Employers looking to ban smoking without having to get the approval of the union that represents their employees got a boost recently from the U.S. Court of Appeals for the Third Circuit in Philadelphia, which ruled that a Pennsylvania hospital could ban smoking without negotiations under the applicable collective bargaining agreement (Armstrong County Memorial Hosp. v. United Steel, 3rd Cir., No. 10-2495 (March 14, 2011)).
Even more interesting is that the court overruled the arbitrator in the case, who ruled that smoking had become a “protected local working condition” because the hospital had permitted it from 2002 to 2008 in designated smoking areas and employees’ personal vehicles.
In 2008, the hospital concluded that allowing smoking created a significant health risk to patients, volunteers and visitors. Accordingly, it notified the union of its intent to adopt a new policy barring all smoking on the property.
The union challenged the new policy in arbitration. The union argued that the policy was “unreasonable,” and that the hospital should have raised the proposed change during earlier negotiations over the collective bargaining agreement (CBA)––an agreement that had taken effect in June 2008.
In a rare reversal of an arbitrator’s ruling, the Third Circuit held that the CBA allowed the hospital to “establish, revise and administer reasonable policies and procedures” without being “limited by existing or ‘prior practices’ or ‘side agreements’ which existed prior to the [CBA].
So the moral of the case is make sure you put language in your CBA that your right to change work rules is not limited by existing or prior practices.
