APSCUF v. PLRB Appeal of PaSSHE

[J-74-2019]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
ASSOCIATION OF PENNSYLVANIA : No. 67 MAP 2018
STATE COLLEGE AND UNIVERSITY :
FACULTIES : Appeal from the Order of the
: Commonwealth Court dated April 19,
: 2018 at No. 966 C.D. 2017 affirming in
v. : part and reversing in part the June 20,
: 2017 Final Order of the Pennsylvania
: Labor Relations Board at No. PERA-
PENNSYLVANIA LABOR RELATIONS : C-15-240-E.
BOARD :
: ARGUED: September 12, 2019
:
APPEAL OF: PENNSYLVANIA STATE :
SYSTEM OF HIGHER EDUCATION :
OPINION
JUSTICE TODD DECIDED: March 26, 2020
The Pennsylvania State System of Higher Education (“State System”) is comprised
of 14 universities, with a combined enrollment of nearly 100,000 degree-seeking students.
In this appeal by allowance, we consider whether the State System’s policy regarding the
protection of minors ― requiring, inter alia, that faculty members submit to criminal
background checks and report to their university employers if they are arrested or
convicted of a serious crime, or found or indicated to be a perpetrator of child abuse ―
constitutes an inherent managerial policy or prerogative, rendering it nonbargainable for
purposes of collective bargaining between the faculty and the State System. For the
reasons that follow, we find that the policy regarding the protection of minors constitutes
a nonbargainable inherent managerial policy. Thus, we reverse the order of the
Commonwealth Court.
By way of background, the Association of Pennsylvania State College and
University Faculties (the “Association”) was initially formed in 1937 as a professional
association for faculty at Pennsylvania’s teacher colleges. The Association is an
“employe organization” within the meaning of the Public Employe Relations Act (“PERA”),
which, since its enactment in 1970, permits collective bargaining for certain public sector
employees.1 The Association represents a bargaining unit of over 6,000 faculty members
and athletic personnel employed at the universities that comprise the State System. The
Association and the State System were parties to a collective bargaining agreement
(“CBA”), effective from July 1, 2011 through June 30, 2015, which covered all of the
faculty at all of the 14 state universities.2
Relevant to this appeal, on July 8, 2014, the State System adopted Policy 2014-
01: Protection of Minors (the “Policy”), which required each university in the State System
to establish criminal background screening policies and procedures for their employees.
The State System’s Board of Governors, which is charged with planning and coordinating
the development and operation of the State System, had been prompted by incidents of
sexual abuse of children at Penn State University to re-examine the State System’s
policies. The stated purpose of the Policy is to promote the safety and security of children
1 43 P.S. §§ 1101.101 to 1101.2301.
2 The parties ratified a successor CBA in December 2016, which was retroactive to July
1, 2015, and was effective through June 30, 2018. Neither the prior CBA, nor the
successor agreement, addressed the background checks or reporting requirements
related to this appeal.
[J-74-2019] - 2
who participate in programs at the State System’s universities. The State System found
that minors are often present on its properties for a variety of activities, including, inter
alia, class registration and attendance, musical instruction, art and theatre programs, the
Pennsylvania Writing Project, swim programs for disabled children, and sports, digital
media, and business camps.
After the State System promulgated the Policy, but prior to its implementation, the
Pennsylvania legislature passed Act 153 of 2014 (“Act 153”),3 which amended the Child
Protective Services Law (the “CPSL”),4 to expand clearance requirements for school
employees and volunteers, and to require them to notify their employer within 72 hours
of certain arrests or convictions, as well as of any founded or indicated reports of child
abuse. The State System subsequently amended the Policy to include the new reporting
and clearance requirements imposed by Act 153, and adopted the amended Policy on
January 22, 2015.
In sum, the Policy requires all State System employees to submit to criminal
background clearances and to report to their employing universities whenever they are
arrested for, or convicted of, certain serious criminal offenses, or found or indicated to be
a perpetrator of child abuse. The three types of background clearances required by the
Policy are a criminal records check from the Pennsylvania State Police; a criminal records
check from the FBI; and a report from the Pennsylvania Department of Human Services
concerning whether the individual has been named as the perpetrator of child abuse in
an indicated or a founded report. Under the Policy, clearances remain valid for 60 months
3 Act of Oct. 22, 2014, P.L. 529, No. 153.
4 23 Pa.C.S. §§ 6301-6378.
[J-74-2019] - 3
and clearance information is kept confidential and maintained separately from the
employee’s personnel file.
On July 1, 2015, the General Assembly passed Act 15 of 2015 (“Act 15”),5 which
again amended the CPSL, this time excluding from the background check and reporting
requirements university employees whose direct contact with minors is limited to only
students enrolled in the institution or prospective students visiting the campus. After the
Act 15 amendment, the relevant provision of the CPSL containing limitations on the
aforementioned requirements stated:
(a.1) School employees.--This section shall apply to school
employees as follows:
***
(2)(i) School employees not governed by the provisions
of the Public School Code of 1949 shall be governed by
this section.
(ii) This paragraph shall not apply to an employee of an
institution of higher education whose direct contact with
children, in the course of employment, is limited to
either:
(A) prospective students visiting a campus
operated by the institution of higher education;
or
(B) matriculated students who are enrolled with
the institution.
