Civil service — Furlough — Civil Service Act, Act 1941, August 5, P.L. 752 — Jurisdiction of the State Civil Service Commission — Collective bargaining agreement — Public Employe Relations Act, Act 1970, July 23, P.L. 563 — Election by employe.
1. Nothing in a collective bargaining agreement deprives the State Civil Service Commission of the power granted the Commission by the Civil Service Act, Act 1941, August 5, P.L. 752, to determine whether that statute has been violated. [49]
2. Mandatory arbitration provisions of the Public Employe Relations Act, Act 1970, July 23, P.L. 562, are not violated when a collective bargaining agreement governed thereby gives a classified employe the right to contest a furlough through procedures established by the Civil Service Act, Act 1941, August 5, P.L. 752, and such option is exercised. [49-50]
OPINION BY JUDGE WILKINSON, JR., April 17, 1979:
The sole question presented in this appeal is whether the State Civil Service Commission (Commission) exceeded its jurisdictional authority in finding that petitioner had improperly furloughed respondent in violation of the provisions of Section 802 of the Civil Service Act. Because we find the Commission had jurisdiction over this case we affirm the adjudication and order reinstating respondent and awarding back pay.
Act of August 5, 1941, P.L. 752, as amended, 71 P. S. § 741.802.
Since petitioner does not seriously dispute the Commission's findings or its conclusion that respondent was not properly furloughed under the Civil Service Act, we need not detail the facts in this case. Petitioner failed to rebut evidence that respondent's position had not been abolished. Further, it was clear he had not been replaced. Either would have been necessary for a furlough. Thus, the fact that petitioner established a prima facie case that could have been the reason for a furlough is of no moment and need not further be considered.
Petitioner argues that since respondent was a member of a collective bargaining unit (in addition to being a civil service employee), the furlough procedures of the collective bargaining agreement should govern the propriety of the furlough and be determined through arbitration pursuant to the Public Employe Relations Act. Accordingly, petitioner contends the Commission lacks jurisdiction to enter upon an inquiry as to the propriety of the furlough.
See Section 903 of the Public Employe Relations Act (PERA), Act of July 23, 1970, P.L. 563, as amended, 43 P. S. § 1101.903.
There are two answers to petitioner's argument. First, irrespective of a collective bargaining agreement, the Commission is legislatively vested with the power to determine whether there has been a violation of the Civil Service Act. See Scuoteguazza v. Department of Transportation, 28 Pa. Commw. 403, 368 A.2d 869 (1977). Second, there is no basis in the adjudication or the record to support the assertion that the Commission even arguably attempted to interpret the agreement. Rather, the agreement by its terms expressly provides that civil service employees governed thereunder shall have the right to seek a remedy through the Civil Service Act or under the grievance provision of the agreement. It is uncontested, and the Commission found as a fact that respondent elected to pursue his remedy exclusively under the Civil Service Act. Having agreed to this option for its civil service employees petitioner is now precluded from arguing that this provision violates the mandatory arbitration provisions of PERA. See Pittsburgh Joint Bargaining Committee v. City of Pittsburgh, ___ Pa. ___, 391 A.2d 1318 (1978).
Accordingly, we will enter the following
ORDER
AND NOW, April 17, 1979, the order of the State Civil Service Commission, at No. 1967, dated March 23, 1978, is hereby affirmed.