VIOLATIONS BY THE NATIONAL LABOR RELATIONS BOARD
INTRODUCTION
Recently, the United Auto Workers Union (UAW) and the Machinists Union (IAMAW) filed
unfair labor practice charges against the Caterpillar Corporation alleging that Caterpillar made
unilateral changes to corporate smoking policy in violation of the National Labor Relations Act
(NLRA). These unfair labor practice charges demonstrate the need for an article explaining the
actions of the National Labor Relations Board (NLRB) with regard to smoking privileges under
the NLRA.
It is well-settled that smoking is a privilege, not a collective right, under the NLRA. The NLRB
has consistently held that smoking in the workplace is a work-related privilege under the
NLRA.1
The NLRB position regarding smoking privileges under the NLRA was explained in W-I Forest
Products Co., a Limited Partnership and Lumber and Sawmill Workers Local 2841.2
In W-I Forest Products Co., a Limited Partnership and Lumber and Sawmill Workers Local
2841, the Administrative Law Judge criticized the NLRB General Counsel stating:
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 conditions 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. This Union, however, joined by the General Counsel, seems
to want to go in the opposite direction. That is contrary to the policy of the Act.3
The NLRB responded to the position of the Administrative Law Judge stating:
The analogy the judge attempts to draw between the ethics codes in Capitol
Times4 and Peerless Publications,5 and the smoking ban at issue here inaccurately
assumes that protecting employee health and carrying out recommendations of
various reports by the Surgeon 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 Respondent’s business in the way that, for example, a rule
prohibiting a reporter from taking gifts from the source for one of her stories
relates to the core entrepreneurial concern of a newspaper.6
1
Allied-Signal, Inc., Kansas City Division and District 71, IAMAW, AFL-CIO, 307 N.L.R.B. No. 118 (1992), page
760; YHA, Inc. and Service Employees Union 627, AFL-CIO, CLC, 307 N.L.R.B. No. 123 (1992), page 784; W-I
Forest Products Company and Lumber and Sawmill Workers Local 2841, 304 N.L.R.B. No. 83 (1991), page 968.
2
304 NLRB No. 83, page 947 (1991).
3
304 NLRB No. 83, page 967.
4
223 NLRB No. 651 (1976).
5
283 NLRB No. 334 (1987).
6
304 NLRB No. 83, page 958-59.
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This article will explain exactly how the NLRB reaches its tortuous interpretation that labor
unions have the right to adversely affect the health of the non-smokers as well as the right to
negotiate their involuntary disadvantageous transfers, their layoffs and their discharges so that
smokers can have the privilege of smoking in the workplace.
Simply put, the NLRB misconstrues three Supreme Court decisions that have held that unions
may balance the rights of individual employees against the collective good and that the union
may subordinate the interests of one group of employees to those of another group as permitting
the union to subordinate the collective interests of the bargaining unit to smoking privileges.7
Moreover, the NLRB ignores the Supreme Court decision in Vaca v. Sipes, the leading decision
on a breach of the duty of fair representation by a labor union.
As held by the Supreme Court in Vaca v. Sipes:
The collective bargaining system as encouraged by Congress and
administered by the NLRB of necessity subordinates the interests of an
individual employee to the collective interests of all employees in a
bargaining unit.8 (emphasis added).
And, the NLRB has consistently held that smoking in the workplace is a privilege rather than a
collective right.9
Simply put, the NLRB sacrifices the collective group interests of the bargaining group members
to the privileges of smokers in violation of Vaca v. Sipes.
ABDICATION OF RESPONSIBILITY BY THE NLRB
In John Deere and Local 125, UAW, the General Counsel states:
The fact that the Union conduct in this case may result in the inability to obtain
the accommodation desired by Johnson and Cronin under the ADA [Americans
with Disabilities Act] and the Rehabilitation Act of 1973 does not require a
contrary result. Any remedy which may exist for possible discrimination that
unintentionally results from the union’s adherence to the negotiated smoking
policy is available under those statutes.
In Southern Steam Ship Co. v. National Labor Relations Board,10 the Supreme Court held that:
It is sufficient for this case to observe that the Board has not been commissioned
to effectuate the policies of the [National] Labor Relations Act so single-mindedly
that it may wholly ignore other and equally important Congressional objectives.11
And, in a decision involving the NLRA and the Interstate Commerce Act, the Supreme Court
7
John Deere Co. and Local 125, 1993 WL 321785 (N.L.R.B.G.C.).
Vaca v. Sipes, 386 U.S. 171, 182, 87 S.Ct. 903 (1967).
9
See note 1.
