PHILADELPHIA — The Pennsylvania Supreme Court recently ruled that a union that represents higher education faculty across the state has no bargaining rights over which of its members must submit to criminal background checks.
Supreme Court Justice Kevin M. Dougherty disagreed, saying the Association of Pennsylvania State College and University Faculties and the Pennsylvania State System of Higher Education should negotiate over the issue.
"Of course, I recognize the importance of protecting minors everywhere, including on university campuses, and although it is not the state systems statutorily defined 'primary mission,' the state system does bear responsibility for the safety of minors visiting public university campuses," Dougherty said in his dissent issued March 26.
"However, this reality is not determinative of whether the Policy should escape the collective bargaining process," Dougherty continued in his dissent. "Rather, we must balance the public benefit of the policy against its impact on the working conditions of the affected employees."
Pennsylvania's higher education system oversees 14 state-owned colleges and universities, including California University of Pennsylvania, West Chester University of Pennsylvania and Millersville University of Pennsylvania.
The Association of Pennsylvania State College and University Faculties is a union that represents faculty and coaches in state-owned colleges in Pennsylvania.
Dougherty's lone dissent was issued with the court's majority opinion that the union doesn't have bargaining rights over the state higher education system's criminal background check policy implemented about six years ago.
"Mindful that the paramount concern in this inquiry is the public interest, 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," the 28-page majority opinion said. "Accordingly, we conclude that the policy constitutes an inherent managerial policy over which the state system is not required to bargain."
Justice Debra Todd wrote the opinion in which Chief Justice Thomas G. Saylor and justices Max Baer, Christine Donohue, David N. Wecht and Sallie Updyke Mundy joined.
The state's higher education system, which filed the appeal in the case between the union and the Pennsylvania Labor Relations Board, has argued it needs the background check to protect student and minors "present at its universities for various reasons."
The union has countered that protecting minors is "completely unrelated to the primary mission of the state system as a whole."
The Supreme Court's majority sided with the state's higher education system, saying in its opinion 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."
The court's majority also ruled that the background checks keep university administration informed about felony child sex offenders and whether would-be and other employees "have had interactions with the criminal justice 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," the majority opinion said. "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."
The majority opinion overturned a February 2018 Commonwealth Court ruling that said the state's higher education system couldn't unilaterally require criminal background checks on faculty members already exempt from those checks under state law.
The Commonwealth Court ruling would have required negotiations between the state's higher education system and the Association of Pennsylvania State College and University Faculties to formulate criminal background check procedures.