PETITION FOR REVIEW, (PENNSYLVANIA LABOR RELATIONS BOARD).
David A. Binder, Asst. City Sol., with him, Jack A. Litton, City Sol., Reading, for petitioner.
James L. Crawford, with him, Peter Lassi, Harrisburg, for respondent.
Charles T. Joyce, with him, Alaine S. Williams, Walters & Willig, Philadelphia, for intervenor, AFSCME, Dist. Council 88, AFL-CIO.
Doyle and Palladino, JJ., and Narick, Senior Judge.
[ 130 Pa. Commw. Page 400]
This is an appeal by the City of Reading (City) from an order of the Pennsylvania Labor Relations Board (Board) which accepted a recommended decision and order of a hearing examiner and, hence, concluded that the City had violated Section 1201(a)(3) and (4) of the Public Employe Relations Act, (Act 195) Act of July 23, 1970, P.L. 563, as amended, 43 P.S. § 1101.1201(a)(3) and (4), by discriminating against Dennis Schmehl on the basis of Schmehl's union activities and discharging Schmehl for those activities.*fn1
The relevant findings are as follows. On April 6, 1987, an unfair labor practice charge was filed with the Board by the American Federation of State, County and Municipal Employees, District Council 88 (Union) on behalf of Schmehl alleging violations of Section 1201(a)(3) and (4) of Act 195 by discriminating against Schmehl on the basis of his union activities. Conciliation efforts were unsuccessful and the matter went to a hearing. At the June 27, 1987 hearing, the hearing examiner permitted the Union to amend the charge to state that Schmehl was discharged on January 21, 1987. The date on which the amendment was permitted was more than four months beyond either Schmehl's suspension (on December 18, 1986) or his termination (on January 21, 1987).
The hearing examiner found that Schmehl had been employed by the City in its Water Department from 1974 through 1987 as a Water Plant Operator. On December 18, 1986, Schmehl was suspended indefinitely. The City alleged that the reasons for the suspension and ultimate
[ 130 Pa. Commw. Page 401]
discharge on January 21, 1987 were intoxication on the job, sleeping while on duty and insubordination because of Schmehl's alleged failure to perform an assigned work task. Ten demerits were issued for these offenses.
According to the findings, on the morning of December 17 when Schmehl reported to work he had the opportunity to talk with a Mr. Babb whom he was relieving. The following day the superintendent, who was Babb's supervisor, requested Babb's opinion as to whether Schmehl appeared to be intoxicated the previous morning. Babb indicated that he did not think so; that he had not smelled alcohol on Schmehl's breath or person; that he did not notice Schmehl having slurred his words, or staggered; and that Schmechl had not appeared glassy eyed. Further, on December 17, the day of the alleged incident, the superintendent summoned Mr. Albert Shade to his office. Shade was Schmehl's first line supervisor. Shade was asked to verify that Schmehl was intoxicated. Shade informed the superintendent that he could not tell whether Schmehl was intoxicated and he, too, indicated that he had not smelled alcohol on Schmehl's person, and had not noticed a staggering gait or glassy eyes.
Subsequent to this "investigation," on December 18, Schmehl was called to the personnel office with respect to the incident occurring the previous day. Although he was questioned about the incident, he declined to provide any explanation.
The hearing examiner also found that James Pfleger is the Personnel Director for the City and that on December 18 Pfleger had offered Schmehl an opportunity to explain his alleged conduct the previous day which opportunity Schmehl had declined. Thereafter, Pfleger discussed the matter with Councilman Leonardziak who was the Director of the Department of Streets and Public Improvements and an individual who possessed responsibility for personnel matters within the day-to-day ...