The opinion
Filed 1/26/26
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
TRUSTEES OF THE CALIFORNIA B340818
STATE UNIVERSITY,
(Public Employment Relations
Petitioners, Board Decision No. 2915-H,
Case No. SA-CE-422-H)
v.
PUBLIC EMPLOYMENT
RELATIONS BOARD,
Respondent;
CALIFORNIA FACULTY
ASSOCIATION,
Real Party in Interest.
ORIGINAL PROCEEDING; petition for writ of review.
Decision affirmed in part and vacated in part.
Sloan Sakai Yeung & Wong, Jeff Sloan and Justin Otto
Sceva for Petitioner.
Public Employment Relations Board, J. Felix De La Torre,
Mary Weiss, Joseph W. Eckhart, Jeremy G. Zeitlin and Andrew
Z. Gordon for Respondent.
Rothner, Segall & Greenstone, Julia Harumi Mass and
Laura Carver for Real Party in Interest.
‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗
The present action was brought under the Higher
Education Employer-Employee Relations Act (HEERA)
(Gov. Code, 1 §§ 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
1 Subsequent undesignated statutory references are to the
Government Code.
2
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.
FACTUAL AND PROCEDURAL BACKGROUND
I. CSU’s student vaccination policies.
In 1985, the CSU began requiring new students born after
1956 to show proof of immunization for measles and rubella.
Effective fall 2002, new students 18 years or younger were also
required to show proof of immunization for hepatitis B.
Exemptions were permitted based on medical conditions and
religious or personal beliefs. Students could satisfy the
requirement by showing that they had enrolled in a California
public school for the seventh grade or higher after June 1999.
In March 2019, the CSU significantly revised its
vaccination policy (the 2019 policy) to require all students to be
vaccinated for measles, mumps, rubella, hepatitis B, varicella
(chickenpox), tetanus-diphtheria-pertussis, and meningococcal
disease, and to be screened for tuberculosis. Under the 2019
3
policy, exemptions were allowed for medical reasons, but not for
religious or personal beliefs.
The 2019 policy was to have been implemented in fall 2020,
but it was delayed due to the COVID-19 pandemic. In July 2021,
the CSU announced a “soft” implementation date of fall 2022, and
a “hard” implementation date of fall 2023. Ultimately, however,
the 2019 policy was not implemented because the CSU revised its
vaccination policy on February 14, 2023 2 through Executive
Order 803, which required only that students under age 19 be
vaccinated against hepatitis B (the 2023 policy). All other
vaccinations and screenings required by the 2019 policy were
recommended but not required by the 2023 policy, and
exemptions were permitted based on medical conditions and
religious beliefs. The 2023 policy applied to all students entering
CSU “in or after fall 2023.”
II. CFA’s demand to bargain.
CSU and CFA are parties to a collective bargaining
agreement that sets forth the terms and conditions of faculty
members’ employment. Under HEERA, CSU and CFA have a
duty to bargain in good faith over matters within the “scope of
representation” (§ 3570)—that is, over “wages, hours of
employment, and other terms and conditions of employment”
(§ 3562, subd. (r)(1)). The CSU also is required to bargain over
policy changes that fall outside the scope of representation but
have reasonably foreseeable “effects” on issues within the scope of
representation. (International Assn. of Fire Fighters, Local 188,
AFL-CIO v. Public Employment Relations Bd. (2011) 51 Cal.4th
2 Unless otherwise noted, further unspecified dates refer to
calendar year 2023.
4
259, 276–277 (Fire Fighters).) The first category is sometimes
referred to as “decision bargaining,” and the latter category as
“effects bargaining.”
CSU did not formally notify the CFA that it had adopted
the 2023 policy, but the CFA learned of it within two weeks of its
adoption. On February 23, Kathy Sheffield, CFA’s Director of
Representation and Bargaining, sent a letter to Stefanie Gusha,
CSU’s Senior Director of Collective Bargaining, demanding to
bargain over the 2023 policy. Sheffield’s letter said:
“We have recently learned of a change to mandatory
immunization policy for CSU students. [¶] It appears that
planning and implementation are proceeding without regard to
the Collective Bargaining Agreement or our rights under
HEERA. We were never notified of this policy or invited to meet
and confer on it. Please cease implementation until we have had
time to meet and confer over this policy change, which requires
rescinding the policy until the union has had the opportunity to
meet and confer on impact. We are already hearing from
members that this change poses health and safety risks for
immunocompromised faculty and/or their families.
“The policy is likely to impact faculty rights in the areas of
health and safety and perhaps other rights as well. In that
context, CFA hereby requests to engage in the required
bargaining. Please contact me . . . to make appropriate
arrangements.”
Gusha responded on March 8 that the CSU did not believe
the revised vaccination policy was a proper subject of bargaining
because it applied only to students, not to faculty, and did not
have any foreseeable impacts on matters within the scope of
representation. Gusha also noted that the parties had not
5
previously bargained over student vaccine requirements,
including over the 2019 policy. Nonetheless, Gusha said the CSU
was willing to meet to allow the CFA to explain why it believed
the 2023 policy had impacts within the scope of its
representation. Gusha proposed a meeting on March 16, and she
asked Sheffield to provide alternative times and dates if she was
not available on March 16.
On March 15, Gusha reiterated that CSU did not believe it
was required to meet and confer over student vaccine
requirements, but it was willing to meet to allow CFA “to explain
why you believe there are impacts within your scope of
representation.” Gusha requested that Sheffield advise if she
was “not interested in meeting.”
CFA filed an unfair practice charge with the PERB on
March 8, asserting that CSU “failed to bargain in good faith with
CFA in violation of Government Code §§ 3570 and 3571(c) in
connection with its decision to eliminate student vaccine
requirements.” Subsequently, Sheffield declined to meet
informally with CSU, telling Gusha: “The union is not interested
in meeting under the terms you laid out. We disagree with your
position that the union has no right to meet and confer formally,
and we filed a charge with PERB for this very reason. [¶]
Elimination of vaccinations in the CSU puts faculty at risk, and
the decision does not conform with any health guidance we know
of.”
