           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Association of Pennsylvania State   :
College and University Faculties,   :
                         Petitioner :
                                    :
            v.                      : No. 966 C.D. 2017
                                    : Argued: February 6, 2018
Pennsylvania Labor Relations Board, :
                         Respondent :


BEFORE:      HONORABLE P. KEVIN BROBSON, Judge
             HONORABLE PATRICIA A. McCULLOUGH, Judge
             HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
SENIOR JUDGE PELLEGRINI                               FILED: February 28, 2018


             The Association of Pennsylvania State College and University Faculties
(Association) petitions for review of a Final Order of the Pennsylvania Labor
Relations Board (PLRB) finding that the Pennsylvania State System of Higher
Education (State System) 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. The PLRB held that the State System had a managerial
prerogative in these issues and, therefore, did not have to bargain over the policy.
                                                I.
               The State System is comprised of 14 universities located throughout the
Commonwealth, and the Association is the exclusive bargaining unit representative
of faculty members employed by the State System and its universities. There are
approximately 6,000 full-time, part-time and temporary regular university faculty
members in the Association’s bargaining unit. 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 Employe Relations
Act (PERA)1 since September 2014.


               This case began 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.




      1
          Act of July 23, 1970, P.L. 563, as amended, 43 P.S. §§ 1101.101 – 1101.2301.




                                                 2
             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 employees” 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 State System employee, required all State System
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



                                         3
System implemented the amendments to the Policy immediately2 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


       2
         The parties met on January 28, 2015, specifically for impact bargaining over the amended
Policy, including payment of fees for obtaining clearances, transferability of clearances, discipline
under the Policy and confidentiality of clearances. The Association requested to resume talks, but
no further sessions were held as the State System maintained that any impact bargaining should
occur “at the main table” during bargaining for the successor CBA that was already underway.




                                                 4
                           (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).3


              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,4 and that there was nothing in Act 15 that required the Board to repeal its

       3
         Act 15 also lengthened the time between resubmission of clearances from 30 months to
every 60 months. 23 Pa. C.S. § 6344.4. Notably, Act 15’s amendments to the CPSL did not disturb
the provisions regarding disqualification from employment or terms for “dismissal.” See 23 Pa.
C.S. § 6344(c.1).

       4
         Section 2006-A of the Public School Code of 1949 titled “Powers and duties of the board
of governors” provides, in pertinent part, as follows:

              (a) The Board of Governors shall have overall responsibility for
              planning and coordinating the development and operation of the
              system. The powers and duties of the Board of Governors shall be:

                                             ***

(Footnote continued on next page…)

                                               5
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.5


                                                  II.
                 On August 18, 2015, the Association filed an Unfair Practice Charge
(Charge)6 alleging that the State System violated Sections 1201(a)(1) and (5) of
PERA7 by refusing to bargain over application of the Policy, and that the Policy


(continued…)

                         (4) To establish broad fiscal, personnel and educational
                 policies under which the institutions of the system shall operate.

                                                 ***

                        (14) To make all reasonable rules and regulations necessary to
                 carry out the purposes of this article and the duties of the board.

                        (15) To do and perform generally all of those things necessary
                 and required to accomplish the role and objectives of the system.

24 P.S. § 20-2006-A.

       5
          In December 2016, the parties ratified a successor CBA which is effective from July 1,
2015, through June 30, 2018. This new CBA does not address the issues of background checks or
the reporting requirements.

       6
          The Association also filed a grievance on August 7, 2015, alleging violations of the CBA.
As of the filing of the briefs in this case, the parties were still awaiting the issuance of an award by
the arbitrator.

       7
           43 P.S. § 1101.1201(a)(1) and (5). Section 1201(a) provides, in pertinent part:

                 (a) Public employers, their agents or representatives are prohibited
                 from:

(Footnote continued on next page…)

                                                   6
implicates mandatory subjects of collective bargaining. The Charge also claimed that
the Policy’s background checks and arrest reporting requirements are being applied to
all faculty members when certain faculty are now exempt from these requirements
pursuant to Act 15. The Association also alleges that since the CBA expired on June
30, 2015, the State System’s unilateral imposition of the background checks and
reporting requirements for faculty not subject to the CPSL was a change in terms and
conditions of employment during the status quo following contract expiration.8

(continued…)

                     (1) Interfering, restraining or coercing employes in the
              exercise of the rights guaranteed in Article IV of this act.

                                                ***

                     (5) Refusing to bargain collectively in good faith with an
              employe representative which is the exclusive representative of
              employes in an appropriate unit, including but not limited to the
              discussing of grievances with the exclusive representative.