10
316 U.S. 31, 62 S.Ct. 886 (1942).
11
316 U.S. 47.
8
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voided an employer union collective bargaining agreement under the NLRA because the
collective bargaining agreement violated the Interstate Commerce Act.12
The Supreme Court held that:
The carrier’s consent to boycott is therefore void, and it follows that it is likewise
void for all purposes concerned with the National Labor Relations Act.13
But it is said that the Board is not enforcing the Interstate Commerce Act or
interfering with the Commission’s administration of that statute, but simply
interpreting the prohibitions of its own statute in a way consistent with the
carrier’s obligations under the Interstate Commerce Act.14
Also, under the NLRA, the Supreme Court has held that employer union collective bargaining
agreements that violate public policy are unenforceable.15 Public policies include the ADA and
Section 503 of the Rehabilitation Act of 1973.
Furthermore, the Supreme Court has held that a labor union cannot lawfully bargain for the
establishment or continuation of discriminatory practices16 and that the union has an affirmative
duty to combat discrimination in the workplace.17
Moreover, in W-I Forest Products Company and Lumber and Sawmill Workers Local 2841,18 a
case that involved the unilateral imposition of a smoking ban by the employer, the NLRB held
that:
Nothing in this decision is meant to suggest that the bargaining 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 immunized in the workplace.19
Therefore, by enforcing employer union collective bargaining agreements that violate the ADA
and the Rehabilitation Act, the NLRB has totally abdicated its responsibility to administer the
NLRA
VIOLATION OF THE NLRA BY THE NLRB
Violation of 29 U.S.C. § 141(a) by the NLRB
Now, let’s review the duty of employers, unions, and employees with regard to creating health
hazards for non-smokers by involuntarily exposing them to second hand tobacco smoke under
the NLRA.
12
Local 1976, United Brotherhood of Carpenters and Joiners of America v. N.L.R.B., 357 U.S. 93, 78 S.Ct. 1011
(1958).
13
357 U.S. 109.
14
357 U.S. 110.
15
Eastern Consolidated Coal Corp. v. United Mine Workers, District 17, 531 U.S. 57, 62, 121 S.Ct. 462 (2000).
16
Emporium Capwell Co. v. Western Addition Community Organization, 420 U.S. 50, 79, 95 S.Ct. 977 (1975).
17
Goodman v. Lukens Steel Co., 482 U.S. 656, 667, 107 S.Ct. 2617 (1987).
18
304 N.L.R.B. No. 83 (1991).
19
304 N.L.R.B. No 83, page 959 n.3.
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29 U.S.C. § 141(b) states:
Industrial strife which interferes with the normal flow of commerce and with the
full production of articles and commodities for commerce, can be avoided or
substantially minimized if employers, employees, and labor organizations each
recognize under law one another’s legitimate rights in their relations with each
other, and above all recognize under law that neither party has any right in its
relations with any other to engage in acts or practices which jeopardize the public
health, safety, or interest.
In Banyard v. N.L.R.B., citing 29 U.S.C. § 141,20 the U.S. Court of Appeals for the District of
Columbia held that:
No contract provision or arbitral award can permit an employer to require his
employees to violate state laws or to create safety hazards for themselves or
others.21
Left standing, the arbitral award below grants the Company a license to violate
state law and as such is void as against public policy and repugnant to the
purposes of the National Labor Relations Act.22
Congress recognized that neither employers, employees, nor labor organizations
have “any right in their relations with each other to engage in acts or practices
which jeopardize the public health, safety, or interest.”23
Banyard v. N.L.R.B. makes it extremely clear that the NLRA, 29 U.S.C. § 141(b), prohibits
employers, employees and labor unions from creating public health hazards in the workplace,
and second hand tobacco smoke has been held to be a public health hazard by the Surgeon
General of the United States. Therefore, the NLRB is enforcing collective bargaining agreements
that violate the NLRA.
VIOLATION OF THE ADA AND THE REHABILITATION ACT BY THE NLRB
Violation of 42 U.S.C. § 12112(a) and (b)(2) by the NLRB
In John Deere and Local 125, U A.W., the NLRB held that if collective bargaining agreements
violate the ADA, or the Rehabilitation Act of 1973, relief is available under those statutes rather
than the NLRA.24
42 U.S.C. § 12112 states:
(a) General rule. No covered entity shall discriminate against a qualified
individual with a disability because of the disability of such individual in regard
to job application procedures, the hiring, advancement, or discharge of
20
505 F.2d 342 (D.C.Cir. 1974).
505 F.2d 347.
22
505 F.2d 347.
23
505 F.2d 347. (citing 29 U.S.C. § 141).
24
John Deere Co. and Local 125, footnote 10.
