By Jim Cline and Stephen Hatton
In City of Cashmere, Decision 13429 (PECB, 2021), PERC Hearing Examiner Elizabeth Snyder dismissed a Teamsters Local 760 complaint alleging that the City had refused to bargain over its decision to implement a facial-recognition timekeeping system. Examiner Snyder rejected the City claim that the Teamsters had waived their right to bargain in their contract. But she also found that City’s decision to implement the system was a permissive subject of bargaining, and therefore she dismissed the Teamsters’ complaint.
In August 2020, the Union learned that the City was planning to install a new facial-recognition timekeeping technology to track employee time. Interestingly, the employees had not previously recorded when they arrived, took breaks, ate lunch, or left work. The Union Representative made a demand to bargain.
The City argued that different sections of the CBA gave them a management right to introduce automated methods of payroll timekeeping, and this technology fell within that category. These sections described how the employer had the right to maintain order and efficiency, change methods and procedures of new equipment and facilities, and improve and automate methods of keeping track of time for payroll purposes.
On the other hand, the Union argued that the new facial-recognition technology was a mandatory subject of bargaining that the City must negotiate with the Union over. The Union argued that the tech changes impacted their members’ working conditions – chiefly employee privacy rights – and were, therefore, mandatory subjects of bargaining.
Examiner Snyder dismissed the City’s waiver argument. She concluded that the management rights clause was not specific enough to include facial-recognition timekeeping technology as an area where the City has reserved its right to make changes as it pleased.
She then turned to the question of whether the technology was a mandatory subject of bargaining. Applying PERC standards, she balanced the City’s interest against the Union members’ interest and found that the City’s interest in managing its employees won out.
Examiner Snyder cited a PERC case where the Commission found that King County was not required to bargain its decision to install video cameras, as well as a National Labor Relations Board case where a Broadcasting company was not required to bargain its decision to install an electronic time clock system. In the PERC case, King County’s interest was to avoid robberies of its public works refuse stations. In the NLRB case, the employer’s interest was inefficient and productive operations. According to the Examiner:
Until a technological change impacts a working condition, the decision falls into the realm of entrepreneurial control. Similarly, in the present case, no working condition has changed as a result of the decision to install a new timekeeping method.
Snyder therefore found that the City’s interest in entrepreneurial control, mainly recording when employees were working more effectively, outweighed the Union’s interest in its members’ privacy, reasoning:
Potentially, this case could have been dismissed on the employer’s waiver defense. It was likely a close call. PERC is generally resistant to finding a contractual “waiver” of bargaining rights. They require waivers to be very subject-specific. But this contract language was fairly close to the technology subject at hand.
Based on the record as described, it is unsurprising that the union lost on the “scope of bargaining” issue. Generally, management has a right to make operational changes. PERC has been expansive in allowing employers to introduce new technologies. To make a technology change negotiable, the union has to demonstrate a fairly clear and immediate impact on working conditions. The Union’s evidence identified here was too vague and speculative to meet that standard.
As always, even if a decision is not bargainable, the effects of that decision may be. We always recommending demanding to bargaining on both the decision and the effects.
We are seeing other emerging technology issues in the workplace, especially cameras. The PERC case law is somewhat conflicted on these topics, but generally at least the impacts of these technologies (how they are to be used), are likely to trigger a duty to bargain. Don’t assume a change that impacts your members isn’t negotiable without a thorough analysis of how it impacts working conditions. Especially if there are impacts on discipline, the subject may be negotiable, at least as to how it would be used for discipline.
Our extensive “Subject of Bargaining” table helps provide guidance for when there is a duty to bargain. Some of these issues are a bit more esoteric, and often no case on point exists. But our table can help identify whether something may be bargainable based on patterns in PERC rulings.
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