W-I Forest Products Co.

National Labor Relations Board - Board Decisions

Aug 30, 1991

304 N.L.R.B. 957 (N.L.R.B. 1991)

957
304 NLRB No. 83
W-I FOREST PRODUCTS CO.
1 Subsequent to the administrative law judge’s decision, the Respondent
filed a motion to dismiss the complaint as moot, presenting the threshold ques-
tion of whether we need to reach the merits. In support of its motion, the Re-
spondent offers the facts that the Peshastin mill was closed on April 22, 1990,
pursuant to an agreement between the Respondent and the Union on April 18,
1990, and that the production equipment and buildings were sold at a public
auction on May 3, 1990. The Respondent argues that the present case should
therefore be dismissed as moot because the Peshastin mill has been perma-
nently closed and therefore any alleged unfair labor practice could not be con-
tinued and any resulting order could not be enforced.
It is a well-established principle that ‘‘mere discontinuance in business does
not render moot issues of unfair labor practices alleged against a respondent.
‘Irrespective of the ability of the respondent to comply with the order, a decree
of enforcement is a vindication of the public policy of the statute.’’’ Armitage
Sand & Gravel, 203 NLRB 162, 166 (1973). Where as here, the employer
closes only one of several facilities represented by a union, there is no assur-
ance that the alleged unlawful conduct could not be repeated. NLRB v.
Raytheon Co., 398 U.S. 25 (1970). For these reasons, the motion to dismiss
the complaint as moot is denied.
W-I Forest Products Company, a Limited Partner-
ship and Lumber and Sawmill Workers Local
2841. Case 19–CA–20174
August 30, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On March 21, 1990, Administrative Law Judge
James M. Kennedy issued the attached decision in this
proceeding. Thereafter, the General Counsel filed ex-
ceptions and a supporting brief. The Respondent, W-
I Forest Products Company, a Limited Partnership,
filed a brief in support of the administrative law
judge’s decision and a motion to dismiss the com-
plaint.
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, briefs, and motion,
and has decided to affirm the judge’s rulings, findings,
and conclusions, as modified below, and to adopt the
recommended Order.
I. INTRODUCTION
The complaint in this case alleged that the Respond-
ent’s implementation of a smoking ban at its lumber
mill in Peshastin, Washington, violated Section 8(a)(5)
and (1) of the Act because it was done without the
consent of the Lumber and Sawmill Workers Local
2841 (the Union). The complaint alleged that such
consent was necessary because the smoking ban was
among those issues governed by a ‘‘Closure of Issues’’
clause in a strike-settlement agreement executed by the
Respondent and the Union. Thus, the General Counsel
predicated the violation of Section 8(a)(5) on his con-
tention that the Respondent had violated the closure of
issues clause by its action.
The administrative law judge dismissed the com-
plaint on three independent grounds. He concluded (1)
that a smoking ban is not a mandatory subject of bar-
gaining insofar as a union seeks to eliminate or restrict
the ban; (2) that even assuming such a ban is a manda-
tory subject generally, the Respondent was not obli-
gated to bargain because the changes in smoking re-
strictions reflected in the ban at issue here did not rep-
resent a material and substantial change from existing
restrictions; and (3) that even if a bargaining obligation
existed, the Union had waived its bargaining rights. In
finding waiver, the judge rejected the General Coun-
sel’s argument that the closure of issues clause in the
strike-settlement agreement applied to the ban. He
found that the strike-settlement agreement applied only
to matters which the parties had contemplated includ-
ing in their collective-bargaining agreement, and he
concluded that the parties had historically dealt with
plant work rules, such as the smoking ban, outside the
framework of the collective-bargaining agreement.
Therefore, assuming arguendo the ban was a manda-
tory subject, the judge regarded it as a noncontractual
change on which the Respondent need only afford the
Union notice and an opportunity to bargain. The judge
concluded that the Union had received timely notice
and had waived its right to bargain by its failure to re-
quest bargaining. The judge also found waiver on the
basis of the Union’s abandonment of a contractual
grievance it had filed on the subject.
We reverse the judge’s findings that smoking bans
are not mandatory subjects and that this ban did not
represent a substantial and material change, but we
agree with the judge that the ban was not covered by
the closure of issues clause and that the Union waived
its right to bargain over it by its inaction in the face
of timely advance notice by the Respondent. Accord-
ingly, we adopt his dismissal of the complaint.1
II. FACTUAL FINDINGS
As more fully outlined in the administrative law
judge’s decision, the issues in this case arose out of
the facts that follow. In January 1987, the Respondent
sought to implement a total ban on smoking on its
property at Peshastin, Washington, and apparently at
other mills as well. Prior to this time, smoking had
been permitted during break periods in designated
areas of the mill. That smoking rule was embodied in
plant rule 3. The Respondent notified the Union by let-
ter dated January 16, 1987, of its intention to imple-
ment the ban effective July 1, 1987, and its willingness
to negotiate over the change. The Union responded to
this letter by indicating that it would consider the uni-
lateral implementation of this ban a violation of the
collective-bargaining agreement in effect between the
parties and a violation of the Act. On February 20,
1987, the Respondent answered the Union’s letter by
indicating that, if requested, it was willing to bargain
958 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
over the ban and requesting clarification of which con-
tractual provisions would be violated by the ban. The
Union did not reply to this offer and request.
Because the contracts in all the mills were to be re-
opened for negotiations in 1988, the Respondent elect-
ed to delay the implementation of the smoking ban for
union-represented employees and to announce the new
policy simultaneously with the contract proposals. The
ban went into effect as originally scheduled however,
for managerial and nonunion employees. Negotiations
for the new contracts at all the mills began in 1988
and took place at two levels, one for the ‘‘big table’’
issues (uniform issues to be implemented company-
wide at all mills) and the other for ‘‘local’’ issues
(issues specific to each individual mill).
The Peshastin contract was set to expire on August
3, 1988, and one local bargaining meeting was held at
which, among other matters, the smoking ban was an-
nounced and discussed. The Union suggested alter-
natives to the total ban, but no resolution was reached
and the Union never made any written proposals. Sub-
sequent to this meeting, strikes at some facilities oc-
curred including a strike at the Peshastin mill, and no
further local meetings took place for Peshastin.
On September 9, 1988, a strike-settlement agreement
(Memorandum of Agreement) was signed ‘‘Extending
and Renewing Existing Agreements.’’ Included in this
agreement was a ‘‘Closure of Issues’’ clause which
was understood by both the Respondent and the Union
as designed to close any unresolved local bargaining
issues for the term of the new agreement.
Following this agreement, on October 18, 1988, the
Respondent posted announcements at locations
throughout the mill of the new smoking policy to be-
come effective on January 1, 1989. The notice was
seen by the affected employees and there is evidence
that the Union likewise was made aware of the an-
nouncement. The ban thereafter was incorporated into
the plant rules and safety guides, infractions of which
were grounds for disciplinary action including suspen-
sion and discharge.
On December 20, 1988, 2 months after the ban was
announced, the Union filed a grievance through the
three-step grievance procedure outlined in the collec-
tive-bargaining agreement. Under the terms of the
agreement, this procedure does not lead to arbitration.
The Respondent’s plant manager denied the grievance,
indicated that the ban was not a grievable issue, and
designated violations of the rule as ‘‘gross mis-
conduct’’ (i.e., behavior that, under the terms of the
contract, could lead to discharge without notice). The
ban took effect on January 1, 1989, as announced.
III. ANALYSIS
A. The Plantwide Smoking Ban was a
Mandatory Subject
In concluding that the smoking ban was not a man-
datory subject of bargaining, the judge noted at the
outset, by reference to the reasoning of Justice Stew-
art’s concurrence in Fibreboard Corp. v. NLRB, 379
U.S. 203, 220–223 (1964), that not every management
practice that affects employees is necessarily a manda-
tory subject of bargaining and that some are strictly
matters of entrepreneurial concern as to which an em-
ployer has no duty to bargain. In particular the judge
analogized a smoking ban to the rules on journalistic
ethics at issue in Capital Times, 223 NLRB 651
(1976), and Peerless Publications, 283 NLRB 334
(1987), on remand from 636 F.2d 550 (D.C. Cir.
1980). The Board had found such rules to be strictly
entrepreneurial concerns because they had little impact
on employees’ jobs and were aimed solely at protect-
ing a core purpose—credibility and integrity—of the
newspapers that promulgated them.
