California Legal Brief

The Rule of Trustees of the California State University is that public employers have a duty to bargain over reasonably foreseeable effects of student vaccination policy changes on immunocompromised faculty health and safety, but implementation must actually begin before an unfair practice violation occurs, under the Higher Education Employer-Employee Relations Act (HEERA).

Appeal from decision affirmed in part and vacated in part in Public Employment Relations Board Decision No. 2915-H, Case No. SA-CE-422-H.

Petitioner was Trustees of the California State University — the public university system that changed student vaccination requirements from comprehensive to minimal hepatitis B only vaccination requirements.

Respondent was Public Employment Relations Board — the administrative agency that found CSU violated HEERA by implementing the policy without effects bargaining.

Real Party in Interest was California Faculty Association — the bargaining unit representing CSU professors, lecturers, coaches, counselors, and librarians who demanded bargaining over health and safety effects.

The suit sounded in unfair labor practices under HEERA. [No cross-claims applicable.]

The key substantive facts leading to the suit were CSU adopted Executive Order 803 in February 2023 changing student vaccination requirements from comprehensive vaccinations (measles, mumps, rubella, hepatitis B, varicella, tetanus-diphtheria-pertussis, meningococcal disease) to requiring only hepatitis B vaccination for students under 19, effective fall 2023. CFA learned of the change within two weeks and demanded bargaining on February 23, 2023, claiming the policy change posed health and safety risks for immunocompromised faculty. CSU responded it was not required to bargain but was willing to meet to discuss impacts. CFA declined and filed an unfair practice charge on March 8, 2023.

The procedural result leading to the Appeal: The trial court ALJ and PERB found CSU violated HEERA by implementing the new student vaccination requirements without engaging in effects bargaining, ruling that CSU had a duty to bargain over reasonably foreseeable effects on faculty health and safety and had begun implementation before providing adequate opportunity to bargain.

The key question(s) on Appeal: 1. Whether CSU had a duty to bargain over effects of student vaccination policy changes on faculty health and safety 2. Whether substantial evidence supported PERB's finding that CSU implemented the policy before providing adequate opportunity for effects bargaining 3. Whether CSU refused to bargain in good faith

The Appellate Court held that CSU has a duty to bargain over reasonably foreseeable effects of student vaccination policy changes on immunocompromised faculty health and safety, but substantial evidence did not support findings that CSU had begun implementing the policy before CFA filed its complaint or that CSU refused to bargain, where CSU offered twice to meet informally to allow CFA to explain why it believed the policy had bargainable effects.

The case is inapplicable when the employer has actually begun concrete implementation steps before receiving the bargaining demand, or when the employer definitively refuses any form of clarification meeting regarding potential bargainable effects.

The case leaves open whether clarification of effects bargaining demands must occur "at the bargaining table" through formal negotiations versus through informal discussions between the parties, and what specific implementation steps would constitute "beginning implementation" for different types of policy changes.