Reported / Citable
Background
The California Faculty Association (CFA) is the bargaining unit representing CSU professors, lecturers, coaches, counselors, and librarians. In February 2023, CSU adopted Executive Order 803, which significantly modified its student-vaccination policy, requiring only hepatitis B vaccination for students under 19 and making other vaccinations recommended-but-not-required (with both medical and religious-belief exemptions). The policy applied to students entering CSU in or after fall 2023.
CFA demanded to bargain over the change. CSU responded that it was not required to bargain but was willing to meet to discuss it. CFA declined the meeting offer and filed an unfair-practices charge with the Public Employment Relations Board (PERB), asserting that CSU had unlawfully implemented the new requirement without engaging in effects bargaining.
An ALJ found CSU was required to bargain over reasonably foreseeable effects of the new policy on faculty health and that CSU had implemented the policy without bargaining, violating HEERA. PERB largely affirmed. CSU sought a writ of review.
The Court’s Holding
The Court of Appeal affirmed in part and vacated in part. On the duty-to-bargain question, the court held PERB correctly determined that CSU had a duty under HEERA to bargain over the reasonably foreseeable effects of the 2023 student-vaccine policy on faculty. Even though student vaccination requirements are not themselves a mandatory subject of bargaining (they fall within CSU’s managerial prerogative), the foreseeable downstream effects on faculty health and working conditions are within the scope of representation and trigger an effects-bargaining duty.
However, the court vacated PERB’s violation finding. There was no substantial evidence in the administrative record that, at the time CFA filed its unfair-practices charge, CSU had actually implemented the revised policy or had definitively refused to bargain. CSU had explicitly offered to meet — an offer CFA declined. Implementation in fall 2023 had not yet occurred when the charge was filed. Without proof of implementation or a definitive refusal, the violation finding was premature.
The court remanded for the parties to engage in effects bargaining now that CSU’s duty has been confirmed.
Key Takeaways
- Under HEERA, public higher-education employers like CSU must bargain over the reasonably foreseeable effects of managerial decisions, even when the underlying decision itself is not a mandatory subject of bargaining.
- Student-vaccination policy decisions fall within managerial prerogative, but their downstream effects on faculty health are subject to effects bargaining.
- An unfair-practices charge alleging unilateral implementation requires substantial evidence that the policy was actually implemented or that the employer definitively refused to bargain.
- An employer’s offer to ‘meet and discuss,’ even if not labeled bargaining, may undermine a claim of definitive refusal — although ultimately the parties must engage in genuine effects bargaining.
- PERB’s findings on effects bargaining are reviewed for substantial evidence; appellate courts will set aside findings unsupported by record evidence.
Why It Matters
For California public higher-education institutions and their faculty unions, the decision is a significant clarification of the effects-bargaining duty under HEERA. CSU and similarly situated public agencies cannot adopt sweeping policy changes touching on workforce health and safety without offering effects bargaining to their unions, even when the underlying policy is within management’s exclusive control. At the same time, unions seeking to pursue unfair-practice charges should ensure they can show actual implementation or a definitive refusal to bargain.
For public-sector labor practitioners, the case reaffirms the procedural mechanics of effects-bargaining unfair-practice litigation. Employers who promptly offer to bargain effects — even after announcing a managerial decision — may avoid unfair-practice liability. Unions should respond to such offers and document the back-and-forth, rather than refusing meetings and filing PERB charges that may be vulnerable on substantial-evidence grounds.