Is Electronic Surveillance Of Employees Impairing Employees’ Ability To Engage In Protected Activity?
By Brian Hendrix and Terry Potter
In 2022, unions represented just 6.8% of employees in private industry. Organized labor’s share of the workforce in the “mining, quarrying and oil and gas extraction” category was only slightly higher at 7.7%. Even in coal, unions only represent roughly 15% of the workforce.
Union membership in the United States peaked almost 70 years ago with 34.8% of all wage and salary workers were members. There are many reasons for the decline in organized labor’s share of the workforce, but the National Labor Relations Board (NLRB) is working hard to give unions every possible advantage when organizing.
The most recent example of these efforts is the NLRB’s General Counsel memorandum (23-02) regarding electronic surveillance by employers. As the NLRB sees it, employers’ electronic surveillance of employees is impairing employees’ ability to engage in protected activity. In doing so, the General Counsel refers to case law that is, for the most part, dated and well-known in terms of the “do’s and don’ts” of improper employer surveillance in the workplace.
The NLRB’s General Counsel does not, however, offer any defensible justification for this new focus. She fails to identify anything significant in terms of how electronic monitoring is taking place and by doing so diminishes her own legitimacy.
To be sure, there are a host of privacy issues that have developed over time with respect to this technology-driven society we live in today, but common sense and a 15-minute conversation with a 20-something can bring you back to reality regarding an individual employee’s ability to hide information from their employer or anyone else.
In the “old days” employees engaged in protected activity quite openly in the workplace by having discussions in the cafeteria or breakrooms, out in the parking lot or at the local VFW hall. One of the first signs of union organizing usually occurred when a manager visited a restroom and discovered an authorization card.
But that does not happen so much anymore. Unions and employees want to engage electronically. There is seldom any open solicitation or distribution in the workplace. Authorization cards are electronic in nature. Employees meet on Zoom calls or through some other electronic format.
Employers are not finding out about these discussions from electronic monitoring. They are finding out about it the old-fashioned way: when a sympathetic co-worker spills the beans. Word travels fast in many workplaces, and mines are no exception.
Out in the Open
Outside of union organizing, most of the protected concerted activity taking place now is openly presented to the world through an electronic platform far beyond the reach of any employer surveillance. It is not a secret. Oversharing information is the norm. Employees get their message out through social media. Simply review Twitter, Facebook and other social media platforms and you can see their concerns and protests posted throughout the internet over and over again.
Today, employees who have complaints or concerns about working conditions are much less hesitant to share them. Good employers encourage employees to speak up, particularly about safety and health issues. That’s particularly true for miners.
Generally speaking, miners are independent and resourceful. They have a strong sense of agency. They’re not shy. Of course, miners also have a statutory right under Section 105(c) of the Federal Mine Safety and Health Act to speak up. Section 105(c) protects miners who engage in protected activity from retaliation, and MSHA will aggressively investigate any 105(c) complaint and, if necessary, pursue cases against mine operators to make a complaining miner whole and penalize retaliatory actions.
So, the NLRB is focused on the wrong thing. The workplace is in trouble. The NLRB should not fence with windmills and create issues where there are none. They should stay away from settled issues and think outside the box. The NLRB should be focused on determining a way to help employers and their unions address the genuine worker shortage that exists in all sectors of our economy.
We need more trained, skilled workers in the workplace. There should be a concerted effort by all the employment-related agencies, both federal and state, to collaborate and develop a coordinated strategy to enhance apprentice training and other related programs to help employers recruit new workers.
Money is always tight, but the NLRB should be using its resources to address this primary issue rather than creating issues where there are none. Employers may look to unions to provide the workers they need, but unions, by themselves, cannot create a trained workforce. We have to work together to fix real problems on the front end, not the back end.
The NLRB should be targeting the source of the problem and work with other state and federal agencies, and employers, instead of promoting programs that simply have no beneficial effect upon the economy, and in particular, the employees the NLRB seems so concerned about.
Terry Potter is a former field attorney with the National Labor Relations Board (NLRB) and is a senior counsel at Husch Blackwell LLP. He represents employers in collective bargaining, arbitrations and union avoidance techniques. He can be reached at [email protected]
Brian Hendrix is a partner at Husch Blackwell LLP. As a member of the Energy & Natural Resources group, he advises clients on environmental, health and safety law, with a focus on litigation, incident investigations, enforcement defense and regulatory compliance counseling. He can be reached at [email protected].