The NLRB's Division of Advice recommended dismissal of an unfair labor practice charge alleging that an employer violated Section 8(a)(5) of the National Labor Relations Act by using a GPS tracking device to investigate an employee without first bargaining with the union. The Division of Advice's sensible conclusion was based on the specific facts of the case, as normally employers would have an obligation to bargain about the use of GPS tracking devices to monitor its employees.
In Shore Point Distribution Co., NLRB Case 22-CA-151053 (Div. of Advice October 15, 2015), the union was aware of and had no objection to the employer's practice of retaining a private investigator to follow employees suspected of stealing time and using any results obtained through the investigator's personal observations for disciplinary purposes. When the employer became concerned that one of its employees was stealing time, it hired an investigator to follow the employee. To facilitate the investigation, the employer placed a GPS tracking device on the employee's truck during the days he was being followed for the sole purpose of ensuring that the private investigator could both maintain and regain visual contact if he lost the employee.
In recommending dismissal, the Division of Advice noted that employers have a duty to bargain over a unilateral change in terms and conditions of employment, but only if that change is a "material, substantial, and significant one." For example, the Board has held that an employer's substitution of timeclocks for manual notations to record work time was not a material, substantial, and significant change in the employees' terms and conditions of employment because the rule itself that employees must record their time in and out remained unchanged. Similarly, Division of Advice had previously concluded that an employer that videotaped an employee suspected of workers compensation fraud had no duty to bargain over the use of the video camera because the employer had a practice of investigating such fraud using personal observation, and following the unilateral change, it merely obtained the same type of information through additional electronic means. As such, the unilateral change in those cases did not result "in more stringent requirements or would likely impact employment security." Given those decisions, the Division of Advice concluded that the employer in Shore Point similarly had no duty to bargain over the use of the GPS tracker in this particular instance:
the Employer has an established practice, to which the Union does not object, of retaining an investigator to follow employees suspected of stealing time. The information obtained by the GPS device was used in conjunction with the Private Investigator's personal observations and provides the same information that he could obtain by following the suspect Employee's truck. Indeed, on the one occasion that the Private Investigator apparently relied on the GPS, he used it only to help track the Employee when he lost sight of the truck in order to continue his personal observations. ... [T]he GPS device in this case merely provided a mechanical method to assist in the enforcement of an established policy.
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