State Labor Agency Agrees With Attorney Bryant That Boston Cannot Unilaterally Ban Snacking At Desk

September 26, 2019

Many employees in the public and private enjoy the ability to eat and drink while they work, whether at a desk, in a work vehicle, or in other work areas. This is a small, but critical convenience, that allows employees to stay refreshed while enduring the drudgery of work and spares many employees the need to exhaust a formal break when they just want to nibble. Attorney Patrick Bryant persuaded the Commonwealth Employment Relations Board (CERB) that a public employer (here, the City of Boston) cannot simply ban food and drink while working on a whim, especially where the reasons offered by the City of Boston lack any factual basis. The CERB went so far as to reverse the Hearing Officer's decision finding in favor of the City.

Nearly every single one of the thousands of City of Boston Police Department employees has the right to eat and drink while working: from police officers in department cruisers or police stations, to lawyers in hearing rooms, to clerical employees in cubicles performing data entry. For decades, this small benefit extended to the dispatchers and sworn officers and assigned to Operations Department that serves as the Department's nerve center - where call-takers and police supervisors answer emergency calls and decide how the police department should respond.

Operations employees enjoyed this Department-wide benefit, that is, until the dispatchers complained to a state agency about the unsanitary conditions at BPD headquarters.

The State investigation found that the BPD failed to maintain safe and clean environment and directed the City to take several remedial steps. The State never directed or implied the City to ban food and drink in operations. But that is what the City did - without providing notice or an opportunity to bargain to unions representing employees who toil in Operations. The City did not ban food and drink anywhere else in the City - not at any other BPD building and not even in other offices on the same floor as Operations. The City only banned food and drink at the desks of individuals who complained unsafe working conditions.

The Boston Police Superiors Officers Federation refused to accept this unilateral change and filed an unfair labor practice. While the Hearing Officer dismissed the Complaint, the BPSOF knew that the law and the facts were on its side. The BPSOF, represented by Patrick Bryant, appealed to the CERB. The CERB reversed and flatly rejected the City's defense that it should be entitled to ban food and drink without having to talk first with union representatives. The City failed to establish that it was compelled to take this action.

"Although the City may have a core managerial prerogative to protect employee safety by avoiding food waste that attracts insects and rodents, and to safeguard expensive and essential equipment from food debris, where there is no evidence demonstrating that its decision to ban eating in work areas was compelled by a third party or the only means of achieving its objectives, or that the City imposed the prohibition uniformly on employees who worked in the same vicinity or used expensive equipment, the City's interests in imposing the new work rule did not outweigh the Union's interests in bargaining over the myriad of ways that the decision and the impacts of the decision affected mandatory subjects of bargaining."

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