Decision 2928M – SunLine Transit Agency

Except for cases involving alleged facial discrimination, PERB considers a charging party’s discrimination or retaliation claim under the framework set forth in Novato Unified School District (1982) PERB Decision No. 210 (Novato) and its progeny. Under the Novato framework, the charging party’s prima facie case requires each of the following four elements: (1) one or more employees engaged in activity protected by a labor relations statute that PERB enforces; (2) the respondent had knowledge of such protected activity; (3) the respondent took adverse action against one or more employees; and (4) the respondent 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. (Alameda Health System (2023) PERB Decision No. 2856-M, p. 27.) If the charging party establishes a prima facie case, but the evidence also reveals a non-discriminatory reason for the decision, the respondent may prove, as an affirmative defense, that it would have taken the exact same action even absent protected activity. (Ibid.) In such “mixed motive” or “dual motive” cases, the question becomes whether the adverse action would not have occurred “but for” the protected activity. (Ibid.) (pp. 17-18.)

PERB-administered statutes protect most union and employee speech related to legitimate labor and employment concerns. (Mt. San Jacinto Community College District (2023) PERB Decision No. 2865, p. 18 (San Jacinto).) For instance, employees normally have a statutory right to criticize working conditions, management, or union leadership, if the criticism relates to advancing employee interests or is a logical extension of group activity. (Ibid.) Such speech does not lose protection merely because it is intemperate, disparaging, or inaccurate, or engenders ill feelings and strong responses, unless the employer meets its burden to prove such speech was maliciously dishonest or so insubordinate or flagrant as to create a substantial disruption or the serious risk thereof. (Id. at pp. 21-22.) The Board no longer applies a formulation derived from Rancho Santiago Community College District (1986) PERB Decision No. 602, which strung together a series of adjectives to describe the types of speech that could lose protection. (Id. at p. 13 [speech unprotected if “opprobrious, flagrant, insulting, defamatory, insubordinate, or fraught with malice”].) Instead, the Board applies one or both of the following two tests, depending on the nature of a respondent’s arguments asserting that speech has lost its protection. (See, e.g., Carpinteria Unified School District (2021) PERB Decision No. 2797, p. 14 (Carpinteria).) First, if an employer claims that union or employee speech loses protection because it is false, the employer must prove, by clear and convincing evidence, that the speech was maliciously false, meaning that the speaker either knew of its falsity or recklessly disregarded whether it was true or false. (San Jacinto, supra, PERB Decision No. 2865, p. 23.) Gross or extreme negligence as to a statement’s truth does not rise to the level of actual malice. (Ibid.) Second, if the employer claims that speech was flagrant or insubordinate and therefore disruptive, PERB conducts a fact-intensive inquiry that considers all relevant circumstances, including but not limited to: (1) the place of the discussion; (2) the subject matter of the discussion; (3) the nature of what occurred; and (4) the extent to which the speech or conduct at issue can fairly be said to have been provoked by the employer. (San Jacinto, supra, PERB Decision No. 2865, p. 22.) Where speech about workplace issues occurs off duty, it is normally more difficult for the employer to show that it loses protection. (Ibid.; but see Carpinteria, supra, PERB Decision No. 2797, p. 14, fn. 10 [employer can take adverse action against employee who threatens physical harm against a colleague, no matter when or by what means the employee conveys the threat].) (pp. 18-19.)

An employer can only restrict employees’ social media activity based on a showing of “special circumstances necessary to maintain production or discipline.” (Napa Valley Community College District (2018) PERB Decision No. 2563, p. 19 (Napa).) Indeed, while the Board held in Napa that e-mail is “a fundamental forum for employee communication in the present day, serving the same function as [employee] lunch rooms” (ibid.), the same is true for social media. (See, e.g., Alameda Health System (2023) PERB Decision No. 2856-M, pp. 7 & 34 [MMBA protected Facebook, Instagram, and Twitter posts showing employee wearing a garbage bag when there were insufficient gowns during COVID-19 pandemic].) If anything, it is normally more challenging to show special circumstances in restricting off-duty posts to a platform such as YouTube, which public employers neither own nor operate. Here, SunLine did not establish special circumstances. In fact, SunLine provided no evidence that viewers of Garcia’s videos, or viewers of any social media posts about SunLine, have ever been at significant risk of confusion because employees wore SunLine uniforms or failed to state that they were not speaking for SunLine. (pp. 21-22.)

