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JOHN C. ERMEL v. COMMONWEALTH PENNSYLVANIA (01/06/84)

decided: January 6, 1984.

JOHN C. ERMEL, JR., PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, RESPONDENT



Appeal from the Orders of the State Civil Service Commission in the case of John C. Ermel, Jr. v. Department of Transportation, Appeal No. 3106, dated June 24, 1981 and August 17, 1982.

COUNSEL

Robert Ufberg, Rosenberg & Ufberg, for petitioner.

Michael J. McCaney, Jr., Assistant Counsel, with him Spencer A. Manthrope, Chief Counsel, and Jay C. Waldman, General Counsel, for respondent.

Judges Williams, Jr., Craig and MacPhail, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 79 Pa. Commw. Page 432]

John C. Ermel, Jr. appeals from an order of the State Civil Service Commission dismissing his appeal from the action of the Pennsylvania Department of Transportation (DOT) in furloughing Ermel from his position of Real Estate Specialist Supervisor, regular status.

We must determine whether there is substantial evidence to support the commission's findings, and if the commission erred as a matter of law in concluding that DOT properly followed the applicable furlough procedures.*fn1

From 1969 to 1977, Ermel held the position of Real Estate Specialist IV (General) in DOT, and was

[ 79 Pa. Commw. Page 433]

    a member of the B-2 meet-and-discuss bargaining unit in American Federation of State, County and Municipal Employees, AFL-CIO (AFSCME). The B-2 unit is comprised exclusively of first level supervisory employees, and is covered by a Memorandum of Understanding between DOT and AFSCME (the memorandum).

In June, 1977, the Executive Board of the Commonwealth issued a resolution amending the Commonwealth's Compensation Plan and effecting a reclassification of various positions in many Commonwealth departments, including DOT. The purpose of the reclassification was to eliminate the parenthetical designations in the old titles. As a result, Ermel's position as Real Estate Specialist IV (General) was reclassified as Real Estate Appraiser Supervisor, but he remained in the B-2 unit.

In August, 1977, DOT reclassified the Real Estate Appraiser Supervisor (REAS) position into five subcategories, resulting in Ermel's reclassification to Right-of-Way Administrator I (ROW I). DOT designated this new position as managerial, thus removing Ermel from the B-2 unit and any representation by AFSCME. Ermel did not challenge his removal from the bargaining unit at that point.

In June, 1978, DOT designated Ermel for furlough from his ROW I position. In lieu of furlough, DOT exercised Ermel's bumping rights on his behalf, and, according to furlough procedures set forth in the memorandum, Ermel bumped downward to the position of Real Estate Specialist Supervisor (RESS) and back into the B-2 bargaining unit. As a result, several DOT employees who held RESS positions at that time were ...


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