In September, we informed you that the Department of Labor Relations (DLR) had ruled that a Town had to bargain to agreement or impasse before it could implement a new cell phone policy. Town of Plymouth, 40 MLC 65 (2013). On January 30, 2014, the Commonwealth Employment Relations Board (CERB) rejected the Town’s appeal, but left open the possibility that it might allow an employer to implement, without bargaining, a narrowly drawn policy focused solely on safety.
Citing a balancing test that the DLR had endorsed for a cell phone policy that was unsuccessfully challenged by correctional officers in 2002, the Town asserted that its core managerial interest in preventing deadly accidents caused by distracted employees greatly outweighed the union’s right to bargain over implementation of the policy. CERB distinguished the correctional officers case on the basis that it involved specialized safety concerns inherent in prison work. Further, CERB noted that Plymouth’s policy went well beyond addressing safety considerations.
Besides prohibiting cell phone use while operating Town vehicles or equipment, it disallowed the possession or use of cameras/camera phones in the workplace without specific authorization, limited the use of Town-issued phones for personal business, and limited the making or taking of personal calls at work, with a violation of any part of the policy carrying with it discipline, up to and including discharge. CERB wrote, “Under these circumstances, the Board declines to parse portions of the Cell Phone Policy or to separately analyze fragments, such as the ban on use of Town-owned cell phones while operating Town-owned vehicles, to determine whether application of the balancing test would require a different result had the Town issued a policy more limited in scope and targeted to these safety considerations.”
