The hospital had implemented a policy banning smoking on its grounds, except for the psychiatric unit. Over the years, enforcement of the policy had become lax; thus, in November 2008, the hospital announced a new policy, effective January 1, 2009, that would ban smoking entirely on the hospital grounds. The hospital did not attempt to negotiate with the union, which filed suit, arguing that the new policy violated the collective bargaining agreement (CBA). An arbitrator conducted a hearing and concluded that, since employees had come to expect a place to smoke on the hospital grounds, that expectation rose to the level of a protected local working condition. The hospital appealed. A federal district court judge vacated the arbitrator’s award, pursuant to the Labor Management Relations Act, 29 U.S.C. sec. 1985. The judge concluded that because the CBA allowed the employer “the right to establish, revise and administer reasonable policies and procedures” and that the rights of management “specifically are not limited by existing or ‘prior practices’ or ‘side agreements’ which existed prior to” the CBA. The court ruled that the “fundamental error in the Arbitration Award is the determination that the employees’ expectations regarding past smoking practices were protected.” The U.S. Court of Appeals for the Third Circuit affirmed the judgment of the District Court, at 2011 U.S. App. LEXIS 5046, ruling that “the arbitrator’s opinion effectively rewrote the parties’ agreement….”.
2010 U.S. Dist. LEXIS 43471 (U.S.D.C. W.D. Penn. 2010).