Title: Valley Communications Center Employees Assn and Valley
EMPLOYMENT RELATIONS COMMISSION
SANDRA SMITH GANGLE, ARBITRATOR
This matter came before the arbitrator pursuant to a collective
bargaining agreement between Valley Communications Center Employees' Association
(hereafter “the Association”) and the Valley Communications Center
(hereafter “the Employer”), effective between January 1, 2000 and December
31, 2002. Ex. A-2.
The Association filed a grievance in this matter following the
implementation by the Employer, on or about March 11, 2003,
of certain modified work policies, identified as SOP's #307, 308 and 314.
The parties, having been unable to resolve the matter during the
grievance procedure, mutually selected Sandra Smith Gangle, J.D., of Salem,
Oregon, through selection procedures of the Washington Public Employment
Relations Commission (PERC), as the labor arbitrator who would conduct a hearing
and render a decision in the matter.
A hearing was conducted on March 5, 2004 in a conference room of the
Valley Communications Center in Kent, Washington.
The parties were thoroughly and competently represented by their
respective representatives throughout the hearing.
The Employer was represented by Attorney Ronald J. Knox of Garvey,
Schubert & Barer, Seattle, WA. The
Association was represented by Attorney Sydney D. Vinnedge, of Emmal, Skalbania
& Vinnedge, Seattle, WA.
There were no objections to procedural or substantive arbitrability of
the matter. The parties were each
afforded a full and fair opportunity to present testimony and documentary
evidence in support of their respective positions.
The parties took the arbitrator on a tour of the Center and offered the
following witnesses, all of whom testified under oath and were subject to
(a) For the Association:
John Smith, Sherry Willits, Kathy Stevens and Jill Massick;
(b) For the Employer: Mark
At the close of the hearing, the parties elected to present written
briefs in lieu of oral closing argument. They
agreed that April 21, 2004 would be the date for mutual exchange of the briefs.
Upon receipt of both parties' briefs on April 28, 2004, the arbitrator
officially closed the hearing and took the matter under advisement.
The arbitrator has considered and weighed all the testimony and evidence
offered by the parties. She has
given careful consideration to the final arguments and the arbitral/legal
authority offered by the parties in support of their respective positions, in
reaching her decision.
OF THE ISSUE
The parties were unable to agree upon the framing of the issue in this
matter. Each of the parties offered
its own proposed statement of the issue and agreed that the arbitrator would
have the authority to frame the issue, based upon the evidence offered at the
The Association framed the issue as follows:
the collective bargaining agreement permits, prohibits or neither permits nor
prohibits the Employer from implementing new work rules?
Whether the rules banning afghans, sweatshirts, baseball caps,
coveralls/overalls, business casual shorts and all food items from the workroom,
as implemented by the Employer, were unreasonable?
The Employer framed the issue as follows:
the collective bargaining agreement or past practice permits the Employer to
create, modify and implement Work Rules in the form of a SOP Manual?
arbitrator frames the issue as follows:
the Employer violate the collective bargaining agreement when it declined to
bargain over proposed changes to SOP #307, 308 and 314 and unilaterally
implemented changes to those policies on or about March 11, 2003?
so, what is the appropriate remedy?
The arbitrator shall have no right
to amend, modify, nullify, ignore, add to, or subtract from the provisions of
He (sic) shall consider and decide only the specific grievance submitted
to him by the Employer and the Association and shall have no authority to make a
decision on any other issue not so submitted to him (sic). The arbitrator shall submit his/her decision in writing
within thirty (30) calendar days following the close of the hearing or the
submission of the briefs by the parties, whichever is later. The decision of the arbitrator shall be final and binding.
