Decision 2783H – Regents of the University of California

SF-CE-1300-H and SF-CE-1302-H

Decision Date: July 26, 2021

Decision Type: PERB Decision

Description:  The Regents of the University of California issued an Executive Order requiring “all students, faculty, and staff living, learning, or working” on University premises to receive an influenza vaccination by November 1, 2020. The complaints alleged that the University made the decision and implemented that decision without satisfying its obligation to meet and confer with unions representing employees working on University premises.

Disposition: The Board found that the decision to adopt the influenza vaccination policy was outside the scope of representation because under the unprecedented circumstances of a potential confluence of the COVID-19 and influenza viruses, the need to protect public health was not amenable to collective bargaining or, alternatively, outweighed the benefits of bargaining over the policy as to University employees. The Board also found, however, that the University was not privileged to implement the vaccination policy before completing negotiations over its effects because it did not meet and confer in good faith prior to implementation. Based on these findings, the University’s implementation of the vaccination policy constituted an unlawful unilateral change in violation of HEERA.

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Perc Vol: 46
Perc Index: 38

Decision Headnotes

601.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000)
601.03000 – Decision vs Effects Bargaining

The decision to require influenza vaccinations in response to a public health hazard that affects not just employees, but also students and the general population, was not amenable to collective bargaining. (p. 24.)

601.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000)
601.03000 – Decision vs Effects Bargaining

Before implementing a non-negotiable change, the parties must first negotiate over aspects of the change that impact matters within the scope of representation. Once a firm non-negotiable decision is made, the employer must “provide notice and a meaningful opportunity to bargain over the reasonably foreseeable effects of its decision before implementation, just as it would be required to do before making a decision on a mandatory subject of bargaining.” (p. 28.)

602.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION)
602.01000 – In General

Under HEERA, “[a] subject is within the scope of representation” “as a ‘term or condition of employment’” “if: (1) it involves the employment relationship, (2) it is of such concern to both management and employees that conflict is likely to occur and the mediatory influence of collective bargaining is an appropriate means of resolving the conflict, and (3) the employer’s obligation to negotiate would not unduly abridge its freedom to exercise those managerial prerogatives (including matters of fundamental policy) essential to the achievement of the employer’s mission.” (p. 23.)

602.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION)
602.01000 – In General

Mandatory influenza vaccination is not an issue that tends to create conflict between employees and management that could be resolved through collective bargaining. The subject of influenza vaccinations is not one that divides people along management-union lines, but rather splits people—students, faculty, and staff—into those who can and will get vaccinated versus those who cannot or will not get vaccinated. Thus, the decision to require influenza vaccinations in response to a public health hazard that affects not just employees, but also students and the general population, was not amenable to collective bargaining.

602.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION)
602.01000 – In General

The University issued the mandatory influenza vaccination policy because of grave concerns by its experts (as well as the California Department of Public Health and the Centers for Disease Control and Prevention) that the 2020-2021 flu season, combined with the ongoing COVID-19 global pandemic, had the potential to overwhelm its hospitals due to the simultaneous spread of both respiratory illnesses. The implementation of the University’s influenza vaccination policy was a direct response to a potential confluence of the COVID-19 global pandemic and an outbreak of the influenza virus causing catastrophic outcomes and needless loss of life. This potential catastrophe affected not just University employees, but also its students and the general public who may have needed to use University hospitals. Under these unprecedented circumstances, requiring the University to negotiate the decision to require influenza vaccination would abridge its right to determine public health policy during a pandemic. (p. 25.)

602.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION)
602.02000 – Prior Notice and Opportunity to Bargain

The University issued the Executive Order mandating influenza vaccinations on July 31, but did not provide notice of the change to Charging Parties until August 7. The University clearly did not give Charging Parties advance notice or an opportunity to meet and confer before reaching a firm decision. (p. 22.)

602.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION)
602.03000 – Change In Policy

The Executive Order changed the written policy for a subset of the medical center employees, and also created a new policy for employees who work at locations other than the medical centers, as they were not previously required to receive an influenza vaccination. (p. 21.)

602.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION)
602.04000 – Time of Implementation

The University’s refusal to bargain over alternatives to discipline or unpaid leave for employees who did not comply with mandatory influenza vaccination policy was a failure to meet and confer in good faith prior to implementation. (pp. 29-30.)

605.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; OTHER PER SE VIOLATIONS
605.01000 – Outright Refusal to Bargain

The University’s refusal to bargain over alternatives to discipline or unpaid leave for employees who did not comply with mandatory influenza vaccination policy was a failure to meet and confer in good faith prior to implementation. (pp. 29-30.)

608.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES
608.06000 – Management-Rights Clause; Management Prerogative

Because the University relied on the management rights clause in its contracts with Charging Parties when making the decision to require influenza vaccinations, employees could be subject to similar vaccination mandates in the future. (p. 21.)

1000.00000 – SCOPE OF REPRESENTATION
1000.01000 – In General; Test for Subjects Not Specifically Enumerated

The University issued the mandatory influenza vaccination policy because of grave concerns by its experts (as well as the California Department of Public Health and the Centers for Disease Control and Prevention) that the 2020-2021 flu season, combined with the ongoing COVID-19 global pandemic, had the potential to overwhelm its hospitals due to the simultaneous spread of both respiratory illnesses. The implementation of the University’s influenza vaccination policy was a direct response to a potential confluence of the COVID-19 global pandemic and an outbreak of the influenza virus causing catastrophic outcomes and needless loss of life. This potential catastrophe affected not just University employees, but also its students and the general public who may have needed to use University hospitals. Under these unprecedented circumstances, requiring the University to negotiate the decision to require influenza vaccination would abridge its right to determine public health policy during a pandemic. (p. 25.)

