Appeal from the Orders of the State Civil Service Commission in cases of Appeals of Employes of the Department of Transportation, Nos. 1276 to 1327.
Reynold J. Kosek, Assistant Attorney General, with him Robert W. Cunliffe, Deputy Attorney General, and Israel Packel, Attorney General, for appellant.
No appearance for appellee.
Robert Lazorchick, Robert M. Rowlands and Robert L. Webster, with them Scott & Lazorchick, Markowitz & Kirschner, Richard Kirschner and Webster & Hallal, for intervening appellees.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Rogers. Concurring and Dissenting Opinion by Judge Blatt. Judge Wilkinson joins in this opinion.
[ 10 Pa. Commw. Page 312]
In the avowed interest of economy, the Secretary of the Department of Transportation as of May 17, 1972 furloughed 73 Civil Service employees in the highway construction and maintenance division. The job classifications chosen for reduction were those of Construction Inspector I and Construction Inspector Trainee, apparently the Department's least skilled Civil Service workers.
The Department of Transportation has, for highway purposes, divided the State into eleven geographical administrative districts numbered 1 through 12, omitting number 7. The furloughs here questioned were made by administrative districts and each of the persons furloughed received a notice, the first sentence of which reads: "Due to a reduced construction work load in your district and the necessity for correspondingly reduced personnel costs, it has become necessary to furlough construction staff." Thirty-five of the persons furloughed appealed the Secretary's action to the State
[ 10 Pa. Commw. Page 313]
Civil Service Commission which, after hearings, sustained their appeal and ordered their reinstatement with back pay. The Commonwealth by its Department of Transportation has appealed.
Section 3(t) of the Civil Service Act, Act of August 5, 1941, P.L. 752 as amended, 71 P.S. § 741.3(t), defines furlough as "the termination of employment because of lack of funds or of work." Section 950 of the Act, added by the Act of August 27, 1963, P.L. 1257, § 27, 71 P.S. § 741.950, provides for written notice of any personnel action, and § 951, 71 P.S. § 741.951, provides for appeals and hearings, such as were conducted here. A rule of the Civil Service Commission appropriately provides that the appointing authority, in the case of an appeal, is required to go forward with the establishment of a prima facie case for the questioned personnel action. 4 Pa. Code Section 105.15(a). Pursuant to these provisions of statute and rule, the Department sought to justify the furloughs in the instant case by proofs which it asserts should have convinced the Commission that there was indeed a lack of funds and work justifying its action. It rested its case upon two factual bases: the first, a cut in the State's highways capital budget for the fiscal year 1971-1972, initially established at about $541,000,000, effected by the action of the Governor in January 1972 in withholding his approval of projects estimated to cost about $100,000,000 and the second, an asserted overstaffing in certain of the districts in which furloughs were ordered.
The difficulty with the Department's case is that its own evidence proved the furloughs actually ordered bore no relationship to the budgetary reductions or to existing overstaffing. Neither at the hearings nor in its brief here did the Department attempt to relate either the budget cuts or the asserted overstaffing to the
[ 10 Pa. Commw. Page 314]
furloughs by the districts in which they were made. Indeed the record reproduced for our review obviously is simply the files of the Legal Bureau of the Department, including copies of appeal notices of hearings, return receipt cards, pamphlet laws and documentary exhibits endlessly duplicated. With great difficulty we have prepared from this welter of material the following table, which we believe is accurate:
1970-1971 Per- Amount of con- Number of
centage of per- struction projects Civil Service
District sonnel cost to withheld from ...