General Electric Corp. v. Com., Human Relations Commission

• Decision Date: 13 June 1975
• Citation: 334 A.2d 817,18 Pa.Cmwlth. 316
• Parties: , 16 Fair Empl.Prac.Cas. (BNA) 1322, 9 Empl. Prac. Dec. P 10,232 GENERAL ELECTRIC CORPORATION, Appellant, v. COMMONWEALTH of Pennsylvania, Pennsylvania HUMAN RELATIONS COMMISSION, Appellee.
• Court: Pennsylvania Commonwealth Court

Page 817

334 A.2d 817

18 Pa.Cmwlth. 316, 16 Fair Empl.Prac.Cas. (BNA) 1322,

9 Empl. Prac. Dec. P 10,232

GENERAL ELECTRIC CORPORATION, Appellant, v. COMMONWEALTH of Pennsylvania, Pennsylvania HUMAN RELATIONS COMMISSION, Appellee.

Commonwealth Court of Pennsylvania.

Argued Feb. 5, 1975.

Decided March 27, 1975.

Application for Allocatur Denied June 13, 1975.

F. N. Egler, Pittsburgh, Egler & Reinstadtler, Pittsburgh, for appellant.

Jay Harris Feldstein, Asst. Gen. Counsel, Pennsylvania Human Relations Commission, Harrisburg, Katherine Fein, Pa. Relations Comm., Pittsburgh, Sanford Kahn, Pa. Human Relations Comm., Harrisburg, for appellee.

Before BOWMAN, President Judge, and CRUMLISH, Jr., KRAMER, MENCER, ROGERS and BLATT, JJ.

OPINION

KRAMER, Judge.

This is an appeal filed by General Electric Corporation (GE) from a final order of the Pennsylvania Human Relations Commission (Commission) dated April 1, 1974. The order was based upon findings and conclusions in which the Commission determined that GE had violated section 5(a) of the Pennsylvania Human Relations Act (Act), Act of October 27, 1955, P.L. 744, § 5, as amended, 43 P.S. § 955(a) (1974--1975 Supp.) through unlawful discriminatory employment practices based on sex.

The case had its genesis when on September 17, 1971 Agnes Stoklas, Mary Kush, and Anna Katynski (complainants) filed a complaint with the Commission alleging unlawful discriminatory practices in employment under section 5(a) of the Act, which 'took place on or about April 14, 1971' and which are alleged to have been of a continuing nature until at least September 17, 1971. The main allegation of the complaint reads as follows:

'The Complainants allege that (GE) failed to offer the complainants and other female employees similarly situated the same terms and conditions to secure full time employment after phasing out the coil department because of their sex, female, while offering less senior males of the same work unit full time employment in all areas not effected (sic) by the elimination of the coil department.'

At hearings held before members of the Commission, the following pertinent facts were developed as a matter of record. In November of 1970, GE employed in the Coil Department of its Pittsburgh service shop 46 employes, 21 of whom were women. All of the employes held positions under a company classification designated with a capital 'R' prefix, i.e., R--2 through R--24. The lower numbers represented lower classifications with corresponding lower rates of pay. All of the 21 women held positions which were classified between R--6 and R--9, with the complaints all being classified as R--9. All of the male employes held positions which were classified between R--12 and R--14. Most of the female workers, including the claimants, were known as 'coil taper' employes who wrapped insulation on wire coils of various diameters and lengths. There were two methods for the payment of wages to these employes. The first was a regular hourly wage, and the second was an incentive pay scale, whereby the employe received a regular hourly scale plus payment for piecework. All 21 females in the department were under the incentive work program. The record indicates that most of these women, including the claimants, received a total incentive wage payment higher than that of the regular hourly employes (male and female) with higher classifications (apparently even through the pay scale for R--14). At all times pertinent to this case all employes had the right to 'bump' into other positions of equal or lower classification. In addition, on a regular basis, job openings to higher classifications were published on GE bulletin boards located at places within the Coil Department facilities. Any employe could make a bid, if he or she met the qualifications for these higher positions.

