Appeal from the Order of the Pennsylvania Human Relations Commission in case of Agnes Stoklas, Mary Kush and Anna Katynski v. General Electric Corporation, No. E-4401.
Frederick N. Egler, with him Egler & Reinstadtler, for appellant.
Katherine H. Fein, with her Jay Harris Feldstein, Assistant General Counsel, for appellee.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Mencer, Rogers and Blatt. Judge Wilkinson, Jr. did not participate. Opinion by Judge Kramer.
[ 18 Pa. Commw. Page 317]
This is an appeal filed by General Electric Corporation (GE) from a final order of the Pennsylvania Human Relations Commission (Commission) dated April 1, 1974. The order was based upon findings and conclusions in which the Commission determined that GE had violated section 5(a) of the Pennsylvania Human Relations Act (Act), Act of October 27, 1955, P.L. 744 § 5, as amended, 43 P.S. § 955(a) (Supp. 1974-1975) through unlawful discriminatory employment practices based on sex.
The case had its genesis when on September 17, 1971 Agnes Stoklas, Mary Kush, and Anna Katynski (complainants) filed a complaint with the Commission alleging unlawful discriminatory practices in employment under section 5(a) of the Act, which "took place on or about April 14, 1971" and which are alleged to have been of a continuing nature until at least September 17, 1971. The main allegation of the complaint reads as follows:
'The Complainants allege that [GE] failed to offer the complainants and other female employees similarly situated the same terms and conditions to secure full time employment after phasing out the coil department
[ 18 Pa. Commw. Page 318]
because of their sex, female, while offering less senior males of the same work unit full time employment in all areas not effected [sic] by the elimination of the coil department."
At hearings held before members of the Commission, the following pertinent facts were developed as a matter of record. In November of 1970, GE employed in the Coil Department of its Pittsburgh service shop 46 employes, 21 of whom were women. All of the employes held positions under a company classification designated with a capital "R" prefix, i.e., R-2 through R-24. The lower numbers represented lower classifications with corresponding lower rates of pay. All of the 21 women held positions which were classified between R-6 and R-9, with the complainants all being classified as R-9. All of the male employes held positions which were classified between R-12 and R-14. Most of the female workers, including the claimants, were known as "coil taper" employes who wrapped insulation on wire coils of various diameters and lengths. There were two methods for the payment of wages to these employes. The first was a regular hourly wage, and the second was an incentive pay scale, whereby the employe received a regular hourly scale plus payment for piecework. All 21 females in the department were under the incentive work program. The record indicates that most of these women, including the claimants, received a total incentive wage payment higher than that of the regular hourly employes (male and female) with higher classifications (apparently even through the pay scale for R-14). At all times pertinent to this case all employes had the right to "bump" into other positions of equal or lower classification. In addition, on a regular basis, job openings to higher classifications were published on GE bulletin boards located at places within the Coil Department facilities. Any employe could make a bid, if he or she met the qualifications for these higher positions.
[ 18 Pa. Commw. Page 319]
At this point we must note that discrimination based upon sex was made unlawful by an amendment to the Act made via the Act of July 9, 1969, P.L. 133, § 2, as amended, 43 P.S. § 955(a) (Supp. 1974-1975) which amendment became effective July 9, 1969. At the hearings in this matter, the Commission, over the objections of GE, devoted a considerable portion of the record to incidents and procedures occurring prior to the effective date of the sex discrimination amendment. The Commission ruled that while evidence of events occurring prior to July 9, 1969 could not be used "to prove the substance of what they indicate," it could be admitted into evidence to show a "state of mind." While we agree with the Commission that, in some cases, actions of an employer prior to the effective date of the Act's provisions might be relevant,*fn1 our reading of this record and the Commission's adjudication reveals that in the instant case the challenged evidence was not relevant. Furthermore, our reading of the adjudication shows that the Commission relied so heavily upon action by GE prior to July 9, 1969 that we must conclude that the Commission acted improperly. The complaint alleges that the unlawful discrimination occurred "on or about April 14, 1971" and, under our ruling in Pittsburgh Press Employment Advertising Discrimination Appeal, 4 Pa. Commonwealth Ct. 448, 287, A.2d 161 (1972); aff'd., 413 U.S. 376 (1973), due process of law requires that the "accused" be informed with reasonable certainty of the nature of the accusation lodged against him. In this case, therefore, it was improper for the Commission to permit over objection extensive evidence concerning matters which occurred as
[ 18 Pa. Commw. Page 320]
early as 1968, and then to use such evidence to ...