DEPARTMENT OF COMMERCE BUREAU OF THE CENSUS NATIONAL PROCESSING CENTER JEFFERSONVILLE, INDIANA and LOCAL 1438, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO
United States of America
BEFORE THE FEDERAL SERVICE IMPASSES PANEL
|In the Matter of
DEPARTMENT OF COMMERCE
LOCAL 1438, AMERICAN FEDERATION
Case No. 03 FSIP 6
DECISION AND ORDER
Local 1438, American Federation of Government Employees, AFL-CIO (Union) and the Department of Commerce, Bureau of the Census (BOC), National Processing Center (NPC), Jeffersonville, Indiana (Employer) filed a joint request for assistance with the Federal Service Impasses Panel (Panel) under the Federal Service Labor-Management Relations Statute (Statute), 5 U.S.C. § 7119.
Following investigation of the request for assistance, which arose from negotiations over a dress code policy, the Panel determined that the dispute should be resolved through single written submissions from the parties. The parties were informed that after receiving their submissions, the Panel would take whatever action it deemed appropriate to resolve the impasse, which could include the issuance of a Decision and Order. Written submissions were made pursuant to this procedure, and the Panel has now considered the entire record.
The NPC’s mission is to be the pre-eminent collector and provider of timely, relevant, and quality data about the people and the economy of the United States. The Union represents approximately 1,000 employees who typically work as statistical clerks, data transcribers, laborers, plumbers, boiler plant operators, warehouse workers, and in various support staff positions, at grades GS-4 through -11 and WG-2 through -10. The parties’ labor-management agreement (LMA) expired on October 6, 2000, however, its terms will remain in effect until a successor agreement is implemented. Negotiations for a successor agreement have been ongoing since March 1, 2001.
ISSUES AT IMPASSE
In addition to some minor differences in wording scattered throughout the parties’ final offers, they primarily disagree over whether employees should be permitted to wear shorts, skorts, culottes, jersey sweat pants/suits, and workout clothes during work hours, and the appropriate length for shorts, skorts, skirts, and dresses.
POSITIONS OF THE PARTIES
1. The Employer’s Position
The Employer proposes a dress code policy that would prohibit employees from wearing "shorts, skorts, culottes, jersey sweat pants/suits, and workout clothes during work hours." It also proposes that skirts and dresses be no more than 3 inches above the knee. The proposal reflects the long standing philosophy, exemplified by the parties’ 1993 LMA and a March 20, 2000, Partnership Council memorandum, that shorts are not considered appropriate attire in air-conditioned areas of the NPC. In an attempt to be a "progressive [E]mployer," management agreed with the Union to permit employees to wear shorts and skorts in all work areas in the 1997 LMA (Article 23.6). After the 1997 LMA was implemented, however, problems surfaced, such as the "portrayal of an unbusiness-like image to NPC customers, non-adherence to dress guidelines, [an] inordinate amount of time spent by supervisors enforcing the dress code, and lost time when employees had to change clothes or go home to change clothes." Its position is substantiated by the affidavits of seven supervisors who report that they observed employees on many occasions wearing "shorts that were too tight, not the correct length, not pulled up at the waistline, and skorts [that] were too short." Efforts to clarify the dress code policy through various Partnership memos proved ineffective. The Partnership Council, which includes members of the Union, subsequently issued a memorandum amending the LMA, by providing that "shorts were no longer considered appropriate attire in air-conditioned areas" of the NPC. Further, following extensive space renovations, 95 percent of the NPC facilities are now air-conditioned. Thus, it is no longer necessary to have a policy that permits employees to wear shorts and other like apparel.
In addition, NPC work processes attract visitors from Census Headquarters, the Department of Commerce, various other Federal agencies, Congressional committees, and foreign countries. The proposed policy is "critical" to ensure that employees "represent the Agency in a positive and business-like fashion." The need to make a "business-like" impression was underscored by a tourist from Washington, D.C., who remarked about a female worker’s "undergarments being visible through a large hole in the back of the top."
