The Pennsylvania Supreme Court has agreed to weigh in on the issue of whether requiring university employees to undergo criminal background checks is negotiable during the collective bargaining process.
The allocatur grant comes after a Commonwealth Court reversal of a Pennsylvania Labor Relations Board decision that the Pennsylvania State System of Higher Education did not have to bargain with the Association of Pennsylvania State College and University Faculties over the requirement.
The high court in its order agreed to consider the question: “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 non-bargainable managerial prerogative of the state system that served the public interest in protecting minors?”
The dispute arose during the negotiation phase between the two entities after the collective bargaining agreement expired in 2015. It centered on Act 15, an amendment to the Child Protective Services Law that requires “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,” according to Commonwealth Court Senior Judge Dan Pellegrini’s opinion.
An exception in the act provides that it shall not apply to those who have minimal contact with minor. The association argued that the point was bargainable, but the State System said requiring background checks was a matter of managerial prerogative. The PLRB sided with the State System.
Pellegrini said the question rested on “whether imposing the policy when the General Assembly has not required it is a managerial prerogative not subject to mandatory bargaining.”
“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,” Pellegrini said. “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.”
Jennifer Nachamkin of Strokoff & Cowden in Harrisburg represents the association did not return a call seeking comment. Brian Gabriel of Campbell Durrant Beatty Palombo & Miller in Pittsburgh represents the State System and did not return a call seeking comment.