1000.00000 – SCOPE OF REPRESENTATION
1000.02029 – Disciplinary Action

When a non-negotiable decision has foreseeable effects on discipline, such as creating a new type of evidence that may be used to support discipline or a new ground for discipline, those effects are negotiable. (p. 30.)

1000.00000 – SCOPE OF REPRESENTATION
1000.02077 – Leaves

Placing an employee on unpaid leave has a direct effect on wages, an enumerated subject within the scope of representation. (p. 30.)

1000.00000 – SCOPE OF REPRESENTATION
1000.02163 – Work Rules

The University’s influenza vaccination mandate was different from an influenza prevention policy requiring nurses who declined to get an immunization or take antiviral medication to wear masks while on duty, which was a work rule that affected nurses’ working conditions and thus was within the scope of representation. The University’s influenza vaccination mandate is more than a mere work rule because it applies to all individuals who work, live, or study on University premises. (p. 26.)

1105.00000 – CASE PROCESSING PROCEDURES; EVIDENCE
1105.06000 – Hearsay

Although a witness did not testify at the hearing, the statements attributed to him are not hearsay because they were made during negotiations while he was acting in his role as Executive Director of Systemwide Labor Relations, and therefore constitute party admissions, a recognized exception to the hearsay rule. Because his statements fall under an exception to the hearsay rule, they would be admissible in a civil action and thus can form the evidentiary basis for a factual finding. (p. 16.)

1200.00000 – REMEDIES FOR UNFAIR PRACTICES; CEASE AND DESIST ORDERS
1200.01000 – In General

Order to cease and desist from the unlawful conduct and to post physical and electronic notices of the violation was appropriate remedy for failure to meet and confer in good faith over effects before implementing a non-negotiable decision.

1203.00000 – REMEDIES FOR UNFAIR PRACTICES; BARGAINING ORDERS; REMEDIES AGAINST EMPLOYERS
1203.01000 – In General

Bargaining order not appropriate when influenza vaccination policy expired by its own terms at the end of the 2020-2021 flu season. (p. 32.)

1205.00000 – REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS
1205.01000 – In General

Order to cease and desist from the unlawful conduct and to post physical and electronic notices of the violation was appropriate remedy for failure to meet and confer in good faith over effects before implementing a non-negotiable decision.

1205.00000 – REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS
1205.01000 – In General

Although the unions presented no evidence that any employee suffered a loss as a result of noncompliance with the employer’s vaccination policy, an unfair practice finding creates a presumption that employees suffered some loss as a result of the employer’s unlawful conduct. Consistent with the presumption, the unions will have the opportunity to establish in compliance proceedings that any employees they represent suffered a loss as a result of the vaccination policy, such as discipline, unpaid leave, and out-of-pocket payment of vaccine costs. (p. 32.)

1205.00000 – REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS
1205.03000 – Notices; Posting, Reading, and Mailing

Order to cease and desist from the unlawful conduct and to post physical and electronic notices of the violation was appropriate remedy for failure to meet and confer in good faith over effects before implementing a non-negotiable decision.

1205.00000 – REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS
1205.07000 – Restoration of Status Quo

Although the unions presented no evidence that any employee suffered a loss as a result of noncompliance with the employer’s vaccination policy, an unfair practice finding creates a presumption that employees suffered some loss as a result of the employer’s unlawful conduct. Consistent with the presumption, the unions will have the opportunity to establish in compliance proceedings that any employees they represent suffered a loss as a result of the vaccination policy, such as discipline, unpaid leave, and out-of-pocket payment of vaccine costs. (p. 32.)

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.20000 – Other

After the hearing, the Board notified the parties that the consolidated cases had been placed on the Board’s docket for decision. PERB Regulation 32320, subdivision (a)(1) allows the Board itself to “[i]ssue a decision based upon the record of hearing.” PERB Regulation 32215 allows the Board itself to direct a Board agent to “submit the record of the case to the Board itself for decision.” The University asked the Board to remand the case to the ALJ for a proposed decision, arguing that the ALJ is better suited than the Board to make credibility determinations because he observed the witnesses testify at the hearing. After considering responses from Charging Parties, the Board denied the request.

1503.00000 – MISCELLANEOUS ISSUES; REGULATIONS
1503.01000 – In General

After the hearing, the Board notified the parties that the consolidated cases had been placed on the Board’s docket for decision. PERB Regulation 32320, subdivision (a)(1) allows the Board itself to “[i]ssue a decision based upon the record of hearing.” PERB Regulation 32215 allows the Board itself to direct a Board agent to “submit the record of the case to the Board itself for decision.” The University asked the Board to remand the case to the ALJ for a proposed decision, arguing that the ALJ is better suited than the Board to make credibility determinations because he observed the witnesses testify at the hearing. After considering responses from Charging Parties, the Board denied the request.

1503.00000 – MISCELLANEOUS ISSUES; REGULATIONS
1503.02000 – Regulations Considered (By Number)

After the hearing, the Board notified the parties that the consolidated cases had been placed on the Board’s docket for decision. PERB Regulation 32320, subdivision (a)(1) allows the Board itself to “[i]ssue a decision based upon the record of hearing.” PERB Regulation 32215 allows the Board itself to direct a Board agent to “submit the record of the case to the Board itself for decision.” The University asked the Board to remand the case to the ALJ for a proposed decision, arguing that the ALJ is better suited than the Board to make credibility determinations because he observed the witnesses testify at the hearing. After considering responses from Charging Parties, the Board denied the request.