YHA, Inc. v. N.L.R.B.

Decision Date11 August 1993
Docket NumberNos. 92-5866,92-5909,s. 92-5866
Citation2 F.3d 168
Parties143 L.R.R.M. (BNA) 3057, 125 Lab.Cas. P 10,802 YHA, INC., Petitioner/Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner.
CourtU.S. Court of Appeals — Sixth Circuit

G. Roger King (argued and briefed), William A. Nolan, Jones, Day, Reavis & Pogue, Columbus, OH, Jon R. Steen, Human Relations Resource Council, Youngstown, OH, for YHA, Inc.

Aileen A. Armstrong, Dep. Asso. Gen. Counsel, Peter Winkler (briefed), Angela Washington (argued and briefed), N.L.R.B., Office of the General Counsel, Washington, DC, Frederick Calatrello, Director, Rufus L. Warr, N.L.R.B. Region 8, Cleveland, OH, for N.L.R.B.

Before: GUY and SUHRHEINRICH, Circuit Judges, and JOINER, Senior District Judge. *

JOINER, Senior District Judge.

YHA, Inc., petitions the court to set aside the order of the National Labor Relations Board, 1992 WL 122633, finding that YHA had violated Sec. 8(a)(5) of the National Labor Relations Act, 29 U.S.C. Sec. 158(a)(5), by refusing to bargain with the union representing its nonprofessional employees over the implementation of a no-smoking policy. YHA does not dispute that the policy constitutes a mandatory subject of bargaining, but contends that the union waived its right to bargain regarding the policy because it failed to make a timely bargaining demand. The NLRB cross-petitions for enforcement of its order requiring YHA to bargain with the union on request, rescind the no-smoking policy, and restore the prior smoking policy pending negotiations on the new policy.

We conclude that the union waived its right to bargain on the no-smoking policy, and thus set aside the Board's order and deny the Board's application for enforcement.


YHA is a subsidiary of the Western Reserve Care System, and operates several nonprofit health care facilities in the Youngstown, Ohio, area. The Service Employees International Union Local 627 (AFL-CIO) represents YHA's 1200-1300 nonprofessional service and maintenance employees, approximately one quarter of whom are smokers.

Prior to 1987, YHA imposed only minimal safety restrictions on smoking in its facilities. In 1987, the policy was revised to limit smoking to designated areas. Ken Lewis, president of Local 627, was invited to attend meetings on these revisions to the policy, but opted not to attend. During the proceedings in this case, he explained that he thought that the 1987 revisions were fair and reasonable and did not violate the rights of the members who smoked.

In late 1989, YHA's Board of Trustees adopted a resolution that all YHA facilities become smoke free by April 1, 1990. YHA's president sent a letter to employees suggesting that they make a New Year's resolution to quit smoking because the facilities would be smoke free by April 1, 1990. Additional letters were sent, and notices were posted on bulletin boards and included in the hospital newsletter.

Jack Mullen, YHA's assistant administrator, was assigned to implement the trustees' resolution. Mullen formed a "Smoke-Free Facilities Task Force," requesting representatives from various departments and constituencies within YHA, including the three unions which represented YHA employees. Mullen testified that he called Ken Lewis and told him that "we were headed towards a smoke-free policy" and that he was forming a task force to "look at ... the best way to do that, to satisfy everyone...." Lewis remembers only that he was asked to attend a meeting on a smoking policy. "They just wanted to talk about the smoking policy. They never indicated that they were going to prohibit smoking period. So I just kind of brushed it off as not being that important." Lewis designated union steward Bonnie Flannery to represent Local 627 at the task force meetings. Lewis told Mullen that Flannery was a heavy smoker who had strong feelings about smoking, and would provide vocal input to the task force.

The task force held five meetings between the end of January and the end of March 1990. Lewis testified that Flannery did not attend all of the meetings because they were held during work hours and she could not always get released from work. Although Local 627 in the past had secured a representative's release from work to attend meetings that were thought to be important, Lewis testified that he did not think that this particular task force was very important. Mullen recalled seeing Flannery at two of the meetings.

