Ellwood City Borough adopted an ordinance banning the use of all tobacco products in all enclosed areas on borough-owned property, buildings, facilities and vehicles. The borough argued that the ban was imposed to further the police department’s mission of promoting child health and safety. The union filed a unfair practice charge, arguing that the ban was a matter of mandatory bargaining and that the borough imposed it without any bargaining with the union. A PLRB hearing examiner concluded that the borough’s actions violated sections 6(1)(a) and 6(1)(e) of the Pennsylvania Labor Relations Act (PLRA) and that the ordinance was not narrowly tailored enough to meet its stated purpose. The examiner also ruled that the ban did not substantially outweigh the union members’ interest in collective bargaining over the issues.
The borough filed exceptions to the hearing examiner’s ruling, arguing that the issue of the ban should be removed from collective bargaining as a managerial prerogative. The PLRB, at 38 PPER 18, 2007 PPER LEXIS 17, denied those exceptions and made absolute and final the hearing examiner’s decision, which was reported at 37 PPER 175 (2006). The PLRB ruled that precedents hold that the use of tobacco products in the workplace is a mandatory subject of bargaining and that the “Borough’s interest in imposing the smoking ban does not substantially outweigh the impact that the imposition of the ban has on the employees in this case.”
The Pennsylvania Commonwealth Court, at 941 A.2d 728, 2008 Pa. Commw. LEXIS 26, 39 PPER 5, 2008 PPER LEXIS 1, reversed the PLRB’s decision, ruling that the institution of the ban on tobacco was privileged as a managerial prerogative because the borough’s interest in imposing the ban substantially outweighed the ban’s impact on the affected employees. Boroughs are generally empowered to “make such regulations as may be necessary for the health, safety, morals, general welfare and cleanliness and the beauty, convenience, comfort and safety of the borough.” The court also ruled that the “Borough has authority under its specifically delegated police power to adopt measures designed to promote the health and welfare of all its citizens.” See “Borough Maintains Managerial Prerogative to Ban Tobacco,” National Public Employment Reporter, April 1, 2008.The ruling was appealed to the Pennsylvania Supreme Court. See Mandak, J., “Pa. Supreme Court Hears Police Tobacco Ban Lawsuit,” Evening Sun (York, PA), March 3, 2009. On July 21, 2010, the Pennsylvania Supreme Court ruled, at 2010 Pa. LEXIS 1532, that “collective bargaining over the policy regarding tobacco usage does not unduly infringe upon the employer’s inherent managerial decision making” and that, therefore, “the Borough’s ban on tobacco products was not a managerial prerogative, and, thus, was subject to mandatory collective bargaining.” However, the Pennsylvania Legislature enacted the Clean Indoor Air Act of 2008, which imposed statewide bans on smoking in a public place, including employee workplaces and vehicles of mass transit. So, the Pennsylvania Supreme Court’s opinion covers only the use of smokeless tobacco in police officers’ work areas, and Borough vehicles and equipment, and smoking in vehicles that are not used for mass transit and equipment. See Malinowski, N., “Pa. High Court Reverses Police Officer Tobacco Ban,” Law360, July 22, 2010.
37 Pennsylvania Public Employee Reporter 175, 2006 PPER LEXIS 163.