Decision 2915Ha – Trustees of the California State University

For employer decisions falling within the scope of representation (sometimes called the “scope of bargaining”), a union need not demand to bargain if it first learns of the decision as a fait accompli. The same principle applies to a non-bargainable decision with bargainable effects, if the employer has begun implementation as of the date the union first learns of the decision. (pp. 21 & 23.)

Irrespective of whether an employer provides formal notice or relies on actual notice, such notice is only adequate (sometimes referred to as “sufficient” or “reasonable”) if: (1) the person receiving formal notice or obtaining actual notice is a union official with authority to act on behalf of the organization on the matter in question; (2) the union official recognizes, or reasonably should recognize, the change in or potential impact on a bargainable topic; and (3) there remains sufficient time for the union to consult with bargaining unit members, formulate a plan of action, draft information requests and receive responses, craft counterarguments and/or proposals, and bargain in good faith to impact or agreement before the employer reaches a firm decision (for bargainable decisions) or begins implementation (for decisions outside the scope of representation that have bargainable effects). Thus, the amount of notice that is sufficient will necessarily depend on the circumstances of each case, and parties would do well to err on the side of caution rather than assuming that only a particular amount of time is all that the law requires. (pp. 23-24.)

Although insufficient notice is an element of the prima facie case, and therefore part of the charging party’s burden for proving a unilateral change allegation, where the facts demonstrate, or the employer admits, that no formal notice was provided to the representative, the burden is the employer’s to prove its affirmative defense of waiver, and not the union’s to prove lack of notice as part of its prima facie case. However, if the employer establishes that the union obtained actual notice, the union has the burden of proof as to the temporal sufficiency or insufficiency of such actual notice. (pp. 24-25.)

Even if a union gains actual notice of an employer’s non-bargainable decision, and the employer has not yet begun to implement its decision as of the date the union obtains such notice, the employer must still comply with its pre-implementation duty to bargain over any reasonably foreseeable effects on terms and conditions of employment. Normally, this means bargaining in good faith to impasse or agreement before beginning implementation. (County of Santa Clara (2021) PERB Decision No. 2799-M, p. 25 [“An employer normally may not implement the decision while effects bargaining continues and instead must wait until the parties have reached agreement or impasse over the negotiable effects of the decision”].) (pp. 25-26.)

“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.)” (Trustees of the California State University v. Public Employment Relations Bd. (2026) 118 Cal.App.5th 90, 104.) (pp. 13-14.)

Decisions with reasonably foreseeable impacts on employee health or safety are a quintessential example of decisions that trigger an obligation to engage in effects bargaining. (International Assn. of Fire Fighters, Local 188, AFL-CIO v. Public Employment Relations Bd. (2011) 51 Cal.4th 259, 276-277; Salinas Valley Memorial Healthcare System (2012) PERB Decision No. 2298-M, p. 19.) Indeed, “where human health and safety are involved,” we should err on the side of finding a change is material enough to trigger bargaining even if it “will affect only a few employees.” (Solano County Employees’ Assn. v. County of Solano (1982) 136 Cal.App.3d 256, 262 (Solano).) Notably, Solano held this is true even when management seeks to make the workplace safer, over the union’s objection. (Ibid.) (p. 15.)

California State University claimed that it could address all relevant effects and implementation issues of relaxed student immunization policy as part of accommodating individual faculty members with disabilities. In reviewing this matter, the appellate court rejected this argument, noting that “laws prohibiting discrimination do not preclude enforcement of the right to be free from discrimination through the collective bargaining process.” (Trustees of the California State University v. Public Employment Relations Bd. (2026) 118 Cal.App.5th 90, 106 [collecting cases].) (p. 19.)

Irrespective of whether an employer provides formal notice or relies on actual notice, such notice is only adequate (sometimes referred to as “sufficient” or “reasonable”) if: (1) the person receiving formal notice or obtaining actual notice is a union official with authority to act on behalf of the organization on the matter in question; (2) the union official recognizes, or reasonably should recognize, the change in or potential impact on a bargainable topic; and (3) there remains sufficient time for the union to consult with bargaining unit members, formulate a plan of action, draft information requests and receive responses, craft counterarguments and/or proposals, and bargain in good faith to impact or agreement before the employer reaches a firm decision (for bargainable decisions) or begins implementation (for decisions outside the scope of representation that have bargainable effects). Thus, the amount of notice that is sufficient will necessarily depend on the circumstances of each case, and parties would do well to err on the side of caution rather than assuming that only a particular amount of time is all that the law requires. (pp. 23-24.) Although insufficient notice is an element of the prima facie case, and therefore part of the charging party’s burden for proving a unilateral change allegation, where the facts demonstrate, or the employer admits, that no formal notice was provided to the representative, the burden is the employer’s to prove its affirmative defense of waiver, and not the union’s to prove lack of notice as part of its prima facie case. However, if the employer establishes that the union obtained actual notice, the union has the burden of proof as to the temporal sufficiency or insufficiency of such actual notice. (pp. 24-25.)