One week before each meeting, Mullen sent all task force members an agenda, each one entitled "Smoke-Free Facilities Task Force." A draft of the proposed no-smoking policy was attached to the agenda for the February 8 meeting. Under the heading "Employee and Visitor Smoking" the policy stated, "Under no circumstances will employees, physicians, volunteers, visitors, or others coming into WRCS facilities be permitted to smoke while in the buildings owned or leased by WRCS." This draft did not contain an effective date. Attached to the agenda for the March 7 meeting was the "final" draft of the no-smoking policy which contained the language quoted above as well as an effective date of April 1, 1990.

The task force coordinated the implementation of the no-smoking policy, e.g., ordering and posting new signs, investigating outdoor areas conducive to smoking, and working with the education and promotion subcommittee, the entity charged with compiling the information to be communicated to patients and visitors about the smoking ban. Steward Flannery served on that subcommittee as well as the Smoke-Free Facilities Task Force.

On Friday, March 23, Mullen held a meeting for the presidents of the three unions representing YHA's employees. Mullen stated that the meeting was the last opportunity to say to the unions, "we're going with this policy and we just wanted to let them know that this was the case, that we were proceeding." Sandra Butler, the director of personnel services, characterized the meeting as a "courtesy meeting" to review the terms and reasons for the policy. Dr. Gene Butcher attended to address the medical reasons for the policy.

The events of the meeting are disputed. Mullen and Butler contend that no bargaining demand was made by any of union presidents, although they acknowledge that Lewis and another union president discussed between themselves the possibility of seeking negotiation on the policy. Butler recalled that Lewis said that he was going to check with his attorney on whether the policy might be negotiable.

Lewis contends that he demanded bargaining at the March 23 meeting, and that Dr. Butcher said there would be no negotiations. Lewis claims that when he pressed the issue, Dr. Butcher said that he had better things to do and left the meeting. The office of YHA Vice President William Cummins, the individual on whom bargaining demands were customarily made, was nearby the meeting room, but no demand to bargain was made to him that day.

On Tuesday, March 27, Lewis sent a letter to Cummins, requesting that YHA bargain over the no-smoking policy. No reference was made in this letter to the bargaining demand allegedly made at the meeting four days before. Lewis' letter was received on Friday, March 30, although Cummins did not see it until Monday, April 2, the first business day after the smoking ban went into effect. Cummins responded in writing, stating:

I have received your letter regarding our policy on smoking restrictions. I am unsure as to your reasons why YHA, Inc. must now negotiate this matter with the Union. We have always looked upon the implementation of smoking restrictions in the Hospital as our right. We have implemented earlier phases of our smoking restriction policy without request from your Union to negotiate.

Lewis wrote again on April 10, requesting YHA to clarify its position. YHA did not respond, and Local 627 filed an unfair labor practice charge six weeks later, claiming that YHA had refused to bargain over the ban on smoking in its facilities.

Only four witnesses testified at the hearing before the administrative law judge: Lewis, Mullen, Butler and Cummins. The ALJ first stated that, to the extent that there were conflicts between the accounts of Lewis and Mullen, he would credit Lewis, who appeared to him to be honest and forthright, in contrast to Mullen, whose testimony he characterized as evasive at times concerning critical matters. No examples of this evasiveness were given. The ALJ thus credited Lewis' account of the March 23 meeting, finding that Lewis in fact made a bargaining demand at that time, and finding "unpersuasive the brief, and rather vague, testimony of Butler concerning events at the meeting." No examples of the vague nature of Butler's testimony were given.

The ALJ concluded:

In light of the participation on the task force, however limited, of the Union's designee, Flannery, it may be argued that the Union learned, or should have learned, prior to March 23, that Respondent planned a substantial modification in its smoking policy. The fact remains, however, that Respondent did not formally and fully apprise the Union of its intent completely to eliminate employee smoking in its facilities until March 23, 1990. At that time, 9 days remained before the intended implementation of the new policy, an ample amount of time for bargaining about this issue. Upon being presented with Respondent's intended new policy, the Union immediately, forcefully and repeatedly demanded negotiations. Respondent refused to bargain, asserting that it "looked upon the implementation of smoking restrictions in the hospital as our right." In taking that approach, I find and conclude that Respondent failed to fulfill its bargaining obligation, in violation of Section 8(a)(5) of the Act.

(Footnote omitted; emphasis added.)

On review, the NLRB rejected YHA's contention that the agendas circulated by Mullen before each committee meeting...

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