23 Pa.C.S. § 6344(a.1).
Thus, Act 15 rendered the CPSL’s reporting and background check requirements
inapplicable to many State System employees. The State System, however, did not
similarly amend its Policy as a result of these changes to the CPSL. Thus, certain
5 Act of July 1, 2015, P.L. 94, No. 15.
[J-74-2019] - 4
employees and volunteers, no longer legislatively required to comply with the reporting
and criminal background check requirements set forth in Act 15, continued to be
mandated by the Policy to adhere to existing reporting requirements.
Throughout the process ultimately culminating in the adoption of the Policy, the
Association sought to bargain over its substance and impact. Most recently, after Act 15
took effect, the Association sought to collectively bargain over the applicability of the
Policy with respect to those employees no longer subject to the CPSL’s reporting and
background check requirements, asserting that the Policy’s requirements in that regard
directly implicated the now-statutorily-excluded employees’ terms and conditions of
employment. The State System ultimately declined the Association’s request to bargain,
consistently maintaining that the Policy, even with respect to the now-statutorily-excluded
employees, was a matter of inherent managerial prerogative, and, thus, not subject to
mandatory bargaining under PERA.
Thereafter, on August 18, 2015, the Association filed an unfair labor practice
(“ULP”) charge, alleging that the State System’s refusal to bargain over the Policy violated
Sections 1201(a)(1) and (5) of PERA.6 Following a hearing that spanned several days,
the hearing examiner issued a proposed decision and order in which he dismissed the
Association’s ULP charge as untimely. The Association filed exceptions, which the
Pennsylvania Labor Relations Board (the “Board”) sustained in part and dismissed in part,
finding that, while the Association’s charge was, in fact, timely, the Policy was a matter of
6Section 1201(a)(1) prohibits public employers from “[i]nterfering, restraining or coercing
employes in the exercise of rights” under PERA, 43 P.S. § 1101.1201(a)(1), while Section
1201(a)(5) prohibits public employers from “[r]efusing to bargain collectively in good faith
with an employe representative,” id. § 1101.1201(a)(5).
[J-74-2019] - 5
inherent managerial prerogative which was not subject to mandatory bargaining, and,
therefore, the State System did not violate Sections 1201(a)(1) and (5).
Specifically, with regard to the merits of the Association’s ULP charge, the Board
relied on its prior decision in State College & University Professional Association,
PSEA/NEA v. Pennsylvania State System of Higher Education, PERA-C-15-299-E, 48
PPER ¶ 88 (Final Order, May 16, 2017) (“SCUPA”), noting that, therein, the hearing
examiner concluded that the State System’s Policy — the same one at issue herein —
was a matter of managerial prerogative not subject to mandatory bargaining because the
State System’s interest in protecting children outweighed the employees’ interests with
regard to terms and conditions of employment. The Board found that the record in this
case revealed no substantial factual difference that would justify deviating from SCUPA;
hence, the Board determined that the State System’s interest in protecting minors on its
premises outweighed the faculty’s concerns over terms and conditions of employment,
including privacy and tenure issues, rendering the Policy not subject to mandatory
bargaining. Accordingly, the Board concluded that the State System did not commit a
ULP in refusing to bargain over the Policy.
The Association filed a petition for review in the Commonwealth Court, asserting,
inter alia, that the Board erred in concluding that the State System had the managerial
prerogative to impose the CPSL reporting and background check requirements upon
now-statutorily-excluded employees, and that the Board misapplied the balancing-of-
interests test promulgated by this Court in Pennsylvania Labor Relations Board v. State
College Area School District, 337 A.2d 262 (Pa. 1975). The Association also averred that
[J-74-2019] - 6
the Board neglected to undertake a case-specific assessment, in accordance with State
College.
In a unanimous, unpublished memorandum opinion authored by Senior Judge Dan
Pellegrini, a three-judge panel of the Commonwealth Court overturned the Board’s
decision. APSCUF v. PLRB, 966 C.D. 2017 (Pa. Cmwlth. filed April 19, 2018).
Preliminarily, the court considered the CPSL and its various amendments to narrow what
was at issue in the appeal. The court found the relevant inquiry to be whether the Policy’s
criminal background check and reporting requirements for the now-statutorily-excluded
employees was a mandatory subject of bargaining or a managerial prerogative. The court
observed that, pursuant to State College, it was required to “determine whether the impact
of the issue on the interest of the employe in wages, hours, and terms and conditions of
employment outweighs its probable effect on the basic policy of the system as a whole.”
Id. at 13-14 (quoting State College, 337 A.2d at 268). The court noted that, in weighing
the interests, “the paramount concern must be the public interest in providing for the
effective and efficient performance of the public service in question.” Id. at 14 (quoting
State College, 337 A.2d at 268). The court found further guidance from this Court’s more
recent decision in Borough of Ellwood City v. Pennsylvania Labor Relations Board, 998
A.2d 589, 600 (Pa. 2010) (holding that, in the context of Act 111 and the Pennsylvania
Labor Relations Act, infra, a topic is considered to be a non-bargainable managerial
prerogative if “collective bargaining over the topic would unduly infringe upon the public
employer’s essential managerial responsibilities”).
