APSCUF v. PLRB Appeal of PaSSHE, 226 A.3d 1229

Background:

The Pennsylvania State System of Higher Education adopted Policy 2014-01 (Protection of Minors) requiring criminal background clearances (PA State Police, FBI, DHS child-abuse registry) and self‑reporting of certain arrests/convictions/founded or indicated child‑abuse findings for all employees.
After Policy adoption, the legislature enacted Act 153 (expanded CPSL clearances and reporting) and the State System amended the Policy to conform; later Act 15 narrowed the CPSL so many university faculty were statutorily excluded from those clearance/reporting requirements.
The State System did not rescind its broader Policy after Act 15; the faculty union (APSCUF) demanded bargaining over the Policy as applied to statutorily‑excluded faculty; the State System refused, calling the Policy an inherent managerial prerogative.
The PLRB found the Policy nonbargainable (managerial prerogative), relying on a prior similar ruling; the Commonwealth Court reversed, holding the Policy’s application to excluded faculty was a mandatory subject of bargaining.
The Pennsylvania Supreme Court granted review and reversed the Commonwealth Court, applying the State College balancing test and holding the Policy is a nonbargainable inherent managerial policy because the State System’s interest in protecting minors outweighs faculty employment‑condition interests.

Issues:

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the State System’s Policy (background checks and reporting) as applied to faculty statutorily excluded by Act 15 is a mandatory bargaining subject	Association: Act 15 shows Legislature intended to exclude most faculty from CPSL; therefore the Policy’s additional obligations materially affect terms/conditions of employment and must be bargained	State System: Policy protects minors and ensures CPSL compliance; it is an inherent managerial policy necessary for campus safety and administration	Held: Policy is an inherent managerial policy and not subject to mandatory bargaining; State System may unilaterally require clearances and reporting
Proper legal standard for bargainability under PERA	Association/Commonwealth Court: Ellwood City “unduly infringe” language is applicable and supports bargaining here	State System/PLRB: State College balancing test controls PERA inquiries; employer interests in basic policy can outweigh employees’ interests	Held: Reaffirmed State College balancing test for PERA bargainability questions; Ellwood City’s Act 111 context is not controlling
Whether legislative narrowing of CPSL (Act 15) automatically renders the Policy bargainable	Association: Legislative exclusion shows requirements were unnecessary for many faculty, so unilateral imposition alters working conditions and must be bargained	State System: Legislative silence about additional employer requirements does not forbid employers from adopting higher standards; exclusion does not ipso facto make the topic bargainable	Held: Legislative exclusion does not automatically convert the Policy into a mandatory bargaining subject; the State College balancing test governs

Key Cases Cited

Pennsylvania Labor Relations Board v. State College Area School District, 337 A.2d 262 (Pa. 1975) (establishes the balancing test for whether a matter is a mandatory bargaining subject under PERA)
Borough of Ellwood City v. Pennsylvania Labor Relations Board, 998 A.2d 589 (Pa. 2010) (applied an “unduly infringe” formulation in the Act 111 context)
Lancaster County v. Pennsylvania Labor Relations Board, 94 A.3d 979 (Pa. 2014) (explains appellate review scope of PLRB decisions)
PASSHE (Lock Haven Univ.) v. APSCUF, 193 A.3d 486 (Pa. Cmwlth. 2018) (Commonwealth Court decision addressing CPSL amendments and the Policy)