Allied-Signal, Inc.

National Labor Relations Board - Board Decisions

May 29, 1992

307 N.L.R.B. 752 (N.L.R.B. 1992)

752
307 NLRB No. 118
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 With the exception of a designated area in the cafeteria during
the lunch hour.
2 Some of the employees on the task force were unit employees.
Allied-Signal, Inc., Kansas City Division and Dis-
trict 71, International Association of Machinists
and Aerospace Workers, AFL–CIO. Case 17–
CA–14800
May 29, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
On December 28, 1990, Administrative Law Judge
Burton Litvack issued the attached decision. The Gen-
eral Counsel filed exceptions and a supporting brief
and the Respondent filed an answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions only to the extent consistent with this Deci-
sion and Order.
The judge found that the Respondent did not violate
Section 8(a)(5) and (1) of the Act by unilaterally
changing its smoking policy to prohibit smoking ev-
erywhere in the plant,1 because the Union waived its
right to bargain over workplace smoking issues. He
also found that the Respondent did not engage in un-
lawful direct dealing by forming and consulting with
a smoking policy task force, composed of hourly and
salaried employees, prior to implementing the smoking
ban.2 We agree with the judge’s finding that the Union
waived its right to bargain over the change to the
smoking policy, but we find, in disagreement with the
judge, that the Respondent violated Section 8(a)(5) and
(1) in bypassing the Union and dealing directly with
the employee smoking policy task force.
A. The Allegation that the Respondent Unlawfully
and Unilaterally Changed Smoking Policy
The judge held that employee smoking was a man-
datory subject of bargaining, and that this change in
the Respondent’s policy was a ‘‘manifestly significant
revision’’ over which the Respondent was required to
offer to bargain, unless the Union in some way had
waived its right to do so. He found that the Union had
in fact waived its right to bargain over changes in the
smoking policy by agreeing to the safety and health
clause and the duration (zipper) clause in its collective-
bargaining agreement with the Respondent.
The clauses at issue read as follows (in pertinent
part):
XXI. SAFETY, HEALTH AND GOOD HOUSE-
KEEPING
A. Safety and Health
The Company shall continue to make reasonable
provisions for the safety and health of its employ-
ees during the hours of their employment. An em-
ployee shall draw safety hazards to the attention
of the immediate supervisor who shall review the
hazard with the Safety Department. If the job is
considered safe by the supervisor and the Safety
Department, the employee shall be required to
perform it. Where a Safety representative is not
available on the second and third shifts, the safety
hazard will be reviewed by the shift super-
intendent and a committeeperson if the foregoing
conditions have been satisfied and the cir-
cumstances warrant review. However, the matter
may be the subject of an immediate grievance.
The Company, as it deems necessary, may have
the Medical Department make such physical ex-
aminations of its employees as considered advis-
able to determine the physical fitness of employ-
ees for their jobs and to determine any health haz-
ards. The Company will continue to provide nec-
essary protective equipment for the use of em-
ployees. The chair-persons of the aerospace and
skilled grievance committees will act as the
Union’s advisory committee to promote and assist
the Company in maintaining a safe and healthy
place to work. This committee will bring to the
attention of the Company any unsafe or unhealthy
conditions in the plant.
XXXIII. DURATION
B. During the term of this Agreement neither
party shall demand any change in this Agreement,
nor shall either party be required to bargain with
respect to this Agreement, nor shall a change in
or addition to this Agreement be an objective of
or be stated as reason for any strike or lockout or
other exercise of economic force or threat thereof
by the Union or the Company.
. . . .
D. The parties acknowledge that during negotia-
tions which resulted in this Agreement, each had
the unlimited right and opportunity to make de-
mands and proposals with respect to any subject
or matter not removed by law from the area of
collective bargaining, and that the understandings
and agreements arrived at by the parties after the
exercise of that right and opportunity are set forth
in this Agreement. Therefore, the Company and
the Union, for the life of this Agreement, each
voluntarily and unqualifiedly waives the right and
each agrees that the other shall not be obligated
to bargain collectively with respect to any subject
753ALLIED-SIGNAL, INC.
3 JD fn. 18.
4 See, e.g., Medo Photo Supply Corp. v. NLRB, 321 U.S. 678
(1944).
or matter referred to or covered in this Agree-
ment, or with respect to any subject or matter not
specifically referred to or covered in this Agree-
ment, even though such subjects or matter may
not have been within the knowledge or con-
templation of either or both of the parties at the
time they negotiated or signed this Agreement.
As to the safety and health clause, which provides
that the Respondent will ‘‘continue to make reasonable
provisions for the safety and health of its employees
during the hours of their employment,’’ the judge
found that the wording of the clause, as well as its
‘‘historical usage’’ suggested that the Union con-
sciously waived its right to notice and bargaining prior
to the Respondent’s implementation of new policies af-
fecting employee health and safety. He concluded that
the Respondent’s smoking ban was motivated by con-
cern for its employees’ health as buttressed by avail-
able scientific evidence as to the hazards of second-
hand smoke, and that the safety and health clause
clearly required the Respondent to safeguard the health
of its employees while inside the plant.
Regarding the history of the parties’ dealings on the
subject, the judge found that in the past the Respond-
ent had unilaterally changed safety and health-related
rules and policies without objection or demands for
bargaining from the Union. The judge reasoned as fol-
lows:
[T]he Union’s failure, over a 19-year period, to
ever file a grievance, contesting Respondent’s
contractual basis for unilaterally implementing the
various smoking restrictions over that time period
suggests that the Union shared Respondent’s un-
derstanding of the meaning of the provision and
supports my conclusion that both contracting par-
ties recognized that the contractual safety and
health provision was intended to authorize Re-
spondent to unilaterally implement ‘‘reasonable
provisions’’ for the safety and health of the bar-
gaining unit employees, notwithstanding any im-
pact upon their terms and conditions of employ-
ment.
In affirming the judge’s finding of waiver, we need
not decide whether the language of the contractual
safety and health clause, by itself, constitutes a waiver.
That language, when construed in light of the historical
practice of the parties under that clause of permitting
the Respondent to make unilateral changes in its smok-
ing policy, does constitute a waiver. We note that the
clause contemplates that the Respondent has the re-
sponsibility to act unilaterally to ensure workplace
safety and health and that the Union’s role is advisory,
not participatory. The clause expressly provides that
the Union and employees will bring safety and health
problems to the Respondent’s attention, but that the
decision on what action to take is left to the Respond-
ent. Thus, the clause provides that
The chair-persons of the aerospace and skilled
grievance committees will act as the Union’s ad-
visory committee to promote and assist the Com-
pany in maintaining a safe and healthy place to
work.
We rely on the contractual zipper clause only to the
extent that it confirms the historical and contractual
status quo of permitting the Respondent to act unilater-
ally with respect to its smoking policy.
B. The Allegation that the Respondent Engaged in
Unlawful Direct Dealing By Consulting with the
Employee Smoking Policy Task Force
The Respondent commissioned an employee task
force to make recommendations concerning the limits
of management’s proposed smoking ban and any pen-
alties that might be imposed for violation of such a
ban. The Union did not even know of the existence of
the task force until the ban had been imposed. The
complaint alleged that the Respondent violated Section
8(a)(5) and (1) through bypassing the Union and deal-
ing directly with the employees on the task force. The
judge dismissed the allegation solely on the basis of
his contractual waiver finding.3
In addition to excepting to the waiver finding, the
General Counsel also argues that even if the Board
were to adopt the judge’s conclusion on contractual
waiver, the Respondent’s actions in connection with
the task force would still constitute unlawful direct
dealing with its employees. In responding to the Gen-
eral Counsel’s exceptions, the Respondent relies not
only on the judge’s waiver finding but also on its own
contention that the task force merely offered sugges-
tions and that the interchange between the task force
and the Respondent’s management did not constitute
direct dealing. We find merit in the General Counsel’s
position.
