Bargaining Not Required Over GPS Used to Enhance Past Monitoring Practice: NLRB General Counsel's Office | Practical Law

Bargaining Not Required Over GPS Used to Enhance Past Monitoring Practice: NLRB General Counsel's Office | Practical Law

The Office of the General Counsel of the National Labor Relations Board (NLRB) issued an advice memorandum finding that an employer's use of a global positioning system device (GPS) to track an employee, that led to the employee's discharge, was not a material change to employment terms and conditions and therefore did not violate Section 8(a)(5) of the National Labor Relations Act (NLRA).

Bargaining Not Required Over GPS Used to Enhance Past Monitoring Practice: NLRB General Counsel's Office

by Practical Law Labor & Employment
Published on 10 Nov 2015 • USA (National/Federal)
The Office of the General Counsel of the National Labor Relations Board (NLRB) issued an advice memorandum finding that an employer's use of a global positioning system device (GPS) to track an employee, that led to the employee's discharge, was not a material change to employment terms and conditions and therefore did not violate Section 8(a)(5) of the National Labor Relations Act (NLRA).
On October 15, 2015, the Division of Advice of the NLRB's Office of the General Counsel released an advice memorandum finding that:
  • An employer's use of a global positioning system device (GPS) to track an employee, that led to the employee's discharge, was a mandatory subject of bargaining but was not a material change to the employee's terms and conditions of employment.
  • The employer did not violate its duty to bargain under Section 8(a)(5) of the NLRA.
(Shore Point Distrib. Co., Inc., N.L.R.B. Gen Counsel Advice Mem. Case No. 22-CA-151053, (Oct. 15, 2015).)
The employer, a beverage distributor, suspected one of its unionized drivers was stealing time in violation of a work rule outlined in the employer's collective bargaining agreement (CBA) with the union. The employer:
  • Following past practice that the union did not object to, hired a private investigator to follow the employee suspected of stealing time.
  • Installed a GPS on the employee's truck.
The private investigator confirmed, mainly through personal observation, that the employee was taking personal detours and taking longer than necessary to complete routes. Therefore, the employer terminated the employee.
The union filed a charge alleging that the employer violated the NLRA by unilaterally installing the GPS. An NLRB regional office sought guidance from the Division of Advice on whether the employer's installation of the GPS violated the NLRA.
The Division of Advice found that:
  • The employer's installation of the GPS to monitor and to use to potentially discipline the employee was a mandatory subject of bargaining (Colgate-Palmolive Co., 323 N.L.R.B. 515, 515-16 (1997)).
  • The GPS installation was not a substantial material change triggering a duty to bargain with the union because:
    • the private investigator relied mainly on personal observation, consistent with the employer's past practice of conducting investigations of suspected employee misconduct;
    • the employer did not use information from the GPS separately from the investigator's personal observations to discipline the employee; and
    • information from the GPS did not significantly increase the likelihood that the employee would be disciplined.
    (PPG, Inc., NLRB Gen. Counsel Advice Mem., Case No. 6-CA-33492, (Nov. 3, 2003).)