United States of America
BEFORE THE FEDERAL SERVICE IMPASSES PANEL
|
|
|
|
Case No. 04 FSIP 9 |
DECISION AND ORDER
The Department of Veterans Affairs (DVA), Chalmers P. Wylie VA Outpatient Clinic, Columbus, Ohio (Employer) 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. § 7119, between it and Local 2031, American Federation of Government Employees, AFL-CIO (Union).
After investigation of the request for assistance, the Panel determined that the dispute, which concerns a dress code policy, should be resolved through an informal conference with a Panel representative. The parties also were advised that if no settlement was reached, the Panel’s representative would report to the Panel on the status of the dispute, including the parties’ final offers and his recommendations for resolving the impasse. After considering this information, the Panel would take whatever action it deemed appropriate to resolve the impasse, which could include the issuance of a binding decision.
Pursuant to the Panel’s directive, Panel Member Richard B. Ainsworth convened a meeting with the parties on February 23, 2004, at the Employer’s facility in Columbus, Ohio. At the close of the meeting, the parties remained deadlocked, among other matters, over certain restrictions on employee attire in the workplace. A report on the status of the parties’ dispute has been made to the Panel, which has now considered the entire record.
BACKGROUND
The Employer’s mission is to provide outpatient treatment and specialty care for eligible veterans who reside in Central Ohio; the Employer operates medical clinics in Columbus, Ohio, as well as community-based Veterans Affairs facilities in Zanesville and Grove City, Ohio. The Union represents approximately 250 professional and non-professional employees assigned to the clinics; typical bargaining-unit positions are physician, registered nurse, licensed practical nurse, cafeteria worker, warehouse worker, van/bus driver and a variety of clerical and administrative positions. Employees are part of a larger nationwide bargaining unit consisting of over 100,000 employees in the DVA represented by the American Federation of Government Employees. The parties are covered by a master collective-bargaining agreement (MCBA) which was to have expired in 2000, but has been extended until a successor is implemented. At the national level, the parties have started the process for negotiating a new term agreement.
Currently, no dress code exists for employees who work at the clinics. Most professional employees, including physicians, registered nurses and nurse practitioners, as well as licensed practical nurses, wear white coats over their street clothes or uniforms while on duty. Typically, van/bus drivers, clerks, and administrative support staff, do not wear any type of uniform.
ISSUE
The parties disagree over the restrictions that should be placed on employee attire at the workplace.
POSITIONS OF THE PARTIES
The essence of the Employer’s proposed dress code policy is that employees should be "expected to wear clothing that is suitable for the healthcare environment" and to "present themselves in a manor that reflects positively on the clinic." To further this objective, the Employer proposes that skirt lengths should not be more than 2 inches above the knee; spaghetti-strap dresses, see-through, sheer or revealing garments should be prohibited; pants should not be body contouring or tight fitting; jeans (denim) of any color should not be permitted, nor should stretch lycra clothing, leggings or tights. As to sweatshirts, only the official "VAOPC" sweatshirt should be allowed; clothing with writing that may be offensive, insulting or profane should be banned. Footwear should be compatible with the clinic environment and assigned duties; to this end, flip-flops, thongs, sandals, house slippers and heels that are more than 3 inches high should be prohibited. Furthermore, employees should be required to wear nametags above the waist at all times. An employee who is deemed to be in violation of the dress code, for a first offense, may be authorized administrative leave to go home, change and return to work. Subsequent offenses may be remedied through counseling and/or progressive discipline. With respect to compliance, a four-member panel should be established to informally resolve dress code issues; should resolution not be forthcoming, the parties would be required to seek mediation assistance from the Federal Mediation and Conciliation Service and, thereafter, either party could submit the matter to the grievance/arbitration process for resolution.
A dress code is needed because some employees "dress in a way that is not representative of the work the Employer is performing for veterans." In this regard, some wear Capri pants, "flip-flops," sandals and clothing which show the midriff; also, some employees have been wearing t-shirts with lettering and baseball caps in the office. According to the Employer’s safety inspector, sandals and other toeless and/or backless shoes are inappropriate for the outpatient facility because it is a medical environment, and there are safety concerns in having exposed feet. Its position is also supported by several private sector studies which conclude that there is a correlation between the visual appearance of employees and patients’ perceptions of the care they are receiving. Employees should be required to maintain dress appropriate for a health care environment, therefore, because veterans and their families may tend to link professionalism and the quality of care provided with the personal appearance of employees.