It is well settled that the Act requires an employer
to meet and bargain exclusively with the bargaining
representative of its employees, and that an employer
who deals directly with its unionized employees or
with any representative other than the designated bar-
gaining agent regarding terms and conditions of em-
ployment violates Section 8(a)(5) and (1).4 Direct deal-
ing need not take the form of actual bargaining. As the
Board made clear in Modern Merchandising, 284
NLRB 1377, 1379 (1987), the question is whether an
employer’s direct solicitation of employee sentiment
over working conditions is likely to erode ‘‘the
Union’s position as exclusive representative.’’ See also
754 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 There is no 8(a)(2) allegation, so it is irrelevant whether the task
force constituted a ‘‘labor organization’’ or whether the Respondent
dominated, supported, or interfered with it.
6 Contrary to our dissenting colleague, we find that the Respond-
ent’s direct dealing did not make unlawful its otherwise unilateral
implementation of a new no-smoking policy. These are severable
bargaining issues. See Kansas Education Assn., 275 NLRB 638
(1985) (employer’s unilateral transfer of employee Lopes was lawful
due to union’s waiver, but employer’s prior direct dealing with
Lopes about the transfer was unlawful).
Our colleague’s effort to distinguish Kansas Education is unsuc-
cessful. Concededly in that case, the employer’s action was consid-
ered privileged by virtue of the union’s inaction; in the instant case,
the Respondent’s action was considered privileged by virtue of a
contract clause construed in the light of past practice. But the signifi-
cant point is that the Board in Kansas Education, having found the
employer’s action privileged, did not find that it became unlawful
by virtue of the antecedent unlawful direct dealings. Further, while
it is true that in Kansas Education the Union knew of proposed
terms of the transfer prior to its implementation, here the union was
fully aware of the numerous prior unilateral changes in the smoking
policy. This prior knowledge, coupled with the contract’s safety and
health clause, constitued a waiver of the Union’s right to bargain.
Accordingly, as in Kansas Education, the Union consented to the
particular change at issue. Thus, the mere fact that the Respondent
here did not announce in advance the particular change under review
we find to be a distinction without a difference. Hence, we rely on
Kansas Education. We also note that our colleague cites no case in
support of his conclusion.
7 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
Alexander Linn Hospital Assn., 288 NLRB 103, 106
(1988), enfd. sub nom. NLRB v. Walkill Valley Gen-
eral Hospital, 866 F.2d 632, 636 (3d Cir. 1989); Obie
Pacific, Inc., 196 NLRB 458, 458–459 (1972).5 Going
behind the back of the exclusive bargaining representa-
tive to seek the input of employees on a proposed
change in working conditions—particularly one as con-
troversial as a workplace smoking policy—plainly
erodes the position of the designated representative.
Our conclusion that the Union had contractually
waived its bargaining rights so as to permit unilateral
action by the Respondent respecting the smoking pol-
icy does not extend to a finding that the Union also
agreed that the Respondent could deal with employees
as if the Respondent’s work force had no bargaining
representative. Direct dealing with employees goes be-
yond mere unilateral employer action. While a bar-
gaining representative could waive its right to object to
such conduct by an employer, nothing in the language
of the collective-bargaining agreement or the record of
contract administration remotely suggests that the
Union waived that right here.
Accordingly, we find that the Respondent violated
the Act as alleged in the direct dealing paragraph of
the complaint.6
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of
the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act representing the
unit of:
All production and maintenance employees, in-
cluding interior and outside transportation em-
ployees, chauffeurs, timekeepers and counters, but
EXCLUDING all salaried office, engineering, re-
search, plant protection, medical, safety, time
study, and supervisory or other employees with
the authority to hire, promote, discharge, dis-
cipline or otherwise effect changes in the status of
employees or effectively recommend such action.
3. By bypassing the Union and dealing directly with
its bargaining unit employees in forming and con-
sulting with a smoking policy task force, the Respond-
ent has violated Section 8(a)(5) and (1) of the Act.
4. The above unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
ORDER
The National Labor Relations Board orders that the
Respondent, Allied-Signal, Inc., Kansas City Division,
Kansas City, Missouri, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively with District 71,
International Association of Machinists and Aerospace
Workers, AFL–CIO, as the exclusive representative of
an appropriate unit of the Respondent’s employees, by
bypassing it and dealing directly with bargaining unit
employees.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Post at its Kansas City plant copies of the at-
tached notice marked ‘‘Appendix.’’7 Copies of the no-
tice, on forms provided by the Regional Director for
Region 17, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(b) Notify the Regional Director in writing within
20 days from the date of this Order what steps the Re-
spondent has taken to comply.
755ALLIED-SIGNAL, INC.
1 Because I would find that the direct dealing necessarily rendered
the Respondent’s implementation of the smoking policy unlawful, I
do not find it necessary to pass on whether the Union waived its
right to bargain over the smoking policy.
2 I agree with my colleagues that Kansas Education Assn., 275
NLRB 638 (1985), treated unilateral action and direct dealing as sev-
erable matters, but I regard that case as distinguishable. There the
union was informed of the proposed transfer prior to the time at
which the decision was finally made and effectuated. Under these
circumstances the Board concluded that the Union was ‘‘estopped’’
by ‘‘its actions’’ from asserting its right to bargain over the matter.
The Board did not confront the issue whether a contractual clause
permitting unilateral action would have privileged such action when
accomplished through direct dealing with no advance notice to the
union. I do not regard the Union’s knowledge of prior unilateral
changes in the smoking policy as equivalent to notice of this par-
ticular change. See, e.g., Ciba-Geigy Pharmaceuticals Div. v. NLRB,
722 F.2d 1120, 1127 (3d Cir. 1983); NLRB v. Miller Brewing Co.,
408 F.2d 12, 15 (9th Cir. 1969).
1 On April 25, 1990, the above Regional Director issued an
amendment to the complaint, adding an additional alleged violation
of Sec. 8(a)(1) and (5) of the Act.
CHAIRMAN STEPHENS, dissenting in part.
I agree with my colleagues that the Respondent vio-
lated Section 8(a)(5) and (1) by going behind the back
of its exclusive bargaining representative to form an
employee committee and seek its input on a proposed
change in the workplace smoking policy. Even assum-
ing arguendo that the Union had waived its right to
bargain over this mandatory subject, the Respondent is
not free to bypass the union and set up its own bar-
gaining mechanism to accomplish its goals. Unlike the
majority, however, I would hold that such unlawful di-
rect dealing tainted the implementation of the policy
and that therefore the implementation must also be
found unlawful. Once the Respondent engaged in di-
rect dealing with its employee committee, the subse-
quent implementation of the smoking policy change
could not properly be characterized as the mere exer-
cise of a contractually authorized right to make unilat-
eral changes in this term and condition of employment.
Because the employee committees were an integral
part of the process for determining the new policy, the
Respondent’s direct dealing with them was inextricably
tied to the announcement and implementation of the
change.
This is not to say that unlawful direct dealing on a
subject would, in every case, render unlawful an em-
ployer’s exercise of a contractually privileged right of
unilateral action. Thus, assuming—as my colleagues
have found—that the Union has waived its right to
bargain over a change in the plantwide smoking pol-
icy,1 and that the Respondent simply announced and
implemented such a change, any subsequent direct
dealing by the Respondent on that subject (e.g. dealing
over the effects of the change or possible modifications
of the policy) would not retroactively make the unilat-
eral action unlawful. But with events occurring as they
did here—essentially the development of a new policy
through a process that unlawfully undermined the
Union and that clearly exceeded the scope of any con-
tractual waiver—I would find violations as to both of
the Respondent’s actions. They are essentially insepa-
rable.2
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT refuse to bargain collectively with
District 71, International Association of Machinists and
Aerospace Workers, AFL–CIO as the exclusive rep-
resentative of our employees, by bypassing it and deal-
ing directly with bargaining unit employees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
ALLIED-SIGNAL, INC. KANSAS CITY DI-
VISION
Mary Taves, Esq., for the General Counsel.
David A. Sosinski, Esq. and Jim A. Welland, Esq., of Kansas
City, Missouri, for the Respondent.
