Title: City of Lake Worth and AFSCME Local 1199
MEDIATION AND CONCILIATION SERVICE
In the Matter of the Arbitration
- Between –
of Lake Worth
For the Employer (City)
For the Union
DR. PHYLLIS ALMENOFF, ARBITRATOR
Called by the Employer
William C. Bucklew
Building and Zoning Director
Called by the Union
PEU Staff Representative
This grievance was
submitted to Arbitrator Phyllis Almenoff pursuant to the terms set forth in
Article 10 of the Collective Bargaining Agreement between the parties (Joint
Exhibit 1) for a final and binding resolution of the issue.
The Arbitrator was jointly selected by the parties from a list submitted
to them by the Federal Mediation and Conciliation Service of the United States
grievance was filed August 21, 2004 and was processed through the steps of the
grievance procedure without a satisfactory resolution. The grievance was
properly before the Arbitrator.
hearing took place on February 28, 2005 in the Conference Room at the Lake Worth
City Hall located at 7 North Dixie Highway in Lake Worth. At that time both
parties were afforded full opportunity to present testimony, offer evidence and
arguments in support of their respective positions and cross-examine witnesses.
The City of Lake Worth was represented by Elaine A. Humphreys and the Union
(AFSCME Local 1199) was represented by Anthony Demma.
Both the Employer and the Union presented their closing arguments at the
hearing and the record was closed.
OF THE ISSUES
parties stipulated to the following issue:
the City have just cause to suspend the Grievant for three days?
grievance (Joint Exhibit 2) dated August 21, 2004, states the following:
Description of Grievance:
The alleged charges against the Grievant are not supported by a preponderance of
evidence since no “City Dress Code” exists.
In addition, Grievant was not insubordinate to the Departmental Director,
nor was she discourteous to Human Resource Director, Alan Sirmans.
The Union will address several circumstances and inconsistencies directly
related to this incident which will shed light on the alleged actions of the
Grievant and why she has not violated City policy.
(And other applicable Statutes, Rules, Regulations and/or Policies)
4(C), Article 7(A), Article 9, Article 12 (3), Article 13, & Article25 (A-I)
Action Requested by Grievant: Remove Disciplinary Action, reverse suspension days and
make Grievant whole.
On May 13, 2002
the City Manager’s disposition of the grievance at step 2 was as follows:
thoroughly evaluated the evidence, including the information, which was
provided, during our meeting on October 14, 2004.
is my decision to deny the grievance. I
conclude that employee Inglesias engaged in the misconduct as alleged.
I note your
arguments concerning employee Inglasias’ medical condition, her interpretation
of “guidance” received from her
supervisor concerning how to address personal confrontations, your position
concerning the lack of a formal dress code in the City and other information,
which you provided during our meeting. However, the evidence is clear that employee Inglasias was
insubordinate to Mr. Bill Bucklew, B & Z Director and disrespectful to
Director, Human Resources/Labor Attorney G. Allan Sirmans.
The underlying circumstances, which led to employee Inglasias’ behavior
while relevant, do not justify her misconduct.
Even assuming the legitimacy of one or more of your arguments, I cannot
condone such misconduct in the workplace.
Union requested arbitration.
CONTRACT LANGUAGE (Joint Exhibit
– Grievance Procedure
1 - Definitions
A “grievance” shall mean a complaint by an employee, in the
bargaining unit or the Union that there has been a violation or
misinterpretation of any of the provisions of this agreement, City Policy,
Regulations or Procedure.
2 – Election of Remedy
An employee shall have the option of utilizing the unfair labor practice
procedures as provided in Chapter 447, Florida Statutes, or this grievance
procedure but such employee is precluded from using more than one procedure to
address the same or similar complaints and issues.
Section 4 –
The filing or pendency of any grievance under the provisions of this
Article shall in no way operate to impede, delay or interfere with the right of
the City to take the action complained of, subject, however to the final
disposition of the grievance.