The fee and expenses of the arbitrator shall be divided equally between
the Employer and the Association. . . .
recognized that, except as expressly stated herein, the Employer shall retain whatever
rights and authority are necessary for it to operate and direct the affairs of
the Communications Center in all of its various aspects, including, but
not limited to, the right to direct the working forces; to plan, direct and
determine the methods, means, organization and number of personnel by which such
operations and services are to be conducted; to assign and transfer employees;
to schedule working hours and assign overtime;
to hire, promote, demote, suspend, discipline, discharge for just cause;
to lay off or relieve employees; to
make and enforce reasonable rules and regulations; and to change or
eliminate existing methods, equipment or facilities; to establish work,
performance and productivity standards
and, from time to time, to change those standards; to contract out any
and all work (other than dispatching police and fire emergency calls) currently
being performed by employees covered by this Agreement; and to take any and all
actions as may be necessary to carry out the mission of the Employer in
XVI -- SAVINGS CLAUSE
. . . . . This Agreement is the entire agreement between the parties and
concludes collective bargaining for its term, . . . except for negotiations over a successor collective bargaining
Ex. A-2, p. 16, 17 (Emphasis added).
STATEMENT OF THE FACTS
The facts of this matter, as shown by evidence offered at the hearing,
are as follows:
Valley Communications Center, also known as the "Com Center",
is an emergency (911) call-and-dispatch center located in Kent, Washington.
It operates on a 24-hour-seven-day basis.
One hundred ten (110) persons work at the Center, including 93 call
receivers and dispatchers who are the members of the Association.
The employees work four ten-hour shifts each week. They take two
15-minute breaks and one 30-minute lunch break (paid) each day. Their work is
often stressful, because of the nature of the emergency calls they handle.
In June of 2002, a new facility was completed to house the Com Center.
The new building, at 24,000 square feet, is nearly four times the size of
the Center's previous building. Unlike
the old building, which was cramped and uncomfortable, the new Center is open
and spacious and has ergonomically-designed workstations. There is a kitchen and break room where the employees can
have their lunch. There are
lockers, a fitness center, a quiet room for relieving stress, a training center
and even a dorm room where employees may sleep, if necessary. None of those facilities had existed in the old building.
Employees ate their lunches at their former workstations, for instance,
because the tiny kitchen area in the old building only accommodated one or two
people at a time.
The old Center was often either uncomfortably cold or overly hot.
The employees were allowed to dress in warm clothes, such as sweatshirts,
and wrap themselves in blankets, afghans or sleeping bags when the environment
was cold. They could wear shorts or
other light sport clothes if they were hot.
A computerized heating and air conditioning system was incorporated in
the new building. That system is supposed to provide uniform temperatures
year-round. The employees do not have access to the computers that operate the
system, however, and, as of the time of the hearing, there were still some
inconsistencies in the air temperature and air flow in the Com Room, apparently
because of flaws in the operation of the new system.
The communications equipment that the employees now use at their work
stations features state-of-the-art technology.
Approximately one-half of the $14 Million cost
of the new building went into such equipment.
As a result of the high quality of the operations now in place, the
Valley Com Center has received national accreditation.
It is the first 911 facility in the Western states to be so accredited
and Management is very proud of that honor.
The new building is a secure facility.
It is not generally open to the public.
Upon request, however, groups of people from the five communities that
share in the Com Center's operations are given tours of the building.
Visitors include political and business leaders as well as boy/girl
scouts and school groups. Such
visitors are invited to stand at several large viewing windows, located along
one wall of the call center. From
that location they can observe the call receivers and dispatchers who are on
duty at the time, as they handle emergency calls at their workstations.
On May 29, 2002, before the staff moved to the new facility, Center
Director Chris Fischer proposed to the Association a number of new work
policies, in exchange for allowing some flexibility in the shift-bidding
process, which the employees had requested of her earlier.
See Ex. A-8. One of
Fischer's recommendations was to change the cleanliness policy, SOP #314, so
that it would include some of the language that was previously included in SOP
#308 and, in addition, would provide specifically that "consumption of food
is strictly prohibited in areas where critical equipment is in use" in the
Ms. Fischer also proposed modifying the personal appearance policy, SOP
#307, by prohibiting, among other things, the wearing of "athletic wear,. .
. including shorts, hats, t-shirts, sweat pants, sweat shirts, running/jogging
suits, swim wear, etc." while at work.
The same proposal prohibited "sleep wear" and "linens,
such as sleeping bags, blankets, afghans and pillows", in areas other than
dorm rooms and the quiet room of the new facility.
The use of all of the prohibited items had been permitted at the old
The Association did not accept Ms. Fischer's proposal.
