Can a Union Stop Workplace Monitoring? Bargaining Rights

A union cannot make monitoring illegal. What it can do, in a unionized workplace, is make monitoring something the employer has to negotiate rather than announce. Since 1997 the National Labor Relations Board has held that installing surveillance cameras is a mandatory subject of bargaining, and the same logic has been applied to GPS units, in-vehicle cameras and the data an employer collects about how fast people work. An employer that installs a new monitoring system without giving the union notice and a chance to bargain commits an unfair labor practice, and the Board can order it to bargain and, in some cases, to rescind discipline based on the data. That duty survived the change of administration in 2025, because it rests on Board decisions and court rulings rather than on the General Counsel memos that were rescinded.

This guide explains what the law requires of unionized employers, what it does not, how the Board's 2022 push to restrict "omnipresent surveillance" ended, where the Board stands in November 2026 with a restored quorum and a Republican majority, what unions have actually won in contracts, what public-sector labor boards require, and what non-union employees have. For the underlying state laws, see employee monitoring laws by state; for refusing monitoring as an individual, can I be fired for refusing monitoring.

The short answer

Monitoring is a mandatory subject of bargaining

Section 8(a)(5) of the National Labor Relations Act requires an employer to bargain with a certified union over "wages, hours, and other terms and conditions of employment." An employer may not change a mandatory subject unilaterally; it must give the union notice and an opportunity to bargain, and may implement only after reaching agreement or a good-faith impasse. The Board settled that monitoring is such a subject in Colgate-Palmolive Co., 323 NLRB 515 (1997), after a hidden camera was found in an air vent in a men's restroom and the company refused the union's demand to bargain over the placement and use of hidden cameras. The Board held that installation and use of hidden surveillance cameras is "plainly germane to the working environment," analogized it to drug testing, polygraphs and physical examinations, all of which it had already found bargainable, and said the union would have the same right "even if the union were newly elected."

The courts agreed. In Brewers and Maltsters, Local 6 v. NLRB, 414 F.3d 36 (D.C. Cir. 2005), reviewing the Board's Anheuser-Busch decision (342 NLRB 560 (2004)) about hidden cameras in a break area, the D.C. Circuit held that "the installation and use of hidden surveillance cameras in the workplace constitutes a mandatory subject of bargaining," rejected the company's argument that security concerns exempted it, and sent the case back for the Board to reconsider whether the employees disciplined on camera evidence should be made whole. The Seventh Circuit had reached the same conclusion in National Steel Corp. v. NLRB, 324 F.3d 928 (2003). The duty has since been applied in Board and advice cases to GPS units, telematics, in-cab cameras and electronic timekeeping, and it extends to "effects bargaining," meaning the union may demand negotiation over how data is used, who sees it, how long it is kept and whether it can support discipline, even where the decision to install is not itself bargainable.

The duty is fact-specific. In a 2015 advice memorandum (case 22-CA-151053) the Board's Division of Advice found no duty to bargain where an employer placed a GPS unit on one company vehicle to help a private investigator in a time-theft investigation of the kind the union already knew the employer conducted; the Division called it "a mechanical method to assist in the enforcement of an established policy and practice" rather than a "material, substantial, and significant" change. A single device in a single investigation under an existing practice is one thing; a fleet-wide camera rollout or a new productivity-scoring system is another.

Management-rights clauses and the waiver standard

Most collective bargaining agreements contain a management-rights clause reserving to the employer decisions about "methods, equipment and technology." Whether such a clause lets the employer install monitoring without bargaining depends on which test the Board applies, and the test has changed twice in six years.

• 2019 to 2024: contract coverage. In MV Transportation, 368 NLRB No. 66 (2019), the Board adopted the D.C. Circuit's "contract coverage" test: if a change "falls within the compass or scope of contract language that grants the employer the right to act unilaterally," no bargaining is required. Under that test a general clause reserving decisions about equipment often covered cameras.
• December 2024 to present: clear and unmistakable waiver. In Endurance Environmental Solutions, 373 NLRB No. 141 (December 10, 2024), a waste hauler installed video cameras across its truck fleet without notice to the union, relying on a clause allowing it to "implement changes in equipment." The Board overruled MV Transportation and returned to the older rule that a union waives its right to bargain over a specific subject only by language that clearly and unmistakably does so. General equipment language was not a waiver of bargaining over cameras, there was no bargaining history on cameras, and the Board ordered the company to bargain over both the decision and its effects on request.

