Labor Implications to Use of GPS
The use of GPS to track company owned vehicles is becoming more and more prevalent. When a contractor is looking to implement these types of tracking systems, they must also look at what implications this has for their collectively bargained employees. Specifically, contractors must be concerned with whether they have an obligation to bargain with the union over the installation of GPS units. Failure to bargain where the obligation exists may be an unfair labor practice under the National Labor Relations Act (NLRA).
What does the law say?
As a starting point, there is basic proposition under the law that before changing employees’ “wages, hours and other terms and conditions of employment” the NLRA obligates employers to bargain with their employees’ collective bargaining representative. NLRA §8(d), 29 USC § 158(d). “[A]n employer commits an unfair labor practice if, without bargaining to impasse, it effects a unilateral change of an existing term or condition of employment.” Litton Financial Printing Div. v. N.L.R.B. 501 U.S. 190, 198 (1991), citing NLRB v. Katz, 369 U.S. 736 (1962). However, “[c]ongress deliberately left the words ‘wages, hours, and other terms and conditions of employment’ without further definition, for it did not intend to deprive the [National Labor Relations] Board of the power further to define those terms in light of specific industrial practices.” First Nat. Maintenance Corp. v. N.L.R.B. 452 U.S. 666, 675 (1981).
Potential bargaining obligations relating to GPS technology are somewhat unclear. A distinction must be drawn between general, widespread implementation of GPS technology and the focused use of GPS solely to surreptitiously investigate the behavior of particular employees suspected of misconduct.
An employer is unlikely required to bargain in the latter situation. As to the former situation, an employer’s potential duty to bargain may depend on the extent to which employees’ movements or activities are already tracked, monitored or recorded at the time of implementing the new technology. The greater the resultant change to employees’ working conditions, the more likely that the employer must bargain before implementing the change. An employer’s bargaining obligations may also depend on the extent to which the technology is characterized as “investigatory” versus “managerial,” i.e., to what extent it’s intended to monitor employee misconduct or used as a basis for imposing discipline, versus to increase operational efficiency.
It should be noted that even if an employer is not required to bargain the implementation or effects of GPS technology, it may nonetheless be obliged to comply with a union’s information requests regarding the new technology.
What does this mean?
Whether a contractor has an obligation to bargain with the union before installation of GPS units to track movements will depend largely on the purpose of the GPS devices. GPS units used for the purpose of improving efficiency or protecting a contractor’s assets are likely permissible without bargaining. However, if the GPS is to be used for investigatory or disciplinary purposes, the employer has an obligation to bargain over it prior to installation.
Contractors who install GPS units without bargaining first should be aware that the union may raise an objection or even file unfair labor charges with the National Labor Relations Board. The union will most certainly object to information from the GPS being used in any disciplinary proceeding and will likely grieve the employer if it is used.
Contractors that wish to potentially use GPS for disciplinary purposes, among other reasons, can negotiate with the union individually. It does not need to wait until the multiemployer group bargains at the end of the contract. Where bargaining is required, implementation of GPS tracking should not occur until after reaching an agreement with the union or having reached impasse over the issue.
Contractors looking to install new GPS tracking systems are encouraged to seek guidance from their local chapter executive. SMACNA’s labor relations staff is also available to answer questions.