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Unilateral changes in smoking policy

By Harvey Randall, Esq.

Unilateral changes in smoking policy
Matter of Council 82, 31 PERB 3051

Council 82 complained that the Central New York Psychiatric Center committed an unfair labor practice when it unilaterally issued an ?interim smoking policy containing a five-step disciplinary component.? Under the interim policy, violations of its smoking prohibitions would be subject to ?verbal counseling for a first occurrence,? with increased penalties imposed for subsequent violations, ultimately leading to termination for a ?fifth occurrence.?

PERB?s administrative law judge [ALJ] ruled that establishment of a ?smoking policy? was not a mandatory subject of collective bargaining. This holding was not challenged by Council 82.

But the ALJ also ruled that a change from a ?generalized policy of strict enforcement of no smoking rules? to a ?multi-step, nondiscretionary, progressive disciplinary system with automatically applied penalties is a substantive and substantial change in the terms and conditions of employment? and thus could not be unilaterally implemented by the employer.

Central New York appealed this aspect of the ALJ?s ruling, contending that ?its enforcement of the interim smoking policy was not changed from its enforcement of its earlier smoking policies.?

PERB said that the disciplinary component of the new policy constituted a clear change from earlier policies because of the specificity of its system for the administration of penalties. Accordingly, it was a mandatory subject of collective bargaining and could not be implemented without prior negotiations.

The facility was directed to rescind those parts of the interim policy that provided for ?progressive discipline.? PERB said that if any disciplinary action was to be taken against an employee for smoking, it had to be pursued in accordance with the policy and practice in place prior to the promulgation of the interim policy.

Full post as published by New York Public Personnel Law on January 30, 2008 (boomark / email).