United States of America
BEFORE THE FEDERAL SERVICE IMPASSES PANEL
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In the Matter of DEPARTMENT OF JUSTICE OFFICE OF THE U.S. ATTORNEY FOR THE DISTRICT OF COLUMBIA WASHINGTON, D.C. |
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and LOCAL 3620, AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, COUNCIL 26, AFL-CIO |
Case No. 00 FSIP 142 |
DECISION AND ORDER
Local 3620, American Federation of State, County and Municipal Employees Council 26, AFL-CIO (Union) filed a request 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. 7719, between it and the Department of Justice (DOJ), Office of the U.S. Attorney for the District of Columbia, Washington, D.C. (Employer or USAODC).
After investigation of the request for assistance, arising
from negotiations over the Employer’s decision to modify its dress code
policy, the Panel determined that the dispute should be resolved through written
submissions from the parties. Thereafter, the Panel would take
whatever action it deemed appropriate to resolve the impasse, which may include
the issuance of a Decision and Order. Written
submissions were made pursuant to this procedure, and the Panel has now
considered the entire record.(1)
BACKGROUND The Employer primarily
oversees and litigates criminal matters and represents Federal agencies in civil
litigation. The Union represents about 100 nonprofessional bargaining-unit
employees who work mainly as paralegals, secretaries, and other support staff at
grades GS-5 through GS-11. The parties’ collective bargaining agreement (CBA)
was to have expired in June 1995, but the parties have been operating under a
rollover provision since that time. ISSUE AT IMPASSE
POSITIONS OF THE PARTIES
1. The Employer’s Position
The Employer would include in the dress code policy examples of attire that are "considered too casual and thus not acceptable for the office: sweat suits, shorts, jeans, sneakers, Spandex, T-shirts, clothing with slogans, tank or halter tops, and clothing that are faded, torn, dirty or provocative." [Emphasis added.] In addition, it proposes that:
Supervisors may approve exceptions to permit the wearing of jeans and sneakers on Friday’s only in appropriate circumstances, e.g., during an office move. Otherwise, sneakers are not to be worn in the office during the normal work day unless medically necessary.
Preliminarily, the Employer contends that "the Panel lacks jurisdiction to address the issue raised by the Union because there is no decision from the FLRA finding a duty to bargain on substantively identical facts." In this regard, its dress code is a "methods and means of performing work" and thus a "permissive" subject, under § 7106(b)(1) of the Statute, over which the Employer declines to negotiate.(2) Although "there are decisions from the FLRA on both sides of the duty-to-bargain issue in the context of dress codes,"(3) the "relevant question for the Panel" is whether "the FLRA has applied the two-part 'methods and means' test and found a duty to bargain in a factual scenario substantively identical" to the Employer's dress code policy. Because it has not, under the FLRA's decision in Commander, Carswell Air Force Base, Texas and American Federation of Government Employees, 31 FLRA 620 (1988) (Carswell),(4) "the Panel should decline jurisdiction over this case."
The Employer’s proposal should be adopted, however, "even if the Panel concludes that it does have jurisdiction" because it "judiciously balances the interests of employees against the importance of maintaining a professional appearance in the workplace." The USAODC has a unique mission that is devoted to "upholding public trust" and maintaining the public’s "confidence that decisions . . . [on criminal prosecutions] are made by those with the highest professional standards." The dress code policy "is designed primarily to maintain the professional appearance of members within the office, and thereby foster an atmosphere of professionalism and competence within the office and among the many other people with whom office employees interact." Many of its support staff are "regularly involved in scheduled meetings with the public," and there are "very few" who are not seen by the public during the work week. With the recent expansion of its "Community Prosecution" initiative, which establishes partnerships with community residents and groups, contact with the public has increased, and "the image" that the USAODC presents to the public has become even more important.
A continuation of current practices, as proposed by the Union, would "subvert" the Employer’s goal of "fostering a professional image." In this connection, since the dress policy was updated in 1995 to permit the wearing of jeans, but only on Fridays in the month of August, "general dress practices" in the USAODC have "deteriorated substantially." A modification of the dress code policy would merely bring the USAODC in line with the standards of the "courts and legal system," which maintain a higher degree of formality where jeans are inappropriate. This is confirmed by evidence which shows that, of the 10 largest law firms in Washington, D.C., only 1 permits jeans as part of a casual dress policy. Because these law firms are "frequently the USAODC’s adversaries in court," they are the proper group for purposes of comparison, not other divisions within the DOJ. Finally, the Union’s argument that there appear to be no recorded complaints to management regarding the wearing of jeans on Fridays misses the point. Dress policy is "simply not an issue where one might expect people to complain." Instead, the "primary concern" is that "sloppier dress may cause a subtle diminution in the image of USAODC employees."
