                             [J-74-2019] [MO: Todd, J.]
                    IN THE SUPREME COURT OF PENNSYLVANIA
                                 MIDDLE DISTRICT

    ASSOCIATION OF PENNSYLVANIA                  :   No. 67 MAP 2018
    STATE COLLEGE AND UNIVERSITY                 :
    FACULTIES                                    :   Appeal from the Order of the
                                                 :   Commonwealth Court at No. 966
                                                 :   C.D. 2017 dated April 19, 2018
               v.                                :   Affirming in Part & Reversing in Part
                                                 :   the June 20, 2017 Final Order of the
                                                 :   Pennsylvania Labor Relations Board
    PENNSYLVANIA LABOR RELATIONS                 :   at No. PERA-C-15-240-E
    BOARD                                        :
                                                 :   ARGUED: September 12, 2019
                                                 :
    APPEAL OF: PENNSYLVANIA STATE                :
    SYSTEM OF HIGHER EDUCATION                   :


                                 DISSENTING OPINION


JUSTICE DOUGHERTY                                        DECIDED: March 26, 2020
        I respectfully dissent. I would hold the implementation of the Protection of Minors

Policy (Policy) by the Pennsylvania State System of Higher Education (State System) is

subject to mandatory collective bargaining, as the Policy does not implicate an inherent

managerial policy of the State System. See 43 P.S. §1101.702 (public employers “shall

not be required to bargain over matters of inherent managerial policy”). In my view, the

Policy’s infringement upon the working conditions of certain members of the Association

of Pennsylvania State College and University Faculties (the Association) — who are

specifically exempt from Child Protective Services Law (CPSL) background check and

reporting requirements1 — outweighs the State System’s inherent managerial prerogative

to implement the Policy.


1   23 Pa C.S. §§6301-6386
        At the outset, I note the Association seeks a holding that only a limited aspect of

the Policy is subject to mandatory collective bargaining. As detailed by the majority, in

passing Act 15, the General Assembly specifically exempted from CPSL requirements

employees at higher education institutions who do not interact with un-matriculated minor

students. See Majority Op. at 4, citing 23 Pa.C.S. §6344(a.1). Specifically, the CPSL

requires all State System employees and volunteers who have direct contact with un-

matriculated minor children to comply with these mandates. 23 Pa.C.S. §6344(a.1). The

CPSL defines “[d]irect contact with children” as “[t]he care, supervision, guidance or

control of children or routine interaction with children.” 23 Pa.C.S. §6303. See also id.

(“[d]irect volunteer contact” is “[t]he care, supervision, guidance or control of children and

routine interaction with children”).   Additionally, Section 703 of the Public Employe

Relations Act (PERA),2 requires that parties to a collective bargaining process comply

with statutes enacted by the General Assembly. 43 P.S. §1101.703. Thus, all State

System employees and volunteers who care for, supervise, control or routinely interact

with children are required to obtain criminal background checks and engage in self-

reporting in accordance with the CPSL, notwithstanding the Policy. The only question

here is whether the State System must engage in collective bargaining with respect to

application of the Policy to CPSL-exempt employees.

        We may answer this operative question by determining whether the Policy is a

work condition that is subject to mandatory bargaining under Section 701 of PERA, or an

“inherent managerial policy” under Section 702 that falls outside collective bargaining.

Although I agree the Policy impacts the working conditions of the State System’s

employees, I cannot agree that the Policy implicates a “core aspect of the State System’s

primary mission[.]”. See Majority Op. at 26.


2   43 P.S. §§1101.101-1101.2301.


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       The State System’s enabling legislation clearly provides its primary mission as

follows:

                 The State System of Higher Education[‘s] . . . purpose shall
                 be to provide high quality education at the lowest possible cost
                 to the students. The primary mission of the [State S]ystem
                 is the provision of instruction for undergraduate and
                 graduate students to and beyond the master’s degree in
                 liberal arts and sciences and in applied fields, including the
                 teaching profession. . . .

24 P.S. §20-2003-A (emphasis added). In concluding the protection of minors is a “core

aspect” of the State System’s public function, the majority expands its “primary mission”

beyond the statutory language to include minors who “participate” in the university

system. See Majority Op. slip op at 25-26. The plain language of the statute expressly

limits the State System’s primary mission to the instruction of “undergraduate and

graduate students,” i.e. persons who have enrolled at a college or university within the

State System, 99% of whom are adults. See Brief of Appellees at 28.

