DISSENTING OPINION BY
Judge PELLEGRINI.While I agree with that portion of the majority’s holding that the Borough of Ell-wood City (Borough) may ban smoking in public places, I disagree with the majority that the Borough may prohibit smoking in non-public places without first negotiating with the Ellwood City Police and Wage Policy Unit (Union).
The majority finds that Ordinance # 2897’s prohibition of the use of tobacco products on Borough property is authorized under the Borough’s general police powers contained in Section 1202(6) of the Borough Code, 53 P.S. § 46202(6), to protect the health and welfare of not just Borough employees, but also its citizens from the dangers of tobacco. However, Ordinance # 2397 was not enacted pursuant to the Borough’s general police powers because it does not regulate conduct throughout the Borough, but rather pursuant to the Borough’s proprietary power to control conduct that takes place on its property. As the majority notes, Section 10.1(c) of the Clean Indoor Air Act, 35 P.S. § 1230.1(c), provides that “[n]o person shall smoke in any areas designated by the proprietor or person in charge of a public place or at a public meeting.” Because the Clean Indoor Air Act authorizes proprietors or the person in charge of public places to ban everyone, which includes police officers, the matter is removed from collective bargaining; after all, no municipality has to negotiate with a union over a wage tax increase authorized by state law even though it diminishes union members’ net pay.
However, when the employer imposes the smoking ban in non-public places, it has an obligation to negotiate over whether tobacco products can be used in those areas because, in such areas, it affects only employees, and whether employees are allowed to use tobacco products is a term and condition of employment making it a mandatory subject of bargaining. Crawford County v. Pennsylvania Labor Relations Board, 659 A.2d 1078 (Pa.Cmwlth. 1995); Commonwealth v. Pennsylvania Labor Relations Board (Venango County Board of Assistance), 74 Pa.Cmwlth. 1, 459 A.2d 452 (1983). Obviously, a public employer cannot circumvent bargaining with the Union over terms and condition of employment simply by passing an ordinance.
*739Because we have previously held that the use of tobacco products by members of bargaining units is a mandatory subject of bargaining, I would hold that the Borough should be required to bargain with the Union on whether the police officers would be prohibited from using tobacco products in non-public places.
Accordingly, I respectfully dissent.