III. Hearing and ALJ decision.
The parties participated in a hearing before Administrative
Law Judge (ALJ) Camille Binon in August. Dr. Richard Pan, a
medical doctor and public health expert, testified for the CFA
that the best way for faculty members to protect themselves from
6
disease is by getting vaccinated. However, some members cannot
get vaccinated because they are allergic to vaccine ingredients,
and others are not fully protected by vaccines because their
immune systems are suppressed because they are receiving
chemotherapy or immunotherapy, have a rheumatoid condition
or an autoimmune disease, have had an organ transplant, or
have HIV. These members depend on “community immunity” to
protect them from contagious diseases, and they might be put at
risk if student vaccination levels fall below critical thresholds.
Measles is the most infectious of the diseases for which the 2019
policy required vaccination, requiring an immunization rate
above 94 percent to prevent community spread.
Dr. Pan testified that in 2016, California schools enrolling
kindergarten through twelfth grade (K–12) students began
requiring students to show proof of vaccination. However, not all
CSU students had been subject to that requirement because they
graduated high school before 2016, were homeschooled, or were
educated in other states with different vaccine requirements.
Further, a meningococcal vaccine was not required for California
K–12 students, there had been a significant rise in medical
exemptions after 2016, and some communities had higher rates
of unvaccinated students. Accordingly, Dr. Pan opined that
verifying vaccination status for all students was important to
ensure community immunity at each CSU campus.
CSU’s Director of Student Wellness, Dr. Carolyn O’Keefe,
testified for CSU that the 2023 policy was adopted at the request
of the Vice Presidents of Student Affairs (Vice Presidents). The
Vice Presidents requested the new policy for several reasons.
First, under existing state law, all pre-kindergarten through
12th grade students attending public or private schools in
7
California are required to show proof of immunization to enroll.
Ninety four to 95 percent of CSU students matriculate from
California schools, and thus the vast majority of CSU students
enter the system fully immunized. Second, additional
vaccination requirements apply to students who live in residence
halls or who have field placements in health-related fields.
Third, it creates an administrative burden for students to have to
produce immunization records and for campus health centers to
have to collect and input the records. Fourth, immunization
requirements were to have been enforced by placing holds on
student registration, and students would not learn of the holds
until their registration windows had opened, thus creating
barriers to registration. Fifth, socioeconomically disadvantaged
students had more difficulty navigating the system and
overcoming holds. For all of these reasons, the Vice Presidents
believed the 2019 policy imposed an unwarranted burden on
CSU students and staff. Dr. O’Keefe said there had been a
“robust conversation” among the Vice Presidents about how the
change in student vaccine requirements might impact community
health, and it was agreed that the health impact would be
negligible because 94 to 95 percent of students were coming into
the system already immunized.
The ALJ issued a proposed decision in January 2024. The
ALJ found that the new student vaccine requirement constituted
a policy change, but such change was not within the scope of the
union’s representation because it did not involve “a requirement
or removal of a requirement related to employees.” Nonetheless,
the change had “a generalized or continuing effect” on
employment because “employees may suffer exposure to
infectious diseases brought to the classroom by students well into
8
the future.” Because of the policy’s possible effect on CFA’s
members, the ALJ said, CSU was required to meet and confer
over “alternatives to the decision as part of its effects
bargaining.” The ALJ concluded that CSU failed to do so, and
thus violated its duty under HEERA. The ALJ ordered CSU to
rescind the 2023 policy and meet and confer with CFA regarding
the policy’s negotiable aspects. The ALJ further ordered CSU to
“make whole all affected employees for any losses incurred as a
result of CSU’s decision to remove requirements for student
vaccinations.”
IV. CSU’s statement of exceptions; PERB decision.
CSU filed a statement of exceptions to the ALJ’s proposed
decision, contending that the ALJ’s proposed decision (1) failed to
address how the student vaccination policy had a generalized
effect or ongoing impact on the CFA’s members’ terms and
conditions of employment; (2) erroneously asserted that CSU
ignored CFA’s demand to bargain; and (3) erroneously concluded
that CSU must meet and confer over alternatives as part of
effects bargaining. The CFA did not file substantive objections of
its own.
PERB issued its final decision in August 2024. It noted
that the CFA was no longer claiming CSU had a duty to bargain
over its decision to adopt the 2023 policy, and thus PERB focused
exclusively on whether CSU “violated HEERA by beginning to
implement the 2023 [p]olicy before affording CFA notice and an
opportunity to engage in effects bargaining.” As to that issue,
PERB found as follows.
First, PERB rejected CSU’s assertion that the 2023 policy
had no reasonably foreseeable impacts on faculty health or
safety. It explained that the 2019 policy closely matched
9
guidance issued by the California Department of Public Health
and the American College Health Association, which stated that
the guidance was “ ‘important in preventing disease clusters and
outbreaks on campus.’ ” PERB acknowledged that it was not
clear how significant CSU student vaccine requirements were in
avoiding campus outbreaks in light of the high percentage of
students who attended California schools before college, but it
noted that Dr. Pan had credibly testified that K–12 immunization
requirements were not sufficient to create community immunity
on CSU campuses because approximately five to six percent of
CSU students came from outside California, and some California
students were homeschooled or had medical exemptions. Thus,
PERB concluded that while it probably was not possible to
calculate the degree to which the 2023 policy increased the risk of
a disease outbreak on a CSU campus, “CSU’s policy change had
the reasonably foreseeable result of reducing community
immunity.”
Second, PERB noted that where an employer’s decision has
reasonably foreseeable impacts on terms or conditions of
employment, the employer generally violates its duty to bargain
if it begins to implement the decision before giving the union
advance notice and a meaningful opportunity to bargain. Here,
CSU had not provided CFA with formal notice of the 2023 policy,
but it was undisputed that CFA was aware of it by at least
February 23, when it demanded to bargain over health and safety
effects. Accordingly, CSU violated its duty to bargain unless at
the time CFA learned of the decision, CSU had not begun
implementing the 2023 policy and there was sufficient time to
allow good faith bargaining before implementation. As to that
issue, PERB said, CSU failed to prove that CFA knew of the 2023
10
policy before implementation began and sufficiently in advance of
implementation to allow a meaningful opportunity to bargain.
