Appeals from the Orders of the State Civil Service Commission in the cases of Carolyn A. Wright, No. 6761 and Carolyn S. Gibson, No. 6757.
Gary Gordon, Kirschner, Walters and Willig, for petitioners.
David B. Farney, Assistant Counsel, for respondent.
Judges Palladino and Smith, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Smith. Judge MacPhail did not participate in the decision in this case.
[ 123 Pa. Commw. Page 447]
This is a consolidated appeal by Carolyn A. Wright and Carolyn S. Gibson (Petitioners) from a decision of the State Civil Service Commission (Commission) upholding Petitioners' furloughs from their infirmary positions as licensed practical nurses (LPNs), regular status, with the Department of Corrections (Department) at the State Correctional Institution at Graterford (SCI-Graterford). Issues presented on appeal pertain to whether an agency can create a valid "lack of work" furlough by contracting out services previously performed by furloughed employees in order to enhance operational efficiency and secure cost-savings under the Civil Service Act (Act).*fn1 The decision of the Commission is affirmed.
In 1980, the Department entered into a stipulation with the Imprisoned Citizens Union to dismiss outstanding allegations of contempt against the Department. The stipulation modified a 1978 consent decree and provided that within two years the Department must have a registered nurse on duty twenty-four hours a day in all correctional institution infirmaries. Findings of Fact No. 4. SCI-Graterford subsequently entered into a contract with a temporary employment agency to provide additional nurses on an as-needed basis to comply with the stipulation. As this proved to be inadequate, SCI-Graterford entered into a second contract with another
[ 123 Pa. Commw. Page 448]
temporary employment agency to provide similar services. However, this arrangement also proved to be unsatisfactory and the Department decided to consider a private health care service. Prior to releasing a request for bid proposals, the Department met several times with the various unions representing employees to discuss alternatives so as to improve health care services being provided. The Department once again met with the unions before deciding to enter into a contract with Correctional Medical Services, Inc. (CMS); however, no alternative suggestions were provided by the unions. N.T., pp. 45-46. The Department then entered into the CMS contract to provide comprehensive medical services to the inmate population at SCI-Graterford effective August 1, 1986. Findings of Fact Nos. 6, 9. Petitioners were notified on July 2, 1986 that they were being furloughed for lack of work since their positions were being abolished as a result of the contract with CMS. Petitioners appealed to the Commission, which sustained their furloughs, whereupon this appeal ensued.*fn2
Section 3(s) of the Act, 71 P.S. § 741.3(s), defines a furlough as termination of employment based upon lack of work or funds. Petitioners argue that the Commission legally erred in determining that lack of work existed because the Department entered into an independent contract for services which constituted insufficient evidence to establish a lack of work. Petitioners contend that absent an actual lack of work to be performed, a "lack of work" furlough cannot be sustained simply because it promotes operational efficiency. Petitioners further contend
[ 123 Pa. Commw. Page 449]
that the Department misconstrued a line of cases where an agency has been permitted to furlough employees due to reorganizational efforts, citing Department of State v. Stecher, 506 Pa. 203, 484 A.2d 755 (1984); Vovakes v. Department of Transportation, 71 Pa. Commonwealth Ct. 3, 453 A.2d 1072 (1982); and Department of Public Welfare v. Magrath, 14 Pa. Commonwealth Ct. 257, 321 A.2d 403 (1974). It is Petitioners' position that these cases permit reorganization only if there are too many employees performing too little work or two employees are duplicating each other's work.
In Dougherty v. Department of Health, 113 Pa. Commonwealth Ct. 620, 538 A.2d 91 (1988), however, this Court addressed issues similar to those advanced here and upheld the furloughs of six technicians whose employment was terminated for lack of work when the Department of Health contracted with a private firm to administer services previously performed by the furloughed technicians. Costs disproportionate to the number of persons the Department could serve triggered the contract. This Court, citing Magrath, stated that the relevant inquiry was whether there was a valid lack of work within the Department and more importantly, that contracting out of services can create a valid lack of work. Drawing upon the rationales of Stecher and Vovakes, it was noted that a reorganization can be a valid ...