21
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employees, employee compensation, job training, and other terms, conditions, and
privileges of employment.
(b) Construction. As used in subsection (a), the term “discrimination” includes—
(2) participating in a contractual or other arrangement or relationship that has the
effect of subjecting a covered entity’s qualified applicant or employee with a
disability to the discrimination prohibited by this title (such relationship includes
a relationship with an employment or referral agency, labor union, …).
(emphasis added).
Therefore, employer union collective bargaining agreements that violate the ADA are void and it
is a violation of the NLRA for the NLRB to enforce such agreements.
Violation of 29 U.S.C. § 793 by the NLRB
41 C.F.R. Part 60-741 contains the implementing regulations for 29 U.S.C. § 793 and 41 C.F.R.
§ 60-741.21(c)(1)(2) prohibits federal contractors from entering into employer union collective
bargaining agreements that discriminate against the employer’s qualified applicant or employee
with a disability.
Furthermore, the U.S. Court of Appeals for the Fifth Circuit affirmed a district court decision
that held that the employer’s affirmative action plan and the Rehabilitation Act § 503 regulations
must be read into the employer’s union collective bargaining agreement disability discrimination
clause.25
Therefore, employer union collective bargaining agreements that violate the Rehabilitation Act
of 1973 are void and it is a violation of the NLRA for the NLRB to enforce such agreements.
Violation of 42 U.S.C. § 12201(b) by the NLRB
42 U.S.C. § 12201(b), specifically states:
Nothing in this Act shall be construed to preclude the prohibition of, or the
imposition of restrictions on, smoking in places of employment covered by title I. 26
The U.S. Court of Appeals for the Second Circuit interpreted 42 U.S.C. § 12201(b) as permitting
a total ban on smoking as a reasonable modification of a smoking policy under Title III of the
ADA.27
Therefore, collective bargaining agreements that prohibit employers from unilaterally imposing
smoking restrictions and smoking bans as reasonable accommodations for an employee with a
disability violate 42 U.S.C. § 12201(b), and it is a violation of the NLRA for the NLRB to
enforce such discriminatory agreements
25
Elstner v. Southwestern Bell Telephone Co., 659 F.Supp. 1328, 1339-41 (S.D.Tex. 1987), affirmed 863 F.2d 881
(5th Cir. 1988).
26
42 U.S.C. §§ 12111 et seq.
27
Staron v. McDonald’s Corp., 51 F.3d 353, 356-57 (2nd Cir. 1995).
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Violation of 42 U.S.C. § 12112(b)(5)(A) by the NLRB
42 U.S.C. § 12112. Discrimination
(b) Construction. As used in subsection (a), the term “discrimination” includes—
(5)(A) not making reasonable accommodations to the known physical or mental
limitations of an otherwise qualified individual with a disability who is an
applicant or employee, unless such covered entity can demonstrate that the
accommodation would impose an undue hardship on the operation on the business
of such covered entity.
29 C.F.R. Part 1630 contains the implementing regulations for Title I of the ADA.
29 C.F.R. § 1630(o) is the regulation for Reasonable accommodation and the regulation includes
modifications or adjustment to the work environment.28
Also, under the ADA, in U.S. Airways, Inc. v. Barnett, the Supreme Court held that an
“accommodation” must be “reasonable” and “effective.”29 And, the U.S. Court of Appeals for
the Sixth Circuit has held that: “the employer has the ultimate discretion to choose between
effective accommodations.”30
Therefore, collective bargaining agreements that prevent an employer from unilaterally imposing
smoking restrictions and smoking bans as reasonable accommodations are in violation of 42
U.S.C. § 12112(b)(5)(A) and the NLRB is in violation of the NLRA when it enforces such
discriminatory agreements.
It should also be noted that the U.S. Court of Appeals for the Eighth Circuit has held that the
union may be held liable if it purposefully acts or refuses to act in a manner which prevents or
obstructs a reasonable accommodation by the employer so as to cause the employer to
discriminate.31
DISCRIMINATION BASED ON THE EFFECTS OF A DISABILITY
In School Board of Nassau County, Florida v. Arline,32 the Supreme Court held that:
It would be unfair to allow an employer to seize upon the distinction between the
effects of a disease on others and the effects of a disease on a patient and use that
distinction to justify discriminatory treatment.33
Congress’ desire to prohibit discrimination based on the effects a person’s
handicap may have on others was evident from the inception of the Act.34
28
See also Burch v. Coca Cola Co., 119 F.2d 305, 314 (5th Cir. 1997).