Specifically, PERB found that Dr. O’Keefe had admitted in her
testimony that the 2023 policy was implemented in February
2023; CSU never denied that implementation was underway and
never agreed to cease implementation to allow bargaining; and
CSU did not challenge the ALJ’s finding that implementation
began in February 2023. In short, PERB said, “[f]or CSU to
establish that CFA waived its right to bargain by turning down
[its March 8, 2023 offer to meet and discuss], CSU had the
burden to prove that it was holding off on implementation.
Because the evidence before us strongly suggests the opposite,
and CSU has in any event waived any argument to the contrary,
CSU’s argument fails.”
As to remedy, PERB changed the ALJ’s proposed remedy in
two respects. First, it declined to direct CSU to rescind the 2023
vaccination policy, explaining that its expertise was in enforcing
statutory labor relations rights and duties, not crafting student
immunization policies. CSU had offered educational and public
health reasons for adopting the 2023 policy, and “it is not
[PERB’s] role to assess the validity of those reasons from an
educational or public health perspective.” Further, outside the
COVID-19 context, neither the CFA nor any other union had
previously sought to bargain over student health policies, and
CFA had declined to take CSU up on its offer to explain why the
2023 policy had bargainable effects. Although CFA was not
required to meet formally for this purpose, its choice “further
persuades us to err on the side of leaving the 2023 policy fully in
place during bargaining.” Second, PERB directed CSU to
11
reimburse CFA “for wasted or diverted resources (if any) and/or
other harm resulting from CSU’s violations.”
The CSU filed a petition for writ of review in September
2024. This court issued a writ of review in July 2025.
DISCUSSION
CSU contends that PERB erred by finding that CSU
violated HEERA by refusing to bargain over the effects of the
2023 policy. CSU makes four specific contentions. First, CSU
urges that there is not substantial evidence that it implemented
the 2023 policy before CFA filed its unfair practice charge.
Specifically, CSU contends that although it “adopted” the 2023
policy in February, it did not “implement” it until the fall, and
thus CFA had an adequate opportunity to negotiate effects before
the policy’s implementation. Second, CSU contends that it did
not refuse to bargain, but instead offered to meet with CFA to
give the union the chance to explain why it believed the 2023
policy would have effects on faculty health. CSU says that
longstanding precedent required CFA to meet with CSU to clarify
its position. Third, CSU urges that PERB’s conclusion that the
2023 revisions had reasonably foreseeable negotiable impacts on
immunocompromised faculty members ignored federal and state
laws that already give such faculty members the right to request
reasonable accommodations to protect their health and safety.
CSU contends that health concerns based on individual
circumstances require individual accommodations under federal
and state disability laws, not through collective bargaining.
Finally, CSU contends that PERB’s addition of an order directing
CSU to “make whole” CFA itself was “vague, punitive, and
unjustified.”
12
As we discuss, substantial evidence supports PERB’s
finding that the 2023 policy had reasonably foreseeable impacts
on immunocompromised faculty members, thus requiring effects
bargaining. However, there is no substantial evidence that CSU
had begun implementing the 2023 policy before CFA filed its
unfair practices charge or that CSU refused to bargain effects.
To the contrary, it is undisputed that CSU offered to meet
informally to allow CFA to explain why it believed the 2023
policy had effects within the scope of representation.
Accordingly, we will set aside PERB’s finding that CSU violated
HEERA and remand the matter for the parties to engage in
effects bargaining.
I. Legal principles.
A. Standard of review.
This case was brought under HEERA, which governs
employment relationships between public universities and their
employees. (§ 3560.) Under HEERA, a union, employee, or
employer may challenge an alleged violation by filing an unfair
practice charge with PERB. The PERB is a five-member board
empowered by the Legislature to adjudicate unfair labor practice
claims under several public employment relations statutes.
(Boling v. Public Employment Relations Board (2018) 5 Cal.5th
898, 911 (Boling); Kern County Hospital Authority v. Public
Employment Relations Bd. (2024) 100 Cal.App.5th 860, 876
(Kern County); § 3563.) If the charge states a prima facie case of
an unfair practice, PERB will issue a complaint. (Palomar
Health v. National Nurses United (2023) 97 Cal.App.5th 1189,
1202, citing Cal. Code Regs., tit. 8, § 32640, subd. (a).) A hearing
then will be held before an ALJ, who will issue a written decision
13
“containing a statement of the facts, law and rationale for the
decision.” (Palomar, at p. 1203, citing Cal. Code Regs., tit. 8,
§§ 32215, 32350.)
A party aggrieved by an ALJ’s decision may file a
statement of exceptions with PERB. (Cal. Code Regs, tit. 8,
§ 32300, subd. (a).) If no party timely files a statement of
exceptions, the ALJ’s decision becomes final. (Id., § 32305,
subd. (a).) If a statement of exceptions is timely filed, PERB may
“issue a decision based upon the record of hearing,” or may
“[a]ffirm, modify or reverse the proposed decision, order the
record re-opened for the taking of further evidence, or take such
other action as it considers proper.” (Id., § 32320.)
PERB’s decisions are reviewable by petition for writ of
review filed in the Court of Appeal, which may enforce, modify, or
set aside PERB’s decision or order. (§ 3509.5, subds. (a), (b);
Cal. Rule of Court, rule 8.728.) Because PERB’s construction of
the HEERA is within its field of expertise, courts follow PERB’s
interpretation unless it is clearly erroneous (Boling, supra,
5 Cal.5th at pp. 911–912; County of Sonoma v. Public
Employment Relations Board (2022) 80 Cal.App.5th 167, 178
(County of Sonoma)), and PERB decisions are persuasive
authority on legal matters that are within its expertise (City of
Palo Alto v. Public Employment Relations Bd. (2016)
5 Cal.App.5th 1271, 1288 (City of Palo Alto)). Nonetheless,
“ ‘ “[i]t is . . . ‘the duty of this court, when . . . a question of law is
properly presented, to state the true meaning of the statute . . .
even though this requires the overthrow of an earlier erroneous
administrative construction.’ ” ’ ” (City of Palo Alto, at p. 1288.)
Thus, appellate courts “retain final authority to interpret” the
HEERA (County of Sonoma, at p. 178), and we will not follow an
14
interpretation by PERB that is clearly erroneous (City of Palo
Alto, at p. 1288).
