Employers Must Bargain with Unions Before Banning Smoking Outdoors
This post was written by Scott E. Blissman and Joel S. Barras.
In a recent decision by the Pennsylvania Labor Relations Board (“Board”), the Board found that a public employer committed an unfair labor practice by prohibiting its unionized employees from smoking in outdoor work spaces. This case represents the Board’s attempt to balance its longstanding case law requiring employers to negotiate prohibitions on employee smoking with the recently passed Pennsylvania Clean Indoor Air Act. Specifically, the Board concluded that the Clean Indoor Air Act permits public employers to unilaterally ban smoking by employees in all indoor work areas without first negotiating with the employees’ union, but the statute does not apply to outdoor spaces. The case may proceed on appeal to the Commonwealth Court, and we will update you if and when the case progresses.
Background
In Association of Pennsylvania State College and University Facilities v. Pennsylvania State System of Higher Education, prior to September 2008, faculty and coaches were allowed to smoke indoors and outdoors, subject to previously negotiated local restrictions at the various state college and university campuses. In September 2008, the State System of Higher Education (“SSHE”) informed the faculty’s union that the Pennsylvania Clean Indoor Air Act prohibited smoking in the workplace, and as such, any past practice or provision in the operative collective bargaining agreement that permitted such activity was null and void. As the new law did not provide an exception for existing labor agreements, the SSHE did not negotiate or discuss this new prohibition prior to its implementation.
In response, the union filed a charge of unfair labor practices with the Board, alleging that the state unilaterally changed a term of employment that is a mandatory subject of bargaining. Initially, the Board Hearing Examiner dismissed the charges, citing the overriding authority of the Clean Indoor Air Act. The union filed Exceptions to the Board, which reversed the Examiner’s Proposed Decision and found the SSHE violated Act 195 by failing to bargain with the union regarding the outdoor smoking ban.
The Pennsylvania Labor Relations Board’s Decision
In its decision, the Board first noted that the General Assembly can pass legislation that requires public employers to unilaterally change a mandatory subject of bargaining, regardless of its bargaining obligations to its employees’ unions. As such, to the extent that the Clean Indoor Air Act applies to public employers’ facilities and their employees, the Act would supersede existing provisions in any labor agreement. In reviewing that law, the Board agreed with the Hearing Examiner that public employers were statutorily required to prohibit smoking in their indoor facilities by members of the public and public employees. However, after analyzing the Act’s provisions, including its name – the Clean Indoor Air Act – and the General Assembly’s public deliberations, the Board held that it did not apply to outdoor areas. Accordingly, the Board concluded that its established case law that required bargaining over smoking prohibitions still applied to those spaces. Therefore, the SSHE committed an unfair labor practice by unilaterally banning smoking by unionized employees in outdoor work spaces.
Practical Effects for Pennsylvania Public Employers
Public employers are permitted, and in fact required, to prohibit smoking by their employees in all of their indoor facilities and vehicles. However, with regard to their public parks and other outdoor spaces, current contract provisions and established past practices control. Before a public employer can modify its outdoor smoking policy for unionized employees or institute a new policy, it must first gain the assent of the union representing any impacted employee.
