Collective Bargaining; Nonbargainable Managerial Prerogative

Ass’n of Pa. State Coll. & Univ. Faculties v. Pa. Labor Relations Bd., 2018 WL 1868303 (Pa. Cmwlth. 2018) (unreported), allocatur granted Dec. 15, 2018, appeal docket 67 MAP 2018

This case arises from a Pennsylvania Labor Relations Board (PLRB) decision finding that the Pennsylvania State System of Higher Education (State System), the exclusive bargaining unit representative of faculty members employed by the 14 member universities of the Association of Pa. State College & University Faculties, did not commit an unfair labor practice by enacting a policy requiring all faculty to submit to background clearances and report criminal arrests or findings of child abuse. In this decision, PLRB held that the State System had a managerial prerogative in the involved issues and, therefore, did not have to bargain over the policy.

By way of background, the Association and the State System are parties to a collective bargaining agreement (CBA) which was effective from July 1, 2011, through June 30, 2015. The parties began bargaining over a new contract in August 2014 and had been in mediation pursuant to the Public Employee Relations Act (PERA) since September 2014. Commonwealth Court summarized the facts leading to PLRB’s decision as follows:

…when the State System’s Board of Governors (Board) assembled a Safety of Minors on Campus Work Group (Work Group) “to examine situations in which minors visit university campuses and to evaluate policies and procedures associated with those activities to ensure a safe environment.” (Reproduced Record (R.R.) at 218a.) On July 8, 2014, the Board approved the first version of its Protection of Minors Policy (Policy) which was to become effective December 31, 2014. This version of the Policy required universities to establish and implement criminal background screening policies and procedures, and specified that all members of the university community, contractors and volunteers are mandated reporters of suspected child abuse.

This version of the Policy was never implemented. On October 22, 2014, the General Assembly passed Act 153, an amendment to the Child Protective Services Law (CPSL), 23 Pa. C.S. §§ 6301–6386. Act 153 expanded the CPSL’s definition of “school” and thus “school employee” to include employees of institutions of higher education. It required all “school employees” to provide their employer with background clearances from the Pennsylvania State Police and the Department of Human Services, as well as a criminal history report obtained from the Federal Bureau of Investigation (FBI). Act 153 made background clearances a pre-condition of employment for every “school employee”, required all “school employees” to resubmit their background clearances every 30 months as a condition of continued employment, and if a background check revealed a disqualifying conviction, an employee was subject to dismissal. Moreover, Act 153 made all “school employees” mandated reporters of child abuse and required them to provide their employer with written notice of an arrest or conviction within 72 hours or face prosecution. Act 153 became effective December 31, 2014.

Given the passage of Act 153, the Board voted to amend the Policy on January 22, 2015. The Policy now provides that all faculty are considered mandated reporters of child abuse and states, in pertinent part, that “[a]ll employees and volunteers are required to have criminal background screening clearances in accordance with applicable procedures, standards, and guidelines as established by the chancellor.” (R.R. at 160a.) In conformity with Act 153, the Policy requires all employees, volunteers and program administrators to provide notice to the university within 72 hours of an arrest or conviction for a disqualifying offense, or upon being named as a perpetrator in a founded or indicated report of child abuse. The State System implemented the amendments to the Policy immediately and began collecting clearances for current employees in April 2015.

The parties’ CBA expired on June 30, 2015. The very next day, on July 1, 2015, the Governor signed into law Act 15 of 2015 (Act 15), again amending the CPSL. In Act 15, the General Assembly limited the requirement for obtaining background checks and reporting requirements to only those faculty members and employees of institutions of higher education that have direct contact with minor children who are not enrolled in the university. Act 15 provides:

(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 [Act of March 10, 1949, P.L. 30, as amended, 24 P.S. §§ 1–101–27–2702] 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.

(iii) The exemption under subparagraph (ii)(B) shall not apply to students who are enrolled in a secondary school.

23 Pa. C.S. § 6344(a.1) (emphasis added).

Because of Act 15, the Association demanded bargaining over the application of the Policy, contending the large majority of faculty members are now exempt from the requirements of the CPSL because they have no contact with un-matriculated children in the classroom.

Taking the position that requiring background checks for current employees is a matter of managerial prerogative, the State System refused to bargain. It asserted that it had the authority to adopt and enforce the Policy under its enabling legislation, and that there was nothing in Act 15 that required the Board to repeal its Policy or made the Policy on background checks unlawful. The Board did offer to continue to bargain impact of the Policy under the successor CBA.

Slip Op. at 2-6 (emphasis in original) (footnotes omitted).

The Association filed an Unfair Practice Charge with the PLRB alleging that the State System violated Sections 1201(a)(1) and (5) of PERA by refusing to bargain over application of the Policy, and that the Policy implicates mandatory subjects of collective bargaining. Following a hearing that spanned three days, the PLRB Hearing Examiner issued a Proposed Decision and Order dismissing the charge as untimely.  The Association filed exceptions, which the PLRB granted as to the timeliness issue, but denied on the merits, finding that collective bargaining over the Policy’s background checks and reporting requirements for exempt employees would unduly infringe upon the State System’s inherent managerial decision making.

On appeal,  the Commonwealth Court reversed, concluding that collective bargaining over the Policy’s background checks and reporting requirements for exempt employees would not unduly infringe upon the State System’s inherent managerial decision making and the PLRB erred in determining otherwise. Commonwealth Court explained:

In this case, current faculty members were not required to submit to background checks or report arrests or convictions to their employer prior to the State System’s unilateral imposition of the Policy. Additionally, these background checks and reporting requirements directly relate to the terms and conditions of employment as, pursuant to the Policy, the results can and will be used to make tenure, firing, disciplinary hand other decisions affecting faculty members’ teaching ability. To collectively bargain over such topics for exempt 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. Moreover, just because an employer has a “concern” does not make it a managerial prerogative under State College because that would mean that everything that “concerned” the public employer would be a managerial prerogative. Background checks and reporting requirements are “unlike those significant core entrepreneurial topics that are more naturally considered to be inherently managerial in nature such as decisions regarding” the State System’s programs, standards of service, overall budget, use of technologies, organizational structure, and selection and direction of employees. Ellwood City, 998 A.2d at 601 (citing Section 702 of PERA, 43 P.S. § 1101.702).

Slip Op. at 15. As a result, while Commonwealth Court affirmed PLRB’s decision to the extent it found the State System did not have to bargain over those employees who are required by the Child Protective Services Law to obtain background checks, it reversed the PLRB as to its finding that the State System does not have to bargain with the Association over requiring background checks for those employees who are not required to do so by the Child Protective Services Law.

The Pennsylvania Supreme Court limited the grant of allocatur to the following issue, denying the petition in all other respects:

Did the Commonwealth Court err when it reversed the Pennsylvania Labor Relations Board’s ruling that the State System’s Protection of Minors Policy’s requirements that all employees submit to criminal background checks and inform their university employers if they are arrested for a serious crime constituted a nonbargainable managerial prerogative of the State System that served the public interest in protecting minors?

Allocatur grants present an excellent opportunity for your group or association to advance your legal and policy goals by filing an amicus brief. Participating as an amicus has proven to be an effective method of advising and influencing courts and often can involve far fewer resources than traditional lobbying.


If you are interested or would like more information, contact Kevin McKeon or Dennis Whitaker.