Instead, the Association made a counter-proposal on the identified
policies and withdrew its earlier offer regarding shift bidding. See Ex. A-3. Soon after that, the employees moved into the new
On September 20, 2002, the Association began its negotiation process with
the Employer for a successor collective bargaining agreement.
The Association submitted counter-proposals to the proposed modifications
to SOP's #307, 308 and 314 along with other issues.
At each bargaining session until December 23, 2002, the Employer was
willing to discuss the SOP proposals and listen to the Association's concerns
and recommendations. See Ex. A-4,
A-5, A-6 and testimony of John Smith.
On December 23, 2002, a State mediator from PERC began mediating the
parties' collective bargaining issues. At
that meeting, the Employer notified the mediator, and the mediator subsequently
informed the Association, that there would be no bargaining over the food and
personal appearance policies during mediation.
On March 11, 2003, the Employer notified the Association members that it
was implementing new policies on cleanliness (SOP #314), conduct (SOP #308) and
personal appearance (SOP #307). See
Ex. E-2, E-4, E-5. The employees were asked to sign a receipt for their copies
of the new policies.
On March 20, 2003, the Association filed a grievance claiming that the
were unreasonable and that their adoption by the Employer violated the parties'
collective bargaining agreement. See
Ex. J-1, J-2. It is that grievance
that is before the arbitrator in this proceeding.
OF THE PARTIES
The Association contends that the work rules the Employer implemented on
March 11, 2003 were in violation of the parties' collective bargaining agreement
because they were adopted unilaterally and were unreasonable. The Association is concerned about the process that was followed in adopting the new rules, as well as the content
of the rules.
The Association believes the changes in the food and dress rules
constituted a change in a mandatory subject of bargaining and that Management's
unilateral implementation, without the Association's consent, violated the
parties' collective bargaining agreement. The Association argues that, in the
past, the parties had routinely bargained over work rules and policies that
dealt with conditions of employment. It
points to the Fitness for Duty policy (SOP#117), which has been incorporated in
the agreement, in Article 10.4, as an example of such a negotiated policy.
The Association is concerned that the Employer's unilateral
implementation of new rules in this case could set a precedent that would allow
further implementation of rules on mandatory subjects of bargaining in the
future, without the Association's involvement.
The Association wishes to avoid such a precedent.
The Association also contends that the Employer's rationale for
implementing the new personal appearance rule, which is actually a dress code,
was arbitrary and unreasonable, as the Employer had stated such a rule was
needed "to reflect the new facility's $15 Million-dollar environment". In the
Association's view, bib overalls, sweatshirts, shorts and baseball caps are all
reasonable and should be allowed under the "business casual" standard
of SOP #308. Also, the new prohibition against shorts is discriminatory
against male employees, because females are allowed to wear "skorts"
or culottes, both of which clothing items are similar to men's business casual
shorts, but males are denied such any alternative to long pants in hot weather.
The prohibition of all forms of food in the Com Room, in SOP #314, is
also unreasonably broad, says the Association, because it prohibits such things
as throat lozenges, breath mints, gum, nutrition bars, fruit and other hard and
dry foods. None of those items could reasonably damage the equipment at
the employees' workstations, nor would they be unprofessional to use when
employees handle stressful emergency calls.
Therefore, they should be allowed.
The Association asks the arbitrator to grant the grievance.
As a remedy, the Association asks that the employees be made whole,
including rescission of the rule changes and an order that the parties bargain
over the work rules that are in issue here.
See Ex. Jt-2.
The Employer asserts there is no merit to the Association's contention
that the revised work policies, which were implemented on March 11, 2003,
violated the parties' collective bargaining agreement.
Both the process of adoption
and the content of the new rules
complied with the contract and the parties' past practice, in the Employer's
Regarding the process, the Employer asserts the Association waived its right to
bargain over work rules when it gave Management the right "to make and enforce
reasonable rules and regulations and . . .
to establish work
. standards and, from time to time, to change those standards"
in Article 14.1 of the parties' collective bargaining agreement.
Over the years Management has developed a practice
of applying Article 14.1 by seeking input from the Association prior to creating
or modifying some work rules. Such
dialog was not the same as bargaining, however. It was simply a
discussion. Also, the Employer sometimes implemented new or modified
rules without obtaining any employee input whatsoever.
