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JOSEPH P. WEIR v. COMMONWEALTH PENNSYLVANIA (07/19/84)

decided: July 19, 1984.

JOSEPH P. WEIR, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF LABOR AND INDUSTRY, RESPONDENT. CLARK KREWSON, PETITIONER V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF LABOR AND INDUSTRY, RESPONDENT. GEORGE W. SCHILDT, PETITIONER V. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF LABOR AND INDUSTRY, RESPONDENT



Appeals from the Orders of the State Civil Service Commission in cases of Joseph Weir v. Department of Labor and Industry, Appeal No. 4190; Clark H. Krewson v. Department of Labor and Industry, Appeal No. 4188, and George W. Schildt v. Department of Labor and Industry, Appeal No. 4189.

COUNSEL

Elliot A. Strokoff, Handler, Gerber, Johnston, Strokoff & Cowden, for petitioners.

Richard C. Lengler, Assistant Chief Counsel, with him, Richard L. Cole, Jr., Chief Counsel, for respondent.

Judges Rogers, Colins and Barbieri, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 84 Pa. Commw. Page 129]

In these consolidated appeals, the petitioners, Joseph P. Weir, Clark H. Krewson and George W. Schildt, challenge the orders of the State Civil Service Commission (Commission) upholding their furloughs from State employment effective at the close of business on August 30, 1982 and directing the appointing authority, the Pennsylvania Department of Labor and Industry (Department), to reimburse the petitioners for such wages and emoluments that would have been earned on August 30, 1982.

The petitioners were originally furloughed from their civil service positions effective October 20, 1981 because of an alleged lack of work that resulted from a reorganization of the Department's Bureau of Vocational Rehabilitation into the Office of Vocational Rehabilitation. Petitioners Krewson and Schildt worked in the Bureau of Vocational Rehabilitation where Krewson held the position of Personnel Analyst IV, regular status, and Schildt held the position of Statistical Analyst Supervisor, regular status. Petitioner Weir was classified as a Rehabilitation Administrator I, regular status, and served as the Executive Secretary to the Governor's Committee to Employ the Handicapped. The Commission invalidated the October 1981 furloughs because the notice of furlough

[ 84 Pa. Commw. Page 130]

    in each case was signed by a personnel director, not the Secretary of the Department or his delegate, as required by law and, by orders dated August 13, 1982, directed that the petitioners be reinstated with back pay and "without prejudice to the appointing authority to, subsequent to . . . reinstatement, take such personnel action concerning [the petitioners], including matters which were the subject of this action, as it may decide." The Department appealed this action to the Commonwealth Court on September 7, 1982 and by order filed in June 1983, we affirmed the Commission's orders. Pennsylvania Department of Labor and Industry v. Krewson, 75 Pa. Commonwealth Ct. 275, 461 A.2d 905 (1983).

On August 26, 1982, the Department notified the petitioners that they were to be reinstated effective August 30, 1982 and advised them that "simultaneous with your return, you will be furloughed" effective at the close of business on August 30, 1982 because of a continuing lack of work. The letters also advised the petitioners that they "are not to report for work on August 30, 1982" because of the refurlough.

The present appeal requires us to review the second furloughs undertaken on August 30, 1982 which the Civil Service Commission, after a consolidated hearing, upheld by orders made May 25, 1983. The Commission found that a lack of work existed in August 1982 justifying the furloughs. However, it awarded the petitioners one day's back pay "so that it is clear that [the petitioners'] reinstatement was effective prior to furlough."

We must affirm the Commission's adjudication unless constitutional rights were violated, the adjudication was not in accordance with law or a necessary finding of fact was unsupported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704.

[ 84 Pa. Commw. Page 131]

At the Commission hearing on the matter of the August 30, 1982 furloughs, the Department presented evidence regarding the circumstances surrounding each petitioner's furlough in light of the needs of its reorganized and decentralized Bureau (now "Office") of Vocational Rehabilitation. The Director of Vocational Rehabilitation testified that no work existed for petitioner Krewson's former position of Personnel Analyst IV, regular status, in which he functioned as the Department's central training director, because the Department's training program was revamped and decentralized as a result of the overall reorganization. He testified that at the time of Krewson's furlough there was a training director in each of the fifteen district offices and, consequently, no need for a central training director.

The Department presented evidence that no work existed for petitioner Weir's former position of Rehabilitation Administrator I, regular status, in which he served as the Executive Secretary to the Governor's Committee to Employ the Handicapped, because the Governor, by executive order, incorporated that committee into the Bureau of Vocational Rehabilitation and appointed the Bureau's director to serve as its executive secretary. Other duties performed by Weir in his former position were spread out among various bureau employees. The Department's witness explained that the Governor's intention in incorporating the committee into the Bureau of Vocational Rehabilitation was "to elevate the importance of the Governor's Committee to Employ the Handicapped, to also streamline it and make it more effective and responsive. . . ."

Two Department witnesses, its Director of Program Operations and its Director of Personnel, testified that the Department had no work for Petitioner Schildt's former position of Statistical Analyst Supervisor

[ 84 Pa. Commw. Page 132]

    because the Department's need for statisticians was reduced from three positions to one position following its reorganization and that the one statistician position existing in August 1982 was held by Petitioner Schildt, who had "bumped" into the position in lieu of his 1981 furlough from his supervisory classification. There was, consequently, no need for a statistician supervisor because there was only one individual, petitioner Schildt, functioning as a statistician.

The petitioners' principal argument is that the Department did not meet its burden of proving that a legitimate lack of work existed to justify their furloughs. Section 3(t) of the Civil Service Act (Act), Act of August 5, 1941, P.L. 752, as amended, 71 P.S. § 741.3(s) defines furlough as "the termination of employment because of lack of funds or of work" and the appointing authority has the burden of going forward with proof to establish a prima facie case justifying the furlough. See D'Amato v. Department of General Services, 58 Pa. Commonwealth Ct. 489, 427 A.2d 1287 (1981).

The Commission made findings appropriate to this evidence and concluded that the furloughs were made for lack of work. The petitioners' first contention -- that there was not substantial evidence supporting the finding that there was a lack of work for the petitioners -- is clearly ineffective as our description of the testimony of the Department's witnesses shows. The petitioners principally rely in this aspect of their case on Silverman v. Pennsylvania Department of Education, 70 Pa. Commonwealth Ct. 444, 454 A.2d 185 (1982). In that case the Commission's action upholding a furlough was founded on reasoning to ...


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