PERB’s findings of fact are conclusive “if supported by
substantial evidence on the record considered as a whole.”
(§ 3509.5, subd. (b); County of Sonoma, supra, 80 Cal.App.5th at
p. 178.) “ ‘[S]ubstantial evidence’ ” is not synonymous with
“ ‘any’ ” evidence, but rather evidence that is “reasonable in
nature, credible, and of solid value.” (Carranza v. City of
Los Angeles (2025) 111 Cal.App.5th 388, 400, citing
Conservatorship of O.B. (2020) 9 Cal.5th 989, 1006.) PERB’s
remedial orders are reviewed for an abuse of discretion. (County
of Sonoma, at p. 178.)
B. Public employers’ statutory duty to bargain.
As noted above, HEERA provides that CSU has a duty to
meet and confer in good faith with employee organizations over
matters within the “scope of representation” (§ 3570)—i.e., over
“wages, hours of employment, and other terms and conditions of
employment” (§ 3562, subd. (r)(1)). Employers are also required
to bargain over the effects and implementation of changes that
fall outside the scope of representation but have reasonably
foreseeable impacts on issues within the scope of representation.
(Fire Fighters, supra, 51 Cal.4th at pp. 276–277.) For example,
our Supreme Court has said that an employer may have the right
to decide unilaterally to lay off employees for financial reasons,
but nonetheless may be required to bargain about “ ‘the timing of
the layoffs and the number and identity of employees affected.’
(Los Angeles County Civil Service Com. v. Superior Court (1978)
23 Cal.3d 55, 64.)” (Claremont Police Officers Assn. v. City of
Claremont (2006) 39 Cal.4th 623, 634 (Claremont Police
Officers).)
15
“In sum, a public employer’s ‘duty to bargain arises under
two circumstances: (1) when the decision itself is subject to
bargaining, and (2) when the effects of the decision are subject to
bargaining, even if the decision, itself, is nonnegotiable.’
(El Dorado County Deputy Sheriff’s Assn. v. County of El Dorado
(2016) 244 Cal.App.4th 950, 956.)” (County of Sonoma, supra,
80 Cal.App.5th at p. 179.) All other matters “are reserved to the
employer.” (§ 3562, subd. (r)(2).)
Where a decision is within the scope of representation, an
employer must provide notice and an opportunity to bargain
before it reaches a “ ‘firm decision’ ” on the matter subject to
bargaining. (Kern County, supra, 100 Cal.App.5th at p. 877.) If a
matter is not within the scope of representation but has
reasonably foreseeable effects within the scope of representation,
the employer must provide notice and an opportunity to meet and
confer after it has reached a firm decision but before the decision
is implemented. (County of Sonoma, supra, 80 Cal.App.5th at
p. 186, citing Mt. Diablo Unified School District (1983) PERB
Dec. No. 373; County of Santa Clara (2013) PERB Dec. No. 2321-
M, p. 30.)3
When bargaining is required, agencies may not make
unilateral changes until the parties have come to an impasse.
(Boling, supra, 5 Cal.5th at p. 914; County of Sonoma, supra,
80 Cal.App.5th at pp. 179–180.) Parties are not required to reach
an agreement because the employer “has ‘the ultimate power to
3 There is an exception to this rule, not relevant here, if the
implementation date is based on an “immutable deadline” or a
delay in implementation would effectively undermine the
employer’s right to make the nonnegotiable decision. (County of
Sonoma, supra, 80 Cal.App.5th at p. 186.)
16
refuse to agree on any particular issue,’ ” but they must bargain
in good faith and attempt to reach agreement. (Claremont Police
Officers, supra, 39 Cal.4th at p. 630.)
If a proposal is outside the scope of representation and does
not have negotiable effects, the employer may refuse to negotiate
without committing an unfair practice. (City of Pinole (2012)
PERB Dec. No. 2288-M, p. 7.) However, a party’s refusal to
discuss a proposal based on an incorrect belief that the proposal
concerns a matter outside of the scope of representation is a
per se violation of the duty to bargain. (County of San Luis
Obispo (2015) PERB Dec. No. 2427-M, p. 26.)
II. Substantial evidence supports PERB’s finding that
the 2023 policy had reasonably foreseeable effects on
faculty health and safety.
The ALJ found that CSU’s decision to adopt the 2023 policy
was outside the scope of representation, and CFA did not
challenge this finding. The only issue before PERB, therefore,
was whether CSU violated HEERA by failing to engage in effects
bargaining—that is, to bargain over any reasonably foreseeable
effects of the 2023 policy on CFA’s members. As to that issue,
PERB concluded that CSU had a duty to bargain over the effects
of the 2023 policy, and it engaged in an unfair practice by
implementing the policy without engaging in such bargaining.
CSU challenges both conclusions, urging that there was no duty
to bargain effects, and there is no substantial evidence that it
began implementing the 2023 policy before CFA filed its unfair
practices complaint.
We begin with the duty-to-bargain issue: Whether
substantial evidence supports the PERB’s finding that the 2023
policy had reasonably foreseeable effects on health and safety,
17
requiring CSU to engage in effects bargaining. As to that issue,
CSU urges that the testimony before the ALJ suggested, at most,
that the 2023 policy could have impacts on immunocompromised
faculty, not faculty generally. While CSU does not dispute that
there may be a duty to bargain effects even if such effects do not
impact the entire bargaining unit, it urges that any theoretical
health impacts the 2023 policy might have on
immunocompromised faculty members were already fully
addressed by CSU’s obligations to reasonably accommodate those
faculty members under the Americans with Disabilities Act
(ADA; 42 U.S.C. § 12101 et seq. and the Fair Employment and
Housing Act (FEHA; § 12900 et seq.). That is, CSU contends that
there is no duty to bargain effects because the only negotiable
impacts CFA has identified are health impacts on
immunocompromised faculty members, and “the ADA/FEHA
processes that formed part of the relevant status quo already
provided a mechanism that fully and completely addressed and
prevented any such health impacts.” Respondents disagree,
contending that the ADA and FEHA do not trump CSU’s
bargaining obligations under HEERA, and thus CSU had a duty
to bargain effects notwithstanding its obligations under the ADA
and FEHA.
