Nlra Case Notes

• Publication year: 2023
• Author: Maria Myers

NLRA CASE NOTES

AUTHORS*

Maria Myers

Hannah Weinstein

GENERAL COUNSEL'S NEW GUIDANCE ON ELECTRONIC MONITORING OF EMPLOYEES

Memorandum GC 23-02 (October 31, 2022)

On October 31, 2022, National Labor Relations Board (NLRB or Board) General Counsel (GC) Jennifer Abruzzo issued a memorandum entitled "Electronic Monitoring and Algorithmic Management of Employees Interfering with the Exercise of Section 7 Rights." In the memo, GC Abruzzo instructed Regional Offices to analyze whether the use of electronic monitoring or automated management technologies violates rights under Section 7 of the National Labor Relations Act (NLRA or Act). The memo also signaled the Office of the General Counsel's interest in prosecuting such cases and provides a framework that the General Counsel will pursue for determining when electronic surveillance violates the Act.

At the outset, GC Abruzzo noted that "the potential for omnipresent surveillance and other algorithmic-management tools [could] interfere with the exercise of Section 7 rights by significantly impairing or negating employees' ability to engage in protected activity and keep that activity confidential from their employer, if they so choose."¹

New technologies, GC Abruzzo explained, may present a risk of unlawful conduct (i.e., devices that track workers' movement, programs that log key strokes or otherwise monitor workers at their desks, as well as existing technologies like video or audio recording or GPS tracking).

Abruzzo provided several examples of ways that an employer could violate the Act through the use of these technologies. For example, an employer could use the technology to engage in unlawful surveillance, perhaps to discover the existence of protected activity. She explained that the technology could also be applied unlawfully to apply production quotas or efficiency standards in a discriminatory fashion.

In the memo, the General Counsel recommended that the Board adopt a framework for determining when the use of these new workplace technologies violates the Act. GC Abruzzo proposed that the Board adopt a presumption of interference when surveillance practices, viewed as a whole, "tend to interfere with or prevent a reasonable employee from engaging in activity protected by the Act."² Once the presumption is established, the burden would shift to the employer to show that the surveillance practices are "narrowly tailored to address a legitimate business need." If employer makes that showing, the General Counsel proposed that the Board engage in a balancing test to determine whether the Act permits the practices.³ If the Board finds that the employer's need to use the technology outweighs the employees Section 7 rights, the General Counsel will "urge the Board to require the employer to disclose to employees the technologies it uses to monitor and manage them, its reasons for doing so, and how it is using the information that it obtains."⁴

EMPLOYERS MAY NOT UNILATERALLY STOP DUES CHECKOFF AFTER CONTRACT EXPIRES

Valley Hosp. Med. Ctr, Inc., 371 N.L.R.B. 160 (September 30, 2022) (Valley Hospital II)

In Valley Hospital II, reversing its 2019 decision in Valley Hosp. Med. Ctr., Inc., 368 N.L.R.B. 139 (2019) (Valley Hospital I), the Board held that dues checkoff is a status quo obligation that employers must continue to honor even after the expiration of the collective bargaining agreement. The Board's 3-2 decision reinstates the previous rule under Lincoln Lutheran of Racine, 362 N.L.R.B. 1655 (2015): "an employer, following contract expiration, must continue to honor a dues-checkoff arrangement established in that contract until

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either the parties have reached a successor collective-bargaining agreement or a valid overall bargaining impasse permits unilateral action by the employer."⁵

The employer, Valley Hospital, is an acute care hospital facility located in Las Vegas. In February 2018, about 13 months after the expiration of the parties' collective bargaining agreement, the employer informed the union that it would no longer honor the dues checkoff clause that required the employer to deduct dues from employees and remit those dues to the union. Valley Hospital gave the union only five days' notice of its intended action and no opportunity to bargain.

The general rule under...