Turning to the facts of the instant matter, the court opined that the background
check and reporting requirements imposed on the now-statutorily-excluded faculty
[J-74-2019] - 7
members via the Policy “directly relate to the terms and conditions of employment,” given
that, thereunder, “the results can and will be used to make tenure, firing, disciplinary, and
other decisions affecting faculty members’ teaching ability.” APSCUF, 966 C.D. 2017, at
15. The court then concluded that collective bargaining over the Policy with respect to
the now-statutorily-excluded employees “would not unduly infringe upon the State
System’s purported essential managerial responsibility of protecting students and minors
on its university premises, especially in light of the fact that the General Assembly
determined those employees are not required to have background checks.” Id. (emphasis
added). The court, thus, determined that the State System was required to bargain over
the Policy with respect to the now-statutorily-excluded employees, noting that the Policy’s
requirements were dissimilar to the “entrepreneurial topics that are more naturally
considered to be inherently managerial in nature,” such as decisions regarding programs,
standards of service, budget, technology, organizational structure, and selection and
direction of employees. Id. (quoting Ellwood City, 998 A.2d at 601 (citing 43 P.S. §
1101.702)). Accordingly, the court reversed the Board’s decision and held that the
Policy’s application to the now-statutorily-excluded employees was a mandatory subject
of bargaining. The Board and the State System filed a petition for allowance of appeal
with our Court.
Our Court granted allocatur to address whether the Commonwealth Court erred
when it reversed the Board’s ruling that the Policy’s requirements that all employees
submit to criminal background checks, and notify their university employers if they are
arrested for a serious crime or are the subject of a founded or indicated report of child
abuse, constituted a nonbargainable managerial prerogative of the State System.
[J-74-2019] - 8
APSCUF v. PLRB, 198 A.3d 1048 (Pa. 2018) (order). An appellate court’s review of a
decision of the Board is limited to determining whether there has been a violation of
constitutional rights, an error of law, or a procedural irregularity, or whether the findings
of the agency are supported by substantial evidence. 2 Pa.C.S. § 704. Our scope of
review is plenary in that we can consider the entire record. Lancaster County v. PLRB,
94 A.3d 979, 986 (Pa. 2014).
Before us, the State System first offers that the State College balancing inquiry is
the appropriate standard by which to evaluate an employer’s duty to bargain over a
claimed managerial prerogative. It goes on to assert that it has a legitimate managerial
interest in protecting children on its campuses and in ensuring compliance with the CPSL,
and that both of these functions are served through the application of the Policy to all
employees. The State System posits several hypothetical scenarios, which it argues
would place it, its administrators, and its faculty members in violation of the CPSL. It
asserts that a uniform policy avoids the situation where a faculty member who did not
have a background check is placed into a class with a non-matriculated minor.
Specifically, the State System contends that the “logistics in course development, course
enrollment, and the substitution of faculty members during short-term absences, all
illustrate why there is a need for a uniform policy for background checks applicable to all
employees.” State System’s Brief at 28. Elaborating on this notion, the State System
highlights that a faculty member cleared to interact with non-matriculated minors7 may be
7The State System explains that non-matriculated minors are high school students who
are “permitted to enroll in specific university courses, but [are] not enrolled in a degree
program,” and may also be referred to as “dual-enrolled” minors. State System’s Brief at
27 n.8.
[J-74-2019] - 9
absent from class due to an illness or unexpected emergency, in which case the relevant
department chair would assign another faculty member to cover the absent faculty
member’s classes. Because the department chairs, who are bargaining unit members,
do not know, due to privacy and confidentiality concerns, which faculty members are
permitted to interact with non-matriculated minors, the State System postulates that the
department chair may assign an employee without the appropriate clearances to cover
the class in which non-matriculated minors are enrolled, in violation of the CPSL.
According to the State System, the administration, which does not include department
chairpersons who are represented by the Association, often remains uninvolved in the
process of assigning coverage for short-term absences.
The State System further notes that the add/drop period for enrollment continues
for a full week after the beginning of classes, and that it may take four to six weeks for a
faculty member to obtain all necessary clearances to permit them to interact with non-
matriculated minors under the CPSL. In the State System’s view, this means that a faculty
member who is expecting to teach a class in which no non-matriculated minors are
enrolled may suddenly have a new non-matriculated minor enrolled in the class during
the add/drop period, when the faculty member has not obtained the necessary
clearances. The State System argues that these scenarios expose its administrators to
criminal penalties based on 23 Pa.C.S. § 6344(b.2) (“An employer, administrator,
supervisor or other person responsible for employment decisions that intentionally fails to
require an applicant to submit the required documentation before the applicant’s hiring or
upon recertification commits a misdemeanor of the third degree.”). With respect to the
self-reporting requirement for faculty members arrested for or convicted of certain criminal
[J-74-2019] - 10
offenses, the State System also claims that the administration needs to know such
information so that it may assess the level of the risk of harm that a faculty member with
a criminal record poses to students and other employees.
The State System explains that the Board properly recognized its legitimate
managerial interests in protecting students and minors present at its universities for
various reasons, and asserts that its interests in this regard are uniform across all
categories of employees, including, inter alia, faculty, administrators, and non-faculty
staff. It highlights, as noted above, numerous programs offered at its universities to
demonstrate that minors are often present on its properties. It maintains that these and
other programs are intended to enrich the communities in which the universities are
located and to entice local youth to attend those universities upon graduating high school.