The resolution of the grievance at step 2 or above shall establish a
precedent binding on either the Union or the City in other cases.
shall be presented and adjusted in the following manner:
An employee having a grievance may, within seven (7) days following the occurrence of the event giving rise to the
grievance, present the grievance orally to his immediate supervisor who has the
authority to adjust the grievance, for informal discussion.
If the grievance is not resolved by such informal discussion, the
employee may, within (10) days after the date of that discussion, submit a
formal written grievance at Step 1 of this procedure.
In filing a grievance at Step 1, the employee shall submit to the Step I
department head or designee a grievance form to be supplied by the City, setting
forth specifically the complete facts and issues on which the grievance is
based, the specific provision or provisions of the Agreement allegedly violated,
and the relief requested.
The Step 1 department head or designee shall have a meeting to discuss
the grievance and shall communicate a decision in writing to the employee and to
the Union Representative, if any, within ten (10) days following the date of the
If the grievance is not resolved at Step 1, the employee may appeal the
grievance in writing to the City Manager or his designee within ten (10) days
after receipt of the decision at Step 1.
The City Manager or his designee may have a meeting with the Union
Representative to discuss the grievance. The
City Manager or his designee shall communicate a decision in writing to the
employee and to the Union Representative within ten (10) days of the written
Step 3 – Arbitration
If the grievance is not resolved at Step 2, the Executive Director, or
his designee, may present the grievance for arbitration to the Federal Mediation
and Conciliation Service (FMCS). Such
submission shall be made within fifteen (15) days of receipt of the Step 2
The parties shall select an arbitrator from the list of names forwarded
by the FMCS. Such selection will be
made by “striking”. A flip of
the coin shall decide which party strikes first.
The remaining name shall be the arbitrator to hear the grievance. The
arbitrator’s fees and expenses shall be equally borne by the parties……The
decision of the arbitrator shall be final and binding.
4 – No Discrimination
Section 1 –
Non-Discrimination Policy – Age, Sex, Race, Color, Religion, National Origin,
Physical Handicap Disability, Marital Status.
shall have and retain all rights guaranteed by the United States Constitution,
Constitution of the State of Florida, City of Lake Worth Policies and
Regulations, and all applicable statutes.
* * *
– Employee Rights
(A) Employees covered by this Agreement shall have the protection of all of the rights to which they are entitled by the Constitution of the United States, the Constitution of the State of Florida and any Rules, Regulations or Policies of the City not altered or amended by this agreement. City rules, regulations, resolutions, or policies effecting employees’ wages, hours and terms and conditions of employment will not be changed without prior negotiations unless such changes are consistent with this Agreement
* * *
– Changes in Past Practices/ Terms/Conditions of Employment
Bargaining unit past practices as related to wages, hours, and terms and conditions of employment shall not be changed without bargaining unless the practices, terms, and conditions of employment have been altered or changed by this Agreement.
– Disciplinary Action
* * *
action may not be taken except for “Just Cause” which must be substantiated
by a preponderance of evidence.
* * *
Where “just cause” warrants the dismissal, demotion and/or suspension of any employee, such action shall be taken by the appropriate administrator. Under normal circumstances, progressive discipline will be administered as follows:
1. Verbal reprimand (written notation to be placed in file)
2. Written reprimand filed in Personnel File
3. Suspension without pay
* * *
Resolution No. 28-91 of the City of Lake
Worth, Florida, Updating the “City of Lake Worth Personnel Policy”
Group I Offense
* * *
11. Discourtesy to persons with whom the employee comes in contact while in the performance of duties.
* * *
First Offense – Written Warning
Group II Offense
* * *
5. Negligence or omission in complying with the requirements as set forth in departmental rules
and standards of conduct.
First Offense - Up to two (2) days suspension
Second Offense - Up to five (5) days suspension
Group III Offense
* * *
6. Insubordination by the refusal to perform work assigned or to comply with written or verbal instructions of a supervisor.