CSU notes, correctly, that as an employer, it is required by
law to “make reasonable accommodation” for an employee’s
known physical disability, including any disease or disorder that
affects an “immunological” system and limits a “major life
activity.” (§§ 12940, subd. (m), 12926, subd. (m).) Relatedly,
CSU is required “to engage in a timely, good faith, interactive
process with the employee . . . to determine effective reasonable
accommodations, if any, in response to a request for reasonable
18
accommodation by an employee or applicant with a known
physical . . . disability.” (§ 12940, subd. (n).) A reasonable
accommodation is “ ‘ “a modification or adjustment to the
workplace that enables the employee to perform the essential
functions of the job held or desired.” ’ ” (Wentworth v. Regents of
University of California (2024) 105 Cal.App.5th 580, 597.) Thus,
existing law provides an avenue for an immunocompromised
faculty member to seek accommodations for any health risks
posed by exposure to unvaccinated students, and nothing in the
record suggests that this avenue will not fully ameliorate any
health and safety effects of the 2023 policy on
immunocompromised faculty.
CSU is also correct that unions may represent employees in
ADA/FEHA accommodations meetings upon the employees’
request. Specifically, in Sonoma County Superior Court (2015)
PERB Dec. No. 2409-C, pp. 24–25 (Sonoma I), PERB held that
the statutory right of union representation “includes an
employee’s right to have a union representative assist him or her
in the interactive process by attending meetings with the
employer convened to explore possible reasonable
accommodations to an employee’s disability. The union has a
concurrent right to represent the employee in the interactive
process . . . if the employee requests union representation.” (See
also Sonoma County Superior Court (2017) PERB Dec. No. 2532-
C, p. 21 [affirming holding in Sonoma I “that employees are
entitled to union representation upon request in interactive
process meetings convened for the purpose of determining
whether reasonable accommodation is needed, and if so, what
that accommodation will be”].) Thus, whether or not CFA has the
right to bargain over the effects of the 2023 policy, it will have a
19
role to play (upon request) in crafting reasonable
accommodations to meet the needs of immunocompromised
faculty members.
Notwithstanding the foregoing, we note that the
United States Supreme Court and lower federal courts have held
that laws prohibiting discrimination do not preclude enforcement
of the right to be free from discrimination through the collective
bargaining process. (See, e.g., Emporium Capwell Co. v. Western
Addition Community Organization (1975) 420 U.S. 50, 69 [“[t]he
elimination of discrimination and its vestiges is an appropriate
subject of bargaining, and an employer may have no objection to
incorporating into a collective agreement the substance of his
obligation not to discriminate in personnel decisions”];
International Union of Elec., Radio and Mach. Workers, AFL-
CIO-CLC v. N.L.R.B. (D.C. Cir. 1980) 648 F.2d 18, 25, fn. 6
[“Elimination of discrimination is a mandatory subject when
raised on either side of the collective bargaining table”]; Graphic
Arts Internat., Union Local No. 280 v. N.L.R.B. (9th Cir. 1979)
596 F.2d 904, 911–912 [“both the Supreme Court and the
[National Relations Labor Board (Board)] have held that ‘(t)he
elimination of discrimination and its vestiges is an appropriate
subject of bargaining . . . .’ [Citations.] And the Board has found
that an employer’s failure to bargain in good faith about
eliminating discrimination can constitute an unfair labor
practice”].) The PERB has similarly concluded, finding that “the
existence of comprehensive legislation prohibiting both
categorical discrimination and discrimination for union activity
does not preclude enforcement of those rights through the
collective bargaining process.” (Healdsburg Union High School
District (1984) PERB Dec. No. 375E, p. 12; see also Jefferson
20
School District (1980) PERB Dec. No. 133, pp. 7–8 [rejecting as
“without foundation” employer’s contention that any matter
covered by existing statute was excluded from scope of
representation]; San Mateo City School Dist. v. Public
Employment Relations Bd. (1983) 33 Cal.3d 850, 866 [inclusion of
terms established by statute in collective bargaining agreement
“would not supersede the relevant part of the [statute], but would
strengthen it”].)
Unquestionably, a single form of accommodation will not be
appropriate for all immunocompromised faculty members, and
there are, as CSU suggests, good reasons to believe that the
needs of some such members will be most effectively met through
individualized accommodations. (See, e.g., Oconomowoc
Residential Programs v. City of Milwaukee (7th Cir. 2002)
300 F.3d 775, 784 [“Whether a requested accommodation is
reasonable or not is a highly fact-specific inquiry and requires
balancing the needs of the parties”]; Nunes v. Wal-Mart Stores,
Inc. (9th Cir. 1999) 164 F.3d 1243, 1247 [determining whether a
proposed accommodation is reasonable “requires a fact-specific,
individualized inquiry”].) Still, other faculty members may prefer
union representation and bargaining on the issue.
Because we see no indication that the Legislature intended
to allow employees to seek disability accommodations permitted
by FEHA and the ADA only through individual negotiations, to
the exclusion of collective bargaining, we conclude that
substantial evidence supports the PERB’s conclusion that the
2023 policy was a proper subject of effects bargaining.
21
III. Substantial evidence does not support PERB’s
conclusion that CSU violated its duty to bargain
effects.
Having concluded that CSU had a duty to bargain over
reasonably foreseeable effects of the 2023 policy, we turn to the
second issue on which CSU sought writ review: Whether CSU
violated that duty. CSU concedes that it did not give CFA formal
notice of the 2023 policy, but it contends CFA learned of the
change and requested bargaining before the policy was
implemented. CSU also contends that it did not refuse to
bargain, but instead asked CFA to clarify why it believed the
policy had bargainable effects. For the reasons that follow, CSU
is correct on both issues.
A. Substantial evidence does not support PERB’s
conclusion that CSU had begun implementing
the 2023 policy before CFA filed its unfair
practice charge in March 2023.
As we have noted, an employer has a duty to provide notice
and an opportunity to bargain over the reasonably foreseeable
effects of a nonnegotiable decision once the employer reaches a
“ ‘firm decision’ ” and before implementing the decision. (County
of Sonoma, supra, 80 Cal.App.5th at p. 186.) However, if an
employer does not give formal notice of a decision but the
employee organization receives actual notice before the decision
is implemented, the employer’s failure to give formal notice “ ‘is of
no legal import.’ ” (California Correctional Peace Officers
Association (2011) PERB Dec. No. 2196-S, p. 8, overruled on
other grounds by County of Santa Clara, supra, PERB Dec. No.