Endurance remains Board law as of November 2026, but the General Counsel's August 2026 priorities memo (GC 26-04) lists the 2024 waiver decision among the precedents she has asked the Board to overrule, and the Board now has the Republican majority to do it. Until it does, a unionized employer that wants to deploy monitoring should assume a general management-rights clause does not cover it. A union that wants to preserve the right should bargain for a specific technology clause rather than rely on the default rule, because the default may revert to contract coverage.

Surveillance of union activity itself

A different rule applies in every workplace, union or not. Section 8(a)(1) makes it an unfair labor practice to interfere with, restrain or coerce employees in the exercise of their Section 7 rights, and the Board has long held that spying on union or other protected concerted activity, or creating the impression that it is being watched, is such interference. Photographing or videotaping employees at a picket line or handbilling, having a manager attend an organizing meeting, reviewing security footage specifically to identify who spoke to an organizer, or telling employees that the company "knows what is said" in the break room, are the classic violations. Monitoring software raises a modern version: an employer that uses productivity data or message logs to identify and act against employees who were organizing has used monitoring as surveillance, and the remedy includes reinstatement and back pay. The policies that make monitoring lawful for ordinary purposes do not license its use against protected activity.

The 2022 memo and what happened to it

On October 31, 2022 General Counsel Jennifer Abruzzo issued memorandum GC 23-02, "Electronic Monitoring and Algorithmic Management of Employees Interfering with the Exercise of Section 7 Rights." It directed the Board's regional offices to challenge employers' use of "omnipresent surveillance and other algorithmic-management tools" that tend to impair protected activity, naming cameras, location trackers, company phones, keystroke logging and productivity software, and urged the Board to adopt a framework under which monitoring that would tend to interfere with Section 7 activity was presumptively unlawful unless the employer showed a narrowly tailored business need that outweighed employees' rights, with a duty to disclose the technologies used, the reasons and the uses of the data even then. Had the Board adopted it, the memo would have reached non-union workplaces, where no bargaining duty applies.

The Board never ruled on the framework. On February 14, 2025 Acting General Counsel William Cowen issued GC 25-05, rescinding GC 23-02 along with about 30 other Abruzzo memos. A memo change does not alter Board law, and GC 23-02 had not become Board law, so the rescission simply ended the effort. Nothing in it touched Colgate-Palmolive, Anheuser-Busch or the surveillance doctrine, which is why the bargaining duty described above is unchanged. Crystal Carey, confirmed as General Counsel in December 2025 and sworn in January 2026, has issued no memorandum on monitoring; her August 2026 priorities memo addresses waiver, work rules and other subjects but not electronic surveillance.

Where the Board stands in 2026

The Board lost its quorum for most of 2025 after the removal of Member Wilcox and could not decide cases. Members Murphy and Mayer were confirmed in December 2025 and sworn in January 7, 2026; Murphy was designated Chairman in March 2026; and on August 7, 2026 the Senate confirmed James Macy and reconfirmed David Prouty, giving the Board four members, a 3-to-1 Republican majority and one vacancy. The Board therefore has the three votes it conventionally requires to overrule precedent. As of the most recent reports (September 2026) it had not yet overruled Endurance, Stericycle (the 2023 work-rules standard, under which a monitoring policy an employee could reasonably read as chilling protected activity is unlawful) or the other decisions the General Counsel has targeted. Employers and unions should expect movement on the waiver standard within the next year; the mandatory-subject rule itself, which rests on decades of precedent and two circuit court decisions, is not on the General Counsel's list.

What unions have won in contracts

Bargaining rights matter only if they are used. Monitoring clauses have become standard in logistics, telecommunications and public-sector agreements.

• UPS and the Teamsters (National Master Agreement 2023 to 2028). Article 6 requires UPS to meet with the union at least 45 days before any proposed technology change and bars drones, driverless vehicles and platooning for the contract term without bargaining. Section 6 prohibits discipline "based solely on technology": sensor and camera data cannot be the only basis for discipline, and the union's contract summary states that the agreement stopped the installation of driver-facing cameras, with UPS required to show that any such cameras are disabled. Driver-facing sensors may be used only to train new drivers. Critics within the union argue the contract text ("inward-facing cameras") leaves a loophole for sensors; the dispute illustrates how precisely such clauses need to be drafted.
• Communications Workers of America and AT&T. The union's bargaining reports describe monitoring language in the legacy AT&T contracts that took "many years of bargaining" to win, after a period in which members "lived in constant fear that their calls were being secretly monitored." The language limits secret monitoring and discipline based on evaluative monitoring of calls, and the union has repeatedly rejected company proposals to reopen it. Call-center monitoring remains, in the union's words, "a significant issue because of the stress and discipline associated with it."
• Other Teamsters freight agreements (TForce Freight, DHL) contain bars on inward-facing cameras on the UPS model, according to union summaries.
• Typical clauses in newer agreements: a technology committee with notice and information rights; a prohibition on discipline based solely on electronic data, or a requirement of corroboration by a supervisor's direct observation; limits on the use of monitoring for productivity quotas; data retention limits; a bar on monitoring in break rooms, locker rooms and vehicles during meal periods; and a requirement that employees be told what is collected.