* * *
DOWN POLICY (City
Exhibits 2, 3 and 4)
this time, I find it necessary to set more specific guidelines for our dress
down policy. As a place of business
where public contact is a daily routine, the manner in which we present
ourselves has a direct impact on the image of the City and public perception.
only have been designated as “dress down days”.
Casual slacks, dress denim jeans and “skorts” are acceptable on dress
down days. Sport shorts, crop tops
and other revealing or tight outfits are not appropriate to
wear in our work environment.
other days of the week, employees are expected to dress appropriately for their
cooperation and exercise of discretion in these matters is greatly appreciated.
Keep in mind that your attire projects the image that makes a lasting
impression on our citizens. Let’s
continue building our positive image!
Lake Worth Public Employees Union (AFSCME Local 1199) affiliated with FPD/NUHHCE,
hereinafter referred to as the “Union” is the exclusive bargaining agent of
the employees described in the amended certification issued by the Public
Employees Relation Commission. The City of Lake Worth is herein referred to as
the “Employer.” The City
recognizes the Union as the exclusive representative for the purpose of
collective bargaining with respect to wages, hours, and terms and conditions of
employment for all persons included in the bargaining unit as determined by PERC.
The employee is represented by the Union through the grievance procedure,
including arbitration, in accordance with the Agreement.
Inglesias, the Grievant, has been employed by the City of Lake Worth for ten
years. Her current title is Licensing Officer/Permit Specialist and her work
area is on the lower level of City Hall. Her position involves dealing with
residents on issues pertaining to obtaining licenses and obtaining permits from
the City of Lake Worth. Prior to several promotions she held the titles of
Permit Clerk and License Clerk.
or about August 16, 2004, City Officials received a number of complaints
concerning the extremely revealing attire E.I., the Grievant was wearing. A.S.,
the HR Director and C.C., the Assistant Labor Attorney went to observe the
Grievant and to ask her supervisor, W.B., Director of Building and Zoning to
speak with her about her attire. The Grievant was wearing a polyester tank top
with spaghetti straps and a significant portion of her breasts were exposed. W.B
was out to lunch. Upon overhearing
that A.S. wished to discuss dress code issues with W.B., the Grievant confronted
A.S. and said in a loud voice: “Al, if you have something to say to me, say it
directly.” A.S. indicated that
what she was wearing was inappropriate for the workplace.
The Grievant said that she had Multiple Sclerosis and sometimes she was
hot and other times she was cold. When
offered an accommodation in another office, she refused because she hoped to get
a promotion in that specific department and earn more money. In response to
A.S.’s statement that she should wear more appropriate clothing, E.I. said
“Well, I’ll try.”
WB returned from lunch and was apprised of the events that had occurred, he went
to E.I. and indicated that he needed to see her.
She responded in a very loud voice “If it is about Alan – not now!
I am very mad.” WB, her immediate supervisor was outraged by her refusal to
obey his direct order to meet with him, her discourtesy and disrespect for A.S.
as well as the outfit she was wearing which he had not seen previously that day.
After conferring with others, he issued the following “Disciplinary Action
Notification” imposing a suspension of three days which is the basis of the
grievance. (Joint Exhibit 2a)
accordance with the governing Collective Bargaining Agreement and Personnel
Policy of the City of Lake Worth, Florida, you are hereby notified that as a
result of your action(s), as described below, there is just cause to take the
following formal disciplinary action against you.
Conduct Resulting in Discipline:
August 16, 2004
of Conduct: Section 24: Group III Offense
# 6: Insubordination to the Department Director William Buckew. Ms. Inglesia
failed to respond to a direct order “I need to see you now”.
Response by Ms. Inglesia “no, not now, I’m too mad.”
Mr. Buckew later told Ms. Inglesia to go home and change.
Ms. Inglesia made a statement and exited the building. Group II, Offense #5: Failure to comply with the Memorandum
Policy to all City Hall Employees regarding appropriate attire dated June 27,
1994. Further Memorandums issued to
all Department Personnel on August 29, 1996; September 10, 2003 regarding Dress
Code issues. That was provided to
Ms. Inglasias and all other Department personnel.