It is unlikely that speech critical of management would be perceived as representing the employer’s opinion. Following similar reasoning, federal district courts have found no material risk of confusion when a union uses an employer’s name, logo, or other trademark as part of criticizing the company or attempting to organize its employees. (See, e.g., Trader Joe’s Company v. Trader Joe’s United (C.D.Cal.) 2024 WL 305697; Medieval Times USA, Inc. v. Medieval Times Performers United (D.N.J. 2023) 695 F.Supp.3d 593, 602-603 [collecting cases].) (p. 20 & p. 21, fn. 10.)

An employer normally must permit off-duty protected activities, including activity in nonwork times and/or nonwork areas. (County of Tulare (2020) PERB Decision No. 2697-M, p. 20.) Thus, an employer acts unlawfully if it bars protected communications “during the workday” or on the employer’s “premises” or “property,” because the employer must tolerate such communications to the same extent as it tolerates other nonofficial activities, such as during breaks. Here, SunLine did not allege that Garcia filmed or posted any videos during his work hours. (Ibid.) (p. 22, fn. 11.)

A union can contractually waive certain statutory rights, but only if the waiver is clear and unmistakable and does not seriously impair employees’ right to communicate about protected matters. (Regents of the University of California (Irvine) (2018) PERB Decision No. 2593-H, p. 10 & p. 11, fn. 9.) (p. 22, fn. 11.)

A non-contractual policy cannot support a contractual waiver defense. (City of Culver City (2020) PERB Decision No. 2731-M, p. 18.) (p. 22, fn. 11.)

A union can contractually waive certain statutory rights, but only if the waiver is clear and unmistakable and does not seriously impair employees’ right to communicate about protected matters. (Regents of the University of California (Irvine) (2018) PERB Decision No. 2593-H, p. 10 & p. 11, fn. 9.) (p. 22, fn. 11.)

A non-contractual policy cannot support a contractual waiver defense. (City of Culver City (2020) PERB Decision No. 2731-M, p. 18.) (p. 22, fn. 11.)

If the employer takes adverse action based upon speech that has a mix of protected and unprotected parts, PERB must resolve whether the employer would have taken exactly the same action based solely on the unprotected portions of the speech. (Carpinteria Unified School District (2021) PERB Decision No. 2797, pp. 18-20.) The Board found that the facts here did not fall into that pattern, because SunLine did not introduce any of the videos that gave rise to the written warning, nor did it prove that any part of those videos were unprotected. Accordingly, there was no non-discriminatory reason for discipline. (San Diego Unified School District (2019) PERB Decision No. 2634, p. 13, fn. 7 [no need to separately assess affirmative defense if charging party has already disproven it in as part of prima facie case]; County of Riverside (2018) PERB Decision No. 2591-M, p. 18 [where all speech was protected, there was no basis for a mixed motive defense].) (p. 23.)

An employer cannot establish an affirmative defense based on applying a policy in a manner that infringes on protected rights. (See, e.g., Arrow Elec. Co., Inc. v. National Labor Relations Bd. (6th Cir. 1998) 155 F.3d 762, 766-767 [where employer had policy barring “neglect of duty,” it could not rely on that policy as a non-discriminatory basis for terminating employees, because employees’ alleged neglect was in fact protected strike activity].) (p. 24.)

Placing an employee on involuntary paid leave pending a misconduct investigation constitutes adverse action. (Cabrillo Community College District (2015) PERB Decision No. 2453, p. 18.) (p. 24.)