Additionally, the State System contends that the Board properly relied upon
SCUPA in reaching its ultimate decision because the facts and circumstances therein
were essentially identical to the instant matter, including that SCUPA involved the same
Policy. Thus, it concludes that the Commonwealth Court erred in reversing the Board’s
decision, neglecting to accord the appropriate deference to the Board’s findings.
Specifically, the State System notes that the court gave little regard to the fact that the
Board had previously upheld the State System’s managerial prerogative with respect to
the Policy in reviewing a nearly identical ULP charge. The State System asserts that the
Board was not clearly erroneous in twice upholding the Policy as an exercise of
managerial prerogative, but, instead, acted within its authority, whereas the
Commonwealth Court, in the State System’s opinion, exceeded its authority by
overturning the Board’s prudent decision.
[J-74-2019] - 11
The State System further offers that the Commonwealth Court and the Board have
both previously found policies similar to that which is currently at issue to be within an
employer’s managerial prerogative, including AFSCME, Council 13 v. Pennsylvania
Labor Relations Board, 479 A.2d 683 (Pa. Cmwlth. 1984) (finding that a Code of Conduct
which included procedures for employees charged with or convicted of a criminal offense
was a topic of inherent managerial prerogative); AFSCME, Council 13 v. Pennsylvania
Department of Transportation, 21 PPER ¶ 21108, 1990 WL 10611714 (Proposed
Decision & Order, May 25, 1990) (concluding that a rule imposing discipline for criminal
convictions and arrests was consistent with the Commonwealth Court’s decision in
AFSCME and, thus, not subject to mandatory bargaining); and Fraternal Order of Police
Lodge No. 9 v. City of Reading, 34 PPER ¶ 34, 2003 WL 26073073 (Proposed Decision
& Order, Mar. 10, 2003) (holding that a department rule requiring officers to report arrests
was a proper exercise of managerial prerogative).
The State System asserts, moreover, that the Commonwealth Court “improperly
imported” the “unduly infringe” language from Ellwood City into this case, given that the
issue presented in Ellwood City arose under Act 1118 (granting collective bargaining for,
inter alia, police and fire personnel) rather than PERA, noting that Act 111 does not
specifically include a provision excluding matters of inherent managerial policy from
negotiations as does PERA in Section 702, discussed infra. State System’s Brief at 39.
Instead, the State System contends that the court should have adhered to the State
College balancing test to determine whether “the impact of the issue on the interest of the
employee in wages, hours and terms and conditions of employment outweighs its
8 Act of June 24, 1968, P.L. 237, No. 111 (as amended, 43 P.S. §§ 217.1 to 217.10).
[J-74-2019] - 12
probable effect on the basic policy of the system as a whole.” Id. at 40 (quoting State
College, 337 A.2d at 268). The State System submits that the court used the wrong
standard, came to the wrong conclusion, and mischaracterized the practical purpose of
the Policy. More specifically, it claims that the requirements contained therein merely
oblige employees to furnish the administration with information it, in the past, has obtained
through other means, such as news reports, anonymous tips, or word of mouth. The
State System maintains that, regardless of the means by which it obtains information
related to a faculty member’s arrest or conviction for a criminal offense, its response is
consistent: it looks to the “severity, recency and relevancy” of the arrest or conviction and
determines whether the arrest or conviction was connected “to the individual’s duties and
responsibilities.” Id. at 41. Thus, according to the State System, the Policy merely
provides a more reliable procedure for obtaining what it views as relevant information
about its employees. Moreover, it notes that, even if the Policy does enhance its
knowledge about faculty members’ criminal encounters and potentially could result in
negative employment action, faculty members remain entitled to challenge any such
action by way of the collectively-bargained-for grievance procedure. Accordingly, the
State System seeks reversal of the Commonwealth Court’s decision.
Consistent with the State System’s position, the Board9 notes that State College
provides the correct standard for determining whether a topic implicates wages, hours, or
terms and conditions of employment under Section 701 of PERA, infra, or falls within the
purview of Section 702 and constitutes a matter of inherent managerial policy not subject
9 The Board is a party in this appeal fulfilling its role of enforcing the Commonwealth’s
labor laws. See 43 P.S. §§ 1101.501, 1101.1501.
[J-74-2019] - 13
to mandatory bargaining. The Board contends that it properly applied the State College
balancing test, weighing the faculty members’ interests in job security, tenure, discipline,
and privacy against the State System’s interests in providing a safe and effective system
of higher education, and appropriately concluded that “the preponderance of the interests
tipped the balance in favor of a managerial prerogative, such that [the State System’s]
interests in obtaining background clearances of faculty and requiring them to report
criminal arrests or findings of child abuse, outweighed the faculty interests in wages,
hours and working conditions.” Board’s Brief at 23-24. According to the Board, in
overturning its decision, the Commonwealth Court failed to adhere to the State College
balancing test, instead reformulating the test to include Ellwood City’s “unduly infringe”
standard. Id. at 20.
