Schuylkill County v. PA Labor Relations Board

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Schuylkill County, :

Petitioner :

:

v. : No. 1215 C.D. 2017

: Argued: September 18, 2018

Pennsylvania Labor Relations :

Board, :

Respondent :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE ROBERT SIMPSON, Judge (P)

HONORABLE ANNE E. COVEY, Judge

OPINION

BY PRESIDENT JUDGE LEAVITT FILED: November 14, 2018

Schuylkill County (County) petitions for review of an adjudication of

the Pennsylvania Labor Relations Board (Board) holding that the County committed

an unfair labor practice by refusing to arbitrate two grievances filed by the Schuylkill

County Court Related Employees Union (Union).1 The County contends that the

employees of the Clerk of Courts are exempt from the terms of the current collective

bargaining agreement (CBA) because the Clerk of Courts did not agree to be bound

by it. Accordingly, there was no authority for the two employees dismissed by the

Clerk of Courts to seek a grievance arbitration of whether she had just cause for their

dismissal. Discerning no merit to the County’s contention, we affirm the Board.

In 2016, the Clerk of Courts discharged two employees, who were

members of the County’s bargaining unit. The Union filed grievances to challenge

the discharges. When the parties could not resolve the grievances, the Union

informed the County of its intent to proceed to arbitration, pursuant to the grievance

and arbitration provisions in the CBA.

1

Union filed a notice of intervention with this Court on September 14, 2017.

On October 28, 2016, the County notified the Union by letter that it

would not proceed to arbitration. The County explained that the grievance and

arbitration provisions in the CBA had no application to the dismissal of the two

employees. In support, it pointed to Section 1620 of The County Code,2 which

provides, in relevant part, as follows:

That with respect to representation proceedings before the

Pennsylvania Labor Relations Board or collective bargaining

negotiations involving any or all employes paid from the county

treasury, the board of county commissioners shall have the sole

power and responsibility to represent judges of the court of

common pleas, the county and all elected or appointed county

officers having any employment powers over the affected

employes. The exercise of such responsibilities by the county

commissioners shall in no way affect the hiring, discharging and

supervising rights and obligations with respect to such employes

as may be vested in the judges or other county officers.

16 P.S. §1620 (emphasis added). The County asserted that Section 1620 assigned

“employment powers” over the two affected employees to “other county officers,”

to wit, the Clerk of Courts.

On November 21, 2016, the Union filed an unfair labor practice

complaint with the Board. The Union charged that the County violated the Public

Employe Relations Act3 by refusing to submit to grievance arbitration. The Board

scheduled a hearing before a Hearing Examiner. However, the hearing was canceled

based upon the filing of a joint stipulation of facts by the County and the Union.

The stipulation provided that the parties executed a CBA, effective

January 11, 2011, through December 31, 2015, and that they are currently “engaged

in collective bargaining negotiations and are proceeding to interest arbitration on a

2

Act of August 9, 1955, P.L. 323, as amended, 16 P.S. §1620.

3

Act of July 23, 1970, P.L. 563, as amended, 43 P.S. §§1101.101 – 1101.2301.

2

new CBA.” Stipulation ¶¶3-4; Reproduced Record at 9a (R.R. __). The CBA states

that if a new contract is not reached “prior to January 1, 2016 the terms and

conditions of this contract shall remain in full force and effect until such time as a

new Agreement and/or arbitration is reached.” Stipulation ¶5; R.R. 9a (quoting

Article XXXIV of the CBA).

The CBA states that “[e]mployer shall not demote, suspend, discharge,

or take any disciplinary action against employee without just cause.” Stipulation ¶6;

R.R. 10a (quoting Article XV of the CBA). It further states that “any dispute relating

to the discipline of any of the Union’s employees shall be settled by a step grievance

procedure that concludes with arbitration….” Stipulation ¶7; R.R. 10a (citing

Article XVI of the CBA). The CBA does not limit the ability of the Union to

challenge a disciplinary action of a row officer. Stipulation ¶8; R.R. 10a. “The CBA

makes no reference at all to Section 1620 of the County Code[.]” Stipulation ¶8;

R.R. 10a.