Applying the logic of the journalistic ethics cases,
the judge held that a total plantwide ban on smoking
is not a mandatory subject because smoking during the
workday has only ‘‘an indirect impingement on job se-
curity,’’ and because a rule banning smoking is con-
sistent with ‘‘the nation’s public policy on smoking,’’
which disfavors smoking on grounds of health. In par-
ticular, the judge relied on that national policy to con-
clude that a total ban on workplace smoking would not
be a mandatory subject of bargaining if the union seek-
ing bargaining sought to resist it entirely or to restrict
its coverage, but that it would be a mandatory subject
if a union sought to obtain or extend such a ban.
The judge acknowledged the existence of Board
precedents that treated restrictions on smoking as man-
datory subjects on which a refusal to bargain would
violate Section 8(a)(5). Albert’s, Inc., 213 NLRB 686,
692–693 (1974); Chemtronics, Inc., 236 NLRB 178,
190 (1978). He discounted them, however, by noting
that the employers in those cases had also been found
to have acted out of union animus, in violation of Sec-
tion 8(a)(3), and that there was no extensive analysis
of the 8(a)(5) violations.
The analogy the judge attempts to draw between the
ethics codes in Capital Times and Peerless Publica-
tions, and the smoking ban at issue here inaccurately
assumes that protecting employee health and carrying
out recommendations of various reports by the Sur-
geon General are core entrepreneurial purposes of a
lumber mill. These may be laudable objectives for any
employer, but they do not go to the heart of the Re-
spondent’s business in the way that, for example, a
959W-I FOREST PRODUCTS CO.
2 We emphasize that we are concerned here with activities that are not pro-
hibited by any law. Nothing in this decision is meant to suggest that the bar-
gaining obligation defined in Secs. 8(a)(5) and 8(d) of the Act would require
employers to consider proposals under which violations of law would be im-
munized in the workplace.
rule prohibiting a reporter from taking gifts from the
source for one of her stories relates to the core entre-
preneurial concern of a newspaper. Under the judge’s
logic, unions would not be free to bargain over the re-
moval of vending machines from employee lunch-
rooms or breakrooms if the machines sold foods that
were high in fat or sodium or were otherwise con-
demned as unhealthy by the Surgeon General. Safety
rules would be similarly removed from the bargaining
table if the union were seeking freedoms from restric-
tions that the employer could characterize as a means
of promoting employee safety.2
We also disagree with the judge’s reasoning that the
smoking ban falls outside the ambit of ‘‘terms and
conditions of employment’’ defined by Section 8(d)
because it has only an ‘‘indirect impingement on job
security.’’ The same could be said of the prices of
food at an in-plant cafeteria. Yet the Supreme Court
has held that ‘‘the availability of food during working
hours and the conditions under which it is to be con-
sumed are matters of deep concern to workers, and one
need not strain to consider them to be among those
‘conditions’ of employment that should be subject to
the mutual duty to bargain.’’ Ford Motor Co. v. NLRB,
441 U.S. 488, 498 (1979). The Court said that the
question is whether the subject matter is ‘‘germane to
the working environment.’’ In our view, a rule that
forbids smoking is ‘‘germane to the working environ-
ment.’’ Although smoking is not as critical to life-
functioning as food in a cafeteria, and indeed may be
deleterious to health, it is nonetheless a part of the
working environment in which many smokers function.
In addition, we note that in the instant case, a breach
of the rule would constitute grounds for disciplinary
action, including discharge and suspension. See John-
son-Bateman Co., 295 NLRB 180, 183 fn. 18 (1989).
In sum, we find, as the Board implicitly did in
Alberts, Inc., supra, and Chemtronics, Inc., supra, that
a ban on smoking on an employer’s premises during
working hours is a mandatory subject of bargaining,
regardless whether the bargaining representative seeks
to obtain such a ban or to limit or eliminate it. In our
view, the Board’s failure in those cases to engage in
an extended analysis of the basis for finding smoking
bans to be mandatory subjects of bargaining had little
or nothing to do with the fact that, because they were
imposed for unlawful retaliatory reasons, they violated
Section 8(a)(3) as well as Section 8(a)(5). Rather, we
think the more likely explanation is that the parties and
the Board thought it self-evident that restrictions on
employee smoking in the workplace are ‘‘working con-
ditions’’ within the meaning of Section 8(d).
B. The Total Ban Represented a Substantial and
Material Change from Past Practice
Having found that workplace smoking bans are
properly classified as mandatory subjects of bargain-
ing, we next consider whether the changes in the Re-
spondent’s smoking restrictions were sufficiently dif-
ferent from existing rules as to have a significant, sub-
stantial, and material impact on the employees’ terms
and conditions of employment. The Board has long
held that an employer is not obligated to bargain over
changes so minimal that they lack such an impact.
Rust Craft Broadcasting, 225 NLRB 327 (1976). Ac-
cord: St. John’s Hospital, 281 NLRB 1163, 1168
(1986); United Technologies Corp., 278 NLRB 306,
308 (1986); Peerless Food Products, 236 NLRB 161
(1978).
We do not agree with the judge that the change here
lacked sufficient impact to make it subject to the bar-
gaining obligation. The difference between being al-
lowed to smoke only during breaks in designated areas
(including breakrooms)—the pre-1989 rule—and not
being allowed to smoke on the employer’s property at
any time clearly was a substantial and material change
for those who smoked. As the judge recognized, al-
though employees were free to go off the property dur-
ing their breaks to smoke, this was not a simple mat-
ter. It meant walking from between 600 to 1500 feet
from work stations out to an area next to a railroad
siding beyond the Respondent’s property line. Given
the large accumulations of snow in the winter, this en-
tailed, as the judge acknowledged, ‘‘quite a bit of dis-
comfort.’’ Failure to obey the rules, the judge found,
subjected employees to disciplinary penalties including
suspension or discharge. The judge found that after the
rule was put into effect, several employees were given
disciplinary warnings. In our view, the total ban
amounted to a more substantial change than was prov-
en in St. John’s Hospital, supra, where the Board
found that a prohibition on smoking during a 15-
minute reporting period between shifts was not a
bargainable change because that 15-minute period was
the only time affected and such a prohibition had been
enforced at times in the past. 281 NLRB at 1168.
C. The Change was not Covered by the ‘‘Closure
of Issues’’ Clause
Having found that the smoking ban at issue here
was of such a nature as to make it subject to the bar-
gaining obligation imposed by Sections 8(a)(5) and
8(d) of the Act, we next consider the General Coun-
sel’s contention that the ban was subject to the second
paragraph of the ‘‘Closure of Issues’’ clause, set out
in section IX of the September 9, 1988 strike-settle-
ment agreement. The consequence of such coverage,
the General Counsel argues, is that the ban would be
included among those issues that the parties had agreed
960 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 We agree with the General Counsel’s contention that the Respondent could
not lawfully insist on keeping plant rules out of the collective-bargaining
agreement if the Union wished to include them. We do not agree, however,
that the question of whether there should be contract language on the subject
of smoking restrictions was sufficiently crystallized prior to the execution of
the strike-settlement agreement to permit a finding that the Respondent was
insisting to impasse on keeping plant smoking rules out of the collective-bar-
gaining agreement. In any event, that was not the theory of the complaint.
4 The General Counsel has also argued in his exceptions that smoking re-
strictions should have been held in status quo during the term of the renewed
bargaining agreement because art. 24 of that agreement (a waiver of bargain-
ing, or ‘‘zipper’’ clause) required this. We decline to consider this contention
because art. 24 was neither alleged nor litigated as material to the issues here.
Hence, as the Respondent correctly observes, it had no notice or opportunity
to offer any evidence concerning the significance of that provision. Castaways
Hotel, 284 NLRB 612, 613–614 (1987), and cases there cited. Compare Jones
Dairy Farm v. NLRB, 909 F.2d 1021, 1028–1029 (7th Cir. 1990) (no due
process violation where respondent had itself relied on a particular contract
clause and claimed surprise when the Board construed it as supporting the case
against the respondent).
to leave unresolved. Therefore, it is argued, the status
quo could not be changed as to this matter during the
agreed-upon renewal term of the collective-bargaining
agreement. Having made such an agreement, the Re-
spondent would violate Section 8(a)(5) by imposing
the ban, regardless whether it offered the Union an op-
portunity to bargain about it. For the following rea-
sons, we reject the General Counsel’s exceptions on
this point and affirm the judge’s finding that the smok-
ing ban was not subject to the ‘‘Closure of Issues’’
clause.
