qualifications for the position.

17.01 - Policy

The Employer retains the right to determine which vacancies to fill by either 1) permanent transfer pursuant to 17.07, or 2) promotion, lateral transfer or demotion.  The determination of an excess is a management right per Article 5 and is non-grievable and shall not be used to dispute the rationale for job abolishments and/or layoffs in Article 18.

The Employer retains the right to move an employee within the same facility and change the employee’s job duties provided that the job duties fall within the employee’s current classification specification.

The Employer has the right to move employees and positions through permanent relocations pursuant to Section 17.08.  The determination of an excess is a management right per Article 5 and is non-grievable and shall not be used to dispute the rationale for job abolishments and/or layoffs in Article 18. 

Explanation:

The numbering in this Section clarifies that one of two processes to fill vacancies will be used, either the permanent transfer process pursuant to Section 17.07, or the promotion, transfer or demotion process.

Other changes to this Section are housekeeping.

Attention:

Staff Representatives, Union Officials; Agency Labor Relations and Personnel Officers.

Effective Date:

March 1, 2003 – February 28, 2006

17.02 - Definitions

A.     “Permanent transfer” is the movement of an employee in the same classification, to a posted vacancy within the same agency from either one county to another or from one institution to another.

B.     “Promotion” is the movement of an employee to a posted vacancy in a classification with a higher pay range within the same agency. A higher pay range is defined as a pay range in which the first step or the last step has a higher pay rate than the first or last step of the pay range to which the employee is currently assigned.

C.     “Permanent relocation” is the movement of an employee and his/her position to another location within the same headquarters county. Relocations do not constitute the filling of a vacancy.

D.     “Headquarters county” is the county in which the employee is employed.

E.      “Vacancy” is an opening in a permanent full-time or permanent part-time position within a specified bargaining unit covered by this Agreement which the agency determines to fill and does not include those positions identified through mutual agreement between the Union and the Agency as being subject to reorganization, changes in appointment category (type), or a movement that constitutes a demotion.

Vacancies shall be filled by adhering to the following processes in the order set forth:

1.      Permanent transfer as set forth in Section 17.07;

2.      Bumping or displacement as set forth in Article 18;

3.      Recall as set forth in Article 18;

4.      Reemployment as set forth in Section 18.13;

5.      Cross geographical jurisdiction bidding as set forth in Section 18.12;

6.      Promotion as set forth in Article 17; 

7.      Lateral transfer as set forth in Article 17 and;

8.      Demotions as set forth in Article 17.

F.      “Lateral transfer” is defined as an employee-requested movement to a posted vacancy within the same agency which is in the same pay range as the classification the employee currently holds.

G.     “Demotion” is defined as the movement of an employee to a position in a classification with a lower pay range within the same agency. A lower pay range is defined as a pay range in which the first or last step has a lower rate of pay than the first or last step of the pay range to which the employee is currently assigned.

H.     “Inter-Agency Transfer” is defined as an employee-requested movement to a posted vacancy in a different agency.  Should the employee be selected for an inter-agency transfer to a position with a higher pay range than that currently held by the employee, the employee shall be placed in the step to guarantee an increase of approximately four percent (4%).  Should the employee be selected for an inter-agency transfer to a position in the same pay range currently held by the employee, the employee shall be placed in the same step of the pay range.  Should the employee be selected for an inter-agency transfer to a position in a lower pay range than that currently held by the employee, the employee shall be placed in the step closest to but not to exceed the step currently held by the employee.  Nothing in this section precludes the Employer from utilizing an advance step placement at its discretion.

Arbitration Awards:

   OCB #598

   OCSEA #349

Arbitrator Graham:  Grievant, Haberny; OBES;.  A vacancy is not defined by a Position Control Number; a lateral transfer to another office constitutes filling a vacancy.

Explanation:

The definitions of promotion and demotion have been limited to movements within the same agency.  New language defines “Inter-Agency Transfer” and establishes placement within a pay range when employees request an Inter-Agency Transfer.