       8
          In conjunction with the Charge and grievance, the Association also filed a petition for
review in the nature of an application for preliminary and permanent injunction in this Court’s
original jurisdiction. Association of Pennsylvania State College and University Faculties v.
Pennsylvania State System of Higher Education, (Pa. Cmwlth., No. 407 M.D. 2015). The
Association’s petition sought an order prohibiting the State System from applying the Policy insofar
as it requires background checks and imposes reporting requirements on employees who it claims
are exempt from such requirements under the CPSL pending adjudication of its Charge and
grievance, or resolution of the issue through collective bargaining.

        Following a hearing, on September 17, 2015, this Court issued an order granting a partial
injunction. The September 17, 2015 order specified that all State System employees who teach any
course identified as containing dual enrollees, or who are involved in programs which require them
to have direct contact with minors on a regular basis, must obtain background checks. The order
went on to enjoin the State System “from requiring all [State System] faculty members to obtain the
background checks, pending a contrary arbitration decision and/or a decision of the P[LRB]
determining whether the subject of background checks where not required by law is a managerial
right.” (R.R. at 177a.) The parties were also ordered to “meet and confer for the purpose of
(Footnote continued on next page…)

                                                 7
                  Following a hearing that spanned three days, the Hearing Examiner
issued a Proposed Decision and Order (PDO) dismissing the charge as untimely. The
Hearing Examiner found that the Policy was implemented, at the latest, by February
25, 2015 – the date the Association expressed awareness of its implementation.
Because the Association’s Charge was filed on August 18, 2015, the Hearing
Examiner determined that it was untimely under the four-month statute of limitations
set forth in Section 1505 of PERA.9 The Association filed timely exceptions.



(continued…)

identifying the courses and programs in which direct contact with minors will occur and what
positions within those courses and programs require a background check.” (Id.)

       The parties met but were unable to agree which teaching positions would have contact with
minors. Therefore, on January 13, 2016, following a conference with the parties, this Court issued
another order stating, in pertinent part:

                  With respect to academic course sections, each [State System]
                  employee teaching a 100-level course or the equivalent shall be
                  subject to the background checks. Except as otherwise agreed to by
                  the parties, non-matriculated minors may not enroll in an upper-level
                  course unless a school employee who is subject to and has complied
                  with the background checks is available to teach the course.

                  The foregoing order shall remain in effect pending a contrary
                  arbitration decision and/or a decision of the P[LRB] determining
                  whether the subject of background checks where not required by law
                  is a managerial right.

(R.R. at 179a.)

       9
          43 P.S. § 1101.1505. Section 1505 provides that “[n]o petition or charge shall be
entertained which relates to acts which occurred or statements which were made more than four
months prior to the filing of the petition or charge.” Id.




                                                   8
                                         III.
            On June 20, 2017, the PLRB issued a Final Order sustaining in part and
dismissing in part the Association’s exceptions and dismissing the Association’s
Charge on different grounds.       Specifically, the PLRB reversed the Hearing
Examiner’s conclusion that the Charge was untimely. The PLRB noted that the
Charge alleged that the State System refused a demand to bargain over background
checks and reporting requirements with respect to faculty the Association believes are
now exempt pursuant to Act 15. Because Act 15 did not go into effect until July 1,
2015, and the Association made this particular demand to bargain on July 21, 2015,
the PLRB found that the Charge filed on August 21, 2015, was timely.


            The PLRB also found that the State System did not violate the CBA or
Sections 1201(1) and (5) of PERA because implementation of the Policy did not
disrupt the status quo. While the PLRB made no new findings of fact, it provided a
lengthy discussion and quoted extensively from a previous matter, State College and
University Professional Association (SCUPA) v. State System, 48 PPER 15 (Proposed
Decision and Order, 2016), affirmed, PERA-C-15-299-E (Final Order, May 16,
2017). The SCUPA case involved a similar charge of unfair practices pertaining to
the State System’s Policy mandating background checks and reporting requirements
that was filed by the union representing non-faculty employees of the State System.
In applying the relevant balancing test, the hearing examiner in SCUPA determined
that the State System’s background checks and reporting requirements were a
managerial prerogative and that the State System’s interests outweighed those of the
non-faculty employees. Here, the PLRB found that there were no compelling factual




                                          9
differences warranting deviation from the determination in SCUPA and restated the
State System’s managerial interest as follows:

              The State System’s broad Protection of Minors policy, from
              which the specific charged policies in question in this
              matter eventually flowed, was developed in the wake of the
              Sandusky Scandal and the Freeh Report of 2012.[10] The
              concern generated by these events in the State System are
              completely reasonable considering how, in many ways, the
              State System is similar to the Pennsylvania State
              University, and the risks and dangers to minors on State
              System campuses and to the State System as a whole was
              directly relatable to the experience of Pennsylvania State
              University.... The State System was aware of a legislative
              attention to the very public issue and rightfully concerned
              of legislative attention and action concerning its practices,
              and felt a strong, responsible reaction was proper.