The strike-settlement agreement, which applied to all
the Respondent’s unionized plants, including the
Peshastin facility, began with a preamble stating that
the parties ‘‘agree to the following amendments and
revisions of each individual W-I Forest Products Com-
pany, L.P., collective bargaining agreement in full set-
tlement of all subjects of collective bargaining.’’ There
followed various articles identified by roman numerals,
setting forth changes in contract language. Section VIII
provided as to local issues on which the parties had
agreed and ‘‘signed off’’ that the language reflecting
those changes would be ‘‘incorporated into [the collec-
tive bargaining] agreements.’’ The closure of issues
clause (sec. IX) read, in its entirety, as follows:
IX. CLOSURE OF ISSUES
A. All issues upon which authority to negotiate
was delegated by local Unions and district coun-
cils to the IWA and WCIW or their designated
representatives, not covered herein, are withdrawn
and closed for the term of the bargaining agree-
ments as modified.
B. Other issues opened either by local Unions,
district councils or the Company not included in
this settlement are withdrawn for the term of the
bargaining agreements if unresolved because not
signed or initialled as of the time this Settlement
Agreement is signed and ratified.
The General Counsel argues that the subject of the
smoking ban was an issue opened by the local unions,
that it was left unresolved as of the time the strike-set-
tlement agreement was signed, and that by virtue of
the parties’ agreement that such issues would be re-
garded as ‘‘withdrawn for the term of the bargaining
agreements.’’ Accordingly, it is argued, the Respond-
ent was obligated to leave existing smoking restrictions
unmodified and could not even require the Union to
bargain over any changes during that term. The Re-
spondent does not dispute the General Counsel’s the-
ory of the operative effect of that clause. It simply dis-
putes that the smoking ban is covered by it.
We agree with the judge that section IX,B, read to-
gether with the preamble to the strike-settlement agree-
ment, establishes that the issues which the parties
agreed to regard as ‘‘closed’’ were solely those issues
that were negotiated within the framework of bargain-
ing for a collective-bargaining agreement—issues on
which language would have been added to or modified
in the contract had agreement been reached.
The smoking ban was essentially a modification of
an existing plant rule that restricted smoking to certain
areas, and it is undisputed that the plant rules had
never been part of the collective-bargaining agreement.
Although two union representatives testified that the
smoking ban had been discussed at the August 25 bar-
gaining session and that the union representatives had
expressed some views on it there, their testimony does
not contradict the testimony of the Respondent’s wit-
nesses that the Union did not expressly propose at that
meeting changing the parties’ traditional framework for
dealing with plant rules. Thus, while the Union pre-
sented written proposals on various issues discussed at
that meeting, it never put anything into writing on the
subject of smoking.3
In short, the smoking ban was not one of the sub-
jects that the parties had agreed in section IX,B of the
strike settlement agreement would be ‘‘withdrawn for
the term of the bargaining agreements if unresolved
. . . .’’ The Respondent was thus free to impose it
during the term of the contract, so long as it first gave
the Union notice and a reasonable opportunity to bar-
gain.4
D. The Union Waived its Rights by Failing to
Request Bargaining After Notice that the
Respondent Planned to Implement the Ban
When an employer announces plans for a change in
noncontractual working conditions, a union having suf-
ficient notice of the contemplated change will ordi-
narily be deemed to have waived its bargaining rights
if it fails to request bargaining prior to implementation.
Further it is incumbent on the union to act with due
diligence in requesting bargaining. Kansas Education
Assn., 275 NLRB 638, 639 (1985), and cases there
cited. Although a union may waive this right, such a
waiver must be ‘‘clear and unmistakable.’’ Kansas
961W-I FOREST PRODUCTS CO.
5 Because we find, as explained below, that the Union waived its bargaining
rights by failure to request bargaining after it was on notice of the planned
implementation, we find it unnecessary to pass on the judge’s conclusion that
the Union waived its rights by its failure to exhaust the grievance procedure
set forth in arts. V and VI of the collective-bargaining agreement. Arguably,
art. VI simply means that if an unsettled dispute is not submitted to Federal
Mediation and Conciliation Service, the parties will have waived their respec-
tive rights to strike or lockout.
Education Assn., supra at 639, citing Metropolitan Edi-
son Co. v. NLRB, 460 U.S. 693 (1983). We will not,
however, find such a waiver, and hence will find that
the unilateral change violated Section 8(a)(5), when the
change has essentially been made irrevocable prior to
the notice or has otherwise been announced as a matter
on which the employer will not bargain. Michigan
Ladder Co., 286 NLRB 21 (1987); Owens-Corning Fi-
berglas, 282 NLRB 609 fn. 1 (1987); Kay Fries, Inc.,
265 NLRB 1077 (1982).
The judge found that the Union was on notice of the
Respondent’s plan to implement the ban at least as
early as August 25, 1988, when the plan was briefly
discussed at a contract negotiating session. The judge
found that the Union waived its bargaining rights
based on two grounds. The Union waived its rights
when it made only a ‘‘desultory effort’’ to request bar-
gaining after the Respondent provided it with notice
and opportunity to bargain. Secondly, the judge rea-
soned that the Union might have believed a bargaining
request would be futile but that it waived its bargain-
ing rights because its failure to follow through on a
contractual grievance it filed over the ban amounted to
a failure to test the Respondent’s willingness to bar-
gain on the subject. The General Counsel excepts, con-
tending that the Respondent had made it clear to the
Union that it would not bargain over the matter. We
agree with the judge’s conclusion that the Union
waived its bargaining rights. We base this conclusion,
however, on grounds somewhat different from those on
which the judge relied.
As we have already found, in agreement with the
judge, rules on smoking had never been included in
the collective-bargaining agreement, so the Union
might have deemed it futile to pursue contractual
grievances on the subject.5 It was not, however, clearly
futile for the Union to request bargaining. As noted in
section II, above, the Respondent had first proposed
extending its ban from the unorganized sectors of its
work force to those represented by the Union in 1987,
and on February 20 of that year, it had sent the Union
a letter, signed by Hugh Bannister, the Respondent’s
labor relations spokesman, expressly declaring the Re-
spondent’s willingness to bargain on the subject. The
Union never responded, and the original planned im-
plementation date for the union-represented employees,
July 1, 1987, passed without action because the Re-
spondent decided to delay implementation apparently
because of the controversial nature of the change.
When the Respondent later announced the January
1989 date for implementing the ban by posting notices
on October 18, 1988, the Union had no basis for be-
lieving that the Respondent had withdrawn its earlier
invitation to bargain. Thus, although the Respondent
consistently maintained that the ban was not part of the
negotiations over subjects to be addressed in the col-
lective-bargaining agreement (the ‘‘local issue’’ dis-
pute), it never stated that it would refuse to bargain
over the subject at all. Furthermore while the Union
received notice of the Respondent’s intent to imple-
ment a smoking ban 2-1/2 months prior to the imple-
mentation date and although it filed a grievance over
the matter, it never requested bargaining over the ban.
In his exceptions, the General Counsel cites remarks
made to Union Steward John Ellis by some of the Re-
spondent’s managers as indicating the futility of re-
questing bargaining. Those remarks, however, address
mainly the origin of the policy (‘‘came down from the
higher ups’’) and the fact that these managers were not
responsible for it and had no choice but to obey it. As
noted previously, the rule was originally imposed on
management as well as other segments of the unrepre-
sented work force. The supervisor who spoke in the
strongest terms about the futility of protest was Night
Shift Foreman Jerry Pulse, but he was responding to
Ellis’ statement that he intended to file a grievance.
Had the Respondent not offered in writing to bargain
about this ban when it first announced it to the Union,
perhaps the various remarks to Ellis would suffice to
establish the futility of requesting bargaining. We sim-
ply find them insufficient, however, to overcome the
Respondent’s earlier express invitation to bargain.
Finally, we note that the Union’s filing of a griev-
ance over the smoking ban did not constitute a request
for bargaining. Haddon Craftsmen, 297 NLRB 462
(1989) (filing, and then withdrawing, grievance not a
request for bargaining). See also Citizens National
Bank of Willmar, 245 NLRB 389, 390 (1979) (protest-
ing a change and filing an unfair labor practice charge
does not constitute a request for bargaining). In any
event, the theory of the Union’s grievance was that the
smoking ban violated a written agreement between the
Respondent and the Union. The Respondent’s disagree-
ment with the Union’s contention that it was precluded
by terms of the collective-bargaining agreement from
implementing the ban is not at all inconsistent with its
understanding that it was obligated to give the Union
notice and an opportunity to bargain over it prior to
any implementation. For the reasons stated, we find
that the Union had such notice and opportunity and
failed to act on it. We accordingly conclude that the
Union waived its bargaining rights.
962 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The bargaining unit which the Union represents has been admitted and is
described as follows:
All production and maintenance employees at Respondent’s plant at
Peshastin, Washington, exclusive of office and clerical help, retail sales-
men, superintendents, or professional or supervisory employees and
watchmen or plant guards, as defined by the Labor Management Relations
Act of 1947, as amended.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
dismisses the complaint in its entirety.