Article 6 provides that employees requesting an Inter-Agency Transfer shall serve an initial probationary period.  However, only employees who accept an inter-agency transfer to a higher pay range will be eligible to move to the next higher step at the end of the probationary period.

Employees requesting Inter-Agency Transfers shall be permitted to transfer applicable leave balances to their new agencies (i.e. sick, vacation and personal leave).  Compensatory time does not transfer upon an Inter-Agency Transfer.

Attention:

Staff Representatives, Union Officials; Agency Labor Relations, Payroll and Personnel Officers.

Instructions:

When a vacancy exists, the following list shall be used to determine the method for filling the position:

1.  permanent transfer as set forth in Section 17.07;

2.  bumping or displacement as set forth in Article 18;

3.  re-call as set forth in Section 18.11;

4.  re-employment as set forth in Section 18.13;

5.  cross geographical jurisdiction bidding, i.e., a one-time agency bid as set forth in Section 18.12;

6.  promotion as set forth in Article 17;

7.  lateral transfer as set forth in Article 17.

8.  demotions as set forth in Article 17.

Effective Date:

March 1, 2003 – February 28, 2006

17.03 - Posting

All vacancies within the bargaining units that the Agency intends to fill shall be posted in a conspicuous manner throughout the region, district or state as defined in Appendix J. In cases of vacancies that are to be filled by permanent transfer(s), the vacancies shall be posted only in areas of declared excess. The agencies shall declare on the vacancy posting its intent to fill by 1) permanent transfer or 2) by promotion, transfer or demotion. Further, vacancy notices will list the deadline for application, pay range, class title and shift where applicable, the knowledge, abilities, skills, and duties as specified by the position description. Vacancy notices shall be posted for at least ten (10) days. Posted vacancies shall not be withdrawn to circumvent the Agreement.

The Employer will cooperate with the Union to make job vacancies known beyond the required areas of posting. The Employer is currently developing a process to permit individuals to file an electronic application for a posted vacancy. The Employer may implement this process in addition to the current process during the term of this Agreement. The Union will be provided a reasonable notice and an opportunity to comment prior to the implementation of such a program.  Application processes shall not be changed without mutual agreement.

Explanation:

Housekeeping changes.

As in Section 17.01, the numbering in this Section clarifies that one of two processes to fill vacancies will be used, either the permanent transfer process pursuant to Section 17.07, or the promotion, transfer or demotion process.
Language regarding the electronic filing of applications has been eliminated.  The Employer has completed the development of the electronic application process.

Attention:

Staff Representatives, Union Officials; Agency Labor Relations and Personnel Officers

Effective Date:

March 1, 2003 – February 28, 2006

17.04 – Applications

Employees may file timely applications for permanent transfers, promotions, lateral transfers or demotions. Upon receipt of all bids the Agency shall divide them as follows:

A.1. For the vacancies that the Employer intends to fill by promotion the applications shall be divided as follows:

1.    All employees in the office (or offices if there is more than one office in the county), "institution" or county where the vacancy is located, who possess and are proficient in the minimum qualifications contained in the classification specification and the position description.

2.   All employees within the geographic district of the Agency (see Appendix J) where the vacancy is located, who presently hold a position in the same, similar or related class series (see Appendix I), and who possess and are proficient in the minimum qualifications contained in the classification specification and the position description.

3. All other employees within the geographic district of the Agency (see Appendix J) where the vacancy is located, who possess and are proficient in the minimum qualifications contained in the classification specification and the position description. 

4. All other employees of the Agency.
 
5. All other employees of the State (Inter-Agency Transfer). 

ODOT positions designated as district-wide positions shall be reviewed pursuant to (2) and (3) above.

Employees serving either in an initial probationary period, trial period or promotional probationary period, shall not be permitted to bid on job vacancies. 

An employee shall be permitted to bid on a job vacancy while receiving disability leave benefits, but shall not be eligible to fill the vacancy unless the date for the employee’s return to duty is prior to or coincides with the date the job is to be filled.

A.1.     For vacancies that the Employer intends to fill by permanent transfer, the applications shall be listed according to those in the same classification who possess and are proficient in the minimum qualifications of the classification specification and position description of the posted position in descending order of the most senior to the least senior.  [Moved to 17.07(A).]