The Employer points to SOP #220, which deals with training and
certification, as an example of a rule that was implemented in the past, and was
subsequently updated unilaterally by the Employer.
See Ex. E-1. The Association
never grieved such implementation procedures before the current dispute arose.
This shows that the Association has accepted the Employer's practice, in
the Employer's view.
Employer contends further that the content
of the revised work rules is entirely reasonable and in keeping with Article
14.1 of the collective bargaining agreement. The changes in the personal appearance and food/cleanliness
policies were appropriate, because of the move to the new facility, which has a
totally different environment from that which existed at the old facility.
Cramped and uncomfortable, the old building had uneven air temperatures
and there was no adequate lunchroom where employees could eat lunches or snacks.
Also, the Com Room was never open to viewing by the public. It made sense to allow employees to wear comfortable
sport-type clothing on hot days and to wrap themselves in blankets or afghans on
cold days. It also made sense to
allow employees to eat their lunches and snacks at their desks.
The new facility, however, is open to viewing by groups of interested
politicians and business people, as well as children.
Therefore, the employees should meet a more professional image in their
dress than was appropriate at the old building.
Also, there is a large kitchen and a comfortable lunchroom where the
employees can eat, so they do not need to eat at their stations.
Further, the expensive new communications equipment must be protected
from damage due to food spills and sticky food residues.
For these reasons, it is appropriate to prohibit eating at the employees'
workstations. Besides, Management has agreed to allow employees to obtain
an exception to the total prohibition of food consumption at their workstations
if they have medical reasons which require eating on the job.
Management asks the arbitrator to deny the grievance.
arbitrator’s role is to determine whether the parties’ collective bargaining
agreement has been violated.
In this case, the arbitrator is expressly prohibited from amending,
modifying, ignoring, adding to or subtracting from, any of the agreement's
provisions. See Ex. A-2, Article
13.3.1. Therefore, the arbitrator
must consider the entire document in reaching her conclusions.
The Association contends that the Employer violated the agreement in
either or both of the following ways: (1) by refusing to negotiate the changes
to SOP's #307, #308 and #314 with the Association prior to implementation (process),
and/or (2) by implementing modifications to SOP's #307 and 314 rules that are
The arbitrator will discuss the issues of process
and content separately.
is well settled that management has a fundamental right to establish reasonable
workplace rules that are not inconsistent with law or the collective bargaining
agreement. See generally, Elkouri and Elkouri,
How Arbitration Works (6th ed., 2003, Ruben,
ed.), at 766-67. Also, a Management
Rights provision in a labor contract ordinarily gives the Employer the
unilateral right to establish plant rules that are reasonably related to the
safe, orderly and efficient operation of the business.
e.g., Industrial Finishing Co., 40 LA 670 (Daugherty, 1963).
Arbitrators have held, however, that management must bargain with the
union over rules that affect employees' working conditions when the union
demands to bargain over those, as such rules are mandatory subjects of
Arbitrators have also held that, once work rules have become a subject of
mutual agreements, "very specific bargaining and agreement are required to
make their modification again exclusively a matter of company decisions and
announcements." See, e.g., Ampco Metal, Inc., 3 LA 374. 378-79 (Updegraff, 1946),
cited in Elkouri at 769.
A union may lose its right to bargain over work rules,
however, even those rules affecting conditions of employment, if it has waived,
clearly and unmistakably, its right to bargain over the rules.
Litton Sys., 84 LA 688 (Bognanno, 1985); see also, Good Samaritan Hospital, 335 NLRB No. 73, 172 LRRM
Where work rules are implemented unilaterally and the union contends that
violated its statutory duty to bargain, the union has the right to file an
unfair labor practice complaint with the applicable state or federal labor
relations agency. The union can
also challenge the rules through the parties' contractual grievance procedure,
on the ground that they violate some provision of the contract or that they are
unreasonable, arbitrary or discriminatory.