Max D. Hochanadel, Esq., for the General Counsel.
Louis B. Livingston and Randy Steadman (Miller, Nash, Wie-
ner, Hager, and Carlsen), of Portland, Oregon, for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
JAMES M. KENNEDY, Administrative Law Judge. This case
was tried before me in Wenatchee, Washington, on October
17, 1989, upon a complaint issued by the Regional Director
for Region 19 of the National Labor Relations Board on July
28, 1989. The complaint is based upon a charge filed by
Lumber and Sawmill Workers Local 284l (the Union) on
February 3, 1989. It alleges that W-I Forest Products Com-
pany, a Limited Partnership (Respondent or W-I) has com-
mitted certain violations of Section 8(a)(5) and (1) of the Na-
tional Labor Relations Act.
Issues
The issue in this case is whether Respondent was privi-
leged on January 1, 1989, to implement a no-smoking ban
at its Peshastin, Washington mill. The General Counsel as-
serts that the rule was implemented in violation of a ‘‘closure
of issues’’ clause found in a recently signed strike settlement
agreement. Respondent asserts the closures of issues clause
has no application to plant rules, but was directed instead at
issues intended for insertion in the successor collective-bar-
gaining agreement; it also argues the Union in several dif-
ferent ways waived its right to bargain over the issue.
I. JURISDICTION
Respondent admits it is a Washington limited partnership
with an office and place of business in Lake Oswego, Or-
egon, doing business at various locations in Idaho, Montana,
and Washington, including Peshastin where it is engaged in
lumber production. It further admits that it meets both the
Board’s direct inflow and direct outflow interstate commerce
standards and that it is an employer within the meaning of
Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
Respondent admits that the Union is, and has been at all
material times, a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
As noted, Respondent operates a lumber mill at Peshastin,
Washington. Its Peshastin production and maintenance em-
ployees are represented by the Union.1 Respondent’s oper-
ations, however, are not limited to the mill at Peshastin. It
also operates similar mills in Coeur D’Alene and Colburn,
Idaho, and Thompson Falls, Montana. Until late 1988, it op-
erated a mill in Cashmere, Washington, quite close to
Peshastin. All these mills (including Cashmere until its clos-
ing) are or were unionized operations. The two Idaho mills
are represented by a local of the International Woodworkers
of America, AFL–CIO, and the other three are represented
by locals of the Lumber and Sawmill Workers, affiliated
with the Lumber Production & Industrial Workers, through
its Western Council.
Respondent shares certain managerial personnel with an-
other lumber production firm, DAW Forest Products Com-
pany. Like Respondent, DAW operates mills in Montana,
Idaho, and Oregon. As a result of their common interests,
both unions and both employers have agreed to bargain in
common fashion, although each of the facilities is covered by
a separate collective-bargaining contract with the appropriate
local union. These contracts do not have common expiration
dates, although they usually expire during the same year.
In 1988 all these contracts were opened for renegotiation.
The Peshastin facility had the latest expiration date, August
31, 1988. As that date approached, because the contracts at
the other facilities had already expired, bargaining between
the employers and the unions groups was already ongoing,
taking place at two levels: the so-called ‘‘central’’ or ‘‘big’’
table issues and the ‘‘local’’ table issues, limited to a given
plant. All of these issues were destined to be embodied in
the actual collective-bargaining agreement (or if they were
table issues which had not survived bargaining, were to be
excluded from the collective-bargaining contracts). There
was, however, a third type of concern which may or may not
have involved a bargaining obligation as defined by Section
8(d) of the Act, but which the parties normally did not con-
sider part of the contractual process. Nonetheless, the parties
agree that the topics covered are often mandatory bargaining
subjects and they do negotiate resolutions of them. These are
the plant and safety rules which may vary from plant to
plant. They usually deal with safety or employee behavior
matters. For example, at Peshastin Respondent has issued a
document known as the ‘‘Safe Practice Guide.’’ It is a rather
extensive booklet detailing the plant rules. It sets forth direc-
tives on such things as proper protective clothing, attendance,
bringing or using intoxicants/drugs, horseplay, and the like.
It also included, prior to January 1, 1989, plant rule 3, which
proscribed smoking except in approved areas.
B. The No-Smoking Rule at Peshastin
As noted above, prior to January 1, 1989, smoking had
been prohibited at the Peshastin plant except in designated
areas. Testimony suggests that there were at least two such
areas. The January 1, 1989 ban, however, was to eliminate
them and to prohibit smoking by anyone anywhere on the
site or in any company vehicle off the site. The ban had ac-
tually begun in 1987 when a directive was issued to all un-
represented employees, including supervision and higher
management, which prohibited them from smoking anywhere
963W-I FOREST PRODUCTS CO.
2 That ‘‘understanding’’ is more than simple speculation. For almost 30
years the United States Surgeon General has required warnings of possible
lung disease on cigarette packages. The issue reached a new crescendo on Feb-
ruary 20, 1990, when Louis Sullivan, Secretary of the Department of Health
and Human Services, issued a report to Congress finding that smoking-related
diseases were costing the United States public more than $52 billion annually.
That figure, according to the report, amounts to an annual expenditure of $221
for every man, woman, and child in the nation.
On the same day, a major union, the Service Employees International
Union, AFL–CIO, issued a report saying that 78 percent of the strikes which
occurred throughout the nation in 1989 were caused by disputes over health
care coverage. It said this broke a 40-year period where strikes were not so
motivated. These strikes, said the SEIU, cost the economy over $1.1 billion
in lost wages. (San Francisco Examiner, Feb. 20, 1990, publishing UPI wire
report.)
While the SEIU report (at least the news story) does not refer to smoking
related diseases as a cost of driving up health insurance costs, it is hardly a
wild guess to conclude that elimination of the $52 billion referred to by Sec-
retary Sullivan would greatly reduce health insurance premiums and signifi-
cantly reduce the number of strikes over health issues.
3 Pieti is the area representative for the Western Council of Industrial Work-
ers, the Charging Party’s intermediate parent. Pieti represented Local 2841 in
its 1988 negotiations with Respondent.
in the plant. According to their chief negotiator, Hugh Ban-
nister, the two employers actually had intended to impose the
ban in 1987, but ultimately decided that since they would be
bargaining with the Unions at the various plants in 1988,
they would wait to put the smoking ban to the Unions simul-
taneously with the proposals for new collective-bargaining
contracts.
Bannister testified that the reason Respondent and DAW
decided to impose this ban at their plants was to avoid cer-
tain state workmen’s compensation decisions which had held
employers liable for tobacco-induced illness in circumstances
where employers had allowed smoking on the premises. In
addition, according to Bannister, W-I and DAW were trou-
bled because they did not wish to be in a position where they
could be accused of promoting the idea of smoking or con-
tinuing to promote smoking. Moreover, he says, it was the
companies’ understanding that smoking was creating serious
problems with emphysema and lung cancer which had a di-
rect affect on the cost of health and welfare, and, although
those costs would be indirect to the companies due to their
membership in various health trusts, it was nonetheless a
consideration.2
In any event, beginning in January 1987, Bannister began
an effort to implement the smoking ban at Peshastin and
probably other locations as well. On January 16, 1987, he
wrote the Charging Party’s agent, Hank Pieti,3 a letter pro-
posing to implement a no-smoking policy for a ‘‘safe and
healthy work place,’’ noting that it had already been imple-
mented with respect to nonbargaining unit employees. He of-
fered to meet and negotiate with Pieti or his representative
on the matter. He stated in the absence of the Union’s will-
ingness to negotiate on that topic, the policy would go into
effect on July 1, 1987.
In response to Bannister’s letter, James S. Bledsoe, execu-
tive secretary of the Western Council, wrote Bannister asking
Respondent to rescind its decision since all of the collective-
bargaining agreements were closed until various months in
1988. He said the Union would view unilateral implementa-
tion of the policy as being a violation of the Act as well as
the contract. On February 20, 1987, Bannister replied to
Bledsoe with two letters, one for W-I and one for DAW, in
which both companies declined to rescind their proposed no-
smoking policies, but did offer to negotiate about them be-
fore implementation on July 1, 1987. He disagreed with
Bledsoe’s assertion that implementation of the policies would
violate either the collective-bargaining contracts or the Act.
Nonetheless, he said, both companies stood willing to bar-
gain in good faith about the bans if bargaining was re-
quested. To support his argument that they did not violate
the contracts, he observed that they were silent about smok-
ing. He asked Bledsoe to advise him what contract provi-
sions led him to believe that the contract would be breached
if the ban was instituted. Bledsoe did not respond further.
