Motor Coach Operator Anthony Garcia filed an unfair practice charge with the Public Employment Relations Board (PERB) against his employer SunLine Transit Agency. Garcia alleged the SunLine violated the Meyers-Milias-Brown Act (MMBA) by retaliating against him via: 1) issuing Garcia a notice of an impending written warning in January 2022; 2) placing Garcia on paid administrative leave pending investigation in May 2022; and 3) firing Garcia in September 2022.
The case arose after SunLine retained an investigator to conduct two separate investigations into Garcia’s behavior. The first investigation concerned complaints that two of Garcia’s co-workers filed against him.
During the investigation, the investigator found several videos that Garcia posted to YouTube regarding SunLine. The videos commented about working conditions, health and safety issues, and alleged poor management. Garcia often expressed similar concerns at work about unsafe and poor working conditions at SunLine, such as worn-out driver’s seats on buses, that employees could not take breaks, and the lack of access to restrooms. He raised these issues with SunLine managers, and filed grievances.
The investigation exonerated Garcia on the coworker complaints, however, Garcia’s YouTube videos violated SunLine’s social media policy because Garcia was wearing his SunLine uniform and failed to state he was not speaking for SunLine. SunLine issued Garcia a Notice of Impending Discipline (NID) because of his violation of the social media policy.
The second investigation began after one of Garcia’s co-workers, Tiffany Moore, complained to SunLine’s Human Resources Department. Moore alleged Garcia stated in a YouTube video that Moore: used SunLine funds for personal use; and had contracted COVID. After the investigation concluded, SunLine placed Garcia on paid administrative leave. Garcia remained on that leave for the remainder of his time as a SunLine employee. This second investigation led to Garcia’s termination in September 2022 for unauthorized outside employment, among other things.
The Administrative Law Judge (ALJ) found MMBA violations on the first two of Garcia’s claims regarding the written warning and paid administrative leave pending investigation. The ALJ dismissed Garcia’s third claim that his termination was retaliatory. SunLine filed exceptions to the proposed decision, challenging the ALJ’s rulings in Garcia’s favor.
PERB rejected SunLine’s exception as to Garcia’s written warning. PERB applied the Novato framework for discrimination or retaliation claims: 1) one or more employees engaged in activity protected by a labor relations statute; 2) the employer had knowledge of the protected activity; 3) the employer took adverse action against one or more employees; and 4) the employer took the adverse action “because of” the protected activity, which PERB interprets to mean that the protected activity was a substantial or motivating cause of the adverse action. PERB found that SunLine issued Garcia the written warning because of Garcia’s social media videos, which concerned workplace complaints and related criticism of management. There was no evidence that Garcia’s videos were undeserving of protected status in that they were maliciously false and disruptive. PERB held that SunLine violated the MMBA when it issued Garcia an NID and related written warning
PERB sustained SunLine’s exception regarding its decision to place Garcia on paid administrative leave pending investigation. PERB reviewed whether Garcia’s protected activity was a substantial or motivating cause for the District’s decision to investigate him. PERB found that Moore’s complaint that Garcia falsely accused her of using SunLine funds for her use was a sufficiently plausible complaint to warrant beginning an investigation, even though the investigation involved off-duty social media activity that related to workplace concerns. SunLine thus did not violate the MMBA by placing Garcia on paid administrative leave pending investigation.
Because neither party challenged the ALJ’s dismissal of Garcia’s claim that SunLine terminated him for protected activity, PERB incorporated that dismissal into its order without expressing any opinion on it.