535 U.S. 392, 400, 122 S.Ct. 1516 (2002).
30
Keever v. City of Middletown, 145 F.3d 809, 812 (6th Cir. 1998).
31
Marquart v. IAMAW, 26 F.3d 842, 846 (8th Cir. 1994).
32
480 U.S. 273, 107 S.Ct. 1123 (1987).
33
480 U.S. 282.
34
480 U.S. 282, n.9.
29
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Therefore, the failure of an employer to modify a work environment by prohibiting smoking as a
reasonable accommodation for an individual with a breathing disability so other employees can
have smoking privileges is in direct violation of School Board of Nassau County, Florida v.
Arline.
SUPREME COURT DECISIONS MISCONSTRUED BY THE NLRB
Now, let’s review the three Supreme Court decisions upon which the NLRB bases its tortuous
interpretation that unions may balance the rights of individual employees against the collective
good and that the union may subordinate the interests of one group of employees to those of
another group as permitting the union to subordinate the collective group interests to smoking
privileges.
In John Deere and Local 125, United Auto Workers, 1993 WL 321785 (N.L.R.B.G.C.), the
NLRB General Counsel misconstrued the Supreme Court decisions in Ford Motor Co. v.
Huffman,35 Air Line Pilots Association, International v. O’Neill,36 and Humphrey v. Moore.37
In John Deere and Local 125, UAW, the General Counsel cites Ford Motor Co. v. Huffman
stating:
No breach of duty of fair representation by union agreement to contract clause
that granted enhanced seniority to one group of employees, thus causing layoffs in
another group of employees.38
In John Deere and Local 125, UAW, the General Counsel cites Air Line Pilots Association,
International v. O’Neill stating:
Breach of duty of fair representation only where union’s conduct is so far outside
a wide range of reasonableness “as to be irrational.”39
In John Deere and Local 125, UAW, the General Counsel cites Humphrey v. Moore stating:
No breach of duty of fair representation where union resolved seniority dispute in
favor of one group of employees over another.40
Now, let’s review Ford Motor Co., v. Huffman, Air Line Pilots Association, International v.
O’Neill, and Humphrey v. Moore to see what criterion that the General Counsel misconstrues.
In Ford Motor Co. v. Huffman, the Supreme Court held that:
Variations acceptable in the discretion of bargaining representations, however,
may well include differences based upon such matters as the unit within which
seniority is to be computed, the privileges to which it shall relate, the nature of the
35
345 U.S. 330, 73 S.Ct. 681 (1953).
499 U.S. 65, 111 S.Ct. 1127 (1991).
37
375 U.S. 335, 84 S.Ct. 363 (1064).
38
John Deere and Local 125, footnote 8.
39
John Deere and Local 125, footnote 8.
40
John Deere and Local 125, footnote 10.
36
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work, the time at which it is done, the fitness, ability or age of the employees,
their family responsibilities, injuries received in course of service, and time or
labor devoted to related public service, whether civil or military, voluntary or
involuntary.41 (emphasis added).
Evidently, the General Counsel interpreted the acceptable variations in Ford Motor Co. v.
Huffman to mean that the union can negotiate smoking privileges that can result in creating
health hazards, involuntary disadvantageous transfers, layoffs, and discharges because nonsmokers are unfit to breath second hand tobacco smoke, a public health hazard.
In Air Line Pilots Association, International v. O’Neill, the Supreme Court held that a union’s
actions are arbitrary only if, in light of the factual and legal landscape at the time of the union’s
actions, the union’s behavior is so far outside a wide range of reasonableness as to be irrational.42
The Supreme Court further defined the “arbitrary” standard stating:
We think a decision to be non-arbitrary must be (1) based upon relevant,
permissible union factors which excludes the possibility of it being based upon
motivations such as personal animosity or political favoritism; (2) a rational
result of the consideration of these factors; and (3) inclusive of a fair and
impartial consideration of the interests of all employees.43
Evidently, in Air Line Pilots Association, International v. O’Neill, the General Counsel
interpreted the term “inclusive of a fair and impartial consideration of the interests of all
employees” to include involuntarily exposing non-smokers to a public health hazard, causing
their involuntary disadvantageous transfers, layoffs, and discharges so other employees could
have smoking privileges.
In Humphrey v. Moore, the Supreme Court held that a union that represents two antagonistic
groups may choose between the two groups, but must represent both groups fairly in negotiations
with the employer.44
Also, in Humphrey v. Moore, the Supreme Court held that:
By choosing to integrate seniority lists based upon length of service at either
company, the union acted upon wholly relevant considerations, not upon
capricious or arbitrary factors.45
Evidently, the General Counsel interpreted the term “relevant considerations” to include
involuntarily exposing non-smokers to a public health hazard, causing their involuntary
disadvantageous transfers, layoffs, and discharges so other employees could have smoking
privileges.