An employer does not retaliate against or interfere with employee rights when it conducts an initial investigation of arguably protected activity based upon receiving a facially plausible complaint, provided that: (1) the nature of the complaint legitimately calls into question whether the employee conduct was protected; and (2) if the employer acquires information indicating that the alleged conduct was protected, the employer immediately ceases the investigation and notifies all affected employees regarding its outcome. (Chula Vista Elementary School District (2018) PERB Decision No. 2586, pp. 30-31.) Moreover, during its investigation, the employer must narrowly tailor its questions to the business necessity at hand—investigating a facially plausible complaint—while minimizing, to the greatest degree possible, inquiries that tend to chill protected activity. (See, e.g., William S. Hart Union High School District (2018) PERB Decision No. 2595, pp. 7-8 [employer exceeded scope of permissible inquiry by seeking identity of unit members who attended union meeting and substance of conversations with union steward].) Thus, PERB looks at the specific circumstances not only to determine whether the employer had adequate cause to commence an investigation despite its potential to chill protected activity, but also whether the employer unduly continued the investigation or otherwise violated the MMBA during its course. (Trustees of the California State University (Northridge) (2019) PERB Decision No. 2687-H, p. 4 & p. 5, fn. 6 (Trustees).) While an employer cannot continue its investigation after acquiring information indicating that the alleged conduct was protected, Garcia did now show that SunLine violated this principle. Indeed, Garcia’s failure to cooperate made him less able to provide the investigator with information showing that the MMBA protected his conduct (pp. 24-26.)

An employer does not retaliate against or interfere with employee rights when it conducts an initial investigation of arguably protected activity based upon receiving a facially plausible complaint, provided that: (1) the nature of the complaint legitimately calls into question whether the employee conduct was protected; and (2) if the employer acquires information indicating that the alleged conduct was protected, the employer immediately ceases the investigation and notifies all affected employees regarding its outcome. (Chula Vista Elementary School District (2018) PERB Decision No. 2586, pp. 30-31.) Moreover, during its investigation, the employer must narrowly tailor its questions to the business necessity at hand—investigating a facially plausible complaint—while minimizing, to the greatest degree possible, inquiries that tend to chill protected activity. (See, e.g., William S. Hart Union High School District (2018) PERB Decision No. 2595, pp. 7-8 [employer exceeded scope of permissible inquiry by seeking identity of unit members who attended union meeting and substance of conversations with union steward].) Thus, PERB looks at the specific circumstances not only to determine whether the employer had adequate cause to commence an investigation despite its potential to chill protected activity, but also whether the employer unduly continued the investigation or otherwise violated the MMBA during its course. (Trustees of the California State University (Northridge) (2019) PERB Decision No. 2687-H, p. 4 & p. 5, fn. 6 (Trustees).) While an employer cannot continue its investigation after acquiring information indicating that the alleged conduct was protected, Garcia did now show that SunLine violated this principle. Indeed, Garcia’s failure to cooperate made him less able to provide the investigator with information showing that the MMBA protected his conduct (pp. 24-26.)

An employer does not retaliate against or interfere with employee rights when it conducts an initial investigation of arguably protected activity based upon receiving a facially plausible complaint, provided that: (1) the nature of the complaint legitimately calls into question whether the employee conduct was protected; and (2) if the employer acquires information indicating that the alleged conduct was protected, the employer immediately ceases the investigation and notifies all affected employees regarding its outcome. (Chula Vista Elementary School District (2018) PERB Decision No. 2586, pp. 30-31.) Moreover, during its investigation, the employer must narrowly tailor its questions to the business necessity at hand—investigating a facially plausible complaint—while minimizing, to the greatest degree possible, inquiries that tend to chill protected activity. (See, e.g., William S. Hart Union High School District (2018) PERB Decision No. 2595, pp. 7-8 [employer exceeded scope of permissible inquiry by seeking identity of unit members who attended union meeting and substance of conversations with union steward].) Thus, PERB looks at the specific circumstances not only to determine whether the employer had adequate cause to commence an investigation despite its potential to chill protected activity, but also whether the employer unduly continued the investigation or otherwise violated the MMBA during its course. (Trustees of the California State University (Northridge) (2019) PERB Decision No. 2687-H, p. 4 & p. 5, fn. 6 (Trustees).) While an employer cannot continue its investigation after acquiring information indicating that the alleged conduct was protected, Garcia did now show that SunLine violated this principle. Indeed, Garcia’s failure to cooperate made him less able to provide the investigator with information showing that the MMBA protected his conduct (pp. 24-26.)