IS AGENCY USE OF GPS MONITORING I&I NEGOTIABLE?
FLRA has not stepped up to this question yet, but sooner or later an agency is going to use this equipment to monitor employees conduct, if not performance. But it is fair to ask even now what right will the union have to demand that the agency first bargaining procedural and appropriate arrangements before flipping the switch on this technology? Often the courts and Authority itself look to NLRB case law for guidance and the Board’s Office of Advice just issued a memorandum recommending that the agency not file a ULP charge when a private employer unilaterally implemented GPS. Check out the posting entitled, “Employer Had No Duty to Bargain Over Use of GPS Tracking Device,” by the McGuireWoods law firm summarizing the Board’s position. As with any legal decision, do not fixate on the bottom-line holding. It seems to us that had the employer actually changed working conditions by using GPS, e.g., gathered new data on employees never before captured, the outcome might have been different. Nonetheless, practitioners should tuck this one away in the back of their mind for the inevitable day they encounter workplace GPS monitoring.