Nonetheless, both companies decided to await the 1988 ne-
gotiations to pursue the matter, apparently making the judg-
ment that earlier implementation would unnecessarily exacer-
bate the situation before bargaining even began.
On various dates in 1988 the Unions opened the contracts
at other locations. Bannister responded for both companies.
He proposed some contract modifications including a ‘‘sub-
stance abuse program’’ to become effective on January 1,
1989. At the end of each letter he included language iden-
tical or similar to the following:
Subject not proposed for negotiations that the Com-
pany hereby offers the Union an opportunity to discuss,
the Company intends to modify the ‘‘Safe Practices
Guide,’’ which includes the ‘‘Company Plant Rules.’’
[Sic.]
Said ‘‘Safe Practices Guide’’ and ‘‘Company Plant
Rules’’ shall be modified as follows: ‘‘Smoking is pro-
hibited on all Company property and in all Company
vehicles.’’ Effective January 1, 1989.
As noted, Peshastin was the last contract to be reopened.
Bannister explained that because Peshastin came so late in
the year, and the other facilities were already undergoing
strikes, he did not write the same letter to the Charging
Party. Indeed, he was unable to attend the opening (and only)
round of local negotiations for Peshastin. He delegated that
duty instead to Phil Bradetich. Bradetich was the corporate
director of safety and performed various duties, including
employee relations/industrial relations. Bradetich had been in
attendance at the central table in Portland and some of the
local table negotiations elsewhere. He was quite familiar with
Respondent’s point of view.
Prior to delegating Peshastin to Bradetich, Bannister had
not prepared a letter such as that quoted above, nor had he
prepared Respondent’s counterproposals with respect to the
Peshastin contract. Accordingly, Bradetich, in conjunction
with plant manager Steve Rossing, prepared a draft of the
document which has been received in evidence as Joint Ex-
hibit 13. A copy was sent to Bannister for his review. Upon
looking it over, he noticed that the draft omitted the sub-
stance abuse program and no-smoking policy issues which
had been included in the letters sent to the other locations.
He telephoned the office secretary at the Peshastin plant and
asked her to include the phrases ‘‘negotiate a ‘substance
abuse program’’’ and ‘‘no-smoking policy’’ at the bottom of
that exhibit. The final version of that exhibit contains those
phrases.
On August 25, 1988 representatives of Respondent and the
Charging Party met in Wenatchee to discuss the Peshastin
local issues. Representing the Union were Pieti of the West-
ern Council, Local 2841 President Barry Moats, and three
964 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Pieti says he brought up the no-smoking proposal himself as they went
through Respondent’s proposals. Bradetich says he did not give a copy of Jt.
Exh. 13 to the Union until after the meeting ended as he had planned to use
the document only as his own guide. As the meeting ended, he caused suffi-
cient copies of the document to be photocopied and these were distributed to
the union team. This difference in recollection is insignificant.
5 VIII. LOCAL ISSUES
Local issue language changes shall be incorporated into those agree-
ments where local issues have been mutually agreed to, and signed off.
IX. CLOSURE OF ISSUES
A. All issues upon which authority to negotiate was delegated by local
Unions and district councils to the IWA and WCIW or their designated
representatives, not covered herein, are withdrawn and closed for the term
of the bargaining agreements as modified.
B. Other issues opened either by local Unions, district councils or the
Company not included in this settlement are withdrawn for the term of
the bargaining agreements if unresolved because not signed or initialled
as of the time this Settlement Agreement is signed and ratified.
6 As of January 1, 1989, a no-smoking policy will be in effect. There will
be no smoking in vehicles or equipment parked on company property.
The ‘‘Safe Practices Guide’’ and ‘‘Company Plant Rules’’ shall be modified
appropriately to reflect this policy.
This notice is being issued at this time in hopes that perhaps in the next
3 months, those of you who do smoke, may find it easier to ‘‘ease’’ into a
smokeless workday.
It is understandable that the ‘‘no smoking’’ rule will be difficult for many
of you: And we thank you for your cooperation.
committeemen. Company representatives were Bradetich,
Plant Manager Rossing, and a man identified as Dean Wea-
ver.
Although Pieti and Bradetich’s testimony is somewhat dif-
ferent, it appears that during the course of the meeting the
no-smoking policy was raised and discussed.4 The parties
were in agreement that the substance abuse policy was ap-
propriate for the central table as it was already being dis-
cussed there. Pieti declined, however, to accept the no-smok-
ing policy as Bradetich outlined it. He instead proposed that
smokers be limited to certain locations away from the mill
itself including an old lunchroom and the boilerroom. Noth-
ing was resolved on that date with respect to no smoking and
the parties went on to discuss the other proposals. Bradetich
testified, without contradiction, that the no-smoking proposal
was intended to be a modification of the plant rules which
are not considered to be part of the collective-bargaining
contract proper.
The August 25 meeting was the only meeting dealing di-
rectly with Peshastin falling within the category of a ‘‘local
issue’’ meeting. According to Pieti, the strike ensued directly
after that and the strike settlement was signed before the par-
ties ever got back together. He says, ‘‘We weren’t allowed
to settle local issues.’’
C. The Closure of Issues Clause
On September 9, in order to settle the strikes at all loca-
tions for both companies, a memorandum of agreement was
signed ‘‘Extending and Renewing Existing Agreements.’’
This memorandum consisted of 5-1/2 single-spaced typed
pages dealing principally with ‘‘big table’’ issues. It covered
the Peshastin mill, as well as the mills in Coeur D’Alene and
Colburn, Idaho, Thompson Falls, Montana, and the mill in
nearby Cashmere. The preamble to the memorandum states
the parties ‘‘agree to the following amendments and revi-
sions of each individual W-I Forest Products Company, L.P.,
collective bargaining agreement in full settlement of all sub-
jects of collective bargaining.’’ Articles VIII and IX, quoted
below in the footnote,5 essentially say that matters which had
not been agreed upon at either the central table or the local
tables were considered withdrawn for the term of each col-
lective-bargaining agreement unless they had been signed or
initialed at the time the memorandum was signed and rati-
fied.
Both Pieti and Bannister are in agreement that paragraph
IX,A deals with the big table issues and IX,B deals with
local issues. Bannister says they covered those proposals
which were aimed at insertion in the collective-bargaining
agreement. Pieti was not asked whether he understood that
limitation on sec. IX,A, but agrees that sec. IX,B was de-
signed to cut off unresolved local issues from being raised
in the future.
D. Managements Rights
The new collective-bargaining contract, in addition to the
matters set forth in the strike settlement agreement, also car-
ried over the management’s rights clause of the preceding
contract. The clause is quite broad, reading as follows:
Article 2, Section 2. The Company shall have all of the
authority customarily and traditionally exercised by
management except as that authority is limited by the
express or specific language in the provisions of this
Agreement. Nothing in the Agreement shall be con-
strued to impair the right of the Company to conduct
any or all aspects of its business in any and all particu-
lars except as expressly and specifically modified with-
in the terms and provisions of this Working Agreement.
Among other things which are not affected by this
Agreement is the exclusive right of the Employer to de-
termine the products to be produced or manufactured,
the location of its plant or operations, the methods,
processes and means of production, marking, naming,
manufacturing and sale or distribution of its products,
the increase and decrease of its workforce as dictated
by operational requirements, the schedule of hours of
work, shifts, and overtime and the maintenance of an
efficient and properly disciplined workforce as neces-
sitated by the requirements of the operations and the
conduct of sound business principles as determined by
the Employer.
E. Implementation of the No-Smoking Policy
The no-smoking policy was actually implemented on Janu-
ary 1, 1989. It was not limited to the Peshastin operation, but
was systemwide insofar as Respondent was concerned. It
also appears to have been systemwide for the DAW loca-
tions. Bannister testified that smoking ban unfair labor prac-
tice charges were filed only at Peshastin, not anywhere else.
The actual announcement of the January 1 implementation
occurred 2-1/2 months beforehand. On October 18, 1988, Re-
spondent’s sawmill superintendent Chip Baird posted a no-
tice in five locations in the plant. Each of these locations was
in a breakroom or area of high visibility. The language of
the notice is set forth in the footnote below.6 The notice re-
ceived immediate and widespread attention and affected em-
ployees in both management and in the bargaining unit, in-
cluding union trustee and Shop Steward John Ellis as well
965W-I FOREST PRODUCTS CO.