(R.R. at 573a.)


              As it did in SCUPA, the PLRB similarly concluded that the State
System’s implementation of background checks and reporting requirements for all
faculty under the Policy is a managerial prerogative, not a mandatory subject of
bargaining, and the State System’s interests in campus safety outweigh the interests
of the faculty. The Association then petitioned this Court for review and the State
System intervened.11

       10
          We note that a background check of Jerry Sandusky would have been a “clear” report, i.e.,
no findings of actual or indicated child abuse.

       11
          In general, our review of a final order of the PLRB is limited to determining whether the
findings of fact are supported by substantial evidence, and whether the PLRB violated constitutional
rights, committed a procedural irregularity or erred as a matter of law. Chester Upland School
(Footnote continued on next page…)

                                                10
                                               IV.
                                                A.
              Before we address the issue of mandatory collective bargaining versus
inherent managerial prerogatives, we must first look to the CPSL and its various
amendments to determine the scope of what is legitimately at issue.                       As the
Association acknowledges, Act 153 amended the CPSL and expanded the definition
of “school employees” to include all employees of institutions of higher education.
Pursuant to Act 153, all school employees were subject to the CPSL’s background
checks and reporting requirements. Act 15, however, subsequently limited these
requirements as it did not require background checks if the only direct contact the
employee had with minors was prospective students visiting campus or matriculated
students enrolled with the institution. However, all other higher education employees
are still required to have background checks – they are non-exempt.


              With regard to those employees who are still required to obtain
background checks by Act 15, Section 703 of PERA controls. That section provides:

              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


(continued…)

District v. Pennsylvania Labor Relations Board, 150 A.3d 143, 149 n.2 (Pa. Cmwlth. 2016). “[I]t is
well settled that a decision of the PLRB must be upheld if the PLRB’s factual findings are
supported by substantial evidence, and if conclusions of law drawn from those facts are reasonable,
not capricious, arbitrary, or illegal.” Borough of Ellwood City v. Pennsylvania Labor Relations
Board, 998 A.2d 589, 594 (Pa. 2010) (citation omitted).




                                                11
            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.


            The State System is not required nor can it bargain over application of
the Policy to such non-exempt faculty members. See Section 703 of PERA; Borough
of Ellwood City v. Pennsylvania Labor Relations Board, 998 A.2d 589, 597-98 (Pa.
2010). Therefore, the Board’s Final Order is affirmed insofar as it pertains to non-
exempt faculty.


                                        B.
            With respect to faculty members who are now considered “exempt”
under Act 15, the General Assembly has determined that background checks for those
employees are not required. The question then is whether imposing the Policy when
the General Assembly has not required it is a managerial prerogative not subject to
mandatory bargaining.


            Section 701 of PERA provides, in pertinent part:

            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 . . . .




                                        12
43 P.S. § 1101.701. A public employer commits an unfair labor practice under
Section 701 by making a unilateral change in a subject of mandatory bargaining.
Chester Upland School District v. Pennsylvania Labor Relations Board, 150 A.3d
143, 152 (Pa. Cmwlth. 2016).


             However, Section 702 of PERA provides that an employer is not
required to bargain over matters of inherent managerial policy, as it states:

             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.

43 P.S. § 1101.702. The relevant inquiry then is whether the Policy’s background
check and reporting requirements for faculty members exempt under Act 15 is a
mandatory subject of bargaining or an inherent managerial prerogative.


             Our Supreme Court provided guidance on this issue in Pennsylvania
Labor Relations Board v. State College Area School District, 337 A.2d 262 (Pa.
1975), where it established the following balancing test:

             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


                                           13
                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. at 268. The Court further noted that “[i]n 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 506.


