On July 26, 2021, the Public Employment Relations Board issued a decision that held that the University of California was not required to negotiate the decision to implement a policy mandating influenza vaccination for all staff within the UC system, because the topic was outside of the scope of representation. In support of its decision, the Board stated, “the need to protect public health was not amenable to collective bargaining” and such need “outweighed the benefits of bargaining over the policy as to University employees.”

However, the board also concluded that the University was required to negotiate the effects of the decision before implementation. PERB concluded the University did not satisfy its requirement to meet and confer in good faith prior to implementation of the Executive Order, because it failed to negotiate the effects of its decision.

Long standing PERB precedent has held that an employer may implement a non-negotiable decision while continuing to negotiate the effects of that decision when: 1) the implementation date is based on an immutable deadline or an important managerial interest; 2) the employer gives sufficient advance notice of the decision and implementation date to allow for meaningful negotiations prior to implementation; and 3) the employer negotiates in good faith prior to implementation and continues to negotiate afterwards as to the subjects that were not resolved by virtue of implementation.