7 Sec. 8(d).
For the purposes of this section, to bargain collectively is the performance
of the mutual obligation of the employer and the representative of the em-
ployees to meet at reasonable times and confer in good faith with respect
to wages, hours, and other terms and conditions of employment, or the
negotiation of an agreement or any question arising thereunder, and the
execution of a written contract incorporating any agreement reached if re-
quested by either party . . . and the duties so imposed shall not be con-
strued as requiring either party to discuss or agree to any modification
of the terms and conditions contained in a contract for a fixed period,
if such modification is to become effective before such terms and condi-
tions can be reopened under the provisions of the contract [emphasis
added].
as Baird himself, and his superior, Plant Manager Rossing,
all of whom are smokers.
The rule was rather quickly incorporated into three com-
pany documents. Respondent began typing the rule in the
front page of the Safe Practice Guide which was distributed
to new employees. It also appeared in reprinted plant rules
and safety notices. Respondent’s Exhibits 16 and 17. Both of
the latter two documents are headed with a notice that a
breach of any of those rules was ground for immediate dis-
ciplinary action, including suspension or discharge.
On December 20, 1988, at the behest of Ellis, the Union
filed a grievance asserting that the no-smoking rule was
being improperly implemented as it had been an unresolved
local issue during the August 25 negotiations and had been
‘‘closed’’ by the strike settlement agreement. On December
23 Plant Manager Rossing denied the grievance saying that
although the policy had been announced during local nego-
tiations it was not a bargaining issue. He went on to say that
a violation of the rule would be considered an act of ‘‘gross
misconduct.’’ Thereafter the rule was put into effect and sev-
eral employees were ‘‘white-slipped,’’ i.e., given warnings.
Article 8 of the new collective-bargaining contract pro-
vides that Respondent will issue warnings to misbehaving
employees before exercising the right of discharge unless the
behavior constitutes ‘‘gross misconduct.’’ Rossing’s response
to the grievance seems to be a message to smokers that they
will be discharged without benefit of a warning. Despite his
admonition, the white slips followed, though there is some
tentative testimony that warnings have been since dropped in
favor of discharge.
F. The Effect of the Rule
Although there is evidence that the rule is occasionally
broken surreptitiously, it is clear that the rule is being en-
forced against all employees at the plant, bargaining unit, and
management alike. Not only is Baird a smoker, but his supe-
rior, Rossing is, too. So are Ellis and numerous bargaining
unit employees. The record contains testimony regarding the
length to which employees must now go to satisfy their
habit. It appears that upper management, including Rossing
and Baird, as well as bargaining unit employees, now walk,
depending where they are stationed within the plant, between
600 and 1500 feet to a grassy area near a railroad siding. It
should be noted that Peshastin is located in the northeastern
portion of the Cascade Mountains, an area which accumu-
lates a large amount of snow during the winter. Leaving the
premises for a cigarette entails, in that circumstance, quite a
bit of discomfort. On the positive side, however, Baird, at
least, concedes the rule has reduced his smoking by half.
IV. ANALYSIS AND CONCLUSIONS
A. Introduction
It should be noted at the outset that the complaint is lim-
ited to the implementation of the smoking ban. It does not
in any way allege that the discipline which Respondent
might choose to levy upon an employee for an infraction of
the rule violates Section 8(d) or Section 8(a)(5). Since a
breach of the rule at the very least gives rise to a warning,
and may result in discharge, that omission is a puzzle. Clear-
ly the appropriate discipline to be meted out is a mandatory
subject of bargaining. Capital Times Co., 223 NLRB 651
(1976); Purolator Products Co., 289 NLRB 986 (1988). It
may be that the Union failed to demand bargaining on that
subject or there may be some other defect to such a claim.
Whatever reason there may be, clearly the issue has not been
noticed by the complaint or litigated and the Board may not
address it.
As written, the complaint alleges that the implementation
of the smoking ban at Peshastin breaches the good-faith bar-
gaining obligation of Section 8(d) of the Act in that it assert-
edly is a unilateral change in working conditions. Section
8(d) defines the topics over which parties must bargain and
codifies those mandatory subjects of bargaining which have
been incorporated in the collective-bargaining contract for
the term of that agreement. It also bars parties who unsuc-
cessfully sought to obtain contract language covering a man-
datory subject during negotiations from forcing the other
party to again bargain over that subject during the contract
term.7 Generally speaking, therefore, a party which imposes
a change in a mandatory subject during the course of the
contract, breaches Section 8(d) and therefore Section 8(a)(5).
NLRB v. Katz, 369 U.S. 736 (1962); Kal Kan Foods, 288
NLRB 590 (1988); Master Slack Corp., 230 NLRB 1054
(1977).
In order to determine, therefore, whether there has been a
violation of Section 8(a)(5) of the Act one must first deter-
mine whether the subject matter in question is a mandatory
subject of bargaining. If so, there is the issue of whether the
change has actually had a significant impact on working con-
ditions. There are a number of cases which hold that even
though the subject might be a mandatory bargaining topic,
the unilateral change had no real impact on any working con-
dition and therefore no unlawful unilateral change had oc-
curred. Rust Craft Broadcasting of New York, 225 NLRB
327 (1976); Peerless Food Products, 236 NLRB 161 (1978);
Weather Tec Corp., 238 NLRB 1536 (1978); Clements Wire
& Mfg. Co., 257 NLRB 1058, 1059 (1981); United Tech-
nologies Corp., 278 NLRB 306, 308 (1986); St. John’s Gen-
eral Hospital, 281 NLRB 1163, 1168 (1986).
Finally, assuming that it did have an impact on a working
condition, there is still the question of waiver. Quite often
noncontract matters, such as plant rules, have a life of their
own and a union’s waiver of the right to bargain over them
can be inferred from circumstances. One common form of
waiver is where the employer raises an issue, notifies the
union of the problem and the manner in which it intends to
deal with it, simultaneously offering to bargain over it. When
the union declines to bargain despite a fair opportunity to do
so, a waiver will commonly be found. Shell Oil Co., 149
NLRB 305 (1964); American Cyanamid Co., 185 NLRB 981,
987 (1970); Citizens National Bank of Willmar, 245 NLRB
389, 390 (1979); Castle-Pierce Printing Co., 251 NLRB
966 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1293 (1980); Dilene Answering Service, 257 NLRB 284, 290
(1981) (holiday schedule issue).
A third, relatively common, waiver may be found through
a broad managements-rights clause. Different language, how-
ever, may effect different results. Southern Florida Hotel &
Motel Assn., 245 NLRB 561, 567–568 (1979); BASF Wyan-
dotte Corp., 278 NLRB 181, 182 (1986); Saints Mary &
Elizabeth Hospital, 282 NLRB 73 (1986). Cf. Emery Indus-
tries, 268 NLRB 824 (1984) (management’s-rights clause
coupled with past acquiescence). Also Murphy Diesel Co.,
184 NLRB 757 (1970), enfd. 454 F.2d 303 (7th Cir. 1971).
Here both parties have assumed that the no-smoking rule
is a mandatory subject of bargaining as defined by Section
8(d) of the Act, an assumption which, in hindsight, seems
dubious. Because of that assumption, however, Respondent
strongly argues waiver. It recalls that beginning in 1987 it
notified the Union of its intent to impose the ban. In 1988,
at local bargaining throughout both the W-I and DAW sys-
tems, the smoking ban was raised, although at all locations
other than Peshastin the ban was clearly aimed not at the col-
lective-bargaining contract, but at a modification of the plant
rules. I think it is fair to say, however, that the Charging
Party at Peshastin, given the guidance it was receiving from
Pieti, was not misled in any way about the noncontract na-
ture of the Peshastin smoking ban. As with the other mills,
it was not ever intended to be included as part of the collec-
tive-bargaining contract, but to be inserted in the plant rules
in the same manner as at all the other sites.
B. The Closure of Issues Clause
I think it is reasonable to conclude that the closure of
issues clause of the strike-settlement agreement, when the
preamble and section VIII and IX,B are read together, does
not apply to the ban. Section VIII states that local issue lan-
guage changes are to be incorporated in those agreements
where they have already been mutually agreed to prior to the
strike settlement; and section IX,B states that other issues
opened either by local unions district councils or the Com-
pany which are not included in the settlement are withdrawn
for the term of the bargaining agreement if they have not
been signed. To the extent there is any ambiguity in that lan-
guage, it is resolved both by the preamble, which limits the
memorandum to contact issues and by Bannister’s unchal-
lenged testimony that he, as a signer of the agreement (the
only one to testify), intended the language to cover contract
issues and nothing more. Indeed, insofar as plant rule matters
are concerned there is no evidence that sign-offs or initialing
was a a procedure used when changing or installing a rule.