While it believes that "no dress code policy is needed," nevertheless, "in the spirit of partnership," the Union "reluctantly" proposes to implement a dress code that would not impose a financial burden on employees expected to meet new standards for dress in the workplace. Basically, employees should continue to be permitted to wear jeans; no restrictions on footwear should be imposed, other than shoes should be "neat and clean;" there should not be any restrictions on wearing leggings, tights, clothing made of "stretch lycra," sheer or see-through material, nor should the dress code policy ban form-fitting clothing or restrict the length of dresses and skirts. A requirement to wear nametags should not be part of the dress code policy. As to compliance issues, disputes over whether clothing is appropriate first should be considered by the employee, the supervisor, and a Union representative. If no resolution is achieved, the matter then should be submitted to a Union and Employer representative from the dress code committee; if the committee fails to produce an outcome acceptable to both sides, the dispute should be submitted to Panel Member Ainsworth for resolution.
Essentially, the Employer has failed to demonstrate a need to change the status quo. There has never been a dress code in effect and no unit employees have been counseled or disciplined for wearing inappropriate attire to work, although a few contract employees have dressed improperly. If there are employees who dress inappropriately, the Employer should deal with them individually instead of imposing its dress code policy, which "is an insult to our dedicated, clean and neat employees." Moreover, the financial burden "lies heavily on the lower-salaried employees, especially single mothers." Banning jeans would be a particular hardship; some employees choose to wear them because they are durable. So long as clothing is neat and clean, employees should not have to suffer unreasonable restrictions on their work attire. Furthermore, the Employer’s proposed policy would discriminate against "varying body sizes, especially those (employees) who are larger and/or overweight." As to wearing sandals, employees always have been permitted to do so, and there has never been a safety incident. Finally, the matter of dress is not an issue with veterans/patients who are being treated at the Employer’s facilities because employees behave in a professional manner towards the patients they serve. Even one of the articles submitted by the Employer indicates that "a neat, clean appearance . . . is more important than attire."
CONCLUSIONS
Having carefully reviewed the evidence and arguments presented in support of the parties’ positions, on balance, we favor adoption of the Employer’s proposed dress code policy. In our view, it is more likely than the Union’s to ensure that employees dress in a manner appropriate for a professional medical environment. By prohibiting minimal dress, exposed feet, tight-fitting garments, and most clothing with lettering, it should maintain decorum in the workplace consonant with the professional image of employees that the Employer seeks to enhance. The wearing of nametags also should contribute to that end, and permit patients to more readily identify individuals as staff members. By contrast, the Union’s proposal appears to permit attire that is too informal for the medical environment, and contains several omissions which ultimately could serve to undermine the dress code policy. Moreover, on the question of cost, we are not persuaded that the Employer’s proposed policy would impose an undue financial burden on lower-salaried employees. Given the wide variety of fabric types and price ranges consumers have to choose from in today’s marketplace, there should be enough options available to allow employees to purchase clothing that is both affordable and in compliance with the new dress code. Finally, both sides propose procedures that would encourage the resolution of disputes over compliance with the policy at the lowest possible level. We find the Employer’s approach to be superior, however, because it culminates in the use of grievance/arbitration, which provides a financial incentive for parties to settle such disputes voluntarily. Accordingly, for the reasons stated above, we shall order the adoption of the Employer’s proposal.
ORDER
Pursuant to the authority vested in it by the Federal Service Labor-Management Relations 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 Employer’s proposal.
By direction of the Panel.
H. Joseph Schimansky
Executive Director
March 18, 2004
Washington, D.C.
1/ The full text of the Employer’s proposal is set forth in Appendix A.
2/ The full text of the Union’s proposal is set forth in Appendix B.
|
APPENDIX A |
|
|
CHALMERS P. WYLIE |
|
| VA OUTPATIENT CLINIC |
CLINIC MEMORANDUM 05-01 |
| COLUMBUS, OH 43203 |
MAY 16, 2003 |
DRESS CODE POLICY
1. PURPOSE: To establish policy, procedures and responsibilities for attire, personal hygiene and grooming in the VA Outpatient Clinic's (VAOPC) professional health care environment. This policy covers all outpatient clinic employees (full and part-time), volunteers, work-study, and contract personnel, while on official status in the clinic. This includes employees in all administrative offices of the clinic and buildings associated with the clinic.
2. POLICY: The policy of the VAOPC is to project pride and self-awareness to the veterans and other customers we serve. Each employee's personal appearance contributes to the overall image of the VAOPC as a provider of quality health care. It is the policy of this clinic that employees wear appropriate clothing suitable to the professional health care environment and that employees maintain standards of personal hygiene and grooming that promote safety and enhance infection control. All employees will be furnished a copy of this policy. New employees shall be furnished a copy of this policy during New Employee Orientation.