Wayne E. Coin, of Bridgeton, Missouri, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
BURTON LITVACK, Administrative Law Judge. The unfair
labor practice charge in the above-captioned matter was filed
by District Lodge 71, International Association of Machinists
and Aerospace Workers, AFL–CIO (the Union), on January
12, 1990. Based on the charge, the Regional Director of Re-
gion 17 of the National Labor Relations Board, on February
26, 1990, issued a complaint, alleging that Allied-Signal,
Inc., Kansas City Division (Respondent) had engaged in un-
fair labor practices violative of Section 8(a)(1) and (5) of the
National Labor Relations Act (the Act).1 Respondent timely
filed answers to the complaint allegations, essentially deny-
ing the commission of any unfair labor practices. Pursuant to
a notice of hearing, the trial, in this matter, was held before
the below-named administrative law judge on May 15 and
16, 1990, in Mission, Kansas. At said trial, all parties were
afforded the opportunity to examine and cross-examine all
witnesses, to offer any relevant evidence into the record, to
argue their respective legal positions orally, and to file
posthearing briefs. The latter documents were filed by both
counsel for the General Counsel and counsel for Respondent,
756 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 As to why the Union failed to protest Respondent’s unilateral
changes, Danny Daniels, the directing business representative for the
Union, testified that the restrictions on smoking in work areas af-
fected relatively few workers (those working in ‘‘clean rooms’’).
Asked about the prohibitions against smoking in restrooms and con-
ference rooms, Daniels opined that prohibiting smoking in the
former was ‘‘reasonable’’ given their small size and the fact that
smoking was permitted in hallways and at most work stations. As
to the conference rooms, Daniels said that the Union believed such
would have a ‘‘minimal’’ impact as employees did not use such
rooms on a regular basis. Queried as to why the Union did not de-
mand bargaining over the removal of the cigarette vending machines,
Daniels replied that Respondent charged ‘‘outrageously high prices’’
and that ‘‘very few of our members uses your cigarette machines.’’
Finally, notwithstanding the Union’s silence whenever smoking pol-
icy changes were implemented, Daniels maintained the the Union
never said it was waiving its right to demand bargaining.
and each brief has been carefully considered by the under-
signed. Accordingly, based upon the entire record herein, in-
cluding my observation of the testimonial demeanor of the
several witnesses and the post-hearing briefs, I make the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
Respondent is a corporation with an office and place of
business located in Kansas City, Missouri. At all times mate-
rial, at the facility, Respondent has been engaged in the man-
ufacture of electrical, electronic, rubber, and plastic products
for nuclear weapons for the United States Department of En-
ergy. During the 12-month period immediately preceding the
issuance of the instant complaint, in the normal course and
conduct of its aforesaid business operations, Respondent sold
and shipped from its above facility products, goods, and ma-
terials, valued in excess of $50,000, directly to points located
outside the State of Missouri. Respondent admits that it is an
employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
Respondent admits that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
III. ISSUES
The complaint alleges that Respondent violated Section
8(a)(1) and (5) of the Act by, unilaterally and without afford-
ing the Union, as the exclusive representative of certain of
its employees for the purposes of collective bargaining, an
opportunity to negotiate and bargain, implementing a revised
smoking policy, prohibiting smoking throughout Respond-
ent’s plant except in designated areas of the two employee
cafeterias and by bypassing the Union and dealing directly
with a committee, including employees in the unit rep-
resented by the Union, with regard to the establishment of
the revised smoking policy. In denying the commission of
any unfair labor practices, Respondent argues that the revised
smoking policy did not constitute a term and condition of
employment; that, in light of certain provisions of the par-
ties’ existing collective-bargaining agreement, the Union had
waived its right to demand bargaining over the subject of
smoking; that, by failing to demand bargaining over past re-
strictions on employee smoking, the Union had waived its
right to demand bargaining over the instant restriction, and
that, by soliciting the views and opinions of its employees,
it did not engage in bargaining with them in contravention
of its duty to bargain with the Union.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
The record establishes that Respondent is a management
and operating contractor for the United States Department of
Energy with its business operations, consisting of the manu-
facture of electrical, electronic, rubber, and plastic products
for nuclear weapons, housed in 126 acres of a 300-acre Kan-
sas City, Missouri facility, which is owned by the aforemen-
tioned Department of Energy. Until March 31, 1990, Jack
Knuth was Respondent’s president; since April 1, Lou Smith
has been Respondent’s president; and, at all times material,
Charles Miller has been Respondent’s director of employee
relations, Charles Kircher has been the environmental, safety,
and health director, and Robert Schmidt has been the director
of facilities, engineering, tooling, and test equipment. The
record further establishes that Respondent employs approxi-
mately 6200 individuals at the above facility; that, since
1950, its production and maintenance employees have been
represented by the Union for the purpose of collective bar-
gaining; that Respondent and the Union have been parties to
successive contracts, covering the employees; and that the
most recent of these was effective until October 14, 1990.
The issues herein revolve around the matter of employee
smoking inside the facility. In this regard, the record reveals,
until 1962, Respondent permitted smoking everywhere in the
facility, including all work areas, offices, lobbies, the cafe-
teria, hallways, break areas, conference rooms, restrooms,
and provided vending machines from which employees could
purchase cigarettes. Commencing in 1962 and continuing
through 1989, Respondent implemented no fewer than 34
changes in the above policy, the effect of which was the
gradual restriction of locations inside the facility where
smoking was permitted. Thus, over these 27 years, smoking
was prohibited in approximately 22 departments in which
there existed a danger of potential product contamination
from cigarette smoke and where hazardous chemicals were
utilized. Also, no smoking rules were instituted for the facili-
ty’s technical information center, sections of the employee
cafeterias, conference rooms, restrooms, lobbies, and new-
hire processing and interview rooms. Further, disciplinary
rules and regulations were implemented for the violation of
the above prohibitions, and, finally, in 1987, Respondent re-
moved the cigarette vending machines from the plant. Of sig-
nificance here are the facts that Respondent implemented the
foregoing changes in its smoking policy unilaterally and
without affording the Union, as the collective-bargaining rep-
resentative of its production and maintenance employees, an
opportunity to bargain about them and that, on becoming
aware of said changes, the Union never either demanded to
bargain or protested their implementation,2 through the filing
of contractual grievances.
In the spring of 1989, Respondent decided to prohibit
smoking anywhere inside the Kansas City facility. According
to Lou Smith and Charles Miller, this decision was reached
by a management team consisting of themselves, Jack Knuth,
757ALLIED-SIGNAL, INC.
3 Without contradicting Smith, Charles Miller listed as the factors
underlying Respondent’s decision to revise its smoking policy (1)
new information as to the ‘‘ill-effects’’ of secondary cigarette
smoke; (2) potential legal liabilities; (3) ‘‘myriad’’ employee com-
plaints as to other employees’ smoking; and (4) Department of En-
ergy inquiries as to Respondent’s smoking policy.
4 Lou Smith testified that Respondent believed that its existing col-
lective-bargaining agreement with the Union ‘‘specifically says that
the company shall [provide] for the safety and health of its employ-
ees while they’re on the premises. We felt also that the contract says
we can establish rules of conduct.’’ Moreover, Smith added, Re-
spondent had ‘‘gradually eliminated’’ smoking from various plant
areas since 1962 without objection from the Union.
5 The record establishes that, at any given time, there are several
employee committees, ‘‘meeting on everything’’ but usually on ways
to increase productivity. These committees are under the umbrella of
a ‘‘continuous improvement steering committee,’’ which, according
to union president, Sherman Ragsdale, ‘‘helps steer all of the other
committees within the facility.’’ He added that the above committees
are not permitted to discuss or make changes in the collective-bar-
gaining agreement.
6 The parties stipulated that Garcia is an agent within the meaning
of Sec. 2(13) of the Act.
7 The participants considered four alternative smoking policy revi-
sions: smoking limited to the cafeterias and effective January 1,
1990 (one vote); smoking limited to the cafeterias and effective
March 1, 1990 (two votes), a total smoking ban effective January
1, 1990 (one vote); and the original management proposal effective
January 1, 1990 (one vote).
and the directors of the various management departments.
