Tracking Employee With GPS Didn’t Violate Law, NLRB Says

Source: Law360

By Alex Wolf

November 3, 2015

A New Jersey alcoholic beverage distributor that fired a unionized employee for stealing time didn’t violate labor laws by installing a GPS tracking device on the employee’s company truck to assist a private investigator following him, the National Labor Relations Board said in an advisory letter released Monday after the case was closed.

In a letter sent in mid-October from the NLRB’s office of the general counsel to a regional director in Newark, New Jersey, the agency advised that Shore Point Distribution Co. did not violate labor laws by failing to bargain with the International Brotherhood of Teamsters, Local 701, before installing a GPS device on the truck of an unnamed employee believed to be stealing company time.

Barry J. Kearny, associate general counsel of the NLRB’s Division of Advice, said the charge should be dismissed, absent withdrawal, because the most recent collective bargaining agreement between the parties contains work rules prohibiting stealing time and requiring that drivers adhere to federal regulations that they accurately account for their time.

Additionally, Kearney said that because the union is aware of and does not object to the company’s practice of retaining a private investigator to follow an employee suspected of stealing time and using any results obtained through observation for disciplinary purposes, and because the GPS was only used in conjunction with the investigator’s observations, the CBA was not violated.

“We conclude that the Employer’s installation and use of the GPS tracking device was a mandatory subject of bargaining but that it did not constitute a ‘material, substantial, and significant’ change in employees’ terms and conditions of employment,” the letter said. “Accordingly, the employer had no obligation to bargain over the use of the GPS device, and the charge should be dismissed absent withdrawal.”

A case update on the NLRB’s website shows the matter was closed after a withdrawal on Oct 28.

Representatives for the employee, Local 701 and the company did not immediately respond to requests for comment Tuesday.

According to the letter, Shore Point Distribution suspected in March that the employee was stealing time after noticing that he seemed to be taking more time than other drivers to complete the same routes. To evaluate the suspicion, the company hired a private investigator to follow the driver on his routes during a four-day period in April and videotape him engaging in certain activities, the letter said.

To facilitate the investigation, the Employer placed a GPS tracking device on the employee’s truck during the days he was being followed, which was used only to ensure that the investigator could both maintain and regain visual contact if he lost sight of the driver, the letter said.

The investigator personally observed the employee operating his truck in an unsafe and illegal manner, failing to follow specified delivery times, stealing time, and falsifying his daily log, according to the letter. On one occasion, the investigator lost visual contact with the driver but could tell from the GPS that his truck was stopped at the driver’s house during work hours, the letter said.

After he was terminated, the union filed a charge alleging that the company unilaterally installed the GPS device and engaged in electronic surveillance in violation of pertinent labor laws.

The NLRB general counsel acknowledged that the surveillance is a mandatory subject of bargaining, but that the union did not object to the company’s established practice of using an investigator. Moreover, the letter said, although the GPS information was of use to the investigator, it did not greatly increase the chance of the employee being disciplined.

The employee is represented by Paul Montalbano of Cohen Leder Montalbano & Grossman LLC.

The company is represented by Peter Stergios of McCarter & English LLP.

The case is Shore Point Distribution Co., case number 22-CA-151053, before the National Labor Relations Board, Region 22.