SCOPE OF REPRESENTATION – In General; Test for Subjects Not Specifically Enumerated

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The Board in Regents of the University of California (2021) PERB Decision No. 2783-H (Regents) held that a mandatory influenza vaccination policy issued before a COVID-19 vaccine was available was not within the scope of representation. That decision was based on the particular facts of that case and did not hold that mandatory vaccination policies are always outside the scope of representation. Also, the mandatory vaccination policy at issue in Regents was more than a mere work rule because it applied not only to employees but to “all individuals who work, live, or study on University premises.” Further, the circumstances may have changed significantly enough since the policy change in Regents to warrant a different conclusion on the scope of representation issue. The Board held that based on the facts alleged in the charge, it cannot be said as a matter of law that the union cannot overcome Regents. Rather, these arguable legal and factual disputes weigh in favor of issuing a complaint on the decision bargaining allegation because if there are one or more contested facts (or mixed questions of law and fact) that could affect the outcome, or there are contested, colorable legal theories, a complaint should issue, with the disputed issue(s) to be resolved at a formal hearing. (pp. 19-21.)