Smith testified that the ‘‘primary’’ factor for the revised
smoking policy ‘‘was that we were concerned with the health
and safety of our employees.’’ He added that ‘‘equally im-
portant’’ as a factor was that the Department of Energy
‘‘specifically requested that we implement a smoke free
working place for the [plant].’’ He added that the Secretary
of the above government agency mandated that environ-
mental safety and health should be the ‘‘number one pri-
ority’’ of any contractor who managed a Department of En-
ergy facility. Smith further testified that Respondent’s con-
cern for the health of its employees was heightened by com-
pelling studies which established that secondary tobacco
smoke from cigarettes was a significant health danger. An
ancillary concern, he noted, was that an unhealthy workplace
environment would potentially result in sickness and absen-
teeism.3 Respondent’s tentative plan was to prohibit smoking
throughout the plant except in breakrooms, designated smok-
ing areas of the cafeterias, completely enclosed offices, and
major plant aisleways. Having received an opinion from its
legal department that bargaining with the Union was not re-
quired prior to implementing the foregoing policy revision4
but, apparently, desirous of employee reaction before insti-
tuting the revised policy, Respondent decided to obtain this
through the formation of a task force,5 comprised of hourly
and salaried employees, both smokers and nonsmokers.
Accordingly, late in August 1989, Charles Miller ap-
proached Michael Garcia, who works for Respondent as a
job classification and benefit specialist in the employee rela-
tions department,6 and informed the latter that he and Don
Fitzpatrick, a safety engineer, had been appointed as co-
chairman of a task force, which would meet with manage-
ment and ‘‘discuss’’ management’s ‘‘thoughts’’ on smoking
in the plant. Miller gave Garcia two documents. The first (Jt.
Exh. 5) set forth the ‘‘charter’’ of the task force, which was
to ‘‘review management’s revised smoking policy . . . and
provide comments and suggestions regarding changes and
implementation’’ and to ‘‘recommend ‘next steps,’ including
implementation plan and timetable.’’ The second document
(Jt. Exh. 6) contained the facets of the revised smoking pol-
icy. Finally, according to Garcia, Miller told him that it
would be the purpose of the task force ‘‘to solicit input from
other employees in the company’’ for management and to
comply with its charter. At some point, Miller gave Garcia
a list of 16 other employees (7 hourly and 9 salaried) who
would comprise the task force and instructed him to contact
each and to arrange a meeting. Subsequently, the 16 task
force employees met with Miller, Charles Kircher, and Rob-
ert Schmidt, and Miller told the employees that Respondent
wanted to respond to a Department of Energy request for a
more restrictive smoking policy; that management believed
smoking was a health hazard; and that their fellow employ-
ees were complaining about smoking inside the plant. He
added that the task force was to be used as a ‘‘tool’’ for
management to arrive at a revised smoking policy.
At the next meeting of the task force, with none of the
three directors present, the members gave themselves a 2-or
3-week period in which to discuss management’s suggested
revisions of the smoking policy with other employees. Also,
according to Garcia, the employees decided to meet again,
categorize what they learned, and discuss what would be
given to management. As a result of the discussions with
other employees and amongst themselves, the members of
the task force drafted a memorandum (Jt. Exh. 7) and sub-
mitted it to Charles Miller. The task force recommended to
Miller that smoking be limited to breakrooms and designated
smoking areas in the cafeterias; that to allow smoking in of-
fices would be discriminatory; that to permit smoking in
aisleways would be difficult to police and ‘‘inappropriate’’;
that Respondent should be specific regarding the reasons for
the revised policy; and that employees must be given an ef-
fective date for the revised policy. Also, included in the
memorandum were ‘‘concerns’’ of the task force members
and matters, including a total ban on smoking and a more
restrictive policy, upon which the members could not arrive
at a consensus.
At the end of September 1989, Garcia and Fitzpatrick met
with Miller, Kircher, and Schmidt. Garcia testified that ‘‘we
discussed [the memorandum] that had been made by the
smoking policy task force committee. In addition, we voted
amongst ourselves—or we went around the room, in essence,
and discussed what we personally would like to see in the
way of a smoking policy.’’ General Counsel’s Exhibit 4 is
a summary of what was discussed and shows the support for
each of the proposals.7 Finally, on October 15, the three di-
rectors met again with the entire task force. Miller spoke,
thanking the employees for their efforts, explaining what had
occurred at the late September meeting, and stating that the
task force’s memorandum would be considered by manage-
ment before any final decision was reached. Danny Daniels
and Sherman Ragsdale each testified, and there is no dispute,
that the Union was completely unaware of the formation of
the smoking task force, its purpose, or its deliberations.
For the next 45 days, Respondent’s management delib-
erated as to what form the revised smoking policy would
take and, without notifying the Union or affording it an op-
758 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 As with the decision to implement the no-smoking policy, there
is no dispute that Respondent’s decision to accompany it with a dis-
ciplinary procedure was reached unilaterally and without affording
the Union an opportunity to bargain.
9 Counsel for the General Counsel offered into the record three in-
stances of employees receiving verbal reprimands for smoking in
violation of the revised smoking policy.
10 During cross-examination, asked what the Union would have
sought through bargaining, Daniels said, ‘‘as good a benefits’’ as
possible, such as more accommodations for smokers.
11 Among the rights reserved to the management of Respondent
are the scheduling of production, hours, and shifts; the establishment
of production standards; hiring and firing; discipline and discharge;
the establishment of rules and conduct; and the maintenance of the
efficiency of employees.
portunity to bargain, in the employee newsletter, Comments
and Credits, dated November 30, 1989, announced that ‘‘the
Kansas City Plant will become a smoke-free workplace on
. . . February 14, 1990. Beginning that day, smoking will be
prohibited throughout the plant—except in designated areas
of the cafeterias during employees’ assigned lunch periods.’’
This announcement was followed by a letter, dated Decem-
ber 6, 1989, to all employees from Jack Knuth, explaining
the rationale underlying the policy change, setting forth Re-
spondent’s history of restricting smoking inside the plant,
and announcing smoking cessation classes and incentives for
employees who stopped smoking. Subsequently, in the Com-
ments and Credits issue, dated February 8, 1990, Respondent
reminded employees that the revised smoking policy would
become effective the following week and announced that a
‘‘smoking ban enforcement policy,’’ with discipline ranging
from a written reprimand for the first noncompliance to ter-
mination for the fifth noncompliance, would become effec-
tive March 1, 1990.8 As promised, the revised smoking pol-
icy prohibiting smoking anywhere inside the plant except for
areas of the cafeterias became effective on February 14,
1990, and Respondent concedes that such was implemented
unilaterally and without affording the Union an opportunity
to bargain. Further, the attendant disciplinary procedure be-
came effective on March 1, and the record establishes that
employees have been disciplined for smoking inside the
plant.9 As with the revised smoking policy, Respondent con-
cedes that implementation of the disciplinary procedure was
done unilaterally, without affording the Union an opportunity
to bargain.
Danny Daniels, who testified that the primary effect of the
revised policy was that employees could no longer smoke at
their work stations or, during break periods, elsewhere except
in the cafeterias, stated that he initially became aware of any
change in the smoking policy in early November 1989 when
Charles Miller telephoned him and said ‘‘that he was giving
us a courtesy call that the company was going to put in a
smoking policy and that they were going to announce it later
that day or the next day.’’ Daniels asked if Miller wanted to
meet and discuss the plan, but Miller declined, saying ‘‘this
is our program, we’re going to put it in and that’s it.’’ Sub-
sequently, in early December, according to Daniels, he and
Larry Ward, a business agent, met with Knuth and Miller to
discuss the smoking policy change. Daniels asked whose idea
the revision was because he felt it was a bad idea, and Knuth
said it was his idea. Daniels said that implementation would
create a ‘‘monster’’ in the plant and suggested talks to
‘‘work something out.’’10 Knuth responded that Respondent
had established a smoking task force ‘‘sometime’’ and it had
come up with some ideas and recommendations. He added
that Respondent had adopted ‘‘most of the recommenda-
tions’’ and would place them in effect. He concluded by say-
ing that the policy revision would not be altered. Finally, re-
garding discussions with the Union about the revised policy,
Lou Smith testified that the subject arose during a meeting
with union representatives on either February 19 or 20, 1990.
