PAX Centurion - March / April 2014

Page 28 • PAX CENTURION • March/April 2014 617-989-BPPA (2772) From Cell Phone on page 27 Cell phone privacy employees in a corrections facility from using private cell phones on duty is a managerial right (not subject to the bargaining obligation) because the jail’s interest in requiring correction officers to perform their safety and security-related duties without distraction outweighed the employ- ees’ interest in carrying private cell phones on duty. Suffolk County Sherriff’s Department, MUP-01-2979 (October 9, 2002 ). However, a DLR Hearing Officer held inAugust 2013 (in a decision affirmed by the full CERB on 1/30/14) that the implementation of a cell phone policy for DPW employees that prohibited the use and possession of cell phone cameras in the workplace, limited the use of Town-issued phones for personal business, prohibited use of a Town or personal cell phone while operating a Town vehicle or equipment, and limited personal calls while at work, was a mandatory subject of bargaining. Town of Plymouth, MUP-11-1061 (August 22, 2013). The Hearing Officer in Town of Plymouth stated that the cell phone policy at issue in that case reached well beyond the safety issues raised as defenses to the bargaining obligation in the Suffolk County case, because it governed the use of cell phones in situations that did not implicate safety of employees or others. Employee privacy rights in their cell phone records and location information would not appear to implicate the safety rights discussed by the DLR in the Suffolk County case, but instead would appear to impact the broader interests of the union as discussed in Town of Plymouth, and thus unions may argue that cell phone monitoring is a mandatory subject of bargaining. Decisions regarding public employer monitoring of GPS devices are instructive, but the law in that area is still emerging. The DLR has not published any decisions on the issue, only probable cause determi- nations. In 2007, the DLR dismissed a union charge alleging that the installation of a GPS phone on sanders’ trucks was a mandatory subject of bargaining, stating that the GPS was just a more efficient way of tracking the sanders, which the employer already did by requiring radio call-ins. City of Worcester, MUP-05-4409 (September 5, 2007). How- ever, the DLR pointed out in this dismissal letter that the sanders were not required to carry their GPS devices with them on breaks. In recent years, the DLR has issued at least two complaints finding probable cause to believe that a GPS monitoring device placed in a police cruiser is a mandatory subject of bargaining. Town of Holden and NAGE/IBPO, MUP-11-6238 (January 5, 2012), and Town of Groveland and Teamsters Union Local 17, MUP-09-5636 (June 5, 2013). As the SJC’s Commonwealth v. Augustine decision illustrates, the law in this area will reflect the capabilities of the technology, and the use of that technology in daily life. Most employees carry personal cell phones, and use them for both personal and business purposes. As noted by the SJC, people tend to have their cell phones on their person or within a few feet of their bodies all the time, thus enabling the phones to track their movements far more accurately than a GPS installed in a work vehicle. Cell phone location monitoring is, therefore, far more intrusive than GPS monitoring, and should give rise to a higher level of scrutiny if the issue is litigated. This summary is meant to provide information regarding a developing area of law. We hope that it helps you plan to protect yourself as much as possible. Contact your union for advice on how the law applies in your particular circumstance. Good luck, and be safe. Hanover, MA A Proud Supporter of the Boston Police Patrolmen’s Association Scholarship Program Eire Pub 795 Adams Street Dorchester, MA 02124 Salutes the Boston Police Patrolmen’s Association