The Board explains that it explicitly found that the State System enacted the Policy
“in furtherance of a safe environment on campus” in which it could effectively provide
higher education to students. Id. at 24. The Board continues that the State System’s
interest in campus safety was the same in SCUPA, and claims that the Board, therefore,
did not “need to ‘reinvent the wheel’” in addressing the bargainability of the Policy in this
instance. Rather, the Board asserts that it was merely required to factor in additional
considerations presented by the parties in undertaking the State College analysis. Id. at
24-25 n.3. Here, the Board maintains that it considered all relevant interests raised by
the parties and found that the State System’s interests in protecting its students from
harm went to the heart of its function in providing higher education, and outweighed the
Association’s concerns regarding discipline, privacy, job security, promotion, and tenure.
[J-74-2019] - 14
Thus, the Board asks that this Court reverse the Commonwealth Court’s decision and
reinstate its final order.
In response to the State System and the Board, the Association argues that the
Commonwealth Court’s ruling is consistent with the General Assembly’s intent to exclude
the majority of university faculty from the CPSL requirements, as evinced by the Act 15
amendments. The Association claims that the Court must look to the relevant public
interests served both by the CPSL and by the State System’s enabling legislation to
discern the nature of the Policy. First, the Association notes that the legislature expanded
mandatory background checking and reporting requirements under the CPSL with the
enactment of Act 153, which resulted in nearly all faculty members needing to adhere to
those standards. However, the Association adds that, when the legislature passed Act
15 shortly thereafter, it drastically narrowed the scope of the requirements, expressly
excluding most of the State System’s faculty, thus, indicating that the legislature intended
“to create ‘two classes of faculty based upon exposure to minors and potential risk of
abuse. . . .’” Association’s Brief at 24 (quoting PASSHE (Lock Haven Univ.) v. APSCUF,
193 A.3d 486, 497 (Pa. Cmwlth. 2018)). The Association offers that Act 15 rendered the
requirements promulgated by Act 153 inapplicable to faculty with no direct contact with
children, who do not volunteer for extracurricular activities and programs with children,
and who do not teach dual-enrolled high school students in the classroom. Essentially,
the Association contends that the changes to the CPSL made by Act 15 definitively
establish that the legislature found the background checking and reporting requirements
of Act 153 to be “excessive and unnecessary to protect children from abuse in higher
education settings.” Id. at 24. In the Association’s view, the Board failed to acknowledge
[J-74-2019] - 15
the legislature’s intent in this regard, and compounded its error by failing to recognize that
nothing in the CPSL prohibits collective bargaining over similar employment requirements
beyond what is statutorily mandated.
Turning to the State System’s interests, the Association highlights that Section 20-
2003-A of the Public School Code of 1949, as amended, provides the essential public
function of the State System:
The primary mission of the system is the provision of
instruction for undergraduate and graduate students to and
beyond the master’s degree in the liberal arts and sciences
and in applied fields, including the teaching profession.
24 P.S. § 20-2003-A(a). The Association suggests that the Board neglected to address
this express purpose of the State System, instead determining that providing services to
minors is a vital function of the State System. The Association claims that the
“safeguarding of minors” is “completely unrelated to the primary mission of the State
System as a whole,” which is to provide undergraduate and graduate instruction to
students, and asserts that the “Board could not possibly evaluate the impact of the Policy
in any credible way, when it failed to accurately identify the core interests of the State
System employer.” Association’s Brief at 28. Conversely, the Association believes that
the Commonwealth Court did, in fact, undertake an appropriate analysis of these issues,
ultimately reaching the correct conclusion that the requirements contained in the Policy
were unlike the core entrepreneurial functions that unquestionably constitute matters of
inherent managerial prerogative, such as issues involving programs, budget, and
organizational structure.
The Association argues that there is no evidence that the Policy, as imposed upon
the now-statutorily-excluded employees, has any impact on campus safety, and accuses
[J-74-2019] - 16
the State System of promulgating the Policy merely as a “symbolic gesture to dissociate
[the State System] with the scandal at Penn State.” Id. at 32. The Association asserts,
as did the Commonwealth Court, that a background check of Jerry Sandusky would have
returned a “clear” report and, thus, would not have alerted his employer of his proclivity
for sexually abusing children. Similarly, the Association maintains that imposing the
Policy upon the now-statutorily-excluded employees will have “zero” impact upon the
State System’s interest in providing undergraduate and graduate education, but will
significantly impact the working conditions of the faculty members. Hence, the
Association submits that the Policy must be bargained before implementation, otherwise
the now-statutorily-excluded employees will be required to “reveal a lifetime of run-ins
with the law and risk summary discipline and/or termination,” noting that one faculty
member has already been terminated due to a disqualifying conviction nearly three
decades old. Id. at 34. Moreover, the Association contends that any number of
administrators could gain access to the disclosed information and that it could be used in
future tenure and promotion decisions.
Additionally, the Association claims that the hypothetical situations posited by the
State System are meritless, given that the university employer enjoys complete control
over course registration and could easily program its computer system to limit enrollment
for each class to students born after a certain date. Further, the Association highlights
that there is no evidence that non-matriculated minors have ever attended a new class
unexpectedly during the add/drop period. According to the Association, the courses in
which they may enroll are highly limited under various memorandums of understanding
between each participating high school and college, rendering it highly improbable that
[J-74-2019] - 17
neither the university registrar nor the high school guidance counselor would be unaware
of scheduling changes. Likewise, the Association offers that the State System’s concern
over class coverage for faculty absences is unfounded because: a faculty member’s brief
coverage of a class in which a non-matriculated minor is present is not the type of “routine
interaction” with children proscribed by the CPSL;10 the CPSL permits a 90-day
provisional period in which to conduct background checks;11 and unplanned absences
exceeding one week require administrative approval by the Dean or other authority figure
higher in the chain of command. The Association also notes that administrators will not
be subject to criminal prosecution for brief periods of substitute coverage, as alleged by
the State System, because criminal liability attaches under the CPSL only where the
administrator “intentionally fails” to comply.12 Thus, the Association argues that the State
System’s interests in uniformly imposing child protection obligations on the now-
statutorily-excluded employees are “speculative and fail to overcome the interests of
[these excluded] employees.” Id. at 43.