He recalled that several people were upset that the smoking
policy change had been implemented without bargaining with
the Union, ‘‘and we had quite a discussion on that.’’ He fur-
ther recalled that someone raised the fact that salaried people
could go outside to smoke while hourly employees could not
do so. Smith averred that he saw merit to that complaint and
that a week later the announced smoking policy revision was
further changed to permit hourly employees to leave the
plant in order to smoke. He added that there have been other,
similar discussions, ‘‘but I can’t quote anything specifi-
cally.’’
As stated by current president Smith, Respondent contends
language in the existing collective-bargaining agreement with
the Union not only constitutes a waiver by the latter of any
asserted right to bargain with Respondent over the decision
to implement or the actual implementation of the revised
smoking policy but also specifically authorizes Respondent
to implement prohibitions against smoking. In this regard,
three provisions of the agreement are at issue: the so-called
management’s rights clause (art. VI) which makes ‘‘the man-
agement of the Company and the direction of the working
forces . . . the sole and exclusive rights and responsibilities
of the Company,’’11 a so-called ‘‘zipper clause’’ (art.
XXXIII(D)) in which the parties agreed that each had the op-
portunity to make proposals with respect to any subject area
of collective bargaining and expressly waived the right to
bargain over any subject or matter covered by or not specifi-
cally covered under the collective-bargaining agreement
‘‘even though such subjects . . . may not have been within
the knowledge or contemplation of either or both of the par-
ties . . . ,’’ and the safety and health provision (art. XXI),
the first sentence of which reads, ‘‘The company shall con-
tinue to make reasonable provisions for the safety and health
of its employees during the hours of their employment.’’
With regard to the management’s rights and zipper clause
language, the record reveals that the provisions have been in
the parties’ successive agreements for many years and there
is no record evidence as to the specifics of the bargaining
for these provisions or as to their meaning or scope. Further,
there is no dispute that the subject of smoking has never
been raised by either party during collective bargaining for
any of the successive contracts between them.
What evidence was adduced at the trial concerns the scope
and coverage of the health and safety provision. As to this,
Respondent argues, generally, that the matter of in-plant
smoking is a health issue and, specifically, that not only does
the express language of the health and safety provision re-
quire it to implement rules, such as the past smoking restric-
tions and the instant smoking policy revisions, designed to
protect the health of its employees but also the historical
usage of this contract clause suggests that Respondent’s right
to unilaterally establish such rules and policies, even if im-
759ALLIED-SIGNAL, INC.
12 According to McKay, whose testimony on this was
uncontroverted, due to the large area, encompassed by the Kansas
City facility, employees were accustomed to using electric scooters
and carts to move from area to area. ‘‘It was getting to the point
that the population of vehicles was too large. It was becoming a haz-
ard for the pedestrian employees.’’ Therefore, without consulting
with the Union, Respondent implemented rules, restricting the use of
the above vehicles. Terming the foregoing, a ‘‘significant change,’’
McKay stated that, notwithstanding that it made many bargaining
unit employees, who had been using these vehicles, ‘‘unhappy,’’ the
change was implemented without seeking the involvement of the
Union. During cross-examination, McKay identified users of motor
vehicles as maintenance, mailroom, and security employees, with
only the former being in the bargaining unit.
13 Although the record is not entirely clear on this point, it appears
that, in the late 1970’s, two female bargaining unit employees filed
a grievance regarding a prohibition against the wearing of slacks
while working. The grievance alleged discrimination inasmuch as
salaried women were allowed to wear such garments while working.
During the processing of the grievance, union officials discussed the
matter with Respondent, and, as a result, the latter agreed to permit
bargaining unit female employees to wear culottes but not ankle
length slacks or dresses. Another grievance at about the same time
was filed over the required wearing of safety shoes. As with the
dress grievance, a union grievance committee met with management,
and they established ‘‘a permissive dress code on shoes in the . . .
manufacturing areas, not for the whole plant.’’ Subsequently, in
1987, according to Charles Miller, the director of employee relations,
the employee dress code was again revised to permit certain kinds
of skirts to be worn by female employees. Miller testified that the
dress code changes were implemented with the assistance of an em-
ployee committee and without any input from or bargaining with the
Union. That such, indeed, seems to have been the case is clear from
the testimony of Union President Sherman Ragsdale, who admitted
that a new bargaining unit employee dress code was implemented in
1987; that, to his knowledge, the Union was not involved in formu-
lating the revised code; and that he would have known if the Union
had been involved.
pacting on the working conditions of bargaining unit employ-
ees, has been recognized and accepted by the Union. With
regard to the latter contention, Charles McKay, who was the
manager of the plant’s environmental services department,
now termed the environmental, safety, and health department,
until he retired in 1989, testified that, besides Federal, state,
and local health and safety rules and regulations, Respondent
has implemented numerous plantwide policies, relating to en-
vironmental and safety matters, without consultation with or
the involvement of the Union. As examples, McKay men-
tioned a recent restriction on the use of in-plant motor vehi-
cles by bargaining unit employees12 and an employee dress
code.13 As to changes in Respondent’s health and safety
rules and procedures, Union Grievance Committeeman Tom
Wackerly conceded that in matters involving compliance
with legal requirements Respondent implements changes in
the plant’s health and safety rules and procedures without in-
volving the Union and without objection from the latter and
that Respondent has implemented health and safety practice
and procedure changes about which the Union was unaware
prior to implementation. Wackerly further stated that when-
ever the Union believes Respondent has breached the collec-
tive-bargaining agreement, the ‘‘practice’’ is to file a griev-
ance.
Notwithstanding the foregoing, the record discloses that
Respondent has, in fact, bargained with the Union over two
concededly safety-related issues. Thus, there is no dispute
that in 1989 the parties discussed Respondent’s decision,
mandated by an outside safety audit, to require certain bar-
gaining unit employees, who had not previously been so re-
quired, to wear safety shoes. According to Tom Wackerly,
Respondent accepted the recommendation of the outside
safety team, decided that it would assume $60 of the pur-
chase price of new safety shoes for the affected employees,
and approached the Union with regard to discussing the ven-
dor of the shoes. Further, according to Wackerly, the parties’
discussions involved additional departments in which the
safety shoes would be required and whether employees
would be reimbursed for purchasing such shoes from vendors
of their own choosing. Also, there is no dispute that the par-
ties engaged in extensive bargaining prior to Respondent’s
implementation of a mandatory employee drug testing policy
in November 1989. Although the details of the policy were
not disclosed during the instant hearing, it appears that it
mandates a sophisticated testing procedure and discipline for
violations. While conceding that employee drug use is as
much a health and safety issue as smoking, Lou Smith
averred that the former is a much more ‘‘complex issue,’’ in-
volving matters such as employee privacy and due process.
He added that, unlike smoking, drug use directly affects an
individual’s security clearance for employment with Re-
spondent. Finally, justifying the failure to bargain with the
Union over the revised smoking policy while bargaining over
the issue of drug testing, Charles Miller termed the former
‘‘evolutionary’’ and the latter ‘‘revolutionary.’’
Finally, buttressing Respondent’s position that the instant
revision of its smoking policy was a health issue about which
it was not required to bargain with the Union prior to imple-
mentation is the testimony of two expert witnesses who testi-
fied to the danger of nonsmoking employees caused by the
tobacco smoke emanating from the lighted cigarettes of
smoking employees. Thus, James Repace, who has conducted
numerous studies regarding indoor air pollution from tobacco
smoke, testified on the effects of ‘‘environmental tobacco
smoke,’’ defining this as ‘‘the smoke exhaled by the smoker
and also the smoke from the burning end of the cigarette
. . . that is released into the atmosphere’’ and stating that
the pollutants in cigarette smoke are both solid particles and
gasses. Further defining a ‘‘carcinogen’’ as any chemical or
biological substance which is capable of inducing cancer in
human beings, Repace stated that there are 43 proven car-
cinogens in tobacco smoke and ‘‘probably 15 or 20 more
that are suspected carcinogens.’’ Differentiating between to-
bacco smoke in the air and that which enters the lungs of
smokers, he testified that, within the former cigarette smoke,
one would discover higher concentrations of carcinogens and
other toxic substances because what smoke enters the lungs
of a smoker has been filtered through the cigarette’s body,
comprised of unsmoked tobacco and, perhaps, a filter. There-
fore, according to Repace, it would be far more dangerous
for a smoker to inhale from the burning end of a cigarette
than from the tip. As to its effect upon the air surrounding
smokers, tobacco smoke is generally warmer and rapidly dif-
fuses throughout the atmosphere in the room, and the con-
taminates from the smoke are continually mixed with the
room air by fresh air which is forced into the room by air-
conditioning or heating units. He added that, in a normal
room, there is usually one complete change of air per hour
and that it usually takes approximately 3 hours to 95 percent
760 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
to clear the effects of a single lighted cigarette. However, if
cigarettes are burning constantly during the day, notwith-
standing the ventilation system in the room, there would be
a ‘‘relatively steady concentration of smoke in the room.’’
