The present action was brought under the Higher Education Employer-Employee Relations Act (HEERA) (Gov. Code, §§ 3560 et seq.), which governs labor relations between public institutions of higher education and their employees.  This writ proceeding comes to this court from the Public Employment Relations Board (PERB), an independent administrative agency charged with administering HEERA and other public sector labor laws.  PERB has original jurisdiction to decide unfair labor practices charges (§ 3563.2), and review of PERB decisions is by petition for writ of review in the Court of Appeal (§ 3509.5).

The California Faculty Association (CFA) is the bargaining unit that represents professors, lecturers, coaches, counselors, and librarians of the California State University (CSU).  In early 2023, CSU adopted an executive order that changed its student vaccination requirements effective in 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 offer to meet and filed an unfair practices charge.

After a hearing, an administrative law judge (ALJ) determined that CSU was required to bargain over reasonably foreseeable effects of the new student vaccination requirements on faculty health, and that CSU violated HEERA by implementing the new requirements without bargaining.  On review, PERB largely affirmed the ALJ’s findings, concluding that CSU had a duty to bargain and had implemented the new student vaccine requirements without engaging in bargaining.  CSU sought a writ of review from that decision.

As we discuss, PERB did not err by finding that CSU has a duty to bargain over the effects of its revised student vaccine policy.  However, there is no substantial evidence in the administrative record that when CFA filed its unfair practice charge, CSU had implemented the revised policy or had definitively refused to bargain.  Accordingly, we set aside PERB’s finding that CSU violated HEERA and remand the matter for the parties to engage in effects bargaining.

https://www4.courts.ca.gov/opinions/documents/B340818.PDF

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