Where the parties proceed in the arbitral forum, as they have in the
instant case, they demonstrate a belief that the informal resolution process is
better suited to their on-going labor relationship than the more antagonistic
governmental agency process. See, Elkouri, supra at
us now consider the facts of the instant matter. The parties' 2000-2002 labor agreement expired on December
31, 2002. Approximately three
months later, on March 11, 2003, the modified work rules that are in issue in
this case were implemented. Between
those dates, the Management
Rights clause (Article 14.1) of the parties' 2000-2002 contract remained
in effect, because the parties had not yet finalized their successor agreement.
That clause expressly granted to the Employer the right "to make and enforce
reasonable rules and regulations and . . .
to establish work
. standards and, from time to time, to change those standards".
Ex. A-2, Article 14.1.
The Employer says the parties had established a past
practice of applying Article 14.1 by allowing the Employer to make changes
in work rules unilaterally. The
Employer contends that it sometimes sought input from the employees before
implementing new or modified rules, but it denies that such "input"
constituted "bargaining" with the Association.
Relying on that past practice theory, the Employer asserts it was
justified in cutting off the discussions that it had been having with the
Association between May 29 and December 23, 2002, over the proposed
modifications to SOP's #307, 308 and 314, and then implementing its own final
versions of those rules on March 11, 2003.
The Association disagrees. It
points out that it bargained in the past over work policies, such as the Fitness
for Duty policy, which had a potential impact on employees' working conditions
and then the parties had incorporated those negotiated policies into the
collective bargaining agreement itself. See,
testimony of Jill Massick. The
Association acknowledges that it may not have demanded to bargain over all work
policies in the past. Its prior
acceptance of some changes made by the Employer unilaterally should not prevent
bargaining over proposed rule changes that the Association deems significant
A review of the parties' agreement shows that some work rules and
policies have been specifically negotiated by the parties during bargaining and
are expressly referenced and incorporated into the labor agreement.
Examples of such policies are the Overtime SOP #114, which is referenced
in Articles 5.5.3 and 5.9, the Jury Duty SOP #105, referenced in Article 5.7 and
the Fitness for Duty SOP #117, referenced in Article 10.4.
There is no such express reference in the agreement to any of the rules
that are in dispute here, however, that is, SOP's #307, 308 and 314.
Therefore, it is reasonable to conclude that those policies were adopted
unilaterally by the Employer, pursuant to Article 14.1, either with or without
The evidence shows that the Employer presented its initial drafts of new
SOP's #307, 308 and 314 to the Association on May 29, 2002 and entertained some
input on those drafts from the Association over the next few months, but then
terminated such discussions during mediation in December of 2002.
The Employer asserts it followed a practice that had begun years earlier,
whereby the Employer met and conferred with the Association, when it deemed such
meetings appropriate, over new or modified rules.
The Employer's evidence shows, indeed, that the Employer usually, but not
always, submitted proposed changes in work rules to the Association for review
and comment, but then implemented its own final decision.
For instance, Assistant Director Mark Morgan testified that the Employer
submitted a lengthy "clarification" of the training policy (SOP #220)
to the Association on March 18, 1996, and later implemented other new provisions
in the same rule unilaterally in 2001 and 2002.
See Ex. E-1. Morgan also
testified that a security policy had been adopted without any Association input
The Employer interprets the Association's earlier acceptance of such rule
changes as a waiver of its right to bargain.
The arbitrator does not agree with that conclusion, however. The evidence
shows that the past practice of the parties is at best ambiguous. The mere fact
that the Association accepted the Employer's changes to the Training policy, and
perhaps some other policies as well, does not establish that the Association
clearly and unmistakably waived its right to bargain over any and all changes
that the Employer might propose in other work rules.
It merely shows that the Association did not object to some rules made by
The fact that some work rules were expressly negotiated into the parties'
collective bargaining agreement, while others were adopted or modified
unilaterally by the Employer, either with or without input by the Association,
may very well derive from an ambiguity that exists between Articles 14.1 and
16.2 of the parties' labor contract. While
Article 14.1 allows management to implement work rules during the contract term,
Article 16.2 expressly provides that the parties' Agreement concludes
collective bargaining for its term, "except
for negotiations over a successor agreement." Pursuant to Article 16.2, the Association and the
Employer have apparently bargained over
work rules that had been identified as affecting the employees' working
conditions during their negotiations for successor agreements; then they
included the resulting agreements in their successor agreement. Indeed,
Witness John Smith testified without rebuttal, that even during bargaining for
the successor to the 2000-2002 agreement, the parties negotiated and reached
tentative agreement on rules related to rest/ meal breaks and family leave.