Arbitration Awards:

   OCB #848

   OCSEA #487

Arbitrator Loeb: Grievant Suzanne Jackson; PUCO, 1/28/93.  This case supports the concept of position specific qualifications and provides positive language concerning conflicts between the contract and federal law.

   OCB #984

   OCSEA #548

Arbitrator Rivera: Grievant Roger Adkins; Rehabilitation & Correction, 7/6/94.  The Arbitrator found that because the Grievant was never officially informed by the Personnel Officer that his application was not accepted by the Warden, it was reasonable for the Grievant to believe that the problem had been rectified. The Arbitrator also noted that it is the Employer's responsibility to establish procedures that protect the security of the application procedure. In this instance that Employer had no safeguards. The Arbitrator found that the Grievant's testimony was credible in that he filed a timely application.

Explanation:

Housekeeping changes.  Some language of this Section was moved as it fits better within Section 17.07(A).

Employees may bid on job vacancies while on disability leave.  However, if the employee will not be able to return to duty prior to the date the job is to be filled, the employee shall not be eligible to fill the vacancy.

Attention:

Staff Representatives, Union Officials; Agency Labor Relations, Personnel and Human Resources Officers.

Instructions:

It is important for Personnel Officers to include demotions in the selection process.

Effective Date:

March 1, 2003 – February 28, 2006

17.05 – Selection

If the position is in a classification which is assigned to pay ranges one (1) through seven (7) and pay ranges twenty-three (23) through twenty-seven (27) or lower, the job shall be awarded to the qualified employee with the most State seniority unless the Agency can show that a junior employee is demonstrably superior to the senior employee.  As permitted by law, affirmative action shall be a valid criterion for determining demonstrably superior.  

If the position is in a classification which is assigned to pay ranges eight (8) through twelve (12) or twenty-eight (28) or higher, the job shall be awarded to an eligible bargaining unit employee on the basis of qualifications, experience and education. When these factors are substantially equal State seniority shall be the determining factor. Affirmative action shall be a valid criterion for determining demonstrably superior.

Interviews may be scheduled at the discretion of the Agency. Such interviews may cease when an applicant is selected for the position.

A.1.   The Agency shall first review the bids of the applicants from within the office, county or "institution."

2.      If no selection is made in accordance with the above, then the Agency will first consider those employees filing bids under Sections 17.04(A)(2) and 17.04(A)(3). Employees bidding under Sections 17.04(A)(3) shall have grievance rights through Step Four (4) to grieve non-selection. Employees bidding under Sections 17.04(A)(4) or (A)(5) shall have no rights to grieve non-selection.

3.      If a vacancy is not filled as a promotion pursuant to Sections 17.04 and 17.05, bids for a lateral transfer shall be considered. Consideration of lateral transfers shall be pursuant to the criteria set forth herein. The Agency shall consider requests for lateral transfers before considering external applications. Denial of such lateral transfer request(s) are grievable. The successful applicant shall possess and be proficient in the minimum qualifications of the position description and the classification specification. If there are multiple applicants, the selection will be made from the most senior applicant that meets minimum qualifications as stated above.

4.      If a vacancy is not filled as a promotion pursuant to Sections 17.04 and 17.05 or by lateral transfer, bids for demotions shall be considered. Denial of such demotion requests are grievable.

B. In institutions lateral transfers shall be accomplished as follows:

1.      No more than ten percent (10%) of the bargaining unit employees in an institution, as determined by the table of organization, may make lateral transfers out of that institution in a calendar year.

2.      The number of bargaining unit vacancies in an institution during the previous calendar year shall be determined in the first week of January of each year. Ten percent (10%) of that number shall be determined by rounding up, and that number plus ten percent (10%) of any new vacant positions added to the Table of Organization, shall be used to determine the maximum number of vacancies that the institution shall be required to accept by lateral transfer during the ensuing year.