Finally, Repace testified, there exits now a large body of sci-
entific literature, concluding that the ‘‘passive’’ inhaling of
tobacco smoke is a cause of lung cancer, heart disease, and
other illnesses; the current estimate is there are approxi-
mately 5000 lung cancer deaths annually caused by environ-
mental tobacco smoke; this mortality is ‘‘roughly 60 times
as great’’ as the total from all other outdoor air carcinogens;
and, based on a study of the air flow in Respondent’s facility
and a calculation of the density of tobacco smoke in any par-
ticular area, ‘‘there would be anywhere from two to seven
hundred times the acceptable risk level for carcinogens in air
based on smoking in those particular areas’’ for nonsmokers.
During cross-examination, Repace admitted that Respondent
did not contact him until 5 or 6 weeks prior to the instant
hearing and that his analysis of Respondent’s plant air flow
was done at that time.
Dr. David Burns, the senior scientific editor of the United
States Surgeon General’s reports on smoking and health from
1980 through 1986, including the report on involuntary or
environmental tobacco smoke exposure, testified with regard
to the conclusions of these reports regarding exposure to sec-
ondary tobacco smoke. The record establishes that the 1986
report of the Surgeon General concerns chronic lung disease
and cancer in the workplace, and, according to Dr. Burns,
three conclusions were drawn from the accumulated data:
that environmental tobacco is a cause of disease, including
lung cancer in healthy nonsmokers; that secondary tobacco
smoke affects lung growth in youth; and separation of non-
smokers from smokers reduces but does not eliminate expo-
sure to secondary tobacco smoke. The witness continued,
stating that a comparison of individuals who have had a sig-
nificant exposure to environmental tobacco smoke to individ-
uals who have had less exposure revealed that the former
group had a demonstrable ‘‘increased risk’’ of developing
lung cancer. Dr. Burns testified further that smoking restric-
tions in the workplace are ‘‘essential’’ inasmuch as 40 to 60
percent of an individual’s exposure to tobacco smoke occurs
in that environment and as one is more able to limit one’s
exposure in the home by having the spouse and others smoke
outside. This must be contrasted with the workplace where
the individual does not have the ability to control his expo-
sure and where all employees share the same ventilation sys-
tem. Asked how one might eliminate the health threat posed
by secondary tobacco smoke in the workplace, Dr. Burns re-
plied, ‘‘The only achievable current mechanism for reducing
that exposure to a level that we know to be safe is to elimi-
nate the exposure completely.’’ Dr. Burns also testified that
the Surgeon General’s reports have no regulatory effect on
federal government facilities; however, they represent the
most recent scientific analysis of the subject at issue and, in
this respect, form the basis for public opinion on the health
threat posed by secondary tobacco smoke. Based on the sci-
entific evidence, according to Dr. Burns, many private indus-
tries are instituting smoke-free environments and the trend
over the decade of the 1980’s was, initially, to separate
smokers from nonsmokers and, more recently, to provide for
completely smoke-free facilities. Finally, while conceding
that there are no current Federal regulations mandating estab-
lishing standards for environmental tobacco smoke in the
workplace, Dr. Burns stated that, in terms of the health risks
which are currently subject to regulation, ‘‘the exposure that
is currently occurring due to environmental tobacco smoke
results in a risk that is from ten to a thousandfold greater
than the level . . . that is set currently for regulating other
agents in the work site.’’
B. Analysis
There is no dispute that Respondent, unilaterally, and
without affording the Union, as the collective-bargaining rep-
resentative of its production and maintenance employees, the
opportunity to bargain, in February 1980, implemented a
manifestly significant revision of its smoking policy, prohib-
iting said conduct in all areas of the plant except for des-
ignated areas of the two employee cafeterias. The complaint
alleged that Respondent’s conduct was violative of Section
8(a)(1) and (5) of the Act, and the law, in this regard, is,
of course, both longstanding and clear. Thus, the foregoing
statutory provision, in conjunction with Section 8(d) of the
Act, essentially requires that employers and designated col-
lective-bargaining representatives bargain in good faith with
each other as to wages, hours, and other terms and conditions
of employment. NLRB v. Borg-Warner Corp., 356 U.S. 342
(1958); Johnson-Bateman Co., 295 NLRB 133 (1989). In
most circumstances, an employer engages in unfair labor
practices by unilaterally making changes in the above man-
datory subjects of bargaining without first providing its em-
ployees’ collective-bargaining representative a meaningful
opportunity to bargain about those changes. NLRB v. Katz,
369 U.S. 736 (1962); Associated Services for the Blind, 299
NLRB 1150 (1990). Here, contrary to Respondent’s conten-
tion that employee smoking is not a term and condition of
employment, I find that such, indeed, constitutes a mandatory
subject of bargaining.
In this regard, I note, at the outset, that while the Board
has long held that ‘‘the concept of ‘terms and conditions of
employment’ is itself a broad one’’ (Peerless Publications,
283 NLRB 334, 335 (1987)), as Justice Stewart recognized
in his oft-quoted concurring opinion in Fibreboard Paper
Products v. NLRB, 379 U.S. 203, 218 (1964), this concept
is not unlimited in scope). Thus, subsequent to issuing
Fibreboard Paper Products and quoting Justice Stewart, the
Supreme Court described terms and conditions of employ-
ment as those matter which ‘‘are plainly germane to the
‘working environment’’’ and are ‘‘not among those ‘manage-
rial decisions, which lie at the core of entrepreneurial con-
trol.’’’ Ford Motor Co. v. NLRB, 441 U.S. 488, 498 (1979);
Johnson-Bateman Co., supra. As to the first factor, germane
to the work environment, while it is true that employee
smoking does not affect the hours they work or the amount
they will earn for their work or alter their job descriptions,
Respondent had always permitted its bargaining unit employ-
ees to smoke in most work areas, breakrooms, and hallways,
and one may justifiably presume that those employees, who
did smoke, did so in order to help pass the time while work-
ing or to relax during break periods. In these circumstances,
the employees’ right to smoke was nothing less than a work-
related privilege, and the Board has long held that such non-
contractual, longstanding practices, as permitting employees
to converse with union officials in production areas, em-
ployee purchase programs, the displaying of posters, cal-
761ALLIED-SIGNAL, INC.
endars, and pictures on the walls of work areas, and the use
of personal radios while working, are ‘‘characteristics’’ of
the employment relationship so as to be terms and conditions
of employment and, therefore, mandatory subjects of bar-
gaining. Fibreboard Paper Products (Stewart, J. concurring),
supra at 222; Murphy Oil USA, Inc., 286 NLRB 1039
(1987); Owens-Corning Fiberglass, 282 NLRB 609 (1987);
Peerless Food Products, 236 NLRB 161 (1978). Counsel for
Respondent correctly argues that, if evidence of past practice
is nonexistent, an employment practice may not rise to the
level of a work related privilege but incorrectly characterizes
Respondent’s historical smoking policy as permitting such
only where allowed by management. Thus, insofar as the
record establishes, until 1962, Respondent’s bargaining unit
employees could smoke anywhere inside the Kansas City fa-
cility without restriction, and, commencing with that date,
Respondent began restricting the areas in which smoking was
permitted. Accordingly, the proper historical characterization
is that employees have been permitted to smoke everywhere
inside the facility except where specifically prohibited by Re-
spondent.