The arbitrator finds, therefore, that, pursuant to Article 16.2 of the
2000-2002 agreement, and the notice that the Association gave to the Employer
regarding its desire to bargain over the proposed changes to SOP's #307, 308 and
314 during the summer and fall of 2002, the Employer had an obligation to
continue bargaining over those rules as long as the parties were still
bargaining over their successor agreement.
When the Employer notified the mediator in December that it would not
discuss those proposed rule changes, and then later implemented its own final
version of the rules, over the objections of the Association, it violated the
The appropriate remedy for such a violation would ordinarily be to send
the parties back to the bargaining table. However,
in the instant case, where the successor agreement has been finalized and the
interests of both parties regarding the reasonableness of the rules were fully
litigated at the hearing, it is more appropriate that the arbitrator resolve the
matter by issuing a prospective order regarding future bargaining over work
rules, and by determining what reasonable terms the parties would likely have
agreed upon, if bargaining had continued in the winter of 2002-3 with respect to
the Employer's proposed changes to SOP's #307, 308 and 314.
The test of "reasonableness" of a work rule or policy
is "whether or not the rule is reasonably related to a legitimate objective
of management" and is clearly stated so that employees can appreciate its
e.g., Elkouri, supra at 772;
see also, Robertshaw Controls Co., 55 LA 283, 286 (Block, 1970);
Hoover Co., 77 LA 1287, 1290 (Strasshofer, 1982). In addition, the
assessment of "reasonableness" requires a consideration of the number
of employees who are affected either adversely or positively by the rule, the
degree of inconvenience or benefit to those employees, the health or safety
purpose behind the rule and the appropriateness of any other stated
justification for the rule. Id.
Rules governing personal appearance and dress of employees have been
analyzed by arbitrators and the results tend to be highly fact-specific.
Often, the employer's public image is given considerable importance,
especially where the employees deal with the public in performing their duties..
Sys., 114 LA 1785 (2000), for example, Arbitrator Skulina upheld a rule
that prohibited the wearing of apparel with remarks or pictures that were
"disrespectful" to others. Also,
in Albertson's, Inc., 102 LA
641 (1994), Arbitrator Darrow upheld a policy requiring conservative
hairstyles, where the company desired to protect its conservative public image.
Similarly, in Motion
Picture and Television Fund, 103 LA 988 (1994),
Arbitrator Gentile upheld a prohibition against nose jewelry, where the
employee, a receptionist, had contact with the public.
In other cases, the arbitrators performed a balancing test, weighing the
interests of the employer, in protecting its image, against those of the
employees, who sought a more comfortable and modern style of dress.
Bell Tel & Tel., 74 LA 1115 (1980), for example, Arbitrator Duff
upheld a prohibition against shorts being worn by coin telephone collectors, on
the basis that the employees' interest in being comfortable was outweighed by
the employer's interest in conveying an attractive company image to the public.
However, in Dept.
of Health, Education & Welfare, 69 LA 44 (1977), Arbitrator Zack
upheld a grievance contesting a rule requiring employees to wear neckties, where
the parties' labor agreement set as a standard that employees' dress be
"consistent with accepted standards of business offices dealing with the
public" and the arbitrator found that most government and private
businesses did not require neckties.
In the instant case, the new dress code and food restriction were
established by the Employer because the Com Center had moved into a new,
spacious and ulta-modern facility, that would be open to viewing by politicians
and business leaders from the community, and was filled with expensive, and
somewhat fragile, equipment.
At the old facility, the Employer had allowed the employees to dress very
casually and to use afghans and blankets at their work stations, because the
working conditions had been very uncomfortable for the employees. The heating
and cooling system was so irregular that some employees wore shorts all the time
and others had to cover up their legs to stay warm.
There was little or no contact between the employees and the public,
other than by telephone, so it did not matter what image the employees' clothing
habits might convey to outsiders. Also,
the employees had no choice but to eat their lunches and snacks at their work
stations, because there was no other room in the building where they could sit
down and take their lunch or breaks.
