PERB Limits Employer Discipline Based on Protected Social Media Speech: Garcia v. SunLine Transit Agency
In Garcia v. SunLine Transit Agency, PERB Decision No. 2928-M, the Public Employment Relations Board (PERB) addressed the limits of a public employer’s authority to discipline employees for off-duty social media activity that criticizes working conditions and management. The decision underscores that employee speech concerning workplace issues—particularly speech connected to union and concerted activity—remains protected under the Meyers-Milias-Brown Act (MMBA), even when the employer believes the speech is inappropriate, embarrassing, or disruptive.
Anthony Garcia worked as a motor coach operator for SunLine Transit Agency for more than 26 years and had an otherwise unblemished disciplinary record. During the period relevant to the case, Garcia was involved in a failed effort to decertify the incumbent union representing SunLine employees. For several years, Garcia had openly complained about what he viewed as unsafe and unsanitary working conditions, including worn-out bus seats, lack of restroom access during routes, and the inability of drivers to take breaks. He raised these concerns internally with management, through grievances under the memorandum of understanding, and externally by speaking to other employees and members of SunLine’s governing board.
Beginning in 2021, Garcia expanded his advocacy by posting videos on YouTube, including videos filmed while he was wearing his SunLine uniform. The videos criticized management practices and described working-condition concerns from the perspective of an employee. Two coworkers later filed complaints alleging Garcia had harassed them in connection with the union decertification effort. SunLine retained an outside investigator, who ultimately exonerated Garcia of the alleged harassment but concluded that Garcia’s YouTube videos violated the agency’s social media policy.
Based on that conclusion, SunLine issued Garcia a notice of impending discipline proposing a written warning for violating the social media policy. Notably, SunLine did not introduce the videos themselves into evidence before PERB, nor did the disciplinary notices specify how the videos violated agency policy beyond general references to the handbook. Garcia challenged the discipline through the contractual grievance process, and the written warning ultimately became final.
Several months later, Garcia resumed posting videos. One video featured his sister, a former SunLine employee, who accused a current manager of misusing agency funds and disclosed that the manager had contracted COVID. The manager filed a complaint alleging the video created a hostile work environment and disclosed confidential information. SunLine initiated a second investigation and placed Garcia on paid administrative leave pending the investigation. That investigation later expanded in scope and ultimately led to Garcia’s termination, though PERB ultimately did not find the termination itself to be retaliatory.
Garcia filed an unfair practice charge with PERB alleging retaliation for protected activity. Applying its long-standing Novato framework, PERB first examined whether Garcia’s YouTube activity constituted protected activity under the MMBA. PERB concluded that the videos addressed workplace conditions and management practices and therefore fell squarely within protected employee speech. PERB emphasized that employee speech does not lose protection merely because it is critical, uncomfortable, or disseminated publicly, and that off-duty social media activity is often afforded even greater protection absent a showing of special circumstances.
PERB rejected SunLine’s argument that Garcia’s speech lost protection because it was insubordinate, disruptive, or misleading. The agency failed to produce the videos at issue and therefore could not meet its burden of showing that the speech was so flagrant or disruptive as to lose MMBA protection. PERB further noted that it was unlikely a reasonable viewer would interpret a video criticizing SunLine management as expressing the agency’s official views simply because Garcia wore a uniform. The decision reaffirmed that employers bear a heavy burden when attempting to discipline employees for speech related to working conditions, particularly when the speech occurs off duty and on third-party platforms such as YouTube.
PERB concluded that SunLine violated the MMBA when it issued Garcia a written warning in retaliation for his protected social media activity. However, PERB reached a different conclusion regarding the second investigation and Garcia’s placement on paid administrative leave. PERB found that the complaint filed by the manager concerning alleged false accusations and disclosure of medical information was facially plausible and justified a narrowly tailored investigation. Because Garcia repeatedly refused to answer questions during the investigation, PERB determined that SunLine did not violate the MMBA by continuing the investigation or placing Garcia on paid leave pending its completion.
As a remedy for the unlawful written warning, PERB ordered SunLine to rescind and expunge the discipline, make Garcia whole for any resulting losses with interest, and cease retaliating against employees for protected social media activity. PERB declined, however, to broadly invalidate SunLine’s social media policy, concluding that such relief exceeded the scope of the complaint.
The Garcia decision serves as a reminder that public employers must tread carefully when responding to employee speech on social media. Even when speech is public, critical, or uncomfortable, it may remain protected if it concerns working conditions or labor relations. Disciplinary action based on such speech carries significant risk unless the employer can clearly establish that the speech falls outside statutory protection. At the same time, the decision confirms that employers may investigate facially plausible complaints and take interim measures, such as paid administrative leave, so long as those actions are properly tailored and not motivated by retaliation for protected activity.