Turning to the second consideration, whether the matter
lies at the core of entrepreneurial control, Justice Stewart
wrote that what this concerns are matters pertaining to the
commitment of investment capital, the basic scope of the en-
terprise, ‘‘those management decisions which are funda-
mental to the basic direction of a corporate enterprise or
which impinge only indirectly on employment security.’’
Fibreboard Paper Products (Stewart, J. concurring), supra at
223. Echoing Justice Stewart, according to the Board, a deci-
sion does not involve entrepreneurial control if ‘‘it does not
involve the commitment of investment capital and cannot
otherwise be characterized as a decision taken with a view
toward changing the scope or nature of the Respondent’s en-
terprise.’’ Johnson-Bateman Co., supra at 137. Here, Re-
spondent asserts that what is involved is a matter of entrepre-
neurial control inasmuch as it is obliged to provide a safe
workplace for its employees and as health-related decisions
do involve economic factors. However, without trivializing
Respondent’s concerns, I do not believe that they are entre-
preneurial in character. Thus, Respondent’s decision to pro-
hibit smoking in all areas of its plant, except designated por-
tions of the employees’ cafeterias, was neither fundamental
to the basic direction of the business nor did it result in the
commitment of any capital resources. Rather, as expressed
by Respondent’s management officials, the decision to pro-
hibit smoking was motivated by health concerns for its em-
ployees, potential increases in sickness and absenteeism, Fed-
eral government pressure to limit smoking, and a fear of
legal liability. Accordingly, while certainly compelling, im-
portant to the welfare of its employees, and economically
justifiable, the foregoing represents ‘‘a more limited deci-
sion’’ than one taken with a view toward committing capital
or changing the scope of the business. Id. at 137. Based on
the record as a whole, the conclusion is mandated that Re-
spondent’s decision to fundamentally change its smoking
policy to prohibit such in all areas of the plant, except the
employee cafeterias, constituted a mandatory subject of bar-
gaining.
Notwithstanding that the matter of smoking inside the
Kansas City facility was a mandatory subject of bargaining,
Respondent argues that, based on the management rights,
‘‘zipper,’’ and health and safety provisions of its existing
collective-bargaining agreement with the Union, it was under
no obligation, prior to implementing the revised policy, to
bargain with the former regarding its decision to prohibit the
practice. I find merit to Respondent’s contentions at least
with regard to the latter two contractual clauses. Initially, as
to the health and safety provision, which requires Respondent
to ‘‘continue to make reasonable provisions for the safety
and health of its employees during the hours of their employ-
ment,’’ not only the wording of the clause but also its histor-
ical usage suggest that the Union consciously waived its
right to notice and bargaining prior to Respondent’s imple-
mentation of new policies and procedures, undertaken pursu-
ant to said provision, even if the policies and procedures im-
pinge on nominal terms and conditions of employment. At
the outset, there can be no doubt that the matter of prohib-
iting smoking inside the plant was primarily a health issue,
and the instant contractual provision clearly requires Re-
spondent to protect the health of its employees while inside
the plant. As explained by Respondent’s president, Smith,
and its director of employee relations, Miller, the decision to
essentially eliminate smoking inside the facility was moti-
vated by available scientific evidence relating to the health
hazards of environmental tobacco smoke. Testifying on this
point, Respondent’s expert witnesses, James Repace and Dr.
David Burns, gave compelling testimony relating to the
health dangers inherent in tobacco smoke and the polluting
effect upon the indoor environment of the materials ema-
nating from the lighted end of a cigarette. Thus, according
to the uncontroverted testimony of Repace, there are 43
known and approximately 20 suspected carcinogens in ciga-
rette smoke; the unfiltered tobacco smoke coming from the
lighted end of a cigarette is more of a health hazard than that
which is inhaled by a smoker; tobacco smoke is warmer, rap-
idly diffuses throughout the atmosphere in a room, and the
smoke contaminates are continually mixed with the room air
by fresh air which is forced into the room by ventilation sys-
tems; and, if cigarettes are burning throughout the day, there
would be a ‘‘relatively steady concentration of smoke in the
room.’’ According to the similarly uncontroverted testimony
of Dr. Burns, the Surgeon General of the United States has
concluded that environmental tobacco smoke is a major
cause of disease, including lung cancer. Burns added that
studies have established that individuals who have more ex-
posure to cigarette smoke than others have a demonstrable
‘‘increased risk’’ of developing the aforementioned disease
and that smoking restrictions in the workplace are ‘‘essen-
tial’’ inasmuch as approximately 60 percent of an individ-
ual’s exposure to tobacco smoke occurs in that environment
and as one is far more able to limit his exposure at home.
With regard to the historical usage of the health and safety
provision, the record conclusively establishes that, both as to
matters mandated by local, state, or Federal laws and those
initiated solely by management, Respondent has been able to
unilaterally, and without initially bargaining with the Union,
implement safety and health-related rules and policies and
that the Union has routinely failed to request bargaining and
never heretofore questioned Respondent’s authority, pursuant
to this contractual article, to so act. Thus, union grievance
committee member Wackerly conceded that, as to matters in-
volving compliance with legal requirements, Respondent im-
plements changes in the plant’s health and safety rules with-
762 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
14 While the record establishes that Respondent and the Union bar-
gained over the requirement that certain employees wear safety
shoes while working and over the implementation of a new drug
testing policy, these do not detract from my belief that the parties
understood that the contractual health and safety provision permitted
Respondent to make ‘‘reasonable’’ provisions for the safety and
health of its employees without notice to or bargaining with the
Union. Thus, requiring employees to wear safety shoes represented
a significant cost factor for the affected employees inasmuch as Re-
spondent’s position was that it would pay only a share of the cost,
and implementation of a mandatory drug testing policy, of course,
provoked privacy, due process, and other legal concerns. While both
involved the safety and health of employees, bargaining with the
Union was clearly essential before implementation, and, as the Board
has noted, ‘‘parties can have many different reasons for agreeing
. . . on some occasions to forgo exercising rights that are clearly
theirs under a collective-bargaining agreement.’’ United Tech-
nologies Corp., 287 NLRB 198, 198–199 (1987).
15 I do not mean to suggest that, absent the terms of the safety and
health provision at issue herein, the Union would have waived its
right to demand bargaining over implementation of Respondent’s re-
vised smoking policy by any past failures to demand bargaining over
less restrictive measures. Thus, ‘‘a union’s acquiescence in previous
unilateral changes does not operate as a waiver of its right to bargain
over such changes for all time.’’ Owens-Corning Fiberglass Corp.,
282 NLRB 609 (1987); NLRB v. Miller Brewing Co., 408 F.2d 12
(9th Cir. 1969).
16 There is no assertion here that Respondent’s revised smoking
policy was not reasonable within the meaning of the contractual
safety and health provision.
out involving the Union and without objection from the
Union. The identical practice, I believe, exists for safety and
health-related policies which are initiated by management.
Thus, it was undisputed that, without prior notice to or bar-
gaining with the Union, Respondent recently implemented
two new policies: one restricting employee usage of electric
scooters and carts inside the plant and the other being a re-
vised employee dress code, permitting certain types of skirts
to be worn by female employees. Respondent argues that
said changes were implemented pursuant to the safety and
health article, and, notwithstanding that both unilateral
changes arguably involved matters germane to the working
environment (hence, terms and conditions of employment)
there is no evidence that, having become aware of the
changes, the Union ever demanded bargaining or challenged
Respondent’s authority to unilaterally implement such. The
foregoing is of the utmost significance herein; for, given the
collective-bargaining agreement between the parties, Re-
spondent was, and remains, legally obligated to act in accord
with the contract and one may rightly assume that the Union
would protest, as it did here, if it believed that Respondent
acted without contractual authorization to unilaterally impose
certain safety and health practices. However, while Wackerly
asserted that the Union’s normal procedure, indeed, is to in-
voke the contractual grievance and arbitration procedure
whenever it believes that Respondent has acted in breach of
the parties’ contract, apparently, no grievances were ever
filed, protesting Respondent’s asserted contractual authoriza-
tion to restrict electric vehicle usage inside the plant or to
change the employee dress code. Therefore, in my view, the
Union’s conduct in these instances supports Respondent’s
contention that, whenever it acts pursuant to the terms of the
contractual safety and health provision, it may do so unilater-
ally and without notice to or bargaining with the Union.14
That this conclusion is correct may best be illustrated by the
Union’s failure over a 19-year period ever to request bar-
gaining or to protest Respondent’s restrictions and limitations
on smoking inside the plant.15 There is no dispute that all
prior smoking restrictions were implemented by Respondent
without prior notice to or offering to bargain with the Union.