2321-M; see also County of Riverside (2010) PERB Dec. No. 2097-
22
M, p. 12, overruled on other grounds by County of Santa Clara,
supra, PERB Dec. No. 2321-M; Regents of the University of
California (1987) PERB Dec. No. 640-H, p. 22.)
Here, it is undisputed that CSU did not provide formal
notice to CFA of the 2023 policy, but that CFA knew of the
change at least by February 23—nine days after the policy’s
adoption—when CFA submitted its initial demand letter. CSU’s
failure to give formal notice therefore was not legally significant
if, at the time CFA learned of the new policy, CSU had not yet
begun implementing the policy and there was sufficient time for
CFA to seek bargaining prior to implementation. (City of
Sacramento (2013) PERB Dec. No. 2351-M, pp. 29–30; County of
Santa Clara, supra, PERB Dec. No. 2321-M, pp. 30–31.)
CFA contended below, and PERB agreed, that by the time
CFA filed its unfair practices complaint on March 8, CSU had not
only adopted the 2023 policy, but also had begun implementing it.
CSU challenges this finding, urging that there is no substantial
evidence that it had begun implementing the new student
vaccine policy prior to March 8. Respondents contend that CSU
forfeited this issue by failing to raise it below and, further, that it
fails on the merits. 4
4 Below, PERB noted that the charging party usually has the
burden of proof in a unilateral change case. PERB nonetheless
placed the burden of proving implementation on CSU because it
believed implementation was relevant to “a waiver defense for
which [CSU] bears the burden of proof.”
None of the parties addresses the burden of proof issue
directly, but all assert that the proper standard of review on
appeal is substantial evidence. The substantial evidence
standard applies on appeal only if CFA had the burden of proof
23
As an initial matter, we reject respondents’ claim that CSU
did not raise the implementation issue below. The ALJ found
that CSU did not meet and confer in good faith prior to
implementing the 2023 policy, and its conduct was “not excused
by offering to meet and discuss with CFA after the fact.” (Italics
added.) CSU’s exceptions directly challenged this finding,
asserting that “[t]he proposed decision erroneously asserts [CSU]
violated HEERA by offering to meet and discuss with CFA ‘after
the fact.’ ” (Italics added.) CSU therefore did not forfeit the
issue.
On the merits, decisions of the PERB hold that an employer
begins to “implement” a decision when it takes concrete steps to
carry out the decision. For example, in Oakland Unified School
District (2023) PERB Dec. No. 2875, page 8, the PERB held that
a Board of Education “began implementing” a decision to close
schools when it “notif[ied] impacted staff that they would be
below; if CSU had the burden below, we could reverse only if the
evidence compels a finding for it as a matter of law. (See, e.g.,
Visalia Unified School Dist. v. Public Employment Relations Bd.
(2024) 98 Cal.App.5th 844, 877 [“ ‘ “In [a] case where the trier of
fact has expressly or implicitly concluded that the party with the
burden of proof did not carry the burden and that party” ’ seeks
review, the reviewing court does not ask ‘ “whether substantial
evidence supports the judgment.” ’ [Citation.] Rather, ‘ “where
the issue on [review] turns on a failure of proof . . . , the question
for [the] reviewing court becomes whether the evidence compels a
[contrary] finding . . . as a matter of law” ’ ”].)
Because the issue of waiver is not before us, we conclude
that CFA, as the charging party, had the burden of proof on
implementation. As the parties conceded, our review thus is for
substantial evidence.
24
transferred” and “began . . . working with impacted families to
choose new schools.” Similarly, in Regents of the University of
California (2023) PERB Dec. No. 2852-H, page 18, the PERB held
that a university had begun “implement[ing]” a decision to
eliminate concurrent exempt and nonexempt appointments when
it rescinded an employee’s appointment as lecturer. And, in City
of Sacramento, supra, PERB Dec. No. 2351-M, at page 2, the
PERB held that a public employer began “implementing” a plan
to reorganize a police department’s communications center “by
meeting with the affected employees and redistributing their
‘essential’ job duties.” In contrast, in Pasadena Area Community
College District (2011) PERB Dec. No. 2218, p. 2 (adopting
proposed decision, p. 5), the PERB found that a community
college district’s decision to cancel the winter intersession,
without more, did not constitute implementation of that
decision. 5
In the present case, there is no substantial evidence that
CSU had taken any concrete steps to implement the 2023 policy
before CFA filed its unfair practices complaint on March 8.
Indeed, the only evidence concerning implementation is that by
mid-August—more than five months after CFA filed its
5 CFA suggests that Anaheim Union High School Dist.
(1982) PERB Dec. No. 201, page 10, held that a school district
implemented a change at the time it adopted a resolution
reducing employee salaries, even though the reduction would not
take effect for several months. Not so. Anaheim Union
concerned a change within the scope of representation, and thus
the issue before the PERB was whether the change was a firm
decision or merely an “ ‘initial proposal’ ”—not whether the
adoption of the decision constituted implementation. (Id. at
pp. 2, 10.)
25
complaint—two campuses had posted information on their
websites informing students about new vaccine requirements
effective in fall 2023. As CSU notes, the fact that two campuses
posted new student vaccine requirements in August 2023 does
not support the conclusion that CSU implemented the 2023 policy
six months earlier in February 2023.
Respondents contend that CSU implemented the 2023
policy immediately upon its adoption in February because the
university “ce[ased] its work to implement the 2019 Policy.” But
there is no evidence of any cessation. In fact, the only evidence
CFA identifies of a February implementation is a July 2021
memorandum from the Associate Vice Chancellor for Student
Affairs to the CSU Vice Presidents for Student Affairs. The
memorandum says that all CSU campuses must be in full
compliance with the 2023 policy starting “with the new student
cohort matriculating in fall 2023,” and that for “planning
purposes,” “implementation must be initiated by Fall 2022 and
completed by early Spring 2023.” CFA suggests that this
memorandum is evidence that implementation of the 2019 policy
necessarily “ground to a halt” when the 2023 policy was adopted
in February. But on its face, all the memorandum does is set out
administrative guidance for campuses’ “planning purposes.” It
provides no information—nor could it—about what preparations
were actually underway nearly two years later. 6 Further,
Dr. O’Keefe testified that the discussions among the Vice
6 Indeed, if the memorandum accurately described the
rollout of the 2019 policy, implementation should have been
completed by “early spring”—i.e., by February or March. If that
were the case, there would have been no implementation to “halt”
when CSU adopted the 2023 policy on February 14.