At this point we must note that discrimination based upon sex was made unlawful by an amendment to the Act made via the Act of July 9, 1969, P.L. 133, § 2, as amended, 43 P.S. § 955(a) (Supp.1974--1975) which amendment became effective July 9, 1969. At the hearings in this matter, the Commission, over the objections of GE, devoted a considerable portion of the record to incidents and procedures occurring prior to the effective date of the sex discrimination amendment. The Commission ruled that while evidence of events occurring prior to July 9, 1969 could not be used 'to prove the substance of what they indicate,' it could be admitted into evidence to show a 'state of mind.' While we agree with the Commission that, in some cases, actions of an employer prior to the effective date of the Act's provisions might be relevant, ¹ our reading of this record and the Commission's adjudication reveals that in the instant case the challenged evidence was not relevant. Furthermore, our reading of the adjudication shows that the Commission relied so heavily upon action by GE prior to July 9, 1969 that we must conclude that the Commission acted improperly. The Complaint alleges that the unlawful discrimination occurred 'on or about April 14, 1971' and, under our ruling in Pittsburgh Press Employment Advertising Discrimination Appeal, 4 Pa.Cmwlth. 448, 287 A.2d 161 (1972), aff'd, 413 U.S. 376, 93 S.Ct. 2553, 37 L.Ed.2d 669 (1973), due process of law requires that the 'accused' be informed with reasonable certainty of the nature of the accusation lodged against him. In this case, therefore, it was improper for the Commission to permit over objection extensive evidence concerning matters which occurred as early as 1968, and then to use such evidence to support its adjudication.

In any event the record indicates that on November 17, 1970, the manager of the plant formally notified all of the employes that during 1971, GE would discontinue the Coil Department at its Pittsburgh installation and transfer this same operation to a new location in Ohio for economic and business reasons. At that time all of the employes were offered the opportunity to transfer to Ohio and the manager was able to obtain from GE approval for payments to help defray the cost of moving for any employe who desired to transfer to Ohio. The record does not indicate that any of the employes showed any desire to transfer to Ohio. At the November 17, 1970 meeting, the manager informed the employes that GE was attempting to expand another department (at its Pittsburgh plant) known as the Random Wound Department, which hopefully would enable GE to continue to employ the coil wrappers, including the claimants. All of the employes were requested to fill out a form designating preferences for other jobs at the Pittsburgh plant, and all of the complainants indicated their first preference for the Random Wound Department which, to the date of the hearings, had not yet been expanded. Following this, all of the employees of the Coil Department were provided the opportunity to 'bump' to the same or lower R--rated jobs. As it turned out, the only jobs to which any of them could 'bump' were positions as sweeper or janitor. The 'bumping' procedures were covered by a union contract between GE and the International Union of Electrical, Radio and Machine Workers (A.F.L.-C.I.O.), which agreement was entered into evidence. None of the female Coil Department employes exercised their rights to 'bump'. Although the union contract provided for the usual grievance procedures, none of the female employes filed any grievances, except for the same allegations made in the complaint filed in this case. It is interesting to note that these grievances were resolved against the female employes under the union grievance procedures.

We should also highlight the fact that the three complainants here involved were employes with high seniority rights. The union contract provided that seniority was to be a 'major' factor in determining transfers during a layoff, but it also provided that 'ability will be given consideration' and that seniority should be a major factor on rehiring 'if the employe is able to do the available work in a satisfactory manner after a minimum amount of training.'

Statistical exhibits were submitted by both GE and the complainants with indicated that out of the total 46 employes of the Coil Department, 21 of the 25 male employes were at least temporarily transferred to other jobs, depending upon their preference as shown on the written request made by GE (as mentioned above) and because of their qualifications or experience. Three of the men exercised union rights by 'bumping' into other positions and one retired. Of the 21 femal Coil Department employes, none exercised their right to 'bump' into other positions, and the record permits us to conclude that none of the female employes presented any qualification or experience to any one at GE which would indicate that they had equal or better qualifications and experience than any of the men who were transferred to other openings in other departments. In fairness, we should note that the record does indicate that two of the complainants had made bids on other jobs, and one of them was successful. Both of these bids, however, were in 1968.

Following the layoffs which occurred between January 14, 1971 and May 7, 1971, one female employe voluntarily went on sick leave, one retired, two at the time of the hearing were working full time and four had been called back for intermittent work during 1971 at the same or higher classifications. The complainants' evidence also indicates that at the time of the latest information obtained by the Commission's investigator (October 1, 1971), all three of the complainants had had their job classifications increased to R--10.

It is apparent to us that the Commission utilized these statistical exhibits which indicate that most of the men were transferred into other jobs and most of the women were laid off as the basis for its conclusion that GE had violated section 5(a) of the Act.

On appeal...