2. The Union’s Position
The Union proposes, in essence, that employees be permitted to wear jeans and sneakers on "dress down/casual Fridays," unless they are required to make court appearances or perform other duties requiring "business-like" dress. With respect to the Employer’s duty-to-bargain argument, "the Panel has jurisdiction to decide the issues in the disputed matter." The cases cited by the Employer in support of its position are irrelevant because they concern employees who "are either law enforcement personnel or security personnel," and are required to wear a uniform as a means and method of performing their jobs. The Agencies involved need not bargain over what such employees wear because in most cases they would assert that "the wearing of uniforms is a matter of internal security which is not a permissible subject for negotiations." The Employer’s argument also "avoids the issue of past practice." The FLRA has ruled in several cases that management cannot make a lawful change to a past practice, such as the one in this case, where wearing casual clothes/jeans and sneakers throughout the workweek instead of ‘casual Fridays’ became commonplace," without negotiating with the Union.
Regarding the merits of the issue, unit employees "should be allowed to wear jeans and sneakers on casual Fridays consistent with the practices of other Federal agencies and consistent with other divisions" within the DOJ. When it first proposed to change the policy, the Employer "never articulated or demonstrated why" this was necessary, nor did it suggest that the "wearing of jeans created a negative impact upon the work done by bargaining-unit employees." Even at the present time, the Employer "has not produced any evidence (written complaints, affidavits, etc.) that supports its argument for disallowing the wearing of jeans and sneakers on Friday." Rather, the real reason the Employer is attempting to change the practice is because the "Agency head has a subjective and personal preference that she is harboring as it relates to what is considered casual dress." As a Panel-designated arbitrator stated in a recent case, however, "personal preference is not a legitimate reason to change a dress code policy/practice."(5) In addition, the Employer’s "preferences" are inconsistent with the overall practices currently in effect throughout the DOJ, as well as in a wide range of private sector organizations such as financial institutions, universities, and private sector industries which "support and even encourage the wearing of jeans and sneakers on Fridays."
CONCLUSIONS
Having carefully considered the parties’ arguments concerning the Employer’s allegation that it has no duty to bargain over the Union’s proposal, the Panel declines to retain jurisdiction over the dispute. Preliminarily, either party in a dispute before the Panel is entitled to raise a duty-to-bargain issue at any stage of the proceedings. As Carswell makes clear, the Panel may resolve an impasse relating to a proposal concerning a duty-to-bargain issue only where the FLRA already has decided a "substantively identical" issue. The Union has not provided, nor has independent research uncovered, a previous decision in which a proposal concerning an issue substantively identical to the one raised by the Employer in this case has been decided by the FLRA. Given the parties’ bargaining history concerning this matter, we also believe it is appropriate to order the Employer to maintain the status quo regarding the dress code policy while the Union appeals, under the provisions of § 7117(c) of the Statute, the Employer’s allegation that it has no duty to bargain over the Union’s proposal. Depending on the outcome of the appeal, either party may file another request for Panel assistance if another impasse subsequently is reached on the merits of the issue.
ORDER
Pursuant to the authority vested in it by the Federal Service Labor-Management Relations Statute, 5 U.S.C. § 7119, and because the dispute does not comport with the statutory requirements applicable to the termination of an alternative work schedule, the Federal Service Impasses Panel under 5 C.F.R. § 2471.11 of its regulations hereby orders the following:
The Employer shall maintain the status quo regarding the dress code policy while the Union appeals, under the provisions of § 7117(c) of the Statute, the Employer’s allegation that it has no duty to bargain over the Union’s proposal.
By direction of the Panel.
H. Joseph Schimansky Executive Director December 20, 2000 Washington, D.C.
1.On September 27, 2000, the parties’ joint request for a 6-week extension to submit their written submissions to the Panel was granted. When the Employer, for the first time in its written submission, raised an argument challenging the Panel’s jurisdiction in the dispute, the Union was provided with an opportunity to address the matter. The Union’s response was received on November 30.
2.In determining whether a proposal involves an agency’s choice of the "methods and means" of performing work, under § 7106(b)(1) of the Statute, the FLRA applies a two-part test. Under the test, an agency must show that there is: (1) a "direct and integral relationship" between the particular method or means chosen by the agency and the agency’s mission, and (2) a direct interference by a proposal with the mission-related purpose for which the agency chose such methods and means.
3.The FLRA case the Employer cites as "closest on point" is U.S. Department of Justice, Kennedy Center, Federal Correctional Institution, Bureau of Prisons and Local 2441, American Federation of Government Employees, AFL-CIO, 29 FLRA 1471, (1987), where the FLRA affirmed an Administrative Law Judge’s (ALJ) ruling that the agency did not commit an unfair labor practice when it refused to negotiate with the union over the substance of a new uniform policy. In Carswell, the FLRA stated that "the purposes of the Statute are best furthered by encouraging third-party consideration and application of [FLRA] precedent so as to assist in the resolution of negotiation impasses which raise substantively identical duty-to-bargain issues to those already decided by the [FLRA]." Thus, "if the Panel can resolve an impasse relating to a proposal concerning a duty-to-bargain issue by applying existing FLRA case law, it may do so." (Carswell at 624-25.)
5.The Union cites 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 (Arbitrator Castrey), in support of its position.