Respondent’s president, Smith, stated that the basis for the
Company’s unilateral implementation of all the smoking pol-
icy restrictions, including the instant one, has been the con-
tractual safety and health provision. I believe that the
Union’s failure, over a 19-year period, to ever file a griev-
ance, contesting Respondent’s contractual basis for unilater-
ally implementing the various smoking restrictions over that
time period suggests that the Union shared Respondent’s un-
derstanding of the meaning of the provision and supports my
conclusion that both contracting parties recognized that the
contractual safety and health provision was intended to au-
thorize Respondent to unilaterally implement ‘‘reasonable
provisions’’ for the safety and health of the bargaining unit
employees, notwithstanding any impact on their terms and
conditions of employment.16 Continental Telephone Co., 274
NLRB 1452, 1453 (1985); Emery Industries, 268 NLRB 824
(1984).
Turning to the so-called ‘‘zipper clause,’’ at the outset, I
recognize that the Board does not look favorably upon such
provisions as affecting a contracting party’s statutory duty to
bargain before making changes involving terms and condi-
tions of employment and that, in the view of the Board, the
‘‘normal’’ function of said clauses is to maintain the status
quo and not to facilitate unilateral changes. Associated Serv-
ices for the Blind, supra at 1151 fn. 8; Murphy Oil USA,
Inc., supra. However, this is not to say that the Board will
never find such clauses to constitute waivers of mandatory
subjects of bargaining. Thus, in Johnson-Bateman Co., supra
at 139, while finding no waiver, the Board stated that the
type of zipper clause not to be construed as waiving bargain-
ing rights is that which is ‘‘generally worded.’’ Further, in
Associated Services for the Blind, supra, while also finding
no waiver, the Board carefully noted that the zipper language
only precluded ‘‘bargaining about those matters already
agreed to in the collective-bargaining agreement.’’ Moreover,
in a case involving a zipper clause strikingly similar to that
which is at issue here, Rockford Manor Intermediate Care
Facility, 279 NLRB 1170 (1986), the Board concluded that
a union, by entering into an agreement which contained a
‘‘highly detailed’’ zipper clause, waived any right to bargain
over unresolved issues which may have existed upon the ef-
fective date of the contract. Id. at 1173–1174. Like the in-
stant zipper language, pursuant to which Respondent and the
Union expressly waived the right to bargain over any subject
covered or ‘‘not specifically covered’’ under the parties’
agreement even though such subjects may not have been
within the knowledge or contemplation of the parties, the
zipper language, in Rockford Manor Care Facility, stated
that each party ‘‘waives the right to bargain collectively with
respect to any subject or matter not specifically referred to
in this Agreement, even though such subject or matter may
not have been within the knowledge or contemplation of ei-
ther or both of the parties at the time they negotiated this
Agreement.’’ The Board, which adopted the conclusions of
763ALLIED-SIGNAL, INC.
17 I make no findings as to the meaning of the contractual manage-
ment rights provision or as to Respondent’s other contentions.
18 With regard to the direct dealing allegation of the complaint, in-
asmuch as I do not believe that Respondent is contractually obli-
gated to bargain with the Union prior to implementing reasonable
rules pertaining to the safety and health of the bargaining unit em-
ployees, it follows that Respondent did not violate Sec. 8(a)(1) and
(5) of the Act by consulting with the smoking task force, and not
the Union, prior to implementing the revised smoking policy. Ac-
cordingly, I shall dismiss this allegation of the complaint.
the administrative law judge, found significant the fact that
the zipper language applied to subjects not contained in the
parties’ agreement and concluded that, given the fact that the
parties had negotiated a ‘‘complete’’ agreement, one which
was specific in its ‘‘assault’’ on any bargaining responsibility
during the term, the union had waived any ‘‘interest’’ in bar-
gaining over the matter at issue, a subject not covered by the
language of the agreement. Id. I believe the same result must
be reached here. Thus, the contractual zipper language not
only is as detailed as in Rockford Manor Care Facility but
also its breadth encompasses subjects not contained in the
agreement even if not within the contemplation of either Re-
spondent or the Union at the effective date of document. In
short, there can be no misunderstanding concerning the effect
of the zipper language on the subject of smoking, a matter,
all parties agree, which was neither a subject of negotiation
nor one expressly covered by the terms of the existing agree-
ment. Accordingly, I must conclude, notwithstanding the
Board’s reluctance to give effect to such contract clauses as
constituting bargaining waivers, that, by the express terms of
the instant contractual zipper language, the Union knowingly
waived its interest in bargaining over the matter of smoking.
Rockford Manor Care Facility, supra. Based on the fore-
going,17 the complaint shall be dismissed in its entirety.18
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent did not violate Section 8(a)(1) and (5) of
the Act by unilaterally instituting a smoking ban on February
14, 1990, at its Kansas City facility or by bypassing the
Union and dealing directly with its employees with regard to
this revised smoking policy.
[Recommended Order for dismissal omitted from publica-
tion.]
VI. MANAGEMENT
A. Except as specifically limited by this Agreement, the
management of the Company and the direction of the work-
ing forces, including but not limited to the products to be
manufactured, the location of plants, the schedules and fair
standards of production, the schedules of hours and shifts,
the methods, processes and means of manufacturing, the
right to hire, promote, demote and transfer employees, to es-
tablish rules of conduct, to discharge or discipline for good
and sufficient cause, and to maintain discipline and effi-
ciency of employees, are the sole and exclusive rights and
responsibilities of the Company.
XXI. SAFETY, HEALTH AND GOOD
HOUSEKEEPING
A. Safety and Health
The Company shall continue to make reasonable provi-
sions for the safety and health of its employees during the
hours of their employment. An employee shall draw safety
hazards to the attention of the immediate supervisor who
shall review the hazard with the Safety Department. If the
job is considered safe by the supervisor and the Safety De-
partment, the employee shall be required to perform it.
Where a Safety representative is not available on the second
and third shifts, the safety hazard will be reviewed by the
shift superintendent and a committeeperson if the foregoing
conditions have been satisfied and the circumstances warrant
review. However, the matter may be the subject of an imme-
diate grievance. The Company, as it deems necessary, may
have the Medical Department make such physical examina-
tions of its employees as considered advisable to determine
the physical fitness of employees for their jobs and to deter-
mine any health hazards. The Company will continue to pro-
vide necessary protective equipment for the use of employ-
ees. The chairpersons of the aerospace and skilled grievance
committee will act as the Union’s advisory committee to pro-
mote and assist the Company in maintaining a safe and
healthy place to work. This committee will bring to the at-
tention of the Company any unsafe or unhealthy conditions
in the plant.
XXXIII. DURATION
. . . .
B. During the term of this Agreement neither party shall
demand any change in this Agreement, nor shall either party
be required to bargain with respect to this Agreement, nor
shall a change in or addition to this Agreement be an objec-
tive of or be stated as reason for any strike or lockout or
other exercise of economic force or threaten thereof by the
Union or the Company.
. . . .
D. The parties acknowledge that during negotiations which
resulted in this Agreement, each had the unlimited right and
opportunity to make demands and proposals with respect to
any subject or matter not removed by law from the area of
collective bargaining, and that the understandings and agree-
ments arrived at by the parties after the exercise of that right
and opportunity are set forth in this Agreement. Therefore,
the Company and the Union, for the life of this Agreement,
each voluntarily and unqualifiedly waives the right and each
agrees that the other shall not be obligated to bargain collec-
tively with respect to any subject or matter referred to or
covered in this Agreement, or with respect to any subject or
matter not specifically referred to or covered in this Agree-
ment, even though such subjects or matter may not have
been within the knowledge or contemplation of either or both
of the parties at the time they negotiated or signed this
Agreement.