26
Presidents that culminated in the adoption of the 2023 policy
occurred “prior to [the 2019 policy’s] implementation in the fall of
2023.” (Italics added.) The only reasonable construction of this
testimony is that implementation of the 2019 policy had not
begun—and therefore could not have “ceased”—when CSU
adopted the 2023 policy in February.
Respondents also contend that Dr. O’Keefe’s testimony
provided substantial evidence of implementation, noting that
O’Keefe said that the 2023 policy “ ‘was implemented in February
2023.’ ” It is true that O’Keefe referred in her testimony to “the
policy that was implemented in February of 2023,” but O’Keefe
appeared to have used “implemented” colloquially, to mean
“adopted” or “enacted.” 7 (Italics added.) Significantly,
Dr. O’Keefe was not asked about, and did not testify, that any
campus had begun taking concrete steps to put the new policy
into effect in February 2023. Indeed, although CFA’s counsel
7 The full question and answer was as follows:
“Q: And so under the previous policies, were . . . different
campuses of the CSU required to verify MMR and meningococcal
screening for a student as an enrollment requirement?
“A: I don’t believe meningococcal screening was a
requirement. I believe that MMR and chickenpox as well as
tuberculosis screening were the requirements. There was also at
some point a subsequent law that requires, which is still in effect,
that requires any students that are 18 and younger to either
provide proof of vaccination against Hepatitis B . . . . So prior to
the policy that was implemented in February of 2023, the
requirement on the campuses was for MMR, chickenpox and
tuberculosis screening as well as students that are 18 and
younger to have that Hepatitis B immunization or proof of
immunization.”
27
cross-examined Dr. O’Keefe about the adoption of the 2023 policy,
counsel did not ask her whether CSU had begun implementing
the 2019 policy prior to February, whether that implementation
ceased once the 2023 policy was adopted, or whether, in the
approximately three weeks between February 14 and March 8,
CSU took any concrete steps to begin implementing the 2023
policy. On this record, therefore, Dr. O’Keefe’s testimony is not
substantial evidence that CSU was already implementing the
2023 policy when CFA filed its unfair practices charge.
Respondents also suggest that in her written
correspondence with Sheffield in February, Gusha “never denied
CFA’s statement . . . that ‘planning and implementation are
proceeding.’ ” But as CSU notes, Gusha did deny that CSU had
begun implementing the 2023 policy, noting that the policy “only
applies to . . . students . . . entering the California State
University (CSU) in or after fall 2023.”
Finally, respondents contend that the executive order
adopting the 2023 policy provides evidence of implementation
because it stated that the policy was “effective” on February 14,
2023. But on its face, the “effective” date is the date the policy
was adopted, not the date on which it was implemented. Indeed,
the policy states that it “applie[d]” “in or after fall 2023.” 8
8 Respondents also urge this court to reject CSU’s suggestion
that the 2023 policy was not implemented until students arrived
on campus in fall 2023. We need not reach this issue because the
only question before us is whether CSU had implemented the
policy prior to CFA’s filing of its unfair practices complaint on
March 8. (See, e.g., County of Santa Clara, supra, PERB Dec.
No. 2321-M, at p. 31 [if employer has duty to bargain effects, “its
implementation without giving such notice and an opportunity to
28
For all of these reasons, the administrative record is devoid
of any substantial evidence to support PERB’s conclusion that
CSU had begun implementing the 2023 policy in February or
March 2023.
B. There is no substantial evidence that CSU
refused to bargain effects.
Because there is no substantial evidence that CSU had
begun implementing the 2023 policy prior to March 8, CFA’s
unfair bargaining charge necessarily fails unless, as CFA
contends, CSU had definitively refused to bargain over effects
prior to March 8. CSU contends that it never refused to bargain,
but instead offered to meet informally to allow CFA to explain
why it believed the student vaccine policy had bargainable
effects. Respondents urge that any discussion of effects had to
occur “at the bargaining table,” and thus that CSU’s offer to meet
informally was not sufficient.
“Because bargaining over effects contemplates that
negotiations will occur prior to implementation of the non-
negotiable decision, the parties must assess the effects of the
decision prospectively, without the benefit of hindsight.”
(Trustees of the California State University (2012)
PERB Dec. No. 2287-H, p. 14.) It thus is not uncommon for a
union and an employer to “disagree over what effects are possible
and within the scope of representation.” (Rio Hondo Community
College District (2013) PERB Dec. No. 2313-E, p. 5 (Rio Hondo).)
If so, “[u]pon receiving an effects bargaining demand, and before
refusing to negotiate, an employer must attempt to clarify
bargain constitutes a refusal to bargain”].) Any subsequent
implementation date is not relevant to our analysis.
29
through discussions with the union any uncertainty as to what is
proposed for bargaining and whether it falls within the scope of
representation.” (Ibid.; see also Healdsburg Union High School
District and Healdsburg Union School District/San Mateo City
School District (1984) PERB Decision No. 375, at pp. 8–10
(Healdsburg/San Mateo) [employer must “make a good faith
attempt to seek clarification of questionable proposals by voicing
its specific reasons for believing that a proposal is outside the
scope of representation and then entering into negotiation on
those aspects of proposals which, following clarification by the
other party, it finally views as negotiable”].) The PERB has held
that “[r]efusing an effects bargaining demand without first
attempting to clarify ambiguities and or whether matters
proposed for bargaining fall within the scope of representation,
violates the duty to bargain in good faith.” (Rio Hondo, at p. 5;
see also Healdsburg/San Mateo, at p. 10 [“Where a proposal is
arguably negotiable in whole or in part, a failure to seek
clarification is, in itself, a violation of the duty to negotiate in
good faith”].)
Some PERB decisions suggest that the clarification
contemplated by this rule may take place informally, through
“discussions” between the employer and employee representative.