The conditions at the new Com Center are dramatically different than they
were at the old one, however. Even
though the new facility is locked at all times for security reasons, groups of
visitors from the community are often welcomed into the building for tours.
During such tours, visitors observe the call receivers and dispatchers
working at their state-of-the-art workstations in the Com Room.
The employees provide an important service to the public at large and
their wages are ultimately paid by the community.
It is appropriate, therefore, that they observe a standard of decorum
that reflects the seriousness of their work and portrays a businesslike image,
rather than an image of outdoor recreation or camping, as the prior dress
Also, the new facility has a large, comfortable kitchen and eating area
available to the employees. There
is no need to store or eat lunches in the Com Room.
The Employer is rightly concerned about the threat of damage to the
sensitive computers and other equipment in the Com Room from sticky food
residues. Therefore, the arbitrator
is persuaded that a change in the old policy regarding employees' storing and
eating food at their workstations was appropriate.
While the Employer demonstrated that it had a legitimate interest in
setting a higher standard of dress and cleanliness at the new center than had
existed at the old, the arbitrator must now decide whether the new rules, as
implemented, exceeded that legitimate interest and impacted too severely on the
legitimate interests of the employees.
The Association contends that the changes to SOP's #307 and 314 are
overbroad and unnecessarily restrictive, and therefore unreasonable, in
violation of the contract.
The Employer has implemented "business casual" as the standard
for apparel. The Association does
not object to that standard. The
Association argues, however, that shorts, coveralls/ bib overalls, sweatshirts,
baseball caps, and afghans all are appropriate clothing items within that
standard. The Association also
contends that the prohibition against shorts is discriminatory to men, as "skorts"
and culottes are allowed for women. Also,
bib overalls are no different from jeans, in the Association's view, and they
are more comfortable for some people, because they have no binding waistband,
yet jeans are allowed and bib overalls are not.
Witness Kathy Stevens, who used to be a dispatcher and a member of the
Association, and is now a supervisor, testified that, in her opinion, all of the
prohibited items that the Association contests would be appropriate in the Com
Room, as long as they were not shabby. She
testified further that, in the Seattle Com Center, which is relatively new and
is comparable to the Valley Center, there is a dress code in place, but it is
not enforced, so employees there are allowed to wear whatever they choose.
Also, in Anchorage, where she used to work, there was no dress code at
all, she said.
Association President Sherry Willits testified that the new Com Center
still has hot and cold air pockets, in spite of the new computerized
climate-control system. She stated she believed business casual shorts are
appropriate for keeping cool and coats and light blankets for warmth. She also testified that it would be reasonable to allow hard
candies, energy bars and fruit to be eaten at the employees' consoles, as none
of those items would damage the equipment.
Management witness Mark Morgan testified that, in his opinion,
"business casual" does not include shorts or overalls/coveralls or
baseball caps, as those are more in the nature of athletic wear than office
wear. Also, the heating/cooling system is better in the new
facility, he said, and individual heating pads are provided to those employees
whose feet are cold, so afghans are no longer needed.
Morgan did indicate, however, that some accommodation on sweatshirts
might be reasonable, particularly if the sweatshirts were plain, with no
The arbitrator agrees with Management that the "business
casual" standard does not include athletic wear, such as baseball caps and
shorts, or outdoor leisure and gardening wear, such as coveralls or bib
overalls. While shorts are
occasionally allowed in business offices, they are usually worn by employees who
do physical work, like postal employees, who lift and move packages around.
The Association did not produce evidence that shorts are usually worn in
banks or professional or business establishments, like the Com Center, where
employees are observed by the public. Skorts
and culottes are more in the nature of women's skirts than shorts and those are
not worn for athletic sports. They
are appropriate in a business setting. It
is not unreasonable, therefore, to permit skorts and culottes for women, while
prohibiting shorts for both men and women.