41
345 U.S. 338-39.
499 U.S. 65, 111 S.Ct. 1127 (1991).
43
499 U.S. 72
44
375 U.S. 349-51.
45
375 U.S. 350.
42
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Also, in Air Line Pilots Association, International v. O’Neill, the Supreme Court cited Tedford v.
Peabody Coal Co.46 with favor.47
In Tedford v. Peabody Coal Co.,48 the U.S. Court of Appeals for the Fifth Circuit, citing
Vaca v. Sipes, held that:
The major goal of the duty of fair representation is to identify and protect
individual expectations as far as possible without undermining collective interests.
Where the individual and collective group interests clash, the former must yield to
the latter. When collective bargaining agreements are executed, there may be
provisions which lead individual employees to believe they are entitled to
specified benefits but, in the final analysis, the collective group interests must
remain paramount.49
The court decisions cited above make it extremely clear that the duty of fair representation
imposes upon the union the duty to represent the collective group interests whenever the union
represents two antagonistic groups.
It cannot be said that it is within the collective group interests to involuntarily subject some
members of the bargaining unit to a public health hazard, involuntary disadvantageous transfers,
layoffs and discharges so that individual employees can have smoking privileges.
Therefore, the General Counsel is enforcing collective bargaining agreements in direct violation
of the Supreme Court decisions in Vaca v. Sipes, Ford Motor Co. v. Huffman, Air Line Pilots
Association, International v. O’Neill, Humphrey v. Moore, School Board of Nassau County,
Florida v. Arline, and U.S. Airways, Inc. v. Barnett.
UNION CAUSED DISCHARGES UPHELD BY THE NLRB
In Radio Officer’s Union v. N.L.R.B.,50 the Supreme Court held that a labor union could not
cause the discharge of an employee for any reason other than the failure to pay union
dues.51
However, the NLRB enforces collective bargaining agreements that require non-smokers to
be discharged so that smokers can have smoking privileges.
PERFUNCTORY PROCESSING OF GRIEVANCES BY THE NLRB
In Vaca v. Sipes,52 the Supreme Court held that a union could not ignore a meritorious grievance
or process it in a perfunctory manner.53
46
533 F.2d 952 (5th Cir. 1976).
499 U.S. 72.
48
533 F.2d 952 (5th Cir. 1976).
49
533 F.2d 957, 957 n.5.
50
347 U.S. 17, 74 S.Ct. 323 (1954).
51
347 U.S. 41-42 and n.43.
52
386 U.S. 171, 87 S.Ct. 903 (1967).
53
386 U.S. 194.
47
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In Bowen v. United States Postal Service,54 the Supreme Court upheld a jury award where the
jury held that the union breached the duty of fair representation by handling Bowen’s apparently
meritorious grievance in an arbitrary and perfunctory manner.”55 Bowen was terminated on
March 30, 197656 and the District Court found as a fact that if Bowen’s grievance had been
arbitrated he would have been reinstated by August 1977.57 This is a sixteen-month period.
However, although the Supreme Court has held that sixteen months is perfunctory processing of
a grievance, the NLRB allows unions to take five years to process grievances without holding
that the union has perfunctorily processed a grievance.
IN CONCLUSION
The NLRB has consistently held that the individual right to smoke in the workplace is a workrelated privilege. Therefore, under Vaca v. Sipes, the privilege of smoking must yield to the
collective group interests under the NLRA. Also, 29 U.S.C. § 141(b) supports a finding that both
the union and the employer commit unfair labor practices by exposing non-smokers to second
hand tobacco smoke.
Prepared by:
Billy Williams
Executive Director
GASP of Texas
http://www.gaspoftexas.com/
The statutes and regulations cited above can be accessed at http://www.law.cornell.edu/ .
Additional information is available at http://www.ada.gov/ and also from the Northeastern
University School of Law at:
http://tobacco.neu.edu/tobacco_control/resources/ETS/adainfo1.htm .
DISCLAIMER: The content contained in this document has been prepared by GASP of Texas as
a service to its readers. It is not intended to constitute legal advice. GASP of Texas has used
reasonable efforts in collecting, preparing and providing quality information and commentary,
but does not warrant or guarantee the accuracy, completeness, adequacy or currency of the
information contained herein. Users of this information do so at their own risk.
54
459 U.S. 212, 103 S.Ct. 588 (1983).
459 U.S. 216.
56
459 U.S. 214.
57
459 U.S. 217 n.6.
55