       Further, the General Assembly’s amendments via Act 15 militate against finding

the protection of minors is an inherent managerial policy of the State System.           By

specifically excluding certain State System employees from the CPSL’s requirements, the

General Assembly has clearly indicated that the important public interest of safeguarding

children is not adversely impacted when those particular employees are excused from

the background checks and reporting requirements. See 23 Pa.C.S. §6344(a.1).           The

majority acknowledges the CPSL should not “be construed to otherwise interfere with the

ability of an employer . . . to make employment, discipline or termination decisions or from

establishing additional standards as part of the hiring or selection process for employees

or volunteers.” 23 Pa.C.S. § 6344.3(e). While I agree with the majority that this section



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creates “a floor above which an employer may require additional” background checks and

reporting requirements, see Majority op. at 25 n.14, such additional requirements must

nevertheless serve an inherent managerial policy in order to be excluded from mandatory

collective bargaining.   See 43 P.S. §1101.702.        In my view, the Policy cannot be

considered an “inherent managerial policy” when it imposes an obligation the General

Assembly intentionally and purposefully excused. The exclusionary amendments to the

CPSL through Act 15 reveal that the public interest in protecting minors is not advanced

by requiring legislatively exempt employees to undergo background checks and reporting

requirements. Accordingly, while the State System may impose more obligations on its

employees than the General Assembly, those additional obligations must be subject to

collective bargaining when they do not further an inherent managerial policy.

       Of course, I recognize the importance of protecting minors everywhere, including

on university campuses, and although it is not the State System’s statutorily defined

“primary mission”, 24 P.S. §20-2003-A, the State System does bear responsibility for the

safety of minors visiting public university campuses. See City of Philadelphia v. Int’l Ass’n

of Firefighters, Local 22, 999 A.2d 555, 570 (Pa. 2010) (discussing “General Assembly’s

recognition that a public employer is also a public entity responsible to all of its citizens

for a number of decisions that concern the public welfare.”). However, this reality is not

determinative of whether the Policy should escape the collective bargaining process.

Rather, we must balance the public benefit of the Policy against its impact on the working

conditions of the affected employees.

       “[T]he General Assembly intended that the scope of collective bargaining set forth

in Section [701] be viewed broadly, to encompass any subject that is rationally related to




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the ‘terms and conditions of employment,’ including employee ‘compensation, hours,

working conditions, pensions, retirement and other benefits.’” City of Philadelphia, 999

A.2d at 569, see also Borough of Ellwood City v. Pennsylvania Labor Relations Bd., 998

A.2d 589, 598 (Pa. 2010) (“We can safely say . . . that the concept [of what qualifies as a

working condition] is a broad one.”). As the majority recognizes, it is apparent the Policy

impacts working conditions — it requires employees to submit criminal background

checks and self-report certain arrests and criminal convictions, which can in turn result in

discharge or other adverse employment consequences, as well as harm to reputation. I

would strike the balance of these competing interests in favor of requiring collective

bargaining.

       This Court has explained:

          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. [Rather i]t is the duty of the . . . courts . . . 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.

Pennsylvania Labor Relations Bd. v. State Coll. Area Sch. Dist., 337 A.2d 262, 268 (Pa.

1975) (emphasis added). More recently, we have opined that where “the topic is rationally

related to the terms and conditions of employment . . . the proper approach is to inquire

whether collective bargaining over the topic would unduly infringe 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.” Borough of Ellwood City, 998 A.2d at 600. See City of Philadelphia, 999

A.2d at 561 (“an issue is deemed bargainable if it bears a rational relationship to an



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employee’s duties” but “where a managerial policy substantially outweighs the impact of

an issue on employees, the topic will be deemed a managerial prerogative and non-

bargainable”).

       Accordingly, although this Court has considered and identified various ways to

balance the competing interests when determining whether an employment policy is

subject to collective bargaining, we have not articulated a definitive balancing test. We

have, at various times, considered the following: (1) “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[.]” State

College, 337 A.2d at 268 (emphasis added); (2) whether the “managerial policy

substantially outweighs the impact of an issue on employees[’]” working conditions,

City of Philadelphia, 999 A.2d at 561 (emphasis added) (additional citations omitted); and

(3) “whether collective bargaining over the [policy] would unduly infringe upon the public

employer’s essential managerial responsibilities.” Borough of Ellwood City, 998 A.2d at

600 (emphasis added).

       After considering these factors, I conclude the Policy is a mandatory subject of

collective bargaining and not an inherent managerial prerogative. First, as discussed

above, while the Policy may “touch upon” a policy of protecting minors on public university

campuses, it does not concern a “core aspect” of the State System’s “primary mission” of

providing higher education. See State College, 337 A.2d at 268; see also Majority Op. at

26. Implementation of the Policy will have no effect, let alone a probable effect, on the

State System’s public purpose of providing undergraduate and graduate instruction.

However, imposing background checks and reporting requirements on CPSL-exempt




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employees will significantly impact the terms and conditions of their employment, where

tenure, reputation and employment could be irretrievably lost.       Consequently, the

managerial interest promoted by the Policy does not outweigh the impact on the

employees’ working conditions. See Id. at 23. Moreover, in my view, requiring collective

bargaining over the Policy will not unduly infringe on the State System’s inherent

managerial prerogative, which involves providing instruction to adult students.

Furthermore, to the extent the State System has an obligation to protect minors on

university campuses, those minors are already protected under the terms of the CPSL.

      Accordingly, I would affirm the Commonwealth Court’s finding that the Policy is

subject to mandatory collective bargaining.




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