Sweatshirts, however, are often worn in a "business casual"
environment, especially those that are plain-colored or decorated with
attractive designs. Sweatshirts are virtually indistinguishable from sweaters or
fleece pullovers, both of which are allowed by the Employer's new standard of
dress. It is unreasonable,
therefore, to exclude sweatshirts in SOP#307, Section 3.13. On the other hand, athletic sweatshirts, with numbers or
letters on them, or sweatshirts with messages printed on them, would not fit the
"business casual" environment, and those are appropriately prohibited
by language in Sections 3.13 and 3.3, which has not been challenged.
Regarding the exclusion in SOP #314, Section 3.4, of all
food items from the Com Room, except where an employee has an approved
medical reason for eating, the arbitrator finds that to be overbroad and
unreasonable as well. It is quite
common and appropriate for office workers to keep packages of breath mints,
cough drops and hard candies in their desks, for use when their mouths get dry
from talking on the telephone to customers.
Workers also often have breakfast bars or energy bars available as a
quick snack, to revive them when they get tired and hungry on the job,
especially where, as here, the employees work ten-hour shifts, with only three
short breaks, and the work involves constant stressful talking. Such
food items are unlikely to cause damage to electronic equipment, because they
are wrapped and non-sticky.
Gum and fresh fruit are different, however, as gum can get stuck on
furniture and fruit can be drippy and messy.
Also, gum-chewing is not considered acceptable in most offices.
Having balanced the Employer's interests and the employees' interests,
the arbitrator finds that the policies on personal appearance (SOP #307) and
cleanliness (SOP #314) are overbroad and unreasonable in part.
They should be modified to meet the requirements of this opinion.
For the reasons set forth in the preceding analysis and decision, the
arbitrator grants the grievance.
The personal appearance policy (SOP #307) shall be modified to eliminate
the prohibition against sweatshirts in Section 3.13.
The cleanliness policy (SOP #314) shall be modified to add the following
language at the beginning of Section 3.4: "Except
as provided herein", and a new sentence shall be added between the
first and second sentences of Section 3.4, as follows: "Employees
may keep packages of breath mints, cough drops, hard candies, dried fruits,
wrapped breakfast bars and/or energy bars in their desks and may consume such
food items in the Com Room, provided that such food items are kept away from the
communications equipment and are consumed unobtrusively."
The Employer shall cease and desist from denying the Association the opportunity to negotiate over work rules and policies that affect working conditions during bargaining for successor contracts.
The parties shall share equally the payment of the arbitrator’s fee and
SMITH GANGLE, J.D.
Employer exhibits are designated herein as
Ex. E-1, etc.; Association exhibits are designated as Ex. A-1, etc.; Joint
exhibits are designated as Jt-1, etc.
terms and conditions of the 2000-2002 collective bargaining agreement
remained in effect for the purpose of proceeding with the grievance, as the
parties had not yet signed a successor agreement.
See RCW 41.56.123.
is unclear whether the actual cost of the facility was $14 million or $15
million. Both figures were
mentioned by witnesses at the hearing.
In Ms. Fischer's May 29, 2002, the figure of $15 million was
referenced. See Ex. A-8.
were several other new or modified provisions in the Employer's proposed
SOP#314, some of which were moved from SOP #308.
Those issues have been resolved by the parties and are not relevant
to this arbitration.
The Association subsequently filed an Unfair Labor Practice (ULP) complaint
with PERC over the Employer's refusal to bargain over its proposed changes
to work rules during mediation. In
a preliminary ruling, PERC found that, if all the facts were true as stated,
a ULP could be determined to exist. The
Employer then filed an Answer. That
ULP was still pending as of the time of the arbitration hearing.
See Ex. A-7
Association's objections, if any, to the changes in SOP #308, are not in
issue here. Only certain
portions of SOP #307 and 314 remain in dispute.
Footnote 3, supra.
subjects of bargaining are wages, hours and other terms and conditions of
employment. See, e.g., 29 USC
sec.159(d); See also, letter
from PERC, dated 1-16-04, re. RCW 41.56.140(4) Ex. A-8
record shows that SOP #307 and 308 were originally adopted 01/15/83.
It is not clear when SOP #314 was adopted.
the original notice that the Employer gave to the Association referenced the
"new $15 Million work environment" as the reason for the proposed
changes to the SOP's. The
actual reasons that had led to the proposals were considerably more
complicated than that phrase conveyed, however.