3. ACTION:
a. Responsibilities:
(1) Service Chiefs/Care Line Managers and Supervisors are responsible for explaining this policy to their employees. They are responsible for setting an example, as well as monitoring their employees' dress and discussing questionable or inappropriate clothing with the employee. Such discussions will be conducted in a private setting, away from other employees, veterans, and visitors.
(2) All Employees are responsible for understanding and adhering to the guidelines contained in this policy. They will be aware of dress expectations for their work areas and required to meet those expectations. If they have questions about the appropriateness of any particular dress item, they should discuss this with their supervisor.
b. Procedures:
(1) Employees are expected to wear clothing that is suitable for the professional health care environment and to present themselves in a manner that reflects positively on the clinic.
(2) Physicians, nurse practitioners, physician assistants and nursing staff are expected to wear white lab coats during duty hours. Ancillary and allied health staff may wear lab coats as approved by their service chief or care line manager. All employees are expected to present a clean and neat appearance. Individual services/care lines may have policies more specific than the standards outlined below and may include the wearing of a specific uniform that is considered generally accepted professional standard. In these instances, AFGE, Local 2031, will be notified of the proposed policy and afforded the right to represent and negotiate on behalf of the bargaining unit employees affected by the proposed policy.
(3) The following employees are required to wear uniforms and shall wear the complete uniform while in a duty status: Drivers, warehousemen, nurses, providers, dentists, dental assistants/hygienists, medical technicians/ technologists and health technicians.
(4) Employees required to wear uniforms shall wear the complete uniform while in a duty status.
(5) If the issued apparel is a lab coat or smock, clothing worn under this must meet the standards outlined in this policy.
(6) Exceptions to these standards may be made during periods of inclement weather, in recognition of special events, or during performance of duties not typically associated with a particular position. The dress code may be relaxed on a case-by-case basis at the discretion of management prior to non-code clothing being worn.
(7) Employees must follow the service guidelines for their work areas, especially where health, sanitation and safety are a consideration. The following are the clinic's standards for personal appearance.
(a) Clothing - All clothing must be clean, neat, and professional. It is never appropriate to wear stained, wrinkled, frayed, or revealing clothing to the workplace.
(b) Skirts/Dresses/Blouses:
1. The length of all skirts cannot be more than 2" above the knee while standing. Mini-skirts and spaghetti-strap dresses will not be worn to the clinic.
2. Dresses/blouses with low tops, bare shoulders or bare backs are not appropriate in the healthcare environment, e.g., evening/party or sun dresses, unless worn with a jacket.
3. Garments shall not be sheer or see-through. No bare midriff garments will be allowed.(d) Pants:
1. Pants and slacks should not be body contouring or tight fitting.
2. Jeans (denim) of any color are not permitted in the clinic.
3. Jogging suits, sweat suits, warm-ups, shorts, bib overalls, stretch (lycra®) clothing, and leggings/tights, are not appropriate dress in the clinic.
(e) Shirts:
1. Casual shirt, golf shirt, sweaters and turtlenecks are acceptable.
2. Inappropriate items include: tank tops, sweatshirts (except for the official VAOPC sweatshirt), shirts with large lettering, slogans, halter-tops, muscle shirts and t-shirts, unless worn under another blouse, shirt, jacket or jumper. Clothing having sexual, political and/or negative connotations written or pictured is not permitted.
(f) Footwear:
1. Shoes should be clean, safe, and compatible with the clinic environment and assigned duties. To comply with health and safety standards, open-toed shoes and backless shoes without straps will not be permitted.
2. Flip-flops, thongs, sandals and house slippers are prohibited.
3. Heels should not be higher than 3" for safety reasons.
(g) Others:
1. Hats and caps are not to be worn while inside the clinic or buildings associated with the clinic, unless required as a protective measure for the duties being performed.
2. Clothing, which is sheer and/or revealing, is not permitted.
3. Buttons or clothing displaying partisan political advertising and/or slogans that may be offensive, insulting, or profane are not permitted. Jewelry should be conservative.
(h) Name Badges: Identification badges must be worn above the waist at all times with the employee's name and photograph clearly visible. In certain circumstances, employees may use their first name and the first initial of their last names.
(i) Religious Exceptions: Reasonable accommodations may be made on an individual basis for employees with properly documented religious needs. Requests with supporting documentation should be submitted to the employee's service chief/care line manager.