3.      In the Department of Rehabilitation and Correction during the first twelve (12) months of operation, each newly activated institution will be required to fill the first twenty-five percent (25%) of their posted vacancies through lateral transfers from other institutions. (Additional vacancies may be filled by lateral transfers at management's discretion.) Thereafter, such institution shall accept lateral transfers in the same manner as all other institutions.

4.      This Section shall not modify work areas or the application of pick-a-post agreements.

C.  In cases of permanent transfer the applicant who possesses and is proficient in the minimum qualifications of the classification specification and position description and has the most seniority shall be selected.  [Moved to 17.07(A).]

Arbitration Awards:

   OCB #675

Arbitrator Graham: Grievant Karen Castle; Employment Services, 9/15/91. 

This decision set the parameters for proving "demonstrably superior."

   OCB #690

   OCSEA #397

Arbitrator Graham: Grievant Mark Bundsen; Health, 10/19/91. 

This case sets forth guidelines for the review and application of minimum qualifications as well as the parameters for the establishment of minimum qualifications.

   OCB #703

   OCSEA #405

Arbitrator Graham: Grievant Antoinette Savage; Aging, 9/19/91. 

This case more clearly defined when the demonstrably superior criterion can be utilized as to order of selection.

   OCB #729

   OCSEA #418

Arbitrator Graham: Grievant Laurie Stelts et. al.; MR/DD, 1/22/92. 

This case established that an employee cannot be required to meet a requirement that can be met after employment.

   OCB #793

   OCSEA #457

Arbitrator Anna Duval Smith: Grievant Kathleen Stewart; DAS, 5/20/92. 

This case supports the State's position that the Union carries the burden of establishing that someone meets minimum qualifications who the Agency determines does not.  It also supports the position that the State carries the burden to prove that a junior applicant is demonstrably superior to a senior applicant.

   OCB #848

   OCSEA #487

Arbitrator Loeb: Grievant Suzanne Jackson; PUCO, 1/28/93. 

This case supports the concept of position specific qualifications and provides positive language concerning conflicts between the contract and federal law.

   OCB #975

   OCSEA #545

Arbitrator Nelson: Grievant Elaine Blaum; Mental Retardation, 6/6/94.

The Arbitrator found that although the Grievant's experience included exposure to Medicaid, her experience did not indicate proficiency in Medicaid auditing, cost reporting and/or reimbursement.  With this in mind, the Arbitrator found that the employee who was awarded the position was demonstrably superior to the Grievant.  The Arbitrator pointed out that socializing and working with an applicant does not establish discrimination nor does adding position specific minimum qualifications to the requirements of the position.

Explanation:

Agencies may award positions based on qualifications, experience and education (“QEE’s”) for pay ranges twenty-eight (28) and above.  Additional language clarifies that the ability to award positions based on QEE’s also applies to pay ranges eight (8) through twelve (12).

Sub-section (C) has been moved to Section 17.07(A)

Attention:

Agency Labor Relations and Personnel Officers; Staff Representatives, Union Officials.

Instructions:

The first sort is opened to bids from all employees for whom the position will be a promotion.  All such bids of qualified employees will be reviewed so long as the bid is within an Institution, an Office which has historically been established as a separate office, or the Agency in the county of posting.  Demotions should be added as the last level for consideration.

