decided: November 9, 1982.
WILLIAM C. LAWRENCE, PETITIONER
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF LABOR AND INDUSTRY, RESPONDENT
Appeal from the Order of the Pennsylvania Civil Service Commission in the case of William C. Lawrence v. Department of Labor & Industry, Appeal No. 3172.
Gary M. Davis, Davis & Abramovitz, for petitioner.
Richard C. Lengler, Assistant Chief Counsel, for respondent.
Judges Rogers, Blatt and Craig, sitting as a panel of three. Opinion by Judge Craig.
[ 69 Pa. Commw. Page 629]
In this appeal from the Pennsylvania Civil Service Commission, appellant William Lawrence, a handicapped employee with the Bureau of Labor and Industry, asserts that in violation of the Civil Service Act (Act) the bureau demoted him without cause.*fn1 We agree.
The facts as found by the commission are not in dispute. In March 1978, the bureau promoted Mr. Lawrence from his position as Rehabilitation Counselor I to Rehabilitation Supervisor. Shortly thereafter,
[ 69 Pa. Commw. Page 630]
the Pennsylvania Social Services Union (PSSU) filed a grievance on behalf of various female employees, alleging that the bureau's promotion of Mr. Lawrence was sexually discriminatory and therefore in violation of the state's collective bargaining agreement with the union. After protracted negotiations, the bureau and PSSU settled the grievance short of arbitration, the terms of the settlement providing that the bureau (1) return Mr. Lawrence to his former position and (2) reinstitute the promotion process.
In its findings of fact, the commission stated that Mr. Lawrence was qualified for the promotion and had performed his supervisory duties adequately. However, although it found no evidence to justify an involuntary demotion under Section 741.706 of the Act, the commission concluded that the collective bargaining agreement "established" a "promotion process," so that, under 71 P.S. § 741.602, the agreement's terms were controlling over the Act.*fn2 Thus, the commission concluded that the bureau's promotion of Mr. Lawrence violated that agreement. Specifically, from the fact that the union and the state arrived at a pre-arbitration settlement agreement, the commission deduced that "elements of discrimination were present" in the promotion process, thereby justifying the bureau's action, which the commission relabeled as a "retraction" of a promotion. However, the commission's
[ 69 Pa. Commw. Page 631]
decision does not identify any "elements of discrimination."
In civil service cases, Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704, defines our scope of review. Accordingly, we must decide if the commission violated constitutional rights, committed an error of law or failed to support a necessary finding of fact with substantial evidence. Pennsylvania Department of Education v. White, 60 Pa. Commonwealth Ct. 599, 604, 432 A.2d 291, 294 (1981).
Accepting the commission's findings totally, we note that the commission stated that the appellant "was involuntarily demoted due to the terms of the settlement agreement and not because of any inadequacy in his performance " as a rehabilitation supervisor.*fn3 (Emphasis supplied.)
The commission said: "We agree that, on the basis of the evidence presented in this action, a demotion would not be justified." (Emphasis supplied.)
The bureau cites Pennsylvania Department of Education v. White for the proposition that "a demotion cannot occur from a position to which a valid promotion could not have been made." 60 Pa. Commonwealth Ct. at 607, 432 A.2d at 295.
White, however, is distinguishable on its facts. In White, we found that the superintendent of Scranton State School for the Deaf exceeded his scope of authority when he promoted an employee to a position which the school's board of trustees refused to create. Consequently, we held that a demotion could not occur from a position which never existed. Here, no one contends that the bureau promoted Mr. Lawrence to a position which does not exist.
[ 69 Pa. Commw. Page 632]
Therefore, we hold that the commission erred as a matter of law in relabeling the bureau's action a mere "retraction"; this was a demotion, and the commission itself has acknowledged that Mr. Lawrence's performance provided no cause.
Even if we were to agree with the commission that Mr. Lawrence's promotion could have been improper under the antidiscrimination terms of a collective bargaining agreement, we are unable to find in the record any evidence of discrimination in the bureau's promotion process. The mere settlement of a sex discrimination grievance before arbitration is not evidence that such discrimination occurred in fact. Mr. Lawrence was not truly a party to that settlement, except as he was represented by the same union which represented the female employees.
Indeed, the commission has told us nothing about the "promotion process" -- the "alternative promotion filling procedure" under the collective bargaining agreement -- which inferentially was not used, in violation of Section 602 of the Act. As noted above, the commission merely characterized the settlement as if it were an admission by the appointing authority that "elements of discrimination were present in the process," but an appointing authority cannot violate civil service demotion standards on the basis of a self-serving admission on its own part.
Sensitive as we are to the state's and union's desire to ensure fair and nondiscriminatory job selection through the bargaining process, we cannot permit their short-circuiting of that process to trammel upon the civil service rights of Mr. Lawrence.
We therefore reverse.
Now, November 9, 1982, we reverse the order of the State Civil Service Commission and order that the
[ 69 Pa. Commw. Page 633]
Bureau of Labor and Industry reinstate William C. Lawrence to the position of Rehabilitation Supervisor, with reimbursement of the difference in back pay.
Reversed. Employee reinstated.