dissenting.
An employee smoking policy, especially one with punitive elements to it, is a mandatory subject of bargaining. See S.S. Kresge Co. v. NLRB, 416 F.2d 1225, 1229-30 (6th Cir.1969). An employer generally violates sections 8(a)(1) and 8(a)(5) of the National Labor Relations Act if it unilaterally changes a term or condition of employment over which it has a duty to bargain. NLRB v. Henry Vogt Mach. Co., 718 F.2d 802, 806 (6th Cir.1983). No violation will be found, however, if the union has waived its statutory bargaining right. Waiver is manifest “if the evidence shows that the Union received sufficient notice of the proposed change, and yet failed to protest or demand bargaining on the issue. The Board requires proof of clear and unequivocal notice such that the Union’s subsequent failure to demand bargaining constitutes a ‘conscious relinquishment’ of the right to bargain.” Id. at 806-07 (citations omitted).
When YHA assistant administrator Mullen telephoned union president Lewis in January 1990, he did not provide Lewis with “clear and unequivocal notice” of those alterations which YHA intended to make in its smoking policy. It is undisputed that he did not seek to bargain with the union regarding any modifications of working conditions. Instead, Mullen invited Lewis to join an employer-dominated task force which was being set up to discuss and to draft a no-smoking policy.
Such a task force plainly was not a substitute for formal negotiation. From the union’s perspective, management had not announced a definitive change in work rules. Rather, it had backed away from doing so by organizing an ad hoc group to fashion the details of a smoke-free policy. Nothing yet had been put on the table over which to negotiate. As Mullen testified before the ALJ, the mandate of the task force was to “look at ... the best way to [implement a no-smoking policy].” (Emphasis added).
It must be recognized that the union was under no obligation to participate in any of the task force’s sessions. Indeed, YHA could not establish how many meetings union representative Bonnie Flannery actually attended. In light of YHA’s duty to bargain over its smoking policy, the union apparently decided to wait for a concrete proposal to emerge before considering whether to request negotiations.
This was what the union had done in 1987, when YHA became interested in limiting *175smoking to designated areas. At that time, Mullen formed a committee to study the matter and to develop appropriate guidelines. As in the case at bar, this group was not a vehicle by which collective bargaining was to be carried out. Mullen afforded Lewis the opportunity to have a union representative serve on the committee, but Lewis declined his offer. When its work product was ultimately made known, Lewis did not ask to negotiate over the proposed revisions in policy because he felt they were reasonable.
I believe that both here and in 1987 the clock did not begin to run on whether the union waived its bargaining right until it became aware of the final, unequivocal policy statement of the management-directed group. When an employer, after expressing a desire to modify work conditions, invests an ad hoc committee with the power to hammer out the specifics, this should not be deemed “clear” notice of a “proposed change” in such conditions. Henry Vogt, 718 F.2d at 806. Even though the union may have a general idea of management’s intentions, the devil is, often in the details. Until the committee completes its undertaking, the union has no reason to bargain.
I am not suggesting that whenever management wishes to alter the terms or conditions of employment it must initially inform the union of all of the details of the change it is pursuing. One of the purposes of collective bargaining is to define the rules of the workplace through a process of give and take. However, I am persuaded that the situation is different when an employer forestalls mandatory bargaining through creation of an informal policymaking group. The existence of such a group would naturally give the union the impression that any proposed modifications in policy were still in the process of being formulated. Should the union be asked to take part in the activities of the group, it would reasonably assume that management’s proposals were open to informal discussion.
In the instant case, YHA did nothing to disabuse the union of notions of this sort. YHA vice president Cummins’ April 2 letter to Lewis leads me to conclude that management never conveyed it was prepared to bargain over the no-smoking policy:
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.
(Emphasis added).
After reviewing the record, I am convinced that none of the agendas or policy drafts of the “Smoke-Free Facilities Task Force” that was transmitted to the union were unequivocal in spelling out what changes in smoking policy the group had devised. Once these revisions became known to the union on or about March 23, it made a timely request for negotiations. Whether this request was first communicated by Lewis during the March 23 gathering or through his March 27 letter to Cummins is of no moment. In view of my interpretation of events, it can hardly be said that the union “consciously] relinquish[ed]” its bargaining right. Henry Vogt, 718 F.2d at 807. Therefore, I respectfully dissent.