Agency Personnel and Labor Relations staff are instructed to use discretion in the application of the pay range twenty-eight (28) and above provision for promotion, since the Union believes that Management will abuse its discretion.  When a vacancy is posted for a position in pay range twenty-eight (28) or higher and pay ranges eight (8) through twelve (12), Management will make a selection for promotion based on qualifications, experience and education.  In instances where qualifications, experience and education are substantially equal, seniority will be used to make the selection.  "Substantially equal" is a term of art which allows for the application of a qualifications test before seniority is used to determine which employee will be selected for promotion.  This concept generally shifts the burden of proof onto the Union to establish that Management did not select the most qualified candidate; however, actions for which there is evidence of bad faith on Management's part will cause most arbitrators to rule on behalf of the Union.  The addition of this term to the selection clause provides the Employer with the ability to compare candidates for positions in classifications at pay range twenty-eight (28) or higher, or eight (8) through twelve (12), and it provides management with the ability to select the more qualified candidate.  However, the contract is clear that only three criteria may be evaluated:  1)  qualifications, 2)  experience and 3)  education.  The Employer should take a conservative approach in applying this provision to the extent that minor differences in the three criteria should not disqualify the more senior applicant.  Where the vacancy is for positions which have pay ranges of twenty-three (23) through twenty-seven (27), or seven (7) or below, the determination of which employee is to be selected usually will be based on seniority.  Unless there is a candidate who is demonstrably superior, the selection shall be made from the most senior qualified candidate. The standard for positions in classifications in pay ranges twenty-seven (27) and below remains a minimum qualification or relative ability standard.  This standard is predicated on the fact that the minimally qualified senior employee must be selected.  In a grievance, the Union must only prove that the bypassed senior employee is qualified.  The burden of proof then falls to the Employer who must prove that the junior employee was "demonstrably superior.”  In OCB Arbitration Award Nos. 253, 675, 749, 767, 793, 848, and 902, the concept of demonstrably superior is defined.  In OCSEA Arbitration Award Nos. 170, 428, 437, 457, 487, and 511, the concept of demonstrably superior is defined.  A detailed analysis must be completed of the essential duties of the position involved in the decision.  Any position specific minimum qualifications must be developed prior to the writing of the position description and the posting of the vacancy.  To prove that a less senior candidate is "demonstrably superior" when both candidates are minimally qualified the Employer must show that the comparison of employees substantially favors the junior employee.  The comparison should weigh seniority, affirmative action, related education and related work experience.  These four criteria are valid; seniority and affirmative action are provided for in the agreement and Arbitrators’ awards give credence to related work experience and education.

Effective Date:

March 1, 2003 – February 28, 2006

17.06 – Proficiency Instruments

The Employer may use proficiency testing to determine if an applicant meets minimum qualifications. Proficiency testing shall be used only to determine whether or not a candidate meets the minimum qualifications of the classification specification or position description and shall not be used for purpose of determining relative skills and ability.

Explanation:

The language regarding proficiency testing clarifies the intended use for this type of testing.  The purpose of a proficiency test is to determine whether or not an applicant can perform the duties of a position/classification.  It is not to be used to determine which applicant is the most qualified for the position.  The simple question of whether or not an applicant can or cannot perform the duties of a position/classification must be answered when developing a proficiency test. 

Attention:

Staff Representatives, Union Officials; Agency Labor Relations and Personnel Officers.

Instructions:

A classification specification and/or a position description may require the use of a proficiency test to determine whether or not an applicant meets minimum qualifications.  All candidates who pass the test are determined to have met the minimum qualifications for a particular position.  There is to be no gradation of how well an applicant meets the minimum qualifications under this provision.


17.07  - Permanent Transfers

A.     When it is determined by the Employer that a vacancy exists in a classification for which there are excessive employees located in an institution or in counties other than the headquarters county of the vacant position, then the permanent transfer vacancy posting process may be utilized. In this case, only employees in the same classification as the posted vacancy located in the declared areas of excess shall be eligible to apply for the vacancy.  Applications shall be listed according to those in the same classification who possess and are proficient in the minimum qualifications of the classification specification and position description of the posted position in descending order of the most senior to the least senior.  [Moved from 17.04(B).] Only provisions of Section 17.05(C) apply for the selection of that vacancy.  The applicant who possesses and is proficient in the minimum qualifications of the classification specification and position description and has the most seniority shall be selected.  [Moved from 17.05(C).]

B.     The successful applicant(s) for all permanent transfers shall serve a trial period equivalent to one half (1/2) the probationary period that corresponds to the classification of the vacancy as listed in Section 6.01. During this trial period, the Employer maintains the right to place the employee back in the previous site prior to the transfer if the employee fails to perform the job requirement of the new position to the Employer's satisfaction.

C       Each agency will identify the areas deemed to be in excess and will notify the Union of excesses as soon as practicable. Notices to the Union of a layoff or job abolishment shall be considered adequate notice of an excess.