Lastly, the Association focuses on the Commonwealth Court’s use of Ellwood
City’s “unduly infringe” language in its decision, offering that the rulings in Ellwood City
and State College are consistent, and, in fact, that the former was derived from the latter.
On this basis, the Association maintains that the Commonwealth Court did not err in
seeking guidance from Ellwood City in balancing the parties’ interests, suggesting that
“an application of either test produces the same result.” Id. at 46. Specifically, the
10 23 Pa.C.S. § 6303.
11 23 Pa.C.S. § 6344(m).
12 23 Pa.C.S. § 6344(b.2).
[J-74-2019] - 18
Association contends that the Policy implicates the terms and conditions of employment
regardless of the standard used by the court. Further, the Association submits that the
State System’s primary mission is to provide higher education to undergraduate and
graduate students — a fact which it contends is constant under either standard. Finally,
the Association urges that the Commonwealth Court’s use of the Ellwood City language
did not alter the outcome of the case, as it believes that the interests of the faculty
members outweighs those of the State System regardless of which case is considered to
be controlling. Id. at 48. Accordingly, the Association requests that the court’s decision
be affirmed.
Our analysis of the parties’ arguments and the delineation of those matters that
are subject to the right of collective bargaining as set forth in PERA raises a question of
statutory construction; thus, our consideration must be guided by the Statutory
Construction Act of 1972 (the “Statutory Construction Act”). 1 Pa.C.S. § 1501 et seq.
Under the Statutory Construction Act, it is fundamental that “[t]he object of all
interpretation and construction of statutes is to ascertain and effectuate the intention of
the General Assembly.” Id. § 1921(a). The Act provides that “[w]hen the words of a
statute are clear and free from all ambiguity, the letter of it is not to be disregarded under
the pretext of pursuing its spirit.” Id. § 1921(b).
Guided by these principles, we first observe that, as a general matter, public
entities subjected to PERA make a variety of decisions in fulfilling their mission. Certain
of these decisions relate to the formulation and implementation of policies. Other
decisions go to the relationship between the public entities and the individuals that they
employ. With respect to these decisions, as detailed below, certain topics under PERA
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are considered to be mandatory subjects of bargaining, others are considered to be
permissive or voluntary subjects of bargaining, and, finally, certain matters are not
permitted to be bargained at all, as they are deemed to be illegal subjects of bargaining.
Thus, the General Assembly in PERA did not purport to subject every decision a
public employer makes to collective bargaining. In determining whether matters fall within
the scope of collective bargaining, Article VII of PERA offers express guidance. Section
701 therein provides:
Collective bargaining is the performance of the mutual
obligation of the public employer and the representative of the
public employes to meet at reasonable times and confer in
good faith with respect to wages, hours and other terms and
conditions of employment, or the negotiation of an agreement
or any question arising thereunder and the execution of a
written contract incorporating any agreement reached but
such obligation does not compel either party to agree to a
proposal or require the making of a concession.
Id. § 1101.701. Thus, under Section 701, public employers must collectively bargain with
employee representatives over wages, hours, and other terms and conditions of
employment.
At the same time, and in light of the very same considerations, it is equally apparent
that the General Assembly had no intention or expectation that the collective bargaining
process would permit public employees to set matters of public policy or participate with
their public employer in administering the public enterprise. The right to collective
bargaining as to “wages, hours and other terms and conditions of employment” is not
unlimited, as Section 702 unambiguously provides that a public employer is not required
to bargain if the topic is one of inherent managerial policy. Specifically, Section 702
explains:
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Public employers shall not be required to bargain over matters
of inherent managerial policy, which shall include but shall not
be limited to such areas of discretion or policy as the functions
and programs of the public employer, standards of services,
its overall budget, utilization of technology, the organizational
structure and selection and direction of personnel. Public
employers, however, shall be required to meet and discuss on
policy matters affecting wages, hours and terms and
conditions of employment as well as the impact thereon upon
request by public employe representatives.
Id. § 1101.702. Thus, pursuant to Section 702, a public employer is not required to
collectively bargain over matters of “inherent managerial policy” ― also referred to as
managerial prerogatives ― as these matters are reserved for the employer’s unilateral
decision-making. The public employer may, however, negotiate over these matters on a
permissive basis. By Section 702, the General Assembly has broadly indicated what it
deems to be examples of inherently managerial matters, identifying programming,
standards of service, budgetary matters, organizational structure, and the selection and
direction of personnel.
Finally, Section 703 expressly provides that the parties may not bargain over, and
a collective bargaining agreement may not contravene, any legislative mandate.
