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These days there is rarely good news for employers stemming from the National Labor Relations Board (NLRB). A rare bit of welcome news, however, was issued recently by the NLRB, finding that an employer did not violate the National Labor Relations Act (NLRA) when it installed a GPS device in a company vehicle operated by a unionized employee who was subsequently fired for misreporting his time (i.e. stealing).

The facts of the case are important in understanding the decision. Suspecting its employee of misreporting his time, the company hired a private investigator to tail the employee to see what he was doing during the day when he should have been working. Additionally, the company installed a GPS device, which the investigator used only once when he lost the employee. As expected the investigator found the employee was not working, but instead was driving around doing non-work things. Based on the investigator’s report the company fired the employee.

The decision is not necessarily an upheaval of long precedent establishing that surveillance of union (bargaining unit) employees is a mandatory subject of bargaining. It is, however, a nuanced situation where a company did not follow the exact requirements of the NLRA, but because their failure did not have a material impact on the termination the NLRB excused it. In this case the company did not bargain over the use of the GPS device and went ahead and installed it in the suspect employee’s vehicle. However, the agency found that in the end it did not constitute a “material, substantial, and significant change in the employees’ terms and conditions of employment” so the company’s installation of the device did not violate the NLRA. The reason for this finding was that the company had sufficient cause to terminate the employee based on the investigator’s report and the GPS never really came into play in the decision. Based on this, the NLRB advised the local agency to dismiss the claim.

Thompson Coe and myHRgenius Tip of the Week is not intended as a solicitation, does not constitute legal advice, and does not establish an attorney-client relationship.


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Kevin M. Mosher

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