Prior to the execution of the 2011-2015 CBA, the County Solicitor

acted as the County’s chief negotiator, and Stephen Lukach was the Clerk of Courts.4

Stipulation ¶¶18-19; R.R. 11a-12a. The County Solicitor did not seek input from

the elected row officers about their willingness to be governed by the CBA.

Stipulation ¶19(a); R.R. 12a. At no time did either the Union or the County obtain

Lukach’s consent to be bound by the CBA with respect to the discharge of

employees. Stipulation ¶19(b); R.R. 12a. At no time did Lukach, or any other row

officer, contact the County about Section 1620. Stipulation ¶19(c); R.R. 12a.

Maria Casey, Esquire, took office as the Clerk of Courts on January 4,

2016. On January 5, 2016, she notified the County and the Union by letter that

4

Lukach resigned on April 17, 2014.

3

several provisions of the CBA, including Article XV, infringed on the Section 1620

rights of her office. Stipulation ¶9; R.R. 10a (letter at Exhibit B of Stipulation; R.R.

68a-69a). She objected to the continuation of any provision in the 2011-2015 CBA

that was contrary to Section 1620. Stipulation ¶9; R.R. 10a.

On January 8, 2016, the Clerk of Courts dismissed Karen Rogers, a

bargaining unit member, and on January 11, 2016, the Union filed a grievance

challenging the termination. Stipulation ¶¶10-11; R.R. 10a. On July 27, 2016, the

Clerk of Courts dismissed Michael Gavaletz, a bargaining unit member, and on July

29, 2016, the Union filed a grievance challenging the termination. Stipulation ¶¶13-

14; R.R. 11a.

The Clerk of Courts instructed the County Solicitor to assert her

“[Section] 1620 rights at any arbitration or interest proceeding.” Stipulation ¶12;

R.R. 11a. Following the grievance procedures set forth in Article XVI of the CBA,

the parties completed Step I (initiation of grievance) and Step II (settlement

negotiations). Stipulation ¶15; R.R. 11a. Because the grievance was not resolved,

the Union notified the County of its intent to proceed to Step III, i.e., arbitration.

Stipulation ¶15; R.R. 11a. In response:

[The Clerk of Courts] directed the County to refuse to approve

or engage in any arbitration of the grievances involving the

discharges of Rogers and Gavaletz, based on the exercise of her

rights as a Row Officer under Section 1620 of the County Code

(1620 Rights) asserting that (1) the CBA and the grievance and

arbitration provisions of the CBA pursuant to which the

grievances were submitted to arbitration infringe upon her right

to hire, discharge, and supervise the employees of her office and

(2) as a Row Officer, she is not bound or subject to those

grievance provisions.

Stipulation ¶16; R.R. 11a. On October 28, 2016, the County Solicitor informed the

Union that it refused “to select an arbitrator based [on] an objection raised by [the

4

Clerk of Courts] that the CBA was interfering with her 1620 Rights.” Stipulation

¶17; R.R. 11a.

Based upon these stipulated facts, the County argued the grievances of

Rogers and Gavaletz were not arbitrable. It asserted that Section 1620 of The County

Code required the Board’s dismissal of the Union’s complaint. In support, it relied

on Troutman v. American Federation of State, County and Municipal Employees,

District Council 88, AFL-CIO, 87 A.3d 954 (Pa. Cmwlth. 2014). The Union

contended that it was the arbitrator that had to decide, in the first instance, whether

the grievances were arbitrable.

The Hearing Examiner issued a proposed decision and order,

concluding “that the determination of arbitrability of grievances in the first instance

is within the jurisdiction of the arbitrator and that employers unlawfully refuse to

bargain in good faith when they refuse to arbitrate and argue arbitrability to the

Board.” Proposed Decision at 4 (internal citations omitted); R.R. 98a. Accordingly,

the County committed an unfair labor practice under Section 1201(a)(1) and (5) of

the Public Employe Relations Act5 by not submitting the threshold question of

arbitrability to the arbitrator. The Hearing Examiner recommended that the County

be ordered to proceed to arbitration.

