November 6, 2022 ✦ OnLabor

In news and commentary this weekend, IAM members voted to accept a revised contract agreement with railroad companies, and NLRB General Counsel Abruzzo released a new memo on employers’ unlawful use of electronic monitoring and automated management technology.

On Nov. 5, the International Confederation of Machinists and Aerospace Workers, District 19, announced that its approximately 4,900 locomotive mechanics, track mechanics and facility maintenance workers narrowly agreed to a revised contract agreement the union had struck with freight railroads. IAM members had rejected the original contract on September 14, a day before the White House announced an agreement between railroad companies and three other unions to prevent a nationwide strike. This time, 59% of the members voted and 52% of them accepted the deal. IAM acknowledged that “the agreement was not overwhelmingly accepted” and said it “will further compound deficiencies in airlines’ sick leave and attendance policies.” Two unions have rejected the tentative agreement reached in mid-September, mainly because of unhappiness over sick leave, which has created the possibility for a strike that could start as early as the end of this month. The Brotherhood of Railroad Signalmen, which represents over 6,000 workers who install and maintain signaling systems, voted to reject the tentative agreement in late October. The Brotherhood of Maintenance of Way Employees, which represents some 23,900 workers who build and maintain railroad tracks and bridges, also voted against the deal on Oct. 10. Last week, more than 300 industry groups, including the National Retail Federation and the National Association of Manufacturers, called for President Biden to take action to prevent a rail strike.

On October 31, Jennifer Abruzzo, General Counsel of the National Labor Relations Board (NLRB), released a new memo announcing her intent to protect employees from unlawful electronic surveillance and automated management practices. The memo notes that employers are increasingly recording workers’ conversations, tracking workers’ movements with phones or tracking devices, and monitoring workers’ computers with keyloggers, screenshots and webcam photos. GC Abruzzo expressed particular concern about technology that can be used to interfere with workers’ Section 7 rights to form a union or engage in concerted activities. The memo emphasizes that employers violate Section 8(a)(1) if they use novel technology to detect or monitor Section 7 activities inside or outside the workplace. Employers also violate Section 8(a)(1) if they discipline employees who collectively protest workplace surveillance or algorithmic management. In addition, employers violate Section 8(a)(3) by relying on artificial intelligence to screen applicants or discipline workers who are union supporters. Finally, the memo states that employers in unionized workplaces violate Section 8(a)(5) if they fail to provide information about and negotiate the adoption of tracking technologies.

GC Abruzzo also urged the Board to adopt a new framework to protect employees from electronic surveillance and management affecting Section 7 activities. In particular, she urges the Board to determine that an employer is alleged to have breached Section 8(a)(1) if “the employer’s supervisory and management practices taken as a whole would tend to annoy or inhibit a reasonable employee to engage in activities protected by law.” In support of this framework, the memo discusses the importance of workers’ rights to communicate with other workers in relation to self-organization on site and the confidentiality interests of workers engaged in activities after Section 7 are involved. GC Abruzzo recognizes that workers’ rights must be balanced against the legitimate business interests of the employer, but notes that employer practices must be closely tailored to those business needs. Other branches of government are also reacting to the increased use of workplace technology, as the US Equal Employment Opportunity Commission and the US Department of Justice recently warned employers against the use of AI, machine learning and other algorithmic decision-making tools in the employment context.

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