Cell Phone Use At Work

Sisters and Brothers,

Recently a few questions have been raised about railroad employees using their cell phones while at work, and the railroads’ right to examine personal cell phones and/or cell phone records. Please see the email below from our Rail Labor attorney Mike Wolly in which he gives advice on the issue. Also, attached is an opinion he provided to us in 2013 addressing such use.

Please advise your members to avoid using their personal cell phones at work, as such use will most likely lead to discipline by the railroad.

Correspondence from Mike:

You have explained that CSXT bans employees from using cellphones when driving and when within 25 ft of active tracks. An employee has inquired whether he has to comply with a carrier request that he turn over his phone to management if asked to do so.

On September 26, 2103, I sent you a memo relating a California federal court decision rejecting a worker’s attempt to quash a subpoena served on AT&T to divulge records of the employee’s incoming and outgoing cell phone calls, texts and data usage for a defined period of time on the ground that the information requested could show that she had been conducting personal business while on the clock. Since then several courts have reached the same conclusion in allowing employers to obtain that information in discovery. (See Lureen and Quintana cases attached).

At the time, I advised that Section 3 arbitrators likely would find such information relevant and not protected from disclosure in discipline cases. I can’t find that the issue has come up directly, though there have been numerous awards issued since then upholding discipline for using a cellphone while driving or on moving equipment, including on CSXT. Several examples are attached. In some cases, the award reveals that a supervisor did examine the employee’s cell phone and apparently the union did not argue that was improper. Of particular note is PLB 7598 Award 177 where the employee refused to allow the carrier to examine his cellphone, something the arbitrator held against him:

…On November 18, 2016, Claimant was observed by a FRA Inspector using his phone on a moving train near Cordele, Georgia. When asked about his cell phone, Claimant would not provide the phone for inspection. As a result, an investigation was held and based on the evidence, Claimant was dismissed.

Substantial evidence was present showing Claimant violated Carrier's rules. Claimant's refusal to provide his phone for inspection provided additional evidence that he used his phone on a moving train in violation of Carrier rules. The Organization cites Claimant's reluctance to show his personal information to the Carrier….

Emphasis added. While these awards do not reference civil litigation, they do not change my earlier advice. If a supervisor asks an employee to hand over his personal cell phone, refusing to comply likely will put the employee in a worse situation than if he complies. That said, it’s one thing to show the phone to a manager and another to allow a manager to take possession of the phone. There are clearly fair alternatives to that. If the manager is trying to find out if the phone has been used at a particular time (e.g., while the employee was driving) the employee can provide logs of calls without handing over the phone or identifying who called or was called. If there is an issue regarding the identity of a caller/recipient, that gets trickier, though sometimes producing the log will vindicate the employee or otherwise support his position. These things have to be addressed on a case-by-case basis, but the general rule is not to incur an additional charge of insubordination. In addition, many vehicles now have inward-facing cameras; many yards are under constant surveillance too. Employees who refuse to show a phone despite being observed on camera using it simply create a presumption of guilt.