REMEDIES FOR UNFAIR PRACTICES; FACTORS LIMITING OR TERMINATING LIABILITY – In General

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PARTIALLY VACATED AND PARTIALLY SUPERSEDED ON OTHER GROUNDS BY Trustees of the California State University v. Public Employment Relations Bd. (2026) 118 Cal.App.5th 90 and Trustees of the California State University (2026) PERB Decision No. 2915a-H.

As part of remedying a failure to bargain effects, PERB does not necessarily direct the employer to fully rescind its implementation of the underlying decision. (The Accelerated Schools (2023) PERB Decision No. 2855, p. 19 (Accelerated Schools).) Determining whether to order rescission for a failure to bargain effects typically turns on whether rescission is necessary to level the playing field and allow fair, good faith bargaining. For instance, in some decisions involving a failure to bargain over effects, PERB has found it sufficient to prospectively exempt bargaining unit employees from the effects of the decision until the employer has fulfilled its bargaining duty (without exempting non-bargaining unit employees) and provide make-whole relief from the date of the violation until negotiations are complete. (See, e.g., County of Santa Clara (2021) PERB Decision No. 2799-M, pp. 29-30.) (p. 28.) Although there were reasons favoring the ALJ’s proposed rescission order, countervailing reasons persuaded the Board to refrain from such an order and instead to leave CSU’s 2023 student immunization policy in place during effects bargaining. First, PERB’s expertise is in enforcing statutory labor relations rights and duties, not in crafting student immunization policies. CSU offered educational reasons as well as public health arguments based on the nature of the student body for its policy, and it is not PERB’s role to assess the validity of those reasons from an educational or public health perspective. Second, outside of the COVID-19 context, PERB found no indication that the faculty association or any other union had previously sought to bargain in past instances when CSU strengthened or loosened its student health policies. While declining to request bargaining in past instances does not waive the right to bargain in future instances (County of Kern & Kern County Hospital Authority (2019) PERB Decision No. 2659-M, p. 22, fn. 19), PERB found this history to be a further reason to exercise its discretion not to order rescission. Moreover, in holding that CSU must bargain over the health and safety effects of its 2023 Policy, PERB resolved an issue of first impression. These unusual, combined circumstances made it clear why CSU did not consider HEERA before it began to implement its new policy. Third, while PERB found that the faculty association had no duty to bargain, the association declined to take CSU up on its offer to explain why there were bargainable effects. Given that rescission is not necessarily a standard remedy for a failure to bargain effects, the faculty association’s choice further persuaded PERB to leave the policy in place during bargaining, rather than rescinding it. (pp. 29-30.)