                More recently, our Supreme Court noted, albeit in the context of the
Pennsylvania Labor Relations Act,12 that “bargainable matters are those that bear a
‘rational relationship’ to the employees’ duties,” and “working conditions are those
subjects ‘germane’ to the working environment.” Ellwood City, 998 A.2d at 598. In
Ellwood City, our Supreme Court found that a municipal employer must bargain with
its police labor organization over the enactment of an ordinance banning the use of
tobacco products by everyone in its building, vehicles and equipment. In making a
determination of whether a matter is the subject of mandatory bargaining, our
Supreme Court offered the following guidance:

                when addressing topics which straddle the boundary
                between ostensibly mandatory subject of bargaining and
                managerial prerogatives, we believe once it is determined
                that . . . the topic is rationally related to the terms and
                conditions of employment, i.e., germane to the work
                environment, the proper approach is to inquire whether
                collective bargaining over the topic would unduly infringe

      12
           Act of June 1, 1937, P.L. 1168, No. 294, as amended, 43 P.S. §§ 211.1–211.3.




                                                14
              upon the public employer’s essential managerial
              responsibilities. If so, it will be considered a managerial
              prerogative and non-bargainable. If not, the topic is subject
              to mandatory collective bargaining.


Id. at 600.


              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 and 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).




                                           15
              For these reasons, we conclude that collective bargaining over the
Policy’s background checks and reporting requirements for exempt employees does
not unduly infringe upon the State System’s inherent managerial decision making and
the PLRB erred in determining otherwise.13


       13
          In the alternative, the State System also argues that we should affirm the PLRB’s Final
Order dismissing the Charge on different grounds, namely, that the Charge was not timely filed.
Section 1505 of PERA states: “[n]o charge shall be entertained, which relates to acts which
occurred or statements which were made more than four months prior to the filing of the charge.”
43 P.S. §1101.1505. The four-month limitations period for the filing of an unfair labor practice
charge under Section 1505 of PERA is triggered when the complainant has reason to believe that
the unfair practice has occurred. Lancaster County v. Pennsylvania Labor Relations Board, 62
A.3d 469, 473 (Pa. Cmwlth. 2013). The State System argues that it implemented the Policy on
February 25, 2015, thus making the Charge filed on August 18, 2015, untimely. However, when
the Policy was initially implemented, no unfair labor practice occurred because Act 153 made the
Policy’s background checks and reporting requirements mandatory for all higher education
employees. Under Section 703 of PERA, the parties could not bargain over the matter at that time
because it would conflict with the General Assembly’s enactment of Act 153.

       It was only with the July 1, 2015, passage of Act 15 that the matter became bargainable. As
the PLRB found:

              it is clear that [the Association] also charged [the State System] with
              violating Section 1201(a)(1) and (5) of PERA by refusing to bargain
              the Protection of Minors Policy, upon demand, following the Act 15
              legislative changes to the CPSL on July 1, 2015. Indeed, [the
              Association]’s July 21, 2015 letter to [the State System] expressly
              stated that “[the Association] demands to bargain over the application
              of the above-described policy to employees not subject to the
              requirements of the [CPSL]. . . .” By letter dated August 7, 2015, [the
              State System] refused to bargain, stating that “requiring background
              screenings for current employees is a matter of inherent managerial
              prerogative and is not a mandatory subject of bargaining.” To the
              extent [the Association] alleged that [the State System] refused its
              July 21, 2015 demand to bargain over submission of background
              clearances and reports of criminal arrests and child abuse for faculty
              not covered by the CPSL, [the Association]’s Charge of Unfair
              Practice filed on August 21, 2015, was timely filed with the [PLRB]
(Footnote continued on next page…)

                                               16
                  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. 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.



                                              ______________________________
                                              DAN PELLEGRINI, Senior Judge



Judge Fizzano Cannon did not participate in the decision in this case.




(continued…)

                  within the four-month statute of limitations under Section 1505 of
                  PERA.

(R.R. at 573a.)



                                                 17
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Association of Pennsylvania State   :
College and University Faculties,   :
                         Petitioner :
                                    :
            v.                      : No. 966 C.D. 2017
                                    :
Pennsylvania Labor Relations Board, :
                         Respondent :




                                      ORDER


            AND NOW, this 28th day of February, 2018, the Final Order of the
Pennsylvania Labor Relations Board is affirmed to the extent it finds the
Pennsylvania State System of Higher Education (Intervenor) does not have to bargain
over those employees who are required by the Child Protective Services Law to
obtain background checks.     The Final Order is reversed as to its finding that
Intervenor does not have to bargain with Petitioner over requiring background checks
for those employees who are not required to do so by the Child Protective Services
Law.



                                      ______________________________
                                      DAN PELLEGRINI, Senior Judge