Based upon that analysis, I reject the General Counsel’s
contention that the closure of issues clause controls the
smoking ban. As a rule matter, the ban was exempt from the
closure of issues clause and the parties understood, or should
have understood, that. Accordingly, I shall not discuss the
General Counsel’s primary theory any further. Instead, I shall
analyze the matter as if it were a noncontractual change in
working conditions.
C. Mandatory Subject of Bargaining
Thus, the question which must be answered is whether an
employer’s total ban on smoking is a mandatory subject of
bargaining. Although facially it must be conceded that it
would appear to be, I am not convinced. Yet the issue must
be decided before proceeding to the defenses of exceptions
and/or waiver. If it is not a mandatory subject, then it is un-
necessary to reach them.
For many years the Board and the Supreme Court have at-
tempted to outline the scope of 8(d)’s reference to ‘‘terms
and conditions of employment.’’ The phrases ‘‘mandatory’’
and ‘‘non-mandatory’’ subjects of bargaining can lead to
strange territory depending on which party wants what. In
NLRB v. Borg-Warner Corp., 356 U.S. 342 (1958), the em-
ployer bargained to a contract impasse over a so-called ‘‘bal-
lot clause’’ requiring members to vote before striking over
nonarbitrable disputes. The Court had no difficulty in con-
cluding that the clause was unrelated to ‘‘terms and condi-
tions of employment’’ and therefore the employer’s insist-
ence to impasse on the clause breached the good-faith man-
date of Section 8(d) and Section 8(a)(5). In Chemical Work-
ers Local 1 v. Pittsburgh Plate Glass Co., 404 U.S. 157
(1971), the union demanded that the employer bargain over
retirees’ health benefits. The Court found the employer’s re-
fusal to do so was not a breach of Section 8(d) because retir-
ees were no longer employees and their well-being was not
a vital concern to active employees.
In Fibreboard Corp. v. NLRB, 379 U.S. 203 (1964), the
Court unanimously agreed that the contracting out of unit
work fell within the mandatory scope of Section 8(d), but
Justice Stewart, joined by Justices Harlan and Douglas, in a
concurring opinion, noted that Section 8(d) is a statute which
uses language of limitation and that Congress did not intend
to place every decision an employer might make into the bar-
gaining arena, even if the decision had some impact on job
security. He said, ‘‘Nothing the Court holds today should be
understood as imposing a duty to bargain collectively regard-
ing such managerial decisions, which lie at the core of entre-
preneurial control . . . . If, as I think clear, the purpose of
Section 8(d) is to describe a limited area subject to the duty
of collective bargaining, those management decisions which
are fundamental to the basic direction of a corporate enter-
prise or which impinge only indirectly upon employment se-
curity should be excluded from the area.’’ 379 U.S. 203 at
223 (emphasis added). This language has found general ac-
ceptance and has recently been followed. First National
Maintenance Corp. v. NLRB, 452 U.S. 666 (1981). To be
sure, that case dealt with corporate direction rather than indi-
rect impingment on employment security, but it clearly dem-
onstrates the correctness of Justice Stewart’s observation that
Section 8(d) is one of limitation.
Likewise, the Board’s decision in Capital Times, 223
NLRB 651 (1976), appears to recognize his analysis. There
the newspaper unilaterally imposed a code of journalistic eth-
ics upon its news gathering staff, including a directive that
reporters cease accepting gratuities from news sources. The
Board found the imposition of the code itself (as opposed to
the discipline to be levied for its breach) to be a
nonmandatory subject and beyond the reach of Section
8(a)(5). It said the prohibition against reporters’ accepting
gifts was a proper exercise of a management right. It was not
necessary, said the Board, for an employee to accept a gift
from a news source to enable him to do his job. See also
Newspaper Guild Local 10 (Pottstown Mercury) v. NLRB,
636 F.2d 550 (D.C. Cir. 1980), a remand clearly referencing
Justice Stewart’s Fibreboard language, but tying the ethics
967W-I FOREST PRODUCTS CO.
8 The Congress and the various states have imposed their values relating to
employee good health in enacting statutes protecting the handicapped. Yet, it
is quite clear that those laws describe rights much different from those referred
to in Sec. 8(d).
9 Frankly, I find it difficult to believe that a labor organization would want
to bargain over a total ban at all. Labor unions, like most groups, are made
up of smokers and nonsmokers, some of whom are most militant in insisting
upon their point of view. If that issue came to debate on the floor of a union
meeting, I suspect it would be most divisive and might have unwanted internal
political effects. It seems to me that most unions would not want to tackle
the issue for that reason alone. Leaving it to the employer at least takes it
out of the political environment and lets him take the heat (which this em-
ployer wants to do).
10 I recognize that there are cases decided by the Federal Labor Relations
Authority in the federal sector which have required federal employers to bar-
gain over similar bans. I regard those cases as distinguishable for the statute
under which they have been decided is significantly different from Sec. 8(d).
Department of Health and Human Services, Indian Health Service, Oklahoma
City, 31 FLRA No. 33 (1988), 132 LRRM 2492 (D.C. Cir. 1989); Fort Leon-
ard Wood, 26 FLRA 593 (1987). That statute requires a federal employer to
bargain unless the rule is within the Agency’s authority to set ‘‘technology,
methods and means’’ of performing work. [Federal Service Labor-Manage-
ment Relations Act, Sec. 7116(a)(1) and (5).] Sec. 8(d) of the NLRA ap-
proaches the question of bargainable issues from a totally different direction
and is simply not comparable.
rule to the connected discipline, asking the Board to explain
why the two should be treated separately. In its decision re-
sponding to the remand, the Board held that if the rule itself
lay at the ‘‘core’’ of entrepreneurial control, and was thus
not a mandatory bargaining subject, then neither was the dis-
cipline. Peerless Publications (Pottstown Mercury), 283
NLRB 334 (1987). Curiously, however, it retreated from its
previous recognition of Justice Stewart’s finding that Section
8(d) is a statute delineating limits. It said that the concept
of ‘‘terms and conditions of employment’’ is deliberately
broad and Congress intended it to be so. Yet, while embrac-
ing the circuit courts concern that a core rule and the dis-
cipline to be associated with it are to be considered together
(thus, generally denying to an employee disciplined for its
breach the right to bargained-for representation), it did agree
with Judge MacKinnon that there may be exceptional cases
for which an excessive penalty renders a rule mandatorily
bargainable. I find myself in sympathy with all points of
view here, but believe the Board had it right in Capital
Times when it allowed for the bargaining severability of the
rule and its discipline. The rule announced in the remand
seems awfully brittle and destined to have unjust results.
Of course, plant rules, in general, have been held to be
mandatory bargaining topics. Womac Industries, 238 NLRB
43 (1978); Electi-Flex Co., 238 NLRB 713, 731 (1978). Yet
there are obviously areas of rule making (employee ethics
being the above-cited example) which are not covered by
Section 8(d). No one questions, for example, at least in the
absence of Section 7 restraint or coercion, an employer’s uni-
lateral right to set rules insisting on basic employee attributes
such as honesty, sobriety, civility, good health,8 and com-
petence. Of course there may be reasonable disputes over the
application of these rules or whether a rule has been
breached, but no one seriously argues that setting rules on
those subjects is not within the employer’s exclusive power.
Congress, when passing Section 8(d), did not place those
matters into the bargainable arena. Case law on these basic
subjects, free of union animus complications, are nonexistent,
no doubt due to universal recognition of that fact. If journal-
istic ethics also fall within that category, where then does a
total ban on smoking fall? Is it within the area left to em-
ployers by Congress or is it in the bargainable arena?
I am persuaded that the mandatory nature of a smoking
ban depends on which direction the parties wish to go. Do
they wish to create a more healthful or less healthful working
environment? Here, it seems to me that Respondent has
taken steps to improve the health of its employees while the
Union and the General Counsel seek only to maintain a less
healthy environment. Usually a bargaining topic is mandatory
or nonmandatory on its own terms no matter what direction
a party wishes to go. NLRB v. American National Insurance,
343 U.S. 395, 404 (1952). Yet, when it comes to employee
health, however, I conclude that the analysis does not obtain.
It is clearly the nation’s public policy, as set forth in various
Surgeon Generals’ reports, to try to control the nation’s
health costs by eliminating or reducing smoke-related dis-
eases such as cancer, emphysema, and chronic bronchitis.
These diseases have contributed greatly to the cost of health
and have made workers less productive. The Federal Avia-
tion Administration accepted that policy on February 25,
1990, when it banned smoking on domestic commercial
flights. I find, therefore, that the General Counsel and the
Union are on the wrong side of this issue here, at least inso-
far as their position is inconsistent with national health pol-
icy.
