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The Commonwealth Court has ruled that Schuylkill County must arbitrate two grievances filed on behalf of a pair of fired Clerk of Courts employees.

In Schuylkill County v. Pennsylvania Labor Relations Board, a unanimous three-judge panel of the court affirmed a holding by the Pennsylvania Labor Relations Board that the county committed an unfair labor practice when it refused to arbitrate two grievances filed by the Schuylkill County Court Related Employees Union on behalf of discharged Clerk of Courts employees Karen Rogers and Michael Gavaletz.

The county had argued that Clerk of Courts employees were exempt from the current collective bargaining agreement because Maria Casey, the clerk of courts who took office Jan. 4, 2016, and fired Rogers and Gavaletz shortly after, had objected on her second day in office to being bound by the county's 2011-2015 CBA.

But President Judge Mary Hannah Leavitt, writing for the Commonwealth Court, said Casey's predecessor, Steve Lukach, made no objection to the CBA at the time it was executed, meaning the Clerk of Courts remains bound by that CBA until it is replaced by a new agreement.

“The Clerk of Courts has discharged two employees,” Leavitt said. ”The 2011-2015 CBA was negotiated prior to the Clerk of Courts taking office in 2016; however, it remains in effect until a new CBA is reached. Article XV of the CBA prohibits the discharge of any employee without just cause, and Article XVI of the CBA sets forth the grievance procedure that the parties must follow.”

Leavitt, joined by Judges Robert Simpson and Anne Covey, pointed to the Commonwealth Court's own 2014 ruling in Troutman v. American Federation of State, County and Municipal Employees, District Council 88, AFL-CIO.

In that case, the court ruled that a union can compel arbitration only where a row officer has tacitly or expressly consented to a limitation of their rights under Section 1620 of the County Code, which gives row officers the power to hire, fire and supervise employees.

The county argued that Troutman stood for the proposition that because Lukach never gave tacit or express consent to waive his Section 1620 rights and Casey asserted her Section 1620 rights, the Rogers and Gavaletz grievances were not arbitrable under the CBA.

But Leavitt disagreed.

“Troutman established that once a row officer asserts Section 1620 rights, the county may not bargain them away,” Leavitt said. ”Troutman did not hold that a county can refuse to follow the terms of an existing collective bargaining agreement, to which the row officer did not object at the time the contract was negotiated.”

Leavitt continued that, under the 1982 Pennsylvania Supreme Court ruling in Pennsylvania Labor Relations Board v. Bald Eagle Area School District, it must be left to the arbitrator to determine in the first instance whether a matter is arbitrable.

“Under Bald Eagle, the county must make its jurisdictional argument to the arbitrator and then seek judicial review if aggrieved by the arbitration award,” Leavitt said.

Glenn Roth Jr. of the Schuylkill County Solicitor's Office said he and the county were disappointed with the ruling, but not totally surprised given the long-standing case law that arbitrability should be decided by the arbitrator.

“We felt our facts were different from most of those cases,” Roth said, noting that the county is mulling whether to appeal to the state Supreme Court.

Counsel for the union, Todd Eagen of Welby, Stoltenberg, Cimballa & Cook in Scranton, said he and his client were happy the court reinforced the union's bargained-for right to proceed to arbitration.

(Copies of the 13-page opinion in Schuylkill County v. Pennsylvania Labor Relations Board, PICS No. 18-1411, are available at http://at.law.com/PICS.)