The union alleged that the company’s implementation of smoking ban at its lumber mill violated Section 8(a)(5) and (1) of the NLRA because it was done without the consent of the union and that such approval was required because the smoking ban was among issues covered by a “Closure of Issues” clause in a strike-settlement agreement. An administrative law judge (ALJ) ruled that smoking bans are not a mandatory subject of collective bargaining. A three-member panel of the NLRB ruled that not every management practice that affects employees is necessarily a mandatory subject of bargaining because some management practices are strictly matters of entrepreneurial concern as to which an employer has no duty to bargain. The panel ruled that the ALJ had erroneously assumed that “protecting employee health and carrying out recommendations of various reports by the Surgeon General are core entrepreneurial purposes of a lumber mill” and that, while “[t]hese may be laudable objectives for any employer . . . they do not go to the heart of Respondent’s business . . .” Thus, a rule that forbids smoking is “germane to the work environment,” and, therefore, a mandatory subject of bargaining. However, the three-judge panel agreed with the ALJ that the ban was not covered by the closure of issues clause and that the union had waived its right to bargain because of its failure to take timely action against the implementation of the ban
304 NLRB 957 (1991).