Even if a union gains actual notice of an employer’s non-bargainable decision, and the employer has not yet begun to implement its decision as of the date the union obtains such notice, the employer must still comply with its pre-implementation duty to bargain over any reasonably foreseeable effects on terms and conditions of employment. Normally, this means bargaining in good faith to impasse or agreement before beginning implementation. (County of Santa Clara (2021) PERB Decision No. 2799-M, p. 25 [“An employer normally may not implement the decision while effects bargaining continues and instead must wait until the parties have reached agreement or impasse over the negotiable effects of the decision”].) (pp. 25-26.)

When an employer, having reached a decision that falls outside the scope of bargaining, believes in good faith that its decision has no reasonably foreseeable effects on terms and conditions of employment, “before refusing to negotiate, [the] employer 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.” (Trustees of the California State University v. Public Employment Relations Bd. (2026) 118 Cal.App.5th 90, 112 [citations and internal quotation marks omitted].) Indeed, “[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.” (Ibid. [citations and internal quotation marks omitted].) The court clarified 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.” (Id. at p. 114 [emphasis in original].) Just as an employer acts at its peril if it mistakenly refuses to bargain over a bargainable decision (or bargainable effects), a union acts at its peril if, as here: (1) an employer’s decision falls outside the scope of representation but has bargainable effects; (2) the employer, acting on a good faith doubt as to whether there are bargainable effects, seeks a clarification meeting; and (3) the union refuses to meet because it believes the employer has already commenced implementation, but the union ultimately fails to prove the employer had in fact done so. (pp. 26-28 & fn. 11.)

To conform PERB precedent to the court’s holding in Trustees of the California State University v. Public Employment Relations Bd. (2026) 118 Cal.App.5th 90, 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” (id. at p. 114), PERB clarified any contrary suggestions found in the following decisions: Rio Hondo Community College District (2013) PERB Decision No. 2313, p. 12; City of Palo Alto (2017) PERB Decision No. 2388a-M, p. 34; and County of Orange (2018) PERB Decision No. 2594-M, p. 27. The Board noted, however, that City of Palo Alto, supra, PERB Decision No. 2388a-M remains correct in holding that an employer cannot comply with its duty merely via comments at a public meeting of the employer’s governing board. (Id. at p. 34.) (p. 27 & fn. 10.)

Faculty union established the right to bargain over reasonably foreseeable health and safety effects of a student vaccination policy. Faculty union therefore has the option to demand such negotiations. (pp. 19 & 28.)

When an employer, having reached a decision that falls outside the scope of bargaining, believes in good faith that its decision has no reasonably foreseeable effects on terms and conditions of employment, “before refusing to negotiate, [the] employer 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.” (Trustees of the California State University v. Public Employment Relations Bd. (2026) 118 Cal.App.5th 90. 112 [citations and internal quotation marks omitted].) Indeed, “[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.” (Ibid. [citations and internal quotation marks omitted].) (pp. 26-28 & fn. 11.)

To conform PERB precedent to the court’s holding in Trustees of the California State University v. Public Employment Relations Bd. (2026) 118 Cal.App.5th 90, 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” (id. at p. 114), PERB clarified any contrary suggestions found in the following decisions: Rio Hondo Community College District (2013) PERB Decision No. 2313, p. 12; City of Palo Alto (2017) PERB Decision No. 2388a-M, p. 34; and County of Orange (2018) PERB Decision No. 2594-M, p. 27. The Board noted, however, that City of Palo Alto, supra, PERB Decision No. 2388a-M remains correct in holding that an employer cannot comply with its duty merely via comments at a public meeting of the employer’s governing board. (Id. at p. 34.) (p. 27 & fn. 10.)