In addition, an Evaluation/Performance Review of October 9, 1996 of Ms.
Inglesia by Supervisor’s Genia Baker states the following: “Ms. Inglesia has
shown the inability to accept constructive criticism and follow general policy
as it relates to the “Dress Policy.” Discourtesy
to the Human resource Director, Alan Sirmans.
Mr. Sirmans approached John Kuntzman,
the Chief Building Inspector who was in charge to discuss dress code
issue with employee. Ms.Inglesia overheard Mr. Sirmans and stated in a loud tone
and rude manner All if you have something to say to me, say it to me
above violations are in direct violation of the City of Lake worth Personnel
Policy. Previous violation, October
4, 1995, as stated in the performance review of October 9, 1996 and the overall
review Ms. Inglesia. The Department
Director’s position is to suspend Ms. Inglesias for Three (3) days beginning
August 24, 2004 through August 26, 2004.
TAKEN: Suspension, from August 24, 2004
through August 26, 2004
OF THE PARTIES
of the City
City argues that the Collective Bargaining Agreement was not violated and that
there was “just cause” to discipline the Grievant by suspending her without
pay for three days. To support its position, the City asserts the following
The City issued a “Dress Down Friday” Policy that stated
“…revealing or tight outfits are not appropriate to wear in our work
environment. All other days of the
week, employees are expected to dress appropriately for their positions.” The
Policy was issued on two separate dates. (July 27, 1994 and September 8, 2003.)
The Grievant is employed by the City of Lake Worth and works at City Hall
as a Zoning and Permit Specialist and has frequent contact with the public.
On or about August 16, 2004, several complaints about E.G.’s attire
were received and relayed to A.S., the Human Resource Manager. The Grievant was
wearing a tight tank top with spaghetti straps that revealed a large portion of
her breasts. This inappropriate
attire was a direct violation of the “Dress Down Friday” Policy.
A.S. and C.C. went to speak
to W.B., her direct supervisor (who was out to lunch) about the complaints. The
Grievant confronted A.S. and spoke to him in a loud voice and a rude and
When W.B., her direct supervisor returned to City Hall, he asked the
Grievant to meet with him. She refused to do so. E.I.’s refusal to follow the
direct order of a supervisor constituted insubordination.
W.B later told E.I. to cover up or go home and change her clothes.
She later appeared covered up.
Although the Personnel Policy provides a penalty of discharge for
insubordination, the Grievant was given a less harsh penalty.
The City imposed a three day suspension without pay in view of her long
and good service.
On two other occasions, the Grievant was asked to go home because her
clothing was too revealing and the City had received complaints about her
her former supervisor, G.B. sent the Grievant a memo concerning an incident
which took place on August 6, 1996 stating “E.I. reported to work dressed
inappropriate and in violation of the office dress policy.
She wore a purple “tank top” style blouse which revealed her
undergarments at every gesture…” (City
Exhibit 5) Her performance review stated
“…E.I. has shown the inability to
accept constructive criticism and follow general office policy as it relates to
the “dress policy.” . . . It is further noted that other dress policy
violations have occurred since the above documented incident with the more
recent violation occurring on October 4, l996.
Ms. I. reported to work wearing a “t-shirt” in direct violation of
the stated policy… It is the
writer’s observation that Ms. I. consciously disregards the policy….This
Policy was distributed from the City Manager’s office on June 27, 1994 and
must be enforced. I encourage Ms.
Inglesias to make an assertive effort to correct the above noted behavior as it
could result in jeopardizing her continued employment with the City of Lake
Worth.” (City Exhibit 6)
of the Union
Union contends that the Contract was violated and that the Grievant’s
suspension was not for “Just Cause.” In support of its position, the Union
offered the following arguments:
There is no mention of Dress Code in the Collective Bargaining Agreement.
The “Friday Dress Down” Policy does not prohibit tank tops. The
Grievant wore tank tops on many occasions.