5

Section 1201(a) states, in relevant part, as follows:

(a) Public employers, their agents or representatives are prohibited from:

(1) Interfering, restraining or coercing employes in the exercise of

the rights guaranteed in Article IV of this act.

***

(5) Refusing to bargain collectively in good faith with an employe

representative which is the exclusive representative of employes in

an appropriate unit, including but not limited to the discussing of

grievances with the exclusive representative.

43 P.S. §1101.1201(a).

5

The County filed exceptions to the Hearing Examiner’s proposed

decision. The Board dismissed the exceptions and made the proposed decision and

order final. The Board stated, “it is well-settled that all disputes concerning

arbitrability of a grievance under a collective bargaining agreement must first be

presented to an arbitrator for determination.” Board Adjudication at 4 (internal

citations omitted) (emphasis in original); R.R. 129a. It explained that to allow “the

employer to unilaterally refuse to submit a dispute to arbitration would in effect

allow the employer’s interpretation to control.” Board Adjudication at 5 (quoting

East Pennsboro Area School District v. Pennsylvania Labor Relations Board, 467

A.2d 1356, 1359 (Pa. Cmwlth. 1983)); R.R. 130a. The Board concluded, “it is black

letter law that the issue of arbitrability may not be litigated before the Board, and a

refusal to arbitrate a grievance is a per se unfair practice.” Board Adjudication at 7

(citing Pennsylvania Labor Relations Board v. Bald Eagle Area School District, 451

A.2d 671 (Pa. 1982)); R.R. 132a.

The County has petitioned for this Court’s review.6 It asserts that the

Board erred because the discharge of the two employees by the Clerk of Courts could

not be resolved in accordance with the CBA and, thus, an arbitration proceeding was

not the appropriate forum for resolving the question of arbitrability. In support, the

County directs the Court to Troutman, 87 A.3d 954, which established the principle

that a union can compel arbitration only where a row officer has tacitly or expressly

6

This Court’s review of a Board adjudication determines whether constitutional rights were

violated, whether the factual findings are supported by substantial evidence, and whether an error

of law was committed. Teamsters Local 77 & 250 v. Pennsylvania Labor Relations Board, 786

A.2d 299, 302 (Pa. Cmwlth. 2001). Our scope of review for legal questions is plenary and our

standard of review is de novo. Hospitality Management Corp. v. Department of Labor and

Industry, Office of Unemployment Compensation Tax Services, 171 A.3d 936, 938 n.5 (Pa.

Cmwlth. 2017).

6

consented to grieve employee discharges. Here, the Clerk of Courts did not consent

to Articles XV and XVI of the CBA.7 Accordingly, these provisions of the CBA do

not apply to the Clerk of Courts’ discharge of the two employees in this case.

Section 903 of the Public Employe Relations Act states that

“[a]rbitration of disputes or grievances arising out of the interpretation of the

provisions of a collective bargaining agreement is mandatory.” 43 P.S. §1101.903.

The County argues Section 903 is not applicable because this case does not involve

7

Article XV of the CBA provides, in relevant part:

The Employer shall not demote, suspend, discharge, or take any disciplinary action

against any employee without just cause.

R.R. 42a. Article XVI of the CBA provides, in relevant part:

All disputes between the County and the Union or between the County and any of

its employees relating to the application or interpretation of this Agreement and/or

any dispute concerning the wages, hours, working conditions or discipline of

employees covered by this Agreement shall be settled in accordance with the

following procedure:

Step I. All grievances must be initiated within fifteen (15) working days…. The

grievance shall first be discussed orally by the grievant and/or his/her union

representative, and his/her supervisor or his/her designee…. The supervisor or

his/her designee must give his/her written answer within ten (10) working days of

such meeting.

Step II. If a satisfactory settlement is not reached in Step I, the grievant must reduce

his/her grievance to writing and forward a copy of same to the Head of Human

Resources or his/her designee…. The Head of Human resources or his/her

designee, the grievant and a Union Representative shall meet again in an attempt to

settle the dispute. A written answer must be given by the County within ten (10)

working days of such meeting.