California State University claimed that it could address all relevant effects and implementation issues of relaxed student immunization policy as part of accommodating individual faculty members with disabilities. In reviewing this matter, the appellate court rejected this argument, noting that “laws prohibiting discrimination do not preclude enforcement of the right to be free from discrimination through the collective bargaining process.” (Trustees of the California State University v. Public Employment Relations Bd. (2026) 118 Cal.App.5th 90, 106 [collecting cases].) (p. 19.)

Irrespective of whether an employer provides formal notice or relies on actual notice, such notice is only adequate (sometimes referred to as “sufficient” or “reasonable”) if: (1) the person receiving formal notice or obtaining actual notice is a union official with authority to act on behalf of the organization on the matter in question; (2) the union official recognizes, or reasonably should recognize, the change in or potential impact on a bargainable topic; and (3) there remains sufficient time for the union to consult with bargaining unit members, formulate a plan of action, draft information requests and receive responses, craft counterarguments and/or proposals, and bargain in good faith to impact or agreement before the employer reaches a firm decision (for bargainable decisions) or begins implementation (for decisions outside the scope of representation that have bargainable effects). Thus, the amount of notice that is sufficient will necessarily depend on the circumstances of each case, and parties would do well to err on the side of caution rather than assuming that only a particular amount of time is all that the law requires. (pp. 23-24.) Although insufficient notice is an element of the prima facie case, and therefore part of the charging party’s burden for proving a unilateral change allegation, where the facts demonstrate, or the employer admits, that no formal notice was provided to the representative, the burden is the employer’s to prove its affirmative defense of waiver, and not the union’s to prove lack of notice as part of its prima facie case. However, if the employer establishes that the union obtained actual notice, the union has the burden of proof as to the temporal sufficiency or insufficiency of such actual notice. (pp. 24-25.)

Irrespective of whether an employer provides formal notice or relies on actual notice, such notice is only adequate (sometimes referred to as “sufficient” or “reasonable”) if: (1) the person receiving formal notice or obtaining actual notice is a union official with authority to act on behalf of the organization on the matter in question; (2) the union official recognizes, or reasonably should recognize, the change in or potential impact on a bargainable topic; and (3) there remains sufficient time for the union to consult with bargaining unit members, formulate a plan of action, draft information requests and receive responses, craft counterarguments and/or proposals, and bargain in good faith to impact or agreement before the employer reaches a firm decision (for bargainable decisions) or begins implementation (for decisions outside the scope of representation that have bargainable effects). Thus, the amount of notice that is sufficient will necessarily depend on the circumstances of each case, and parties would do well to err on the side of caution rather than assuming that only a particular amount of time is all that the law requires. (pp. 23-24.) Although insufficient notice is an element of the prima facie case, and therefore part of the charging party’s burden for proving a unilateral change allegation, where the facts demonstrate, or the employer admits, that no formal notice was provided to the representative, the burden is the employer’s to prove its affirmative defense of waiver, and not the union’s to prove lack of notice as part of its prima facie case. However, if the employer establishes that the union obtained actual notice, the union has the burden of proof as to the temporal sufficiency or insufficiency of such actual notice. (pp. 24-25.)

Irrespective of whether an employer provides formal notice or relies on actual notice, such notice is only adequate (sometimes referred to as “sufficient” or “reasonable”) if: (1) the person receiving formal notice or obtaining actual notice is a union official with authority to act on behalf of the organization on the matter in question; (2) the union official recognizes, or reasonably should recognize, the change in or potential impact on a bargainable topic; and (3) there remains sufficient time for the union to consult with bargaining unit members, formulate a plan of action, draft information requests and receive responses, craft counterarguments and/or proposals, and bargain in good faith to impact or agreement before the employer reaches a firm decision (for bargainable decisions) or begins implementation (for decisions outside the scope of representation that have bargainable effects). Thus, the amount of notice that is sufficient will necessarily depend on the circumstances of each case, and parties would do well to err on the side of caution rather than assuming that only a particular amount of time is all that the law requires. (pp. 23-24.) Although insufficient notice is an element of the prima facie case, and therefore part of the charging party’s burden for proving a unilateral change allegation, where the facts demonstrate, or the employer admits, that no formal notice was provided to the representative, the burden is the employer’s to prove its affirmative defense of waiver, and not the union’s to prove lack of notice as part of its prima facie case. However, if the employer establishes that the union obtained actual notice, the union has the burden of proof as to the temporal sufficiency or insufficiency of such actual notice. (pp. 24-25.)