2. The Union’s Position
The Union proposes that the NPC dress code policy include wording that would permit employees to wear "shorts, skorts, and culottes, jersey sweat pants/suits, and workout clothing." Additionally, dresses, skirts, shorts, and skorts could be no more than 4 inches above the knee; knee level would be defined as the top of the kneecap when standing. During much of the time since 1990, employees have been permitted to wear shorts, with no length requirement; throughout this period, the Union was not aware of any problems or concerns about abuse of the dress code policy. During the 2000 Decennial Census, however, the parties agreed that it was "in the best interest of both parties" to temporarily suspend authorization to wear shorts so that supervisors could focus on the census process rather than monitoring the dress code policy. Once negotiations for a successor agreement began in 2001, as a part of the interest-based bargaining process, the parties agreed that a 90-day trial period "would be the best means to determine whether or not [employees] would be allowed to wear shorts again."(1) When the Union requested copies of any BC-290's [first step disciplinary action forms] relating to dress code policy infractions during the past 4 years, the Employer responded that there were none. If the Employer received complaints from visitors, the Union was never made aware of such incidents, nor is the Union aware of any means for visitors to make complaints.
The Employer’s proposed prohibition on the wearing of the items in question is unnecessary; if there are any problems, they relate to the Employer’s failure to enforce the existing policy’s requirements, such as length, and not, as the Employer alleges, the policy itself. Furthermore, if problems relating to the wearing of shorts and similar clothing are as bad as the Employer claims, they would have been raised during, at the conclusion of, or shortly after the 90-day trial period; however, they were not.
Having carefully considered the parties’ proposals and positions, we conclude that the impasse should be resolved on the basis of a modified version of the Union’s final offer which, for the most part, gives employees the option of wearing shorts, skorts, culottes, jersey sweat pants/suits, and workout clothes during work hours. In our view, however, there is sufficient evidence to warrant modifying the Union’s wording by: (1) deleting the Union’s knee-length standard, and instead requiring the parties to jointly develop appropriate standards and other pertinent details, consistent with this decision, to serve as a guide to employees; (2) permitting the Employer occasionally to suspend the wearing of the items in question when dignitaries are scheduled to visit the facility, provided that employees receive 48-hour advance notice; and (3) adding that the Employer retains the unilateral discretion temporarily to prohibit employees from wearing shorts, skorts, culottes, jersey sweat pants/suits, and workout clothing when their work entails interaction with the public, such as during decennial census periods.
Our conclusion is justified because the Employer has not demonstrated that the dress code, as tested during the 90-day trial period and subsequently, has resulted in the need to restrict employees’ clothing to the degree it proposes. The affidavits the Employer relies on in support of its position were signed approximately 15 months after the 90-day trial period ended (on January 27, 28, or 29, 2003, respectively), and are generally unpersuasive. In this regard, at least four of the dress code infractions reported do not pertain to the kinds of clothing at issue; others relate to the parties’ previous agreement that shorts and the like would be prohibited in air-conditioned buildings during the 2000 Decennial Census and, therefore, appear to involve the enforcement of that agreement.
With respect to our modifications of the Union’s final offer, concerning the length of shorts and skorts, etc., we believe that the parties would be better served by jointly developing their own guidelines for implementing the dress code policy now that its parameters have been established through this decision; this may include a particular knee-length requirement for shorts and skorts, and other related details. It is also reasonable, in our opinion, to permit the Employer to suspend the wearing of the items in question when dignitaries are scheduled to visit the facility, provided that employees receive 48-hour advance notice. Finally, we are also persuaded that allowing the Employer unilaterally to prohibit employees from wearing such items temporarily when their work entails interaction with the public, as the parties previously agreed to do, represents an efficient, professional approach in those situations.
Pursuant to the authority vested in it by the Federal Service Labor-Management Relations Statute, 5 U.S.C. § 7119, and because of the failure of the parties to resolve their dispute during the course of the proceedings instituted under the Panel’s regulations 5 C.F.R. § 2471.6(a)(2), the Federal Service Impasses Panel under 5 C.F.R. § 2471.11(a) of its regulations hereby orders the following:
The parties shall adopt the Union’s final offer, modified by adding the following provisions:
1. The parties will jointly develop dress code guidelines, which may include a knee-length requirement, and other related details.
2. The Employer may occasionally suspend the wearing of shorts, skorts, culottes, jersey sweat pants/suits, and workout clothing when dignitaries are scheduled to visit the facility, provided that employees receive 48-hour advance notice.
3. The Employer shall retain the unilateral discretion temporarily to prohibit employees from wearing shorts, skorts, culottes, jersey sweat pants/suits, and workout clothing when their work entails interaction with the public, such as during decennial cen