In April 1991, the company banned all use of tobacco products on company property.  The NLRB ordered the company to bargain over the rule and to remove a written warning issued to the employee who had violated it.  The company then initiated bargaining with the union re. implementing the no-tobacco policy and rejected the union’s counterproposal for designated smoking areas.  After the third negotiating session, company officials stated the parties were at an impasse and unilaterally reinstated its policy.  The NLRB ruled that the company had not bargained in good faith.  The NLRB ordered the company to rescind the no-tobacco usage policy for unit employees and to bargain in good faith.  In National Labor Relations Board v. Hi-Tech Cable Corp., 128 F.3d 271, 1997 U.S. App. LEXIS 32079, No. 96-60561, (5th Cir.), the U.S. Court of Appeals for the Fifth Circuit reversed on November 14, 1997.  In a per curiam opinion, the panel said that the company’s representatives “endeavored to engage Union negotiators in a dialogue that addressed matters of employee health and potential losses in productivity.  Union negotiators explicitly declined to participate in such a dialogue.  The Board now asks us to infer bad faith from the company’s failure to offer counterproposals that addressed matters the union affirmatively refused to consider at the outset of bargaining.  We decline to do so.  It is unreasonable and illogical to punish the company for its negotiators’ failure to engage in a discussion in which the Union negotiators obdurately refused to participate.”

318 NLRB No. 24 (1995).