In fact, she wore the outfit in question to work on thirty or forty
occasions. In addition, other women
wear tank tops to work but have not been disciplined.
The Human Resources Director was discourteous to the Grievant.
The Grievant is an exemplary employee who has been with the City for ten
years and has been promoted several times.
She is often the only employee covering the entire office when others are
at lunch. This often creates a
stressful workplace environment.
Progressive discipline was not administered as the Collective Bargaining
The Grievant has M.S. for which she receives injections that result in
flu like symptoms so that she feels hot and cold.
E.I. attempted to speak with her supervisor later that day but he was not
A suspension of three (3) days without pay is too severe a penalty for
the alleged misconduct.
OF THE EVIDENCE
issue to be determined in this dispute is whether the City had just cause to
suspend the Grievant for three days under the terms of the Collective Bargaining
Agreement. If not, what shall be
are several issues that must be considered. They are as follows:
Did the Grievant violate Personnel Policies?
Did the Grievant violate the Dress Down Policy?
Was progressive discipline administered?
Was disciplinary action taken for “Just Cause” and substantiated by a
preponderance of evidence?
City issued a Dress Down Policy in 1994 that was reissued in September and
October of 2003 that stated ”…revealing or tight outfits are not appropriate
to wear in our work environment” and stressed that …”employees are
expected to dress appropriately for their position…” This Policy was given
to all employees on several occasions. Nevertheless, on or about August 16, 2004
the Grievant came to work wearing a polyester tank top which exposed a
substantial portion of her breasts. Both
the Human Resource Director (A.S.) and the Assistant Labor Attorney (C.C)
testified that after receiving complaints about E.I’s attire they went to her
work area and A.S was confronted by the Grievant in a discourteous and loud
tone. I.E. testified that she used
a normal conversational tone and it was A.S. who was discourteous to her. Based
on the corroboration of testimony by
A.S. and C.C. as well as common sense, I am persuaded that the City’s version
of this encounter is more accurate. The Personnel Policy of the City of Lake
Worth provides penalties for various classes of offenses. “Discourtesy to
persons with whom the employee in contact while in the performance of duties”
is a Group I Offense. I.E. was
discourteous to A.S. and did violate the personnel policy.
W.B., the Grievant’s immediate supervisor testified
that when he returned from lunch and learned
of the complaints, he told E.I. that he needed to see her. She refused to meet with him because she was “too mad.”
W.B. was outraged at her insubordination and wanted to fire her. In her
defense, E.I. testified that she sought to meet with him later in the day but he
was not there. She also testified that a previous supervisor, G.B. advised her
to take a break when dealing with a stressful situations and count to ten.
However, when G.B testified, she stated that she never advised the
Grievant not to speak with a supervisor. Her comment related to dealing with
irate citizens. “Negligence or omission in complying with the requirements as
set forth in department rules and standards of conduct” is a Group III Offense
for which the penalty is discharge. It is clear from the testimony that the
Grievant was insubordinate for which the penalty for a first offense is
regard to the Dress Down Policy, the Grievant violated the policy in August of
1994 when she was wearing the revealing tank top about which the complaints were
made. I.E. had been sent home or
asked to cover up two or three times because her attire was inappropriate for
the workplace. In 1994, G.B., her
previous supervisor sent her a memorandum stating that she reported to work
dressed inappropriately in a tank
top in which her undergarments were visible at every gesture.
Her performance review for that year indicated that after receiving the memorandum, she continued to violate the
Dress Down Policy and cautioned her that future violations of the Policy would
result in “jeopardizing her continued employment with the City of Fort
Worth.” A witness for the Union,
D.B. testified that she wore tank tops to work when it was 80 degrees outside
and was never reprimanded or asked to go home.
On cross-examination, she explained that more than half the day she
worked outside in the brutal sun and although she did have some contact with the
public, her office was not in City Hall. There
had been no complaints about D.B.’s attire from the public.
