The use of current technology to track employees is almost irresistible to employers. This is especially true when an employee’s duties include being away from the employer’s base of operations. It seems easy for an employee to work personal errands or stops into their day without the employer ever being the wiser.
Shore Point Distribution Co. in New Jersey suspected just such misconduct on the part of one of its employees. Generally when the company had such suspicions it hired a private investigator to conduct surveillance on the individual. On this occasion, it also installed a gps device on the employee’s truck. The gps information confirmed the surveillance information from the investigator that the employee was stealing time. Based on the results of the investigation, the employer discharged the employee.
The employee’s union filed an unfair labor practice claiming that the installation the gps device and use of the information gathered from it as the basis for discipline was a mandatory subject of bargaining and was a unilateral change in the terms and conditions of employment prohibited by the National Labor Relations Act. The union claimed that the case should be decided similar to previous cases where the National Labor Relations Board found against employers for installing hidden cameras.
The NLRB, in its closing memo (no decision was issue in the case pursuant to the union’s withdrawal of it charge), found that while installation of the gps device was a unilateral action it did not materially change the terms and conditions of employment. Rather, it was just another method of enforcing existing rules of employment.
The NLRB noted that while installation of surveillance devices is a mandatory subject of bargaining, a unilateral change on a matter that is a mandatory subject of bargaining is only an unfair labor practice if it materially or substantially changes the terms or conditions of employment. Here, Shore Point had regularly used a private investigator, with the union’s knowledge, to investigate possible employee misconduct. Substituting a mechanical device for a human surveillance did not result in a materially change to either the employer’s practice or the employee’s conditions of employment.
Employers should note that while the position of the NLRB reinforces an employer’s right to monitor employees and to introduce new technology to the workplace to achieve that goal, it is not a blanket approval for employers to conduct hidden or secret surveillance of its employees. Substituting new methods for enforcing rules of conduct in place of old methods is probably permissible without prior bargaining, but expanding the scope of rule enforcement through technology may require the employer to at least bargain the impact of the action.
As we always note, while public sector employers in Illinois are not bound by NLRB advice or decisions, but the Illinois Public Labor Relations Board relies heavily on NLRB precedent. Absent decisions from the State’s public labor relations board, it is wise for public employers in Illinois to take heed of NLRB decisions on a subject.
