In a new case issued by the Pennsylvania Supreme Court, Ellwood v. Pennsylvania Labor Relations Board, No. 44 WAP 2008 (Pa. 2010), decided July 21, 2010, that court upheld the negotiability of the use of smokeless tobacco products by police officers. The court considered the issue of whether a municipal employer was required to bargain with a police union over a ban on the use of tobacco products in the workplace, in the Department’s vehicles and around other equipment.
The Pennsylvania Supreme Court held that the municipality had a duty to bargain over a ban of the use of these tobacco products with the police union. The facts in the appeal were as follows. The Ellwood City Police union represented police officers employed by the Ellwood City Borough. Prior to June 19, 2006, the Borough had permitted its law enforcement officers the ability to smoke and use tobacco products in its buildings, vehicles, and equipment. Subsequently, on June 19, 2006 the Town Council passed a resolution which prohibited the use of all tobacco products on or in municipally-owned buildings, vehicles, and equipment.
The next day, the Mayor of Ellwood issued a memorandum to all city employees, including all police officers, ordering them to cease any such use of tobacco products. Prior to issuing the memorandum, the municipality had not bargained over the ban with the police union. The union then had filed an unfair labor practice, which was upheld. Subsequently, a lower court had reversed the labor board’s finding of an unfair labor practice and the union appealed the adverse ruling to the Pennsylvania Supreme Court.
The court, in ruling for the officers and the police union, framed the debate with the following two issues:
(a) May a municipality, pursuant to its general police powers, enact an ordinance barring the use of tobacco products in publicly owned buildings, including employee workplaces inaccessible to the public at large, without negotiating with the exclusive representative of its employees?
(b) Must a municipal employer bargain with the police labor organization over the ban on use of tobacco products in the workplace and in the employer’s vehicles and equipment?
The court held that an employer’s restrictions on employee tobacco use at work were subject to mandatory collective bargaining. The court also concluded that the Town Council’s Ordinance, which unilaterally banned all use of all tobacco in certain nonpublic
Areas, such as smokeless tobacco use in police officer’s non-public work areas and
Borough vehicles and equipment, and smoking in Borough vehicles not used for mass
transit and equipment impermissibly denied Borough police officers their statutorily guaranteed collective bargaining rights to negotiate over working conditions.
The case has a number of implications for other police officers and their unions across the United States and may make other types of policies easier to contest if not bargained over prior to enacting such changes.