Each agency, with the Office of Collective Bargaining's approval, may negotiate with the Union to establish a procedure for the permanent transfer of positions and personnel.

Explanation:

Language regarding permanent transfers from other areas of this Article have been moved to the permanent transfer section.

The last sentence of this Section was added to provide flexibility to agencies and the Union in finding positions for employees who might otherwise be displaced.

Attention:

Agency Labor Relations, Personnel and Human Resources Officers; Staff Representatives, Union Officials.

Instructions:

Agencies must notify the Union of excess as soon as practicable. 

Agencies wishing to negotiate procedures for the transfer of positions and personnel must contact the Office of Collective Bargaining prior to entering into such negotiations.

Effective Date:

March 1, 2003 – February 28, 2006


17.08 - Permanent Relocation

Permanent relocations do not apply where there are pick-a-post and/or work area agreements.

Due to shifts and changes in operational need, scope, and/or mission of an agency, the Employer maintains the right to permanently relocate an employee and his/her position to another location within the same headquarters county.

Permanent relocations shall function as follows:

A.     The agency shall canvass the areas of excess for volunteers to move to the area of need. This canvass shall be accomplished by a posting of the relocation opportunity for three (3) workdays.

B.     The agency shall relocate the volunteer that possesses and is proficient in the minimum qualifications and has the most seniority.

C.     If there are no volunteers in the area(s), the agency may relocate the employee with the least seniority who possesses and is proficient in the minimum qualifications of the classification specification in the position description, to the area of need.

D.     In cases of involuntary relocation, the employee has a preferential right to return to the previous job site from which he/she was relocated for up to one year, provided that there is a need or a posted vacancy in the same classification as the relocated employee.

E.      The permanently relocated employee shall only be relocated to perform duties appropriate to the same classification which he/she holds. Such relocation(s) do not constitute the creation or filling of a vacancy pursuant to Section 17.02.

Each agency, with the Office of Collective Bargaining's approval, may negotiate with the Union to establish a procedure for the relocation of positions and personnel. within the same county to other counties. 

Explanation:

This Section expands the availability and applicability of permanent relocations when a layoff is not the reason for the relocation.

 

The elimination of the restriction “within  the same county to other counties” is intended to provide flexibility to agencies and the Union when negotiating procedures for permanent relocations.

Attention:

Staff Representatives, Union Officials; Agency Labor Relations and Personnel Officers.

Instructions:

When an agency has a need or desire to relocate employees to another location, the agency shall meet with the local union leadership to discuss the rationale for the change.  The Office of Collective Bargaining should be made aware of any documentation supporting the need for relocation, and will review the material and work with the agency and Union to implement the relocation.

Effective Date:

March 1, 2003 – February 28, 2006


17.09  - Nepotism

No employee shall be directly supervised by a member of his/her immediate family. "Immediate family" is defined for the purposes of this Section to include: spouse or significant other ("significant other" as used in this Agreement is defined to mean one who stands in place of a spouse and who resides with the employee), child, step-child, grandchild, parent, step-parent, grandparent, great-grandparent, brother, sister, step-sibling, mother-in-law, father-in-law, son-in-law, daughter-in-law, brother-in-law, sister-in-law, or legal guardian or other person who stands in the place of a parent.

Attention:

Agency Labor Relations and Personnel Officers, Agency Supervisors; Staff Representatives, Union Officials.

Instructions:

It is inappropriate for an exempt employee to supervise a member of his/her immediate family.  The issue of whether or not the exempt employee should be moved when a bargaining unit member bids into the work unit of an immediate family member, or whether the bargaining unit member is barred from making such a bid is still unresolved.  Do not permit a supervisor to directly supervise an employee who is an immediate family member.


17.10  - 1000 Hour Transfer ODOT Temporary Work Assignment

Nothing herein will circumvent provisions of the 1000 1250 hour transfer temporary work assignment referenced in paragraph D of the ODOT Agency Specific Agreement for ODOT.

Explanation:

The language change in this Section was made to conform with changes in the ODOT Agency Specific Agreement.

Effective Date:

March 1, 2003 – February 28, 2006

 


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