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

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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).

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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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