Specifically, Section 703 warns:
The parties to the collective bargaining process shall not effect
or implement a provision in a collective bargaining agreement
if the implementation of that provision would be in violation of,
or inconsistent with, or in conflict with any statute or statutes
enacted by the General Assembly of the Commonwealth of
Pennsylvania or the provisions of municipal home rule charters.
43 P.S. § 1101.703.
In sum, these clear and unambiguous statutory provisions set forth a framework
which requires collective bargaining over matters that impact an employee’s wages,
hours, and terms and conditions of employment. Yet, they also make plain that a public
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employer is a public entity responsible to all of our citizens for a number of decisions that
concern the public welfare, and decisions that involve an inherent managerial policy are
not subject to negotiations. Finally, these provisions prohibit the parties from agreeing
upon any term that conflicts with statutory enactments.
As to the process by which the Board and the courts are to determine and reconcile
which matters are subject to collective bargaining and which topics are deemed to be
inherent managerial policies under PERA, our landmark 1975 decision in State College
has provided guidance for over 40 years. Writing for the Court, Justice Robert N.C. Nix,
Jr. addressed the determination of whether a particular topic is a matter of wages, hours,
or working conditions subject to bargaining under Section 701, or an inherent managerial
policy of the public employer, and not subject to mandatory bargaining, under Section
702. In determining which matters were bargainable, our Court first recognized the
balance between the public employer’s significant role in providing effective and efficient
public services and the importance of a viable process of collective bargaining to reduce
labor strife. Specifically, we noted that:
A determination of the interrelationship between sections 701
and 702 calls upon us to strike a balance wherein those
matters relating directly to ‘wages, hours and other terms and
conditions of employment’ are made mandatory subjects of
bargaining and reserving to management those areas that the
public sector necessarily requires to be managerial functions.
State College, 337 A.2d at 267-68. We recognized that in “striking this balance the
paramount concern must be the public interest in providing for the effective and efficient
performance of the public service in question.” Id. at 268. Indeed, appreciating the
difficulty of the task, the Court stressed that “[w]e recognize that in many instances the
line will be difficult to draw,[ ] however, if we remain ever mindful that our paramount
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concern in this area is the public interest, no situation will be insoluble.” Id. (footnote
omitted). In focusing on the balancing inquiry, the State College Court recognized the
reality that some matters which are of prime concern to employees’ wages, hours, or
terms and conditions of employment may, at the same time, directly implicate, or at least
touch upon, basic public employer policy. Indeed, an employer’s policy decisions almost
invariably implicate, to some degree, the employer-employee relationship.
With its primary focus on the public interest, the Court went on to offer a test, to be
applied on a case-by-case basis, weighing a given matter’s impact on the interest of the
employee against the effect on the employer’s basic policy determinations:
[W]e hold that where an item of dispute is a matter of
fundamental concern to the employes’ interest in wages,
hours and other terms and conditions of employment, it is not
removed as a matter subject to good faith bargaining under
section 701 simply because it may touch upon basic policy. It
is the duty of the Board in the first instance and the courts
thereafter to determine whether the impact of the issue on the
interest of the employe in wages, hours and terms and
conditions of employment outweighs its probable effect on the
basic policy of the system as a whole.
Id.
Thus, in determining whether a topic is subject to collective bargaining, the Board
in the first instance, and then the courts, must consider the relative weight of the impacted
interest of the public employee in wages, hours, and conditions of employment against
the public employer’s impacted interest in basic policy matters concerning the employer’s
operations, and then assess which interest predominates.13 If the impact on the
13While the Commonwealth Court in this matter, after citing our decision in State College,
nevertheless went on to apply Act 111’s “unduly infringe” standard, Borough of Ellwood
City, we believe the application of that standard in this matter was erroneous, as such
test seemingly represents a more employee-favorable standard, perhaps explained by
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employees’ interest in wages, hours, and conditions of employment outweighs the
employer's concerns about restrictions on its basic policy choices, the proposal is
considered a mandatory subject of bargaining. If, however, the latter outweighs the
former, such topic shall be deemed to constitute an inherent managerial prerogative and
be insulated from the give-and-take of mandatory collective bargaining. Nevertheless,
under Section 702, the public employer shall, at least, meet about and discuss such topics
upon request by the public employee's representative. Id.
Before we apply the State College construct, we recognize that the parties focus
much of their argument on the CPSL and its amendments. While statutory law may inform
whether a topic is a mandatory subject of bargaining, the question of whether a matter is
subject to mandatory bargaining is generally a jurisprudential question for the courts
based upon our case law and the underlying policies at issue. State College. On one
hand, as we noted in State College, the mere fact that a particular subject matter may be
covered by legislation does not remove it from collective bargaining under Section 701 if
it bears on the question of wages, hours, and conditions of employment. Id. at 269.
Moreover, as set forth above, Section 703 bars only CBA terms that violate or are
inconsistent with statutory directives. Yet, we find no suggestion that the General
Assembly intended that a topic which is removed from legislative direction is ipso facto a
mandatory subject of bargaining. Rather, in our view, a public employer may act on a
matter that is an inherent managerial policy if the legislature has not addressed, or no
Act 111 employees’ inability to engage in a strike, 43 P.S. § 215.2. Thus, to the extent
the applicable standard is an open question, we reaffirm the State College “balancing
test” for questions regarding bargaining topics arising under PERA.