But even insofar as national labor policy is concerned, it
is inappropriate for the General Counsel, as representing the
Government’s point of view here, to be asserting that a union
has the right to allow workers to degrade their own health
as well as that of fellow employees who may inhale second-
hand smoke. It was the purpose of the Wagner Act to allow
labor unions the right to seek to improve their working con-
ditions in the belief that improved working conditions would
better contribute to the well-being of our society. Under the
Wagner Act and its amendments workers were impelled to
negotiate better wages and more healthy working conditions.
In large part, of course, that has happened. This Union, how-
ever, joined by the General Counsel, seems to wish to go the
opposite direction. That is contrary to the policy of the Act.9
Moreover, like honesty, sobriety, civility, good health, and
competence, a smoking ban is insoluble from a bargaining
standpoint. It is just not the sort of rule which is subject to
the marketplace, amenable to give and take. And, to use the
Capital Times phraseology, smoking is not necessary to en-
able an employee to do his or her job. It is better, I think,
to recognize that total bans on smoking fall within Justice
Stewart’s area of indirect impingement on job security. I
conclude that an employer’s total ban on smoking is a non-
mandatory subject of bargaining.10 Therefore, Respondent
was free to implement it without the Union’s consent.
This result is to be distinguished from other situations
such as a partial ban or a union’s demand to totally ban
smoking. It may appear anomalous to so conclude, but I do
not think it is. As I observed in the beginning of this discus-
sion, it is not unusual, in unilateral change jurisprudence, de-
pending on which party wants what from the other, to find
oneself in unfamiliar territory. Symmetry is not always pos-
sible, nor is it always desirable. In any event, it is clear from
an analysis of the cases that the Board has never squarely
been asked whether an employer’s unilateral total ban on
smoking is a mandatory subject of bargaining. Naturally
enough, therefore, it has not answered that question. It is true
968 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 Art. V of the new contract is the grievance procedure. It does not, how-
ever, lead to arbitration. Art. VI is a limited no-strike clause which requires
the parties first to seek the assistance of the Federal Mediation and Concilia-
tion Service to resolve grievances. If they are unable to reach a satisfactory
resolution of the grievance, that clause provides certain procedures leading to
a strike.
that the Board has had smoking issues come up before, and
has even found unlawful unilateral changes. See the cases
cited by the General Counsel, Albert’s, Inc., 213 NLRB 686
(1974), and Chemtronics, Inc., 236 NLRB 178 (1978). Yet
those cases are facially distinguishable. Both were in the
context of reprisals for union activity and neither analyzes
whether smoking is a bargainable subject as defined by Sec-
tion 8(d). It was simply assumed to be the case. Moreover,
they fall within a group of cases where the analysis is af-
fected by union animus. I do not suggest that union animus
is a factor to be considered in unilateral change cases, but
only observe that where it is present, less consideration is
often given to the bargaining duty analysis because it is un-
necessary to the outcome, particularly where clear mandatory
subjects are included in the change.
Possible anomalies aside, I conclude that a union seeking
a more healthy work environment acts consistently with the
Wagner Act when it asks an employer to eliminate the haz-
ards of tobacco smoke. It is acting for the good of the whole,
not the personal needs of some. Therefore, I do not find it
disharmonious to hold that a union’s demand to eliminate, or
partially eliminate, smoking is a mandatory topic which an
employer must meet, while an employer need not meet with
the union if it has eliminated or intends to eliminate the haz-
ard altogether. Likewise, if an employer only intends to par-
tially eliminate smoking, and the union wishes to bargain
over that, either for the purpose of extending the ban or for
arranging the manner of controlling smoking, it must do so,
for partial bans under my analysis must be bargained. Indeed,
if I had been asked, I would have found that an employer
who imposes a total ban, after having allowed smoking,
would be obligated to bargain over the effects of the change.
This would allow bargaining for such things as an adequate
transition period or even to ask an employer to pay for
cease-smoking programs. That would still leave the ban itself
within the employer’s exclusive domain.
Even if one were to find a smoking ban unilaterally im-
posed by an employer to be a mandatory subject of bargain-
ing, I would be forced to conclude, on this record, that there
is really no significant impact on Respondent’s employees’
working conditions. First of all, bargaining unit employees
had never been allowed to smoke while performing their reg-
ular work tasks. Smoking had been permitted only on breaks
and in locations away from the production area. Thus there
was already a near-total ban in place. On January 1, 1989,
the ban was simply extended to eliminate the smoking ha-
vens. Employees still receive the same number of breaks and
are privileged to go to the same breakrooms as before for the
same length of time. Now, however, a nonsmoker may enter
a breakroom where smoking had previously been permitted
but without having to encounter secondhand smoke. The fact
that smokers must now make a difficult trek in a short period
of time to find a nonmill location to smoke is a matter of
their own choice. They are the ones who have chosen to be-
come addicted to tobacco and who have chosen to take the
health risks associated with it. Theirs is a personal condition
which they have imposed upon themselves; not a condition
which the employer has set. Thus Respondent is simply tell-
ing its employees that if they choose to take this health risk,
it is their own responsibility, but they must do it at a location
where the Employer cannot be seen as having encouraged it
in any way. The impact of this ban, although perhaps subjec-
tively important to the smoker who has been denied the
privilege, is, objectively speaking, not much. It has no sig-
nificant impact on their working conditions, nor is smoking
necessary to a successful break. Accordingly, I would dis-
miss this case on that ground as well. See St. John’s General
Hospital, 281 NLRB 1163, 1168 (1986) (smoking ban during
shift change did not have significant impact).
Continuing to assume that an employer’s unilateral smok-
ing ban is a mandatory subject of bargaining, I would find
that Respondent, beginning at least with its meeting of Au-
gust 25, 1988, advised the Union of its intention to impose
the ban. The Union counterproposed at least two locations
where smoking might be allowed but no agreement was
reached. The Union could have continued to seek to bargain
over the subject but did not, probably in the view that it
would have been futile. Yet, the Union did not test the Com-
pany’s resolve, although articles V and VI of the new collec-
tive-bargaining contract do provide the procedure for resolu-
tion.11 Indeed, article V, section D states that if the grievance
is not referred to the Federal Mediation and Conciliation
Service within 30 days, it ‘‘shall be conclusively waived.’’
There is no evidence in this record that the matter was ever
submitted to the FMCS as contemplated by article VI. Ac-
cordingly, it is not unreasonable to conclude that the griev-
ance has indeed been waived ‘‘conclusively’’ by the contract.
Compare E. I. du Pont & Co., 294 NLRB 493 (1989) (tak-
ing away smoking and other privileges in locker room not
an unlawful unilateral change as union waived claim by not
pursuing grievance). Finally, although not argued by the par-
ties it seems likely that the management’s-rights clause is
broad enough to constitute the Union’s waiver of the right
to bargain over the ban. See Laredo Packing Co., 254 NLRB
1, 8, 9 (1981). I hesitate to make that finding, however, as
none of the parties have raised or briefed the issue.
Thus on two grounds, if not three, it would appear that the
Union chose to waive the right to bargain. The first occurred
when the employer gave it notice and the opportunity to bar-
gain but it made only a desultory effort to do so. Citizens
National Bank of Willmar, 245 NLRB 389, 390 (1979). The
second occurred when it tried to grieve the matter but aban-
doned it at the pre-FMCS stage.
I conclude that the complaint should be dismissed. I reach
this conclusion based on my finding that the topic is a non-
mandatory subject of bargaining and that Respondent had no
obligation to bargain over its imposition of a total ban on
smoking at its Peshastin mill. Alternatively, I find that even
if the ban is a mandatory subject of bargaining, it had no sig-
nificant impact upon the employees’ working conditions. As
a second alternative, I find that Respondent gave the Union
an opportunity to bargain over the subject. When the Union
declined to pursue the matter it waived, either by passivity
or by its abandonment of the grievance procedure, any objec-
tions it may have had to this change. Accordingly, I make
the following
969W-I FOREST PRODUCTS CO.
12 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
CONCLUSIONS OF LAW
1. The Respondent, W-I Forest Products Company, a lim-
ited partnership, is an employer within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
2. The Charging Party is a labor organization within the
meaning of Section 2(5) of the Act.
3. The total ban on smoking which Respondent imposed
upon its employees at its Peshastin, Washington plant on
January 1, 1989, does not breach the bargaining obligation
of Section 8(d) of the Act as the ban does not constitute a
mandatory subject of bargaining and therefore Respondent
did not violate Section 8(a)(5) and (1) of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended12
ORDER
The complaint is dismissed in its entirety.