2004 NAC 128 alley Communications Center Employees Assn and Valley Communications Center

Title: Valley Communications Center Employees Assn and Valley Communications Center
Date: May 17, 2004
Arbitrator: Sandra Smith Gangle
Citation: 2004 NAC 128

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.[1]

The Association filed a grievance in this matter following the implementation by the Employer, on or about March 11, 2003,[2] 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 cross-examination:

(a) For the Association: John Smith, Sherry Willits, Kathy Stevens and Jill Massick;

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.

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 hearing.

Whether the collective bargaining agreement permits, prohibits or neither permits nor prohibits the Employer from implementing new work rules? and

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?

Whether the collective bargaining agreement or past practice permits the Employer to create, modify and implement Work Rules in the form of a SOP Manual?

Did 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?

13.3.1. The arbitrator shall have no right to amend, modify, nullify, ignore, add to, or subtract from the provisions of this Agreement. 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.

13.3.2. The fee and expenses of the arbitrator shall be divided equally between the Employer and the Association. . . .

14.1 Management Rights It is 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 emergencies.

16.2 Exclusion 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 agreement.

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[3] 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 new facility.[4] 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 facility.

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 facility.

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.[5]

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 new policies[6] 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.

A. The Association: 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[7] 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.

B. The Employer: 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 view.

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.

The 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.

The 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 unreasonable (content). The arbitrator will discuss the issues of process and content separately.

A. Process: It 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 (6^th 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. See, 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 bargaining.[8] 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. See, Litton Sys., 84 LA 688 (Bognanno, 1985); see also, Good Samaritan Hospital, 335 NLRB No. 73, 172 LRRM 1234 (2001).

Where work rules are implemented unilaterally and the union contends that management

has 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 770-71.

Let 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 now, however.

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 Association input.[9]

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 whatsoever.

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 Employer.

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 contract.

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.

B. Content: 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 import. See, 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.. In Intertec 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. In Southern 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.[10] 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 practices conveyed. 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 distracting printing.

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 expenses.
DATED this _______ day of May, 2004.

[1] 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.

[2] The 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.

[3] It 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.

[4] There 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.

[5] 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

[6] The 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.

[7] See Footnote 3, supra.

[8] Mandatory 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

[9] The record shows that SOP #307 and 308 were originally adopted 01/15/83. It is not clear when SOP #314 was adopted.

[10] Unfortunately, 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.

Hearing Conducted:	March 5, 2004
Representing the Association:	Sydney D. Vinnedge, Attorney at Law Emmal, Skalbania & Vinnedge 4241 21^st Ave. W, Suite 104 Seattle, WA 98199-1271
Representing the Employer:	Ronald J. Knox, Attorney at Law Garvey, Schubert & Barer 1191 Second Ave., 18^th floor Seattle, WA 98101-2939
Arbitrator:	Sandra Smith Gangle, J.D. Sandra Smith Gangle, P.C. P.O. Box 904 Salem, OR 97308-0904
Date of Decision:	May 17, 2004