PA Court: Bourough Did Not Need to Bargain With Police Union Before Prohibiting Smoking

Recently, the Pennsylvania Commonwealth Court ruled, in the case of Borough of Ellwood City v. Pennsylvania Labor Relations Board, that the Borough of Ellwood did not violate its statutory duty to bargain with the police union when it adopted an ordinance prohibiting smoking in all Borough buildings and on all Borough owned property.

Previously, the Borough police officers had been permitted to smoke in the workplace.  Under most circumstances, a determination that smoking no longer is permitted in the workplace would be a mandatory subject of bargaining, as it would affect a change in terms and conditions of employment.

This time, however, the Borough argued that the ordinance was a generally applicable ordinance that was adopted pursuant to the Borough’s police powers and that the police must be required to obey the ordinance themselves if they are going to enforce it with respect to the rest of the public.

The Court agreed, stating that the Borough had an “overarching policy of promoting the health and welfare of its citizens” and that

In view of this fundamental concern relating to the “direction of he enterprise,” the interest of the Borough overcomes the interest of the employees in maintaining the prior practices relating to smoking.

The Court clearly continues to recognize the right of an employer, albeit in certain limited situations, to implement changes of a purely managerial nature, without bargaining with the applicable union, as long as the changes relate to the “direction of the enterprise.”  In other words, the more central that a managerial goal of the employer is to the function of the entity, the less likely the entity will be required to bargain before making a change.  Of course, you should seek counsel’s advice before making any changes without bargaining, but it is good to see that the Court continues to protect the ability of a municipality or school district to manage its operations.

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