Appeal from the award of the arbitrator in case of In the Matter of Arbitration between Commonwealth of Pennsylvania, Department of Labor and Industry and Pennsylvania Social Services Union, Local 668, SEIU, Decision in Grievances involving Suspension and Discharge Nos. 84-1421 and 84-1034, Duane Darkins, dated November 21, 1985.
Wesley H. Johnson, for petitioner.
Cheryl G. Young, Assistant Counsel, with her, John D. Raup, Chief Counsel, for respondent.
Judges MacPhail and Palladino, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Palladino. Judge Craig and Judge Barry did not participate in the decision in this case.
[ 105 Pa. Commw. Page 266]
Pennsylvania Social Services Union, Local 668, SEIU (Petitioner) appeals from an arbitrator's award which denied a grievance protesting the suspension and subsequent discharge of Duane A. Darkins (Darkins) from his position as a Workers' Compensation Referee with the Department of Labor and Industry, Bureau of Workers' Compensation (Respondent).
By letter dated December 23, 1983, Darkins was given notice to appear at a December 28, 1983 fact-finding conference. The purpose of this meeting was to inform Darkins of allegations of his misconduct as a referee and to provide Darkins with the opportunity to respond to the various charges of misconduct. At that meeting, Darkins' attorney requested a continuance which was denied, but because of the short notice, he was given until January 5, 1984 to submit responses to the allegations.
During the course of the meeting, Darkins was informed that the misconduct included improper use of the Commonwealth's mail, improper conduct as a referee at hearings, and improper conduct towards a Liquor Control Board employee. Darkins was given several copies of envelopes allegedly improperly sent from his office and a copy of a letter from the Executive Director of the Liquor Control Board which detailed allegations of impropriety by Darkins. On the advice of his counsel, Darkins did not respond to these allegations at that meeting. On January 5, 1984, Darkins' attorney stated that he would not respond to the allegations absent more specific information. Shortly thereafter, Darkins went on sick leave for a heart ailment until May 1, 1984.
[ 105 Pa. Commw. Page 267]
Upon returning to work on May 1, 1984, Darkins was given a letter of suspension. The suspension was for thirty days and during such time an investigation into his activity as a referee was to take place. The letter specifically identified three hearings at which Darkins' conduct was in question and notified Darkins that other incidences of misconduct had come to Respondent's attention subsequent to the December, 1983 hearing which warranted investigation.
On May 3, 1984, a grievance was filed asserting that the suspension was without just cause because of the de minimis nature of the allegations and lack of timeliness. On June 7, 1984, Darkins was notified to attend a second fact-finding conference to be held on June 11, 1984. Darkins attended the meeting with representation by Petitioner, and the findings of the investigation were discussed. On June 12, 1984, Darkins' suspension was converted to a discharge. On June 19, 1984, a grievance was filed protesting the discharge as being without just cause. Darkins was notified of his right to appeal this decision to the Civil Service Commission or to proceed with arbitration pursuant to the Memorandum of Understanding (Memorandum).*fn1 The discharge was appealed
[ 105 Pa. Commw. Page 268]
to arbitration and hearings before the arbitrator were held from January 11, 1985 through March 5, 1985. The arbitrator denied the grievance and held that just ...