Step III. In the event no agreement is reached at Step II, the Union may upon

written notice to the County, within ten (10) working days after receipt of the Step

II answer, appeal the grievance to arbitration, or the grievance shall be deemed

waived. The County and/or the Union shall request the Pennsylvania Bureau of

Mediation to submit a panel of seven (7) names of suggested arbitrators. …. The

decision of the impartial arbitrator shall be final and binding, except as may be

otherwise provided by law….

R.R. 43a-44a.

7

the interpretation of the CBA, which, as the parties have stipulated, is silent on

Section 1620. The Clerk of Courts serving when the CBA was negotiated did not

tacitly or expressly consent to waive his Section 1620 rights with respect to Articles

XV and XVI of the CBA. The present Clerk of Courts asserted her Section 1620

rights immediately upon taking office. Therefore, under Troutman, the arbitrator

lacked jurisdiction to hear the Union’s grievance.

The Board and the Union respond that the Supreme Court has long held

that the issue of arbitrability must be submitted first to an arbitrator and not to the

Board or the courts. Bald Eagle, 451 A.2d 671. Further, in East Pennsboro Area

School District, 467 A.2d at 1359, this Court rejected the employer’s claim that it

could avoid arbitration by claiming the applicable collective bargaining agreement

needed no interpretation. They argue that Troutman did not overturn the long-

established legal principle that an arbitrator’s jurisdiction must, in the first instance,

be presented to the arbitrator.

This Court’s holding in Troutman, 87 A.3d at 955, is central to the

County’s appeal and we begin with its review. In Troutman, the county and its row

officers filed a declaratory judgment action to resolve their dispute with the union

over the row officers’ asserted Section 1620 rights. In 1999, the row officers advised

the county that they were asserting their Section 1620 rights to the fullest extent

permitted by law, which stalled negotiations on a 2000 collective bargaining

agreement. In 2001, the county, the union and the row officers entered into a side

agreement to pursue a declaratory judgment action on the impact of Section 1620

upon collective bargaining. They also agreed to hold in abeyance approximately 30

grievances that had been filed, pending the outcome of the declaratory judgment

action. The trial court granted judgment to the union, concluding that the row

8

officers were bound by provisions in the collective bargaining agreement relating to

demotion, suspension, discharge and seniority (the disputed provisions) unless and

until they were amended through collective bargaining. The row officers appealed

to this Court, and this Court reversed.

We held that the county commissioners represented the row officers in

collective bargaining matters. In this role, the county commissioners were

authorized to enter into a collective bargaining agreement that limited the row

officers’ Section 1620 rights, “but only where [the] Row Officers have tacitly or

expressly consented.” Troutman, 87 A.3d at 964. In Troutman, the row officers had

specifically forbid the county commissioners from negotiating the disputed

provisions, depriving the county commissioners of authority to bargain the row

officers’ Section 1620 rights away. Accordingly, we reversed and remanded the

matter to the trial court to enter declaratory judgment in favor of the county and the

row officers.

This Court explained that absent consent, the county commissioners are

“required to continue to negotiate the [d]isputed [p]rovisions or take them to interest

arbitration in accordance with the provisions of the relevant labor statutes.”

Troutman, 87 A.3d at 965 (internal footnote omitted). We noted that Section 805 of

the Public Employe Relations Act requires arbitration in collective bargaining

impasses involving “employes directly involved with and necessary to the

functioning of the courts of this Commonwealth….” 43 P.S. §1101.805.8 Where

8

It provides:

Notwithstanding any other provisions of this act where representatives of units of

guards at prisons or mental hospitals or units of employes directly involved with

and necessary to the functioning of the courts of this Commonwealth have reached

an impasse in collective bargaining and mediation as required in section 801 of this

article [43 P.S. §1101.801] has not resolved the dispute, the impasse shall be

9

the row officers objected to the interest arbitration award, then the county

commissioners had to appeal the award or allow the row officers to appeal.

Troutman established that once a row officer asserts Section 1620

rights, the county may not bargain them away. 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.

