As the executive and legislative branches of County government, the County Commissioners are responsible for most of the work of the County. However, County government is also served by a number of independently elected row officers, who are also vested with significant authority. That includes the authority to hire, fire and supervise employees within the office, even over the objections and direction of the County Commissioners.

A row officer’s assertion of these rights – which are outlined in 16 P.S. §1620 (referred to herein as “Section 1620”) – often provides fodder for litigation, as evidenced by the Commonwealth Court’s recent decision in Schuylkill County v. Pa. Labor Relations Bd. The dispute stemmed from the termination of two employees of the Clerk of Courts of Schuylkill County on the heels of a newly-elected Clerk of Courts taking office. The employees, through their union, attempted to grieve their terminations in accordance with a collective bargaining agreement. At the time of the terminations and grievances, contract had expired, and the parties were still negotiating a successor contract.

The Clerk of Courts took the position that she had not waived her rights to hire, fire and supervise employees within her office, and in fact had specifically reserved those rights in a letter which pre-dated both terminations. As such, she contended that the grievance provision in the collective bargaining agreement was inapplicable as to her office, and directed the County to refuse to arbitrate the grievances.

The Pennsylvania Labor Relations Board (“PLRB”) had found that the refusal to arbitrate the grievances – or at least submit the question of whether the dispute was subject to arbitration – constituted an unfair labor practice. The County, in its appeal of the decision of the PLRB, argued that a union could compel arbitration only where a row officer has tacitly or expressly consented to the grievance of employee discharges, and the Clerk of Courts in this situation clearly did not consent. In affirming the decision of the PLRB, however, the Commonwealth Court noted that numerous appellate cases have held that a party cannot merely assert non-arbitrability to block consideration by an arbitrator; the arbitrator’s authority includes consideration and resolution of whether or not the dispute is subject to arbitration. In short, the jurisdictional question of the waiver or non-waiver of the Clerk’s Section 1620 rights and applicability of the grievance procedure must be submitted, first, to the arbitrator.

In light of this decision, the line to be walked by counties in ensuring compliance with both the Public Employee Relations Act and Section 1620 has become even narrower. In order to comply with both of these statutes, a county faced with instruction from a row officer not to arbitrate the merits of a hiring, firing, or supervisory decision must refuse to arbitrate the underlying employment decision, but must nevertheless engage with the union to select an arbitrator to determine if the row officer has otherwise consented to the arbitrator’s jurisdiction.

Counties should take appropriate measures to ensure the preservation of the arbitrability issue during the early stages of the grievance procedure and before the arbitrator as well.