Grievant testified that her medical condition resulted in her being very hot or
cold. She asserted that other
employees had worn tank tops and had not been reprimanded or disciplined.
She also testified that the City had ordered shirts for employees to wear
but her shirts came in the wrong size.
on the testimony and evidence, I have concluded that the Grievant did violate
the Dress Down Policy on various occasions.
It is possible to keep cool without exposing one’s body
inappropriately. E.I. has blatantly
and continuously ignored the Dress Policy which is a Group II Offense -
“negligence or omission in complying with the requirements as set forth in
departmental rules and standards of conduct.” The penalty for a first offense
is up to two (2) days suspension, for a second offense the penalty is up to five
(5) days suspension. Although the
dress code is not contained in the Collective Bargaining Agreement, the Dress
Down Policy is a directive from the City Manager and the Assistant City Manager
and must be followed.
Progressive Discipline administered? In
view of the fact that I.E. had been spoken to about violating a City policy on
several occasions, had been sent home to change her clothing, received a
memorandum concerning her violation of the policy and a performance review that
indicated that her disregard for the policy could jeopardize her employment with
the City of Lake Worth, I conclude that Progressive Discipline was utilized.
the City have just cause to suspend Ms. Inglasias for three days?
review of discipline for alleged employee misconduct requires an analysis of
Was there prior notice of the rule or policy and a warning about
potential disciplinary action?
the City of Lake Worth’s Personnel Policy sets forth the terms and conditions
of employment and clearly defines three types of offenses that will result in
specific disciplinary actions.(City Exhibit 1) The penalty for insubordination
by the refusal to comply with verbal instructions of a supervisor is termination
for a first offense. Negligence
or omissions in complying with departmental rules and standards of conduct can
result in suspensions of up to two to five days and
dismissal can be the penalty for a third offense. The Policy also lists discourtesy as a chargeable offense. The
Dress Down Policy was issued to employees on at least two occasions. E.I. had
been warned previously in a memorandum and in her performance review that she
needed to adhere to the Dress Policy.
Does the employer’s rule or policy in issue reasonably relate to the
orderly, efficient and safe operation of the City?
Yes. Insubordination and discourtesy cannot
be tolerated in the workplace. The Dress Down Policy is reasonable and
appropriate. Employee’s attire
project an image of the City and influence public perception.
It is reasonable to wish employee’s to project a positive image in the
work environment. Workplace rules must be adhered to.
Did the employer investigate to determine if a violation had occurred
prior to taking disciplinary action?
Was the employer’s investigation fairly and objectively conducted?
Did the employee engage in the actual misconduct as charged by the
testimony clearly indicates that the Grievant was insubordinate, discourteous
and ignored the City’s rules regarding attire in the workplace. The Grievant violated the Dress Down Policy on several
occasions and was sent home to change her clothes or asked to cover up.
Does the employer apply its rules, orders and penalties evenhandedly and
Is the degree of discipline sought reasonably related to both the
seriousness of the proven offense and the employee’s service record?
The suspension of three days is reasonable in view of the fact that there were
three offenses. I find the degree of discipline is not excessive based on the
Personnel Policy. The Grievant
could have been terminated for these some of these offenses. In view of the fact
that she is a long-term employee and an exemplary worker she was suspended for
is concluded that the standards for just cause have been met by a preponderance
of evidence as required by the Collective Bargaining Agreement. (Joint Exhibit
1: Article 13)
facts and testimony in evidence established the grievant committed the offense
as charged. The Collective
Bargaining Agreement has not been violated.
The City had just cause to suspend the Grievant for three days.
Grievance is denied in all respects and the three day suspension is sustained.
on the evidence and testimony presented, the Union’s grievance is denied in
all respects and the three day suspension is sustained. The City had just cause
to suspend Elizabeth Inglesias for three days.
State of New York
I, Phyllis Almenoff, do hereby affirm that
I am the individual described in and who executed this instrument which is my
DATED: March 22, 2005
Post Office Box 8173 Portland, OR 97207Phone: 877 399-8028