(j) Medical Exceptions: Deviation from this policy for a medical condition will require a physician's statement that includes a time period for the exception.
g. Service Chiefs/Care Line Managers and Supervisors: Service chiefs/care line managers and supervisors are responsible for explaining this policy to their employees and assuring employees in the work environment are meeting the standards of personal appearance. Supervisors will follow the procedures described in the compliance section of this policy.
h. All Employees: Employees are responsible for compliance with the standards contained in this policy. If they have questions about the appropriateness of any particular dress item, they should discuss this with their supervisor. All employees will be furnished a copy of this policy. New employees shall be furnished a copy of this policy during new employee orientation.
i. Compliance:
(1) Both the union and management recognize there may be differences of opinion concerning what is "appropriate". The principles of this policy will serve as a guide in resolving these differences.
(2) When employees are in conflict with the established dress code policy, a good faith effort will be made with the employee, supervisor, and union representative (if requested) to resolve the conflict at the lowest level.
(3) When issues arise that cannot be resolved by the employee, supervisor, and the union a four- member panel will be convened at management's convenience. The panel will meet in a good-faith attempt to resolve the disagreement. If the panel is unable to resolve the disagreement, a neutral third party the Federal Mediation Conciliation Service (FCMS), for example, will be brought in to further mediate the dispute. If the parties are unable to resolve the conflict with the assistance of the third party arbitration procedures, as outlined in the Master Agreement, may be invoked.
(4) If necessary, supervisors may authorize administrative leave sufficient for the employee to go home and return in compliance for the first offense. Subsequent non-compliance will result in counseling and/or progressive discipline as necessary and may include sending the employee home.
5. REFERENCES: None
6. RESPONSIBILITY: Supervisor, Human Resources Management Service, is responsible for the contents of this memorandum.
7. RESCISSION: None
8. RECERTIFICATION: This policy will be recertified on
or before May 12, 2006.
/s/
LILIAN T. THOME, M.D.
Director
Distribution: F (All Employees)
APPENDIX B
AFGE PROPOSED DRESS CODE
February 24, 2004
To establish policy, procedures and responsibilities for attire, personal hygiene and rooming in the VA Outpatient Clinic's (VAOPC) professional health care environment. This policy covers all outpatient clinic employees (full and part-time), both bargaining unit and non-bargaining unit employees, volunteers, work-study and contract personnel while on official status in the clinic. This includes employees in all administrative offices of the clinic and buildings associated with the clinic.1. PURPOSE:
2. POLICY: the policy of the VAOPC is to project pride and self-awareness to the veterans and other customers we serve. Each employee's personal appearance contributes to the overall image of the VAOPC as a provider of quality health care. It is the policy of this clinic that employees wear appropriate clothing suitable to the professional health care environment and that employees maintain standards of personal hygiene and grooming that promote safety and enhance infection control. All employees will be furnished a copy of this policy. New employees shall be furnished a copy of thus policy during New Employee Orientation.
3. ACTION:
a. Responsibilities:
(1). Service Chiefs/Care Line Managers and Supervisors are responsible for explaining this policy to their employees. They are responsible for setting an example as well as monitoring their employees' dress and discussing questionable or inappropriate clothing with the employee. Such discussions will be conducted in a private setting away from other employee's, veterans and visitors.
(2). All Employees, are responsible for understanding and adhering to the guidelines contained in this policy. They will be aware of dress expectations for their work area and required to meet those expectations. if they have questions about the appropriateness of any particular dress item, they should discuss this with their supervisor.
b. Procedures:
(1) Physicians, nurse practitioners, physician assistants and nursing staff are
expected to wear white lab coats during duty hours.Ancillary and allied health staff may wear lab mats as approved by their service chief or care line manager. All employees are expected to present a clean and neat appearance. In these instances, AFDGE, Local 2031, will be notified of the proposed policy and afforded the right to represent and negotiate on behalf of the bargaining unit employees affected by the proposed policy.
(2) The following employees are required to wear uniforms and shall wear the complete uniform while in duty status: drivers, warehousemen, nurses, providers, dentists, dental assistants and hygienists, medical technicians/technologists and health technicians.
(3) If the issued apparel is a lab coat or smock, these items shall be clean and in good repair. Clothing worn under this must meet the standards outlined in this policy.
(4) Exceptions to these standards may be made during periods of inclement weather, in recognition of special events or during performance of duties not typically associated with a particular position. The dress code maybe relaxed on a case-by-case basis if clearly supported by individual need and AFGE is notified before the change is approved.
(5) Employees must follow the service guidelines for their work areas especially where health, sanitation and safety are a consideration. The following are the clinic's standards for personal appearance.
a. Clothing - