Hospitals Don't Have to Set-Up Smoking Area for Employees

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PHILADELPHIA, PA -- An arbitrator should not have told a hospital in western Pennsylvania that it must create a designated smoking area for union employees, the 3rd Circuit ruled.

The federal appeals panel's decision on Monday affirms the finding of a federal judge, who ruled that the United Steelworkers failed to mount a sufficient challenge to the smoking ban at Armstrong County Memorial Hospital.

Smoking is prohibited anywhere on hospital property, including parking lots and private employees' cars under a policy adopted in January 2009. The union responded by filing a grievance, claiming that the ban was "unreasonable" and violated the terms of its collective bargaining agreement since the hospital never mentioned the proposed change during earlier negotiations.

An arbitrator ruled for the union in October, finding that "the employees had come to expect they would have a specific location to smoke." 

"This expectation rose to the level of a protected local working condition," he added, calling for the hospital in Kittanning, Pa., to provide employees with a reasonable accommodation by allowing them to smoke in a designated area.

The hospital then commenced a lawsuit, asking to vacate the arbitrator's judgment.  The District Court heard the case last year in Pittsburgh and agreed with the hospital, finding that the arbitrator had committed a "fundamental error." 

"Expectations regarding prior practices cannot become protected local working conditions," U.S. District Judge Terrence McVerry had ruled.

The three-judge appellate panel affirmed the judgment to vacate the award, noting that the union contract does not contain the phrase "protected local working condition." 

In fact, the collective bargaining agreement gives Armstrong Memorial "the right to establish, revise and administer reasonable policies and procedures," the court found. It also gives the hospital the right to "make every effort to maintain its facilities and equipment in such physical condition so as to provide a safe and healthy work environment."

"Thus, the arbitrator's opinion effectively rewrote the parties' agreement," U.S. District Judge Louis Pollak wrote for the court. Pollack was sitting on the panel by designation from Pennsylvania's Eastern District.

The judge noted that the hospital adopted its smoking policy after conducting surveys and studying other hospitals' policies. "The hospital concluded that smoking on the hospital campus created a significant health risk not only to smokers, but also to patients, volunteers and visitors," Pollack wrote.