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longer addresses, that topic. Here, there is no express or implicit indication in the CPSL
that the legislature intended to bar a conclusion that the subject matter implicated by the
Policy is an inherent managerial policy.14
With this perspective, we now apply the approach set forth in State College to the
matter at hand. As noted above, we must first inquire whether the Policy’s requirements
impact the faculty members’ wages, hours, and other terms and conditions of
employment. 43 P.S. § 1101.701. We conclude they clearly do.
The criminal background reports and ongoing arrest and conviction notification
requirements are required for continued employment, as they are mandatory for both new
and existing faculty members. Moreover, the revelation of an arrest, conviction, or
evidence of child abuse could subject the faculty member to an investigation, and could
potentially result in discipline or termination. Thus, we have no difficulty in concluding
that the Policy requirements implicate fundamental interests of faculty members in their
terms and conditions of employment.
We must next consider whether the Policy ― requiring submission to criminal
background checks and the reporting of arrests or convictions of a serious crime, or the
finding or indication of child abuse ― implicates a basic policy matter concerning the
14 We acknowledge that Section 6344.3 of the CPSL cautions that the requirements in
the CPSL shall not interfere with an employer’s prerogative to make employment
decisions regarding, or to discipline or terminate, an employee, and does not impact the
ability of an employer to impose additional hiring or selection standards. 23 Pa.C.S. §
6344.3(e) (“Nothing in this chapter shall be construed to otherwise interfere with the ability
of an employer or person responsible for a program, activity or service to make
employment, discipline or termination decisions or from establishing additional standards
as part of the hiring or selection process for employees or volunteers.”). Thus, this
section, in essence, acts as a floor above which an employer may require additional
clearance and reporting obligations. Yet, this section does not address whether such
additional requirements are mandatory subjects of bargaining.
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public employer’s operations. First, we recognize that the stated purpose of the State
System is to provide “high quality education at the lowest possible cost to the students.”
24 P.S. § 20-2003-A. Indeed, the “primary mission of the system is the provision of
instruction for undergraduate and graduate students . . . in the liberal arts and sciences
and in applied fields, including the teaching profession.” Id. Contrary to the Association’s
assertion that the “safeguarding of minors” is “completely unrelated to the primary mission
of the State System as a whole,” Association’s Brief at 28, we find that the safety of the
minors who participate in the university system is a core aspect of the State System’s
primary mission of providing instruction. Manifestly, the Policy serves the State System’s
vital interest in protecting the safety of minors on university campuses by informing the
university administration about the existence of, inter alia, felony child sex offenders, and
generally whether employees have had interactions with the criminal justice system ―
information necessary for the proper functioning of each university. Indeed, requiring the
disclosure of criminal background, arrest, conviction, and child abuse information is
foundationally related to not only the protection of minors, but to all students.
Furthermore, and more broadly, we find that the Policy impacts the integrity of the State
System’s workforce and the public’s respect for the State System. Moreover, we view
the Policy’s requirements as akin to those functions ― such as programming, standards
of service, and the direction of personnel ― which indisputably lie at the core of
management control, impacting foundational policy matters. Accordingly, we have no
hesitation in concluding that the Policy, and its requirements for disclosing criminal history
information and child abuse findings, implicates basic policy matters concerning the public
employer’s operations.
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Thus, we are faced with a situation in which the topic at issue both impacts the
employees’ working conditions and implicates basic policy. That being the case, and
consistent with the teachings of State College, we must weigh the impact on the faculty’s
interest in the terms and conditions of their employment against the impact on the State
System’s basic policy-making. We certainly do not discount the effect on the faculty of
mandated disclosures of criminal history information and child abuse findings to a
university employer. Indeed, such disclosures, as noted above, could lead to discipline
and termination. The difficulty is that permitting bargaining over such disclosure
mandates, and, thus, potentially narrowing or eliminating the requirements, could limit the
universities’ knowledge of such vital information, undermining the State System’s ability
to fulfill its essential obligation to protect minors ― and, indeed, all students ― who are
on its campuses. Again, we view the safety of children to be a vital part of the State
System’s core mission of providing instruction and education. Mindful that the paramount
concern in this inquiry is the public interest, State College, 337 A.2d at 268, we hold that
the impact of the Policy on faculty members’ terms and conditions of employment does
not outweigh the State System’s interest in its foundational policy of protecting minors
who are on campus and providing a safe educational environment. Accordingly, we
conclude that the Policy constitutes an inherent managerial policy over which the State
System is not required to bargain. 43 P.S. § 1101.702. On that basis, we reverse the
Commonwealth Court.15
15 While we have determined that the Policy is not subject to collective bargaining, we
emphasize that the consequences of a disclosure of criminal activity or child abuse
finding, such as disciplinary action or termination, are beyond the purview of the Policy.
The Policy is only an information-gathering mandate. The State System concedes that
[J-74-2019] - 27
Order reversed.
Chief Justice Saylor and Justices Baer, Donohue, Wecht and Mundy join the
opinion.
Justice Dougherty files a dissenting opinion.
any disciplinary actions resulting from the disclosure of criminal activity or child abuse
findings would be subject to the just-cause provision of the CBA. Related thereto,
associated questions and concerns, such as the confidentiality of and access to criminal
history information, retention of background clearances, and payment for background
clearances, may be subject to impact bargaining, and, indeed, it appears that the State
System has been willing to engage in such negotiations.
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