An employee brought a case claiming that the Union violated its duty of fair representation by discriminating against disabled employees in its handling of grievances concerning the employer’s smoking policy.  The Employer operates a nine-acre warehouse, where 18 of 58 full-time employees smoke.  The Union bargained with the Employer and agreed on a policy that restricts, but does not ban, smoking at the worksite.  An employee, Tim Johnson, told the Union that he was having trouble breathing because of the secondhand smoke and offered the Union a proposed grievance to be filed on his behalf.  Instead, the Union declined to do so, saying that the smoking-restriction policy was sufficient.  Johnson filed a Section 8(b)(1)(A) and (2) case against the Union for rejected the Employer’s suggested accommodation of wearing respirators.  Johnson argued that the Employer has not shown that there was any business necessity to permitting smoking.  The Associate General Counsel (AGC) concluded that the Union did not breach its duty of fair representation during the negotiations with the Employer over the smoking policy.  The AGC also concluded that “there is no evidence that the Union acted arbitrarily in declining to process grievances calling for, and refusing to agree to the Employer’s suggestion of, a complete smoking ban.”

 1993 WL 321785 (N..R.B.G.C.).