Employers negotiating such clauses generally accept notice-and-bargain provisions and limits on sole-source discipline, and resist outright bans and retention limits that conflict with regulatory record-keeping duties. Our monitoring policy template and ethical monitoring playbook cover the provisions that tend to be agreed.

Public sector: state labor boards

Public employees are outside the National Labor Relations Act, but most states have their own bargaining statutes and labor boards, several of which have ruled on monitoring.

• California (Public Employment Relations Board): in San Bernardino Community College District (2018, Decision 2599) the Board held that a decision to place a GPS tracker on a work vehicle to track an officer's whereabouts was itself negotiable, because its primary purpose was to track employee activity rather than a core management function; two employees had been fired on the data. In Rio Hondo Community College District (2013, Decision 2313) camera installation for property protection was not itself negotiable but the effects, including use in evaluation and discipline, were, and the distinction between overt and covert cameras was held irrelevant.
• New York (Public Employment Relations Board under the Taylor Law): in CSEA v. Nanuet Union Free School District (2012) the Board held video surveillance used to monitor and investigate employees mandatorily negotiable because of the "job security, privacy and personal reputation" interests involved, while in CSEA v. County of Nassau (2008) employer-mandated GPS-enabled phones were found to have no greater privacy effect than a supervisor riding along. New York's board tends to separate the right to deploy equipment (often non-mandatory) from its use in discipline (mandatory).
• Massachusetts (Commonwealth Employment Relations Board): in City of Springfield (2015) installing GPS in public works trucks without notice and an opportunity to bargain was an unlawful unilateral change; the devices "vastly increased the amount of data the employer had to evaluate" and were "a significant change in the employer's monitoring practices."

Public employees also have Fourth Amendment protection against unreasonable searches, which the Supreme Court applied to a text-message audit in City of Ontario v. Quon (2010), and which constrains covert monitoring in ways that do not apply to private employers.

Non-union employees

Without a union there is no bargaining duty, and an employer may adopt monitoring on notice (or, outside New York, Connecticut and Delaware, without notice). Section 7 still protects non-union employees who act together: two or more employees who object to a new monitoring program, circulate a petition, post about it in a group chat or bring a joint complaint are engaged in protected concerted activity, and discipline for it is an unfair labor practice that the Board will remedy with reinstatement and back pay. A single employee acting alone is protected only when acting on behalf of others or seeking to initiate group action. The Board cannot order a non-union employer to stop monitoring generally; it can order it to stop monitoring protected activity and to reinstate anyone fired for objecting collectively. The Stericycle standard also lets non-union employees challenge a monitoring policy whose wording would reasonably chill protected activity, for example a rule that all communications on company systems may be reviewed "to identify disparagement of the company," though the General Counsel has told regions to deprioritize such cases and the Board may revisit the standard. For the practical limits on what monitoring can reach, see Teams and Slack monitoring; for organizing a response, the guide to asking HR what is monitored covers the first step.

Key takeaways

• In a unionized workplace, installing or expanding monitoring (cameras, GPS, productivity software) is a mandatory subject of bargaining under Colgate-Palmolive (1997) and Brewers and Maltsters v. NLRB (D.C. Cir. 2005); the employer must give notice and bargain before implementing.
• Since Endurance Environmental Solutions (December 2024) a general management-rights clause about equipment does not waive bargaining over cameras; only clear and unmistakable language does. The General Counsel has asked the Board to overrule that decision.
• Surveillance of union or other protected activity, or creating the impression of it, violates Section 8(a)(1) in every workplace, union or not, and monitoring data used to identify organizers is unlawful surveillance.
• The 2022 General Counsel memo seeking to presume omnipresent monitoring unlawful (GC 23-02) was rescinded in February 2025 without ever becoming Board law; the bargaining duty does not depend on it.
• The Board regained a quorum in January 2026 and has had a 3-to-1 Republican majority since August 2026; it had not overruled Endurance or Stericycle as of September 2026 but is expected to revisit the waiver standard.
• The 2023 UPS-Teamsters agreement bars discipline based solely on technology, requires 45 days' notice of technology changes and stopped driver-facing cameras; CWA contracts limit secret call monitoring.
• Public employees in California, New York and Massachusetts have won labor board rulings requiring bargaining over GPS and cameras; non-union employees have no bargaining right but are protected when they object collectively.