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HARRISBURG – A Pennsylvania Labor Relations Board final order over whether the Pennsylvania State System of Higher Education should have to bargain over university employee background checks was affirmed in a recent court order.

In its 17-page opinion and order handed down April 19, the Commonwealth Court concluded that collective bargaining over a state law requiring background checks and reporting for exempt university employees "does not unduly infringe upon" the Pennsylvania State System of Higher Education's "inherent managerial decision making and the PLRB erred in determining otherwise".

"Accordingly, the PLRB's final order is affirmed insofar as it finds the state system does not have to bargain over those employees who are required to obtain background checks under Act 15," the Commonwealth Court order said. 

"However, it is reversed to the extent that it provides the State System does not have to bargain over the implementation of the policy regarding those employees that the General Assembly exempted from background checks pursuant to Act 15."

Senior Judge Dan Pellegrini wrote the court's order in which judges Kevin Brobson and Patricia A. McCullough concurred. 

In an order issued the same day by President Judge Mary Hannah Leavitt, the Commonwealth Court denied Pennsylvania State System of Higher Education's application for re-argument, but did grant consideration and withdrew an opinion and order issued Feb. 28. Leavitt entered the opinion and order written by Senior Judge Dan Pellegrini, filed April 19.

The Commonwealth Court's order was in response to an Association of Pennsylvania State College and University Faculties (APSCUF) petition for final order of a PLRB finding that the higher education system didn't commit an unfair labor practice when it enacted a policy that requires faculty to submit to background checks for reports of criminal arrests or child abuse. "The PLRB held that the state system had a managerial prerogative in these issues and, therefore, did not have to bargain over the policy," Senior Judge Pellegrini said in the Commonwealth Court's April 19 memorandum opinion.

Founded in 1937, the association is a bargaining unit of faculty and coaches working in 14 Pennsylvania universities with about 6,000 full-time, part-time and temporary regular university faculty members.

The case stems from the state General Assembly's passage in October 2014 of Act 153, which amended the existing Child Protective Services Law to require the background checks every 30 months, according to the Commonwealth Court's opinion. The following July, Gov. Tom Wolf signed the act into law, which limited the background check and reporting requirements to faculty and employees with "direct contact with minor children who are not enrolled in the university," The Commonwealth Court's opinion said.

The association demanded bargaining over the policy, arguing that the majority of faculty members have no contact with 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," the opinion said.

"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."

Litigation followed soon after with the association's challenge halting implementation of the policy in September 2015. Last June, the PLRB issued a final order that reversed a hearing examiner's conclusion that the filing had been untimely after the Pennsylvania State System of Higher Education declined the unit's bargaining demand.

In handing down its opinion, the Commonwealth Court referred to guidance from a 1975 state Supreme Court decision, Pennsylvania Labor Relations Board v. State College Area School District.

"To collectively bargain over such topics for exempt employees would not unduly infringe upon the [Pennsylvania State System of Higher Education]'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," the opinion said. "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."

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