HR Minute

NLRB: It’s Okay to Fire Union Employees for Stealing (Sometimes)

The National Labor Relations Board’s (NLRB) Division of Advice determined recently that a wholesale beverage distributor had the right to fire a Teamsters-represented truck driver for falsifying time records or “stealing time.” The employee was fired because he reported that he was working when, in fact, he had gone home. 

Firing employees for falsifying time records isn’t usually a problem. But here, the company proved the wrongdoing by having a private investigator follow the employee, and the investigator’s efforts were aided by a GPS device the company installed on the employee’s truck. That was the problem. The Teamsters claimed the company acted unlawfully because it did not bargain with the Union before installing and using the GPS. 

The Union had ample support for its position. The NLRB has held that an employer’s use of physical examinations, drug and alcohol tests, hidden surveillance cameras, and vehicle data recorders are all mandatory subjects of bargaining.  That is, because the use of those tests and tools can significantly affect an employee’s continued employment, and because job security is clearly a term and condition of employment, an employer must bargain with a union representing its employees before implementing one of them. 

The Division of Advice agreed with the Union that, in general, the installation and use of GPS devices on employee-operated vehicles is a significant change that can affect job security. Consequently, in general, an employer must bargain before installing and using GPS devices on vehicles operated by its union-represented employees. 

This case was different, according to the Division, because the collective bargaining agreement between the company and the Union prohibited stealing time and required employees to keep accurate time records, and because the Union was aware of the company’s past use of private investigators to track employees suspected of stealing time. Because the practice of using investigators was established, and because installation and use of the GPS merely provided the information that could have been obtained by the investigator’s following the truck, the Division opined that use of the GPS was not a significant change in the employees’ terms and conditions of employment. Therefore, installation and use of the GPS in this instance was not a mandatory subject of bargaining, and the company had not acted unlawfully by firing the employee before bargaining with the union over use of the GPS.

So, the Employer won this battle. But the bigger lesson is this: the NLRB will take the position in most cases that an employer must bargain prior to installing and using GPS devices on Company vehicles operated by union-represented employees.

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