(See, e.g., Bellflower Unified School District (2014) PERB Dec.
No. 2385, p. 7, italics added [“[B]efore an employer may refuse to
negotiate after receiving an effects bargaining demand, it ‘must
attempt to clarify through discussions with the union any
uncertainty as to what is proposed for bargaining and whether it
falls within the scope of representation’ ”]; County of Santa Clara,
supra, PERB Dec. No. 2321-M at p. 32 [party objecting that
proposal is beyond scope of representation must make good faith
30
effort at clarification by voicing specific reasons for believing
proposal is outside the scope of representation].) But as
respondents note, other decisions say that clarification must take
place “at the bargaining table.” (See Rio Hondo, supra,
PERB Dec. No. 2313-E, at p. 12 [“the proper place to clarify
bargaining demands and proposals is at the bargaining table
itself”]; see also City of Palo Alto (2017) PERB Dec. No. 2388a-M,
pp. 33–34 [“Where an employer believes that the subject over
which an employee organization desires to meet and confer
exceeds the employer’s duty to meet and confer, or an employer is
otherwise in doubt as to its meet and confer obligation, the
employer must seek clarification. . . . We conclude that such
clarification should occur within the meet and confer process, not
merely by the exchange of legal positions through correspondence
or in comments between party representatives at public meetings
of the governing authority of the agency”].) 9
The tension between these approaches is illustrated in
County of Orange (2018) PERB Dec. No. 2594-M. There, a
majority of the PERB held that “it is well settled that the parties
have a duty to utilize the bargaining process to resolve any
ambiguities in their bargaining proposals.” (Id. at p. 27, italics
added.) In a thoughtful dissent, one PERB member disagreed,
explaining as follows:
9 Trustees of the California State University, supra,
PERB Dec. No. 2287-H, on which CFA relies, does not address
the issue before us. That decision holds only that CSU’s duty to
bargain is not satisfied by a “post implementation willingness to
‘discuss’ ” the change. (Id. at p. 20, italics added.) Here, because
there is no substantial evidence of implementation, the decision
is inapposite.
31
“The majority primarily relies on Jefferson School District
(1980) PERB Decision No. 133 and Healdsburg Union High
School District and Healdsburg Union School District/San Mateo
City School District (1984) PERB Decision No. 375
(Healdsburg/San Mateo), where the Board held that an employer
has a duty to meet with an employee organization to clarify the
terms of an ambiguous union proposal to determine whether the
proposal concerns a subject within the scope of representation;
the employer cannot perfunctorily declare the proposal outside
scope and refuse to bargain over it. (Jefferson School District,
supra, PERB Decision No. 133, p. 11; Healdsburg/San Mateo,
supra, PERB Decision No. 375, pp. 9–10.) The majority also
relies on County of Santa Clara (2013) PERB Decision No. 2321-
M and Bellflower Unified School District (2014) PERB Decision
No. 2385, in which the Board held that an employer has a duty to
meet with an employee organization to clarify whether the
union’s demand to bargain the effects of a non-negotiable
management decision encompasses any effects within the scope of
representation. (County of Santa Clara, supra, PERB Decision
No. 2321-M, pp. 31–32; Bellflower Unified School District, supra,
PERB Decision No. 2385, p. 7.)
“These decisions address the employer’s obligation to seek
clarification of a union proposal or demand that may or may not
encompass subjects within the scope of representation. No
decision says that when an employer takes an action it believes to
be outside the scope of representation, it must meet and confer
with employee organizations over whether the action is in fact a
mandatory bargaining subject. But that is the rule the majority
adopts today.
32
“The majority’s new rule creates two big problems. First, it
allows employee organizations to demand bargaining over non-
negotiable management decisions in the guise of ‘clarifying’
whether the decision is within the scope of representation. This
necessarily undermines the employer’s right to make the non-
negotiable decision.
“Second, the majority’s new rule absolves charging parties
of their burden of proof in unilateral change cases like this one.
In a unilateral change case, the charging party bears the burden
of proving that the challenged employer action concerned a
subject within the scope of representation. (County of Santa
Clara, supra, PERB Decision No. 2321-M, at p. 13; PERB Reg.
32178.) If PERB is unable to determine from the record whether
the employer’s action was within the scope of representation, the
charging party has not met its burden and the allegation must be
dismissed. Here, as the majority admits, the record does not
prove that [the proposed change] is within the scope of
representation. Yet the majority nonetheless finds a unilateral
change violation.” (County of Orange, supra, PERB Dec.
No. 2594-M, pp. 53–55 (dis. & conc. opn.), fn. omitted.)
We agree with the dissenting opinion in County of Orange
that an employer may satisfy its duty to seek clarification either
“at the bargaining table”—that is, by formally meeting and
conferring—or through an informal exchange between parties.
As the County of Orange dissent notes, requiring that
clarification take place through formal bargaining eviscerates the
distinction between bargainable and nonbargainable matters and
allows employee organizations to demand bargaining over even
non-negotiable management decisions. Nothing in the HEERA’s
33
requirement that parties meet and confer “on all matters within
the scope of representation” (§ 3570) requires this result.
In the present case, while CSU advised CFA that it did not
believe it was required to bargain over the effects of the 2023
policy, it did not refuse to bargain. Instead, through Stefanie
Gusha, CSU offered—twice—to meet to allow CFA to explain why
it believed the policy had impacts within the scope of
representation. This offer to meet and discuss whether the 2023
policy had bargainable effects satisfied the CSU’s duty to seek
clarification of CFA’s demand.
Because there is no substantial evidence that CSU refused
to engage in effects bargaining before implementing the 2023
policy, the PERB erred in finding that CSU violated HEERA. We
therefore vacate the PERB’s contrary findings and associated
remedy.
34
DISPOSITION
We affirm PERB’s finding that the student vaccine
requirements are subject to effects bargaining, and we set aside
its finding that CSU violated HEERA by refusing to engage in
effects bargaining before implementing the 2023 vaccine policy.
We also set aside PERB’s make-whole remedy. Each party shall
bear its own appellate costs.
CERTIFIED FOR PUBLICATION
HANASONO, J.
We concur:
EGERTON, Acting P. J.
ADAMS, J.
35