DISSENTING OPINION BY
Judge McGINLEY.I respectfully dissent to the majority’s conclusion that “the Ordinance does not prohibit police from using tobacco while on duty; rather, it renders specific locations smoke free.” Opinion at 735.
Ordinance # 2397 provides:
WHEREAS, various studies have demonstrated the danger of tobacco products to users and persons affected second hand by the use of tobacco;
WHEREAS, indicators show tobacco use is rising dramatically;
WHEREAS, it is the desire of the Council of the Borough of Ellwood City to provide a tobacco free environment on and in all municipally owned buildings, vehicles and equipment to promote the health and welfare of its employees and citizens, (emphasis added).
NOW THEREFORE BE IT ORDAINED, as follows:
1. The use of tobacco products on or in Borough owned buildings, vehicles and equipment is forbidden, (emphasis added).
2. Any person found guilty of violating any provision of this Resolution shall be subject to a fine not to exceed $300.00.
Clearly, Ordinance # 2397 precludes the use of tobacco products by police officers while on duty unless a police officer decides to light up or have a chew while in pursuit of a perpetrator on foot.
In Crawford County v. Pennsylvania Labor Relations Board, 659 A.2d 1078 (Pa.Cmwlth.1995), this Court addressed a similar issue as to whether the implementation of a no-smoking policy in the Crawford County Jail was the mandatory subject of bargaining with the union:
The courts have repeatedly held that we must defer to the PLRB’s interpretation of its own statute against competing interpretations. This is so because the need for expertise and judgment in drawing the line between negotiable and non-negotiable proposals is ultimately within the unique jurisdiction of the PLRB, whose decisions, if supported by substantial evidence, and conclusions, based thereon, are reasonable and not capricious, arbitrary or illegal, must be sustained ....
In this case, we believe the deference to the final order of the PLRB ... is war*737ranted.... Accordingly, we hold that the PLRB acted reasonably in concluding that the County committed an unfair labor practice by unilaterally implementing a total no-smoking ban on July 1, 1991 and that it failed to meet its burden demonstrating that the smoking ban in the jail facility was essential to the County’s basic mission, (emphasis added).
Id. at 1082.
Because the Borough’s prior policy did not totally ban the use of tobacco products by police officers, I believe that any change in that policy was the subject of mandatory bargaining between the Borough and the Ellwood City Police Wage and Policy Unit.
Also, I would concur with the Pennsylvania Labor Relations Board’s determination that the smoking ban was not a managerial prerogative that was essential to the County’s mission to protect the health and safety of children:
The Borough argues that, like Chambersburg [Area School District v. Pennsylvania Labor Relations Board, [60 Pa.Cmwlth. 29], 430 A.2d 740 (1981) ], the tobacco ban should be found to be removed from collective bargaining as a managerial prerogative. However, unlike the school district employer in Chambersburg, it is not the mission of the Borough to protect children from the dangers of tobacco use. Rather, in conducting the “rational relationship” test and balancing the interests of the Borough and the employes, it is evident that this case is more similar to Crawford County and Venago County. Those cases involved public employers under PERA [Public Employe Relations Act, Act of July 23,1970, P.L. 563, as amended, 43 P.S. §§ 1101.101-1101.2301] who similarly wanted to impose tobacco bans. This case is also similar to Lebanon County, which is case decided under the PLRA [Pennsylvania Labor Relations Act (PLRA), Act of June 1, 1937, P.L. 1937, P.L. 1168, as amended, 43 P.S. §§ 211.1-211.39] and Act 111 [Act of June 24, 1968, P.L. 237, as amended, §§ 217.1-217.10]. In those cases, when balancing the competing interests, it was determined that the interest of the employes outweighed the interest of the public employer. Balancing those competing interests in a similar fashion while applying the “rational relationship” test, we reach the same result and find that the Borough’s interest in imposing the smoking ban does not substantially outweigh the impact that the imposition of the ban has on the employes in this case.
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In passing the resolution of June 19, 2006 and the ordinance of August 21, 2006, the Borough council did not express that it was acting with the specific intention of educating or protecting children from tobacco use in a manner comparable to that of a public school. Rather, Borough’s council’s self-professed reasons for acting were related to the “danger of tobacco products to users and persons affected second hand by the use of tobacco” and a generalized intent to provide a tobacco free environment “to promote the health and welfare of its employees and citizens”, an intention similar to that of the employers in Venago [Commonwealth v. Pennsylvania Labor relations Board (Venago County Board of Assistance), [74 Pa.Cmwlth.1], 459 A.2d 452 (1983) ]_Borough council did pass an ordinance in December of 2004 banning the use of tobacco products by persons under the age of 18 because the use of tobacco among children “is a threat to the health, safety, morals, and general welfare of our com*738munity and its young citizens.” However; the protection of children is not mentioned in the 2006 ordinance which imposed a total tobacco ban. Further, the Borough did not produce any testimony from Council members that the purpose of imposing the 2006 tobacco ban was for the protection of children
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After a through review of the exceptions and all matters of record, the Board shall dismiss the exceptions and affirm the Hearing Examiner’s conclusion that the Borough violated Section 6(l)(a) and (e) [Unfair labor practice] of the PLRA. (citations and footnote omitted and emphasis added).
The Board’s Final Order, February 20, 2007, at 3-4.
Again, “[t]he subject of whether employees may smoke at their workplaces appears to us to be the center of those subjects properly described as ‘conditions of employment’ and to be entirely unrelated to those entrepreneurial or managerial judgments ...(emphasis added). Commonwealth of Pennsylvania v. Pennsylvania Labor Relations Board, 74 Pa.Cmwlth. 1, 459 A.2d 452, 455 (1983).
Therefore, I would affirm.