General Counsel Abruzzo continues in her efforts to micromanage your workplace by any means possible. She has issued one General Counsel Guidance Memo after another in her attempts to over-regulate your workplace. The basic premise with respect to her most recent GC memo, 23-02, is her alleged concern that electronic surveillance by employers is impairing employees’ ability to engage in protected concerted activity and keeping that activity confidential from their employer. 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 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. Do not get me wrong – I think there are a lot 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.
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. Employees are hardly going underground with their protests regarding working conditions. Twenty years ago nobody would be aware of any group of employees in a small coffee shop in the middle of Ohio having any concerns regarding their working conditions.
So this is the wrong focus. 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 workers in the workplace, especially in the trades, but also elsewhere, like in healthcare. 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’s limited resources should address this primary issue rather than creating issues where there are none. Employers turn to unions for help, 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. Target the source of the problem and work with other state and federal agencies, AND EMPLOYERS, Ms. Abruzzo, instead of promoting programs that simply have no beneficial effect upon the economy, and in particular, the employees you seem so concerned about.
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