Calling All Employers: New DLR Decision Weighing in on Town’s Cell Phone Use Policy

[t]he Town’s duty to bargain was not eliminated simply because it raised the issue of safety.” At issue was the Town’s implementation of a policy that addressed the use of cell phones during work hours. The policy limited the use of Town-issued phones for personal calls, prohibited use of Town and personal cell phones while operating a Town vehicle/equipment, limited personal calls at work, and provided for disciplinary action, up to and including discharge, for violating the policy. The Town approved and implemented the policy without bargaining with the Union.

The Town defended its implementation of the Policy on safety grounds. According to the Town, the use of cell phones while driving was prohibited because, “Safety must come before all other concerns and talking while operating a vehicle is an unnecessary distraction.”

At first glance, the Town’s policy appears   reasonable. After all, in 2002, the DLR upheld a similar policy in In the Matter of Suffolk County Sheriff’s Dep’t. (Suffolk County Sheriff’s). In Suffolk County Sherriff’s, the Department instituted a policy prohibiting jail officers from using private cell phones on the job, without first bargaining with the Union. After balancing the employees’ interest in bargaining over the policy with the employer’s interest in maintaining its   managerial rights, the DLR determined that the Department’s interest in ensuring that jail officers are able to provide for the care, custody and control of inmates without distraction, outweighed the employees’ interests in carrying their cell phones.

Applying the same balancing test in Plymouth, the DLR concluded that the Town’s interests in the safe operation of vehicles and conducting town business without distraction, did not outweigh the Union’s interests in bargaining over a change in working conditions. Of  significance was the fact that the policy applied to all members of the union and not just those operating vehicles or in safety sensitive positions.

Following this decision, employers who seek to implement a cell phone use policy without first bargaining with the union, should consider who will be affected by the policy and whether those individuals hold safety sensitive positions. In addition, employers should consider drafting a   policy that impacts drivers and non-drivers differently.

Employers who are contemplating the implementation of a new, or revised cell phone policy should contact counsel with any questions.