The NLRB held that the employer violated Section 8(a)(5) of the National Labor Relations Act by unilaterally implementing a new smoke-free policy, which completely prohibited smoking at its facilities because it failed to “formally and fully apprise” the union of its intention to implement it until just nine days before the implementation date (April 1).  See YHA, Inc., 307 NLRB 782 (1992).  The U.S. Court of Appeals for the Sixth Circuit held that both the administrative law judge and the NLRB used an erroneous legal standard in selecting that date.  Rather, the court held that, while Local 627 received “formal and full notice” on March 23, it received actual notice much earlier.  Therefore, the court concluded that the union waived its right to bargain on the no-smoking policy, and the court set aside the board’s order and denied the board’s cross-application from enforcement of its order.

2 F. 3d 168 (6th Cir. 1993).