The Administrative Law Judge found that the company did not violate Section 8(a)(5) and (1) of the National Labor Relations Act by unilaterally changing its smoking policy to prohibit smoking everywhere in the plant because the union waived its right to bargain over workplace smoking issues.  The ALJ also concluded that “both contracting parties recognized that the contractual safety and health provision was intended to authorize Respondent to unilaterally implement ‘reasonable provisions’ for the safety and health of the bargaining unit employees, notwithstanding any impact on their terms and conditions of employment.”  The NLRB found that the smoking policy does constitute a mandatory subject of bargaining.  Noting that “the employees’ right to smoke was nothing less than a work=related privilege,” the NLRB ruled that in this case, since the union had failed over a period of 19 years “ever to request bargaining or to protest Respondents’ restrictions and limitations on smoking inside the plant.”  Therefore, the Board found that the company did not violated the NLRA by unilaterally instituting the smoking ban.

AFL-CIO, 307 N.L.R.B. 752, 1992 NLRB LEXIS 625, 140 L.R.R.M. 1121.