United States of America

BEFORE THE FEDERAL SERVICE IMPASSES PANEL

    The Department of Justice, Federal Bureau of Prisons, Federal Medical Center, Fort Worth, Texas (Employer) and Local 1298, American Federation of Government Employees, AFL-CIO (Union) filed separate requests for assistance with the Federal Service Impasses Panel (Panel) to consider a negotiation impasse under the Federal Service Labor-Management Relations Statute (Statute), 5 U.S.C. § 7119.

    Following an investigation of the requests for assistance, which arose from the Employer’s decision to prohibit employees from wearing denim jeans and athletic shoes at work, the Panel determined that the dispute should be resolved through written submissions from the parties. After considering the entire record, the Panel would take whatever action it deems appropriate to resolve the impasse, including the issuance of a binding decision. Written submissions were made pursuant to this procedure, and the Panel has now considered the entire record.

BACKGROUND

    The Employer’s mission is the Federal custody of convicted inmates; inmates in three of its six units require long-term medical care. There are 450 employees working at the facility, about 340 of whom are in the bargaining unit. Bargaining-unit employees work as correctional officers, unit secretaries, case managers, counselors, medical staff, physicians, nurses, psychologists, mechanical services employees, warehouse employees, financial management employees, in grades ranging from GS-4 to GS-15 and WS-3 to WS-9. The parties’ master collective bargaining agreement (MCBA) is due to expire on March 8, 2001.

    In January 1999, the Employer published a newsletter in which the new warden instituted a policy prohibiting employees from wearing jeans or athletic shoes at the facility. The Union filed a grievance over the Employer’s failure to bargain in good faith over what it alleged was a change in a condition of employment. In a December 1999 decision and award, an arbitrator found, on the basis of witness testimony, that the wearing of jeans and athletic shoes had developed into a past practice.⁽¹⁾ While ruling that any change would have to be negotiated with the Union, he concluded that it was not within his purview, as a grievance arbitrator, to impose either side’s version of a dress code.

ISSUE AT IMPASSE

    The parties disagree over whether non-uniformed bargaining-unit employees currently not subject to a dress code may wear denim jeans and athletic shoes at work.

POSITIONS OF THE PARTIES

1. The Employer’s Position

Non-uniformed staff are to be dressed appropriately for a professional setting. Some examples of clothing that would not be considered appropriate for staff to wear inside the institution include shorts, sleeveless shirts, see-through clothing, jeans of any color, sandals, and athletic shoes. Any necessary exceptions to these requirements should be approved by your immediate supervisor.⁽²⁾

Because staff have contact with inmates and the public, it is "extremely important" for employees to maintain an appearance which "commands respect and exudes professionalism." Wearing jeans and athletic shoes at times other than during periods of training is not permitted in any other Federal prison. Finally, in response to the Union’s assertion that this attire is practical in a prison setting, "far more often than not, non-uniformed staff are not engaged in activities where there is a potential for these hazards. In those instances where the hazards might exist, various protective attire is available for use."

2. The Union’s Position

    The Union essentially proposes that the status quo be maintained, i.e., non-uniformed bargaining-unit employees not subject to a dress code should continue to be permitted to wear denim jeans and/or athletic shoes. This attire is practical in a prison setting where all employees must respond quickly to emergencies. In this regard, athletic shoes are safest for running through the prison to emergencies, and jeans are sensible attire when all employees are required to search for contraband and weapons in filthy locations. Jeans also are durable, provide a barrier between the skin and substances that an employee might encounter, and are strong enough that they will not be torn when employees carry heavy keys. Finally, the Panel has adopted a position similar to the Union’s in a number of cases.⁽³⁾

CONCLUSIONS

    Having carefully reviewed the evidence and arguments presented by the parties, we are persuaded that, on balance, the Union’s proposal provides the better resolution to their dispute. Preliminarily, adoption of its proposal would continue management’s past practice, the existence of which was confirmed by an arbitrator in a December 1999 decision and award, of permitting non-uniformed employees to wear denim jeans and athletic shoes. The Panel has long required that the party proposing to alter the status quo bear the initial burden of demonstrating why a change is necessary. Other than its assertion of what is appropriate attire in a professional environment, however, the Employer has identified no actual instance at the facility where the current practice has resulted in a workplace problem involving inmates or the public. Moreover, although the arbitrator stated that "witnesses cited enough occasions to have clearly established a past practice," our review of the entire record in the case leads us to conclude that the wearing of denim jeans and athletic shoes by non-uniformed employees at the facility is not widespread. Accordingly, we shall order the adoption of the Union’s proposal to resolve the parties’ impasse.

ORDER

    Pursuant to the authority vested in it by the Federal Service Labor-Management Statute, 5 U.S.C. § 7119, and because of the failure of the parties to resolve their dispute during the course of proceedings instituted under the Panel’s regulations, 5 C.F.R. § 2471.6(a)(2) the Federal Service Impasses Panel under § 2471.11(a) of its regulations hereby orders the following:

    The parties shall adopt the Union’s proposal.

By direction of the Panel.

H. Joseph Schimansky

Executive Director

May 31, 2000

Washington, D.C.

1.The arbitrator also determined that the Union president, who was sent home once to change her clothes, was the only employee who was adversely affected by the change in policy. Additionally, the arbitrator rejected the Employer’s argument that a past practice lasts only as long as the tenure of a warden.

2.The Employer’s proposal is taken from the newsletter issued by the new warden on January 20, 1999.

3.The Union cites the following Panel decisions in support of its position: Department of Justice, Federal Bureau of Prisons, Metropolitan Correctional Center, San Diego, California and Local 3619, American Federation of Government Employees, AFL-CIO, Case No. 99 FSIP 44 (May 13, 1999) Panel Release No. 420; and Department of Veterans Affairs, VA Regional Office, St. Louis, Missouri and Local 2192, American Federation of Government Employees, AFL-CIO, Case No. 97 FSIP 8 (April 5, 1997) Panel Release No. 396.