The Union directs the Court to the statement in Troutman that the

county commissioners were “required to … take [any disputed provisions] to …

arbitration in accordance with the provisions of the relevant labor statutes.” Union

Brief at 17 (quoting Troutman, 87 A.3d at 965). One relevant provision of the

“relevant” labor laws is Section 903 of the Public Employe Relations Act, which

states as follows:

Arbitration of disputes or grievances arising out of the

interpretation of the provisions of a collective bargaining

agreement is mandatory. The procedure to be adopted is a proper

subject of bargaining with the proviso that the final step shall

provide for a binding decision by an arbitrator or a tri-partite

board of arbitrators as the parties may agree. Any decisions of

the arbitrator or arbitrators requiring legislation will only be

effective if such legislation is enacted:

(1) If the parties cannot voluntarily agree upon the

selection of an arbitrator, the parties shall notify the

Bureau of Mediation of their inability to do so. The

Bureau of Mediation shall then submit to the parties

the names of seven arbitrators. Each party shall

alternately strike a name until one name remains.

submitted to a panel of arbitrators whose decision shall be final and binding upon

both parties with the proviso that the decisions of the arbitrators which would

require legislative enactment to be effective shall be considered advisory only.

43 P.S. §1101.805.

10

The public employer shall strike the first name. The

person remaining shall be the arbitrator.

(2) The costs of arbitration shall be shared equally

by the parties. Fees paid to arbitrators shall be based

on a schedule established by the Bureau of

Mediation.

43 P.S. §1101.903.

The County responds that Section 903 does not apply to the instant

appeal because there was no factual dispute, as evidenced by the stipulation. Under

Troutman, the arbitrator lacks jurisdiction over a grievance arising from the 2011-

2015 CBA. This represents the County’s interpretation of the law. In Bald Eagle,

451 A.2d at 672, our Supreme Court cautioned that the arbitrability of a grievance

must be resolved by the arbitrator in the first instance. To hold otherwise would be

“folly” because it would allow “a full preliminary bout in the courts over the issue

of an arbitrator’s jurisdiction” and

would only encourage potential parties to such disputes to

continue to follow the practice of preliminary litigating through

one forum the power of another to decide the substantive issue.

We condemn that practice and hold that hereafter issues

involving conflicts between a public sector collective bargaining

agreement and fundamental statutory policies of this

Commonwealth must be presented first to arbitration for

determination, subject to appropriate court review of any award

in conflict with such policies.

Id. at 674.

In East Pennsboro, 467 A.2d at 1357, the parties entered into a

collective bargaining agreement after a month-long strike by members of the

teachers’ union. Thereafter, the school district scheduled 170 days of student

instruction, despite the state mandate of 180 days, and reduced the salaries of the

teachers. The union filed a grievance, and the school district refused to arbitrate,

11

claiming the dispute was outside the scope of the collective bargaining agreement.

In response, the union filed an unfair labor charge with the Board, which ordered

arbitration. This Court affirmed the Board, explaining that to find to the contrary,

[would permit] the employer to unilaterally refuse to submit a

dispute to arbitration [and] would in effect allow the employer’s

interpretation to control. While the [Board] has statutory

authority to determine questions of arbitrability when it decides

an unfair labor practice has been committed by a refusal to

arbitrate, the Supreme Court has made clear that questions of

arbitrability must first be submitted to an arbitrator and that any

refusal to arbitrate a dispute concerning a collective bargaining

agreement is per se an unfair labor practice.

Id. at 1359 (emphasis added).

The Clerk of Courts has discharged two employees. 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. Under Bald Eagle, the County

must make its jurisdictional argument to the arbitrator and then seek judicial review

if aggrieved by the arbitration award.

We hold that the Board did not err in holding the County engaged in

unfair labor practices in violation of Section 1201(a)(1) and (5) of the Public

Employe Relations Act by unilaterally determining the issue was not arbitrable and

refusing to submit to arbitration.

Accordingly, the order of the Board is affirmed.

_____________________________________

MARY HANNAH LEAVITT, President Judge

12

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Schuylkill County, :

Petitioner :

:

v. : No. 1215 C.D. 2017

:

Pennsylvania Labor Relations :

Board, :

Respondent :

ORDER

AND NOW, this 14th day of November, 2018, the order of the

Pennsylvania Labor Relations Board, dated August 15, 2017, in the above-captioned

matter is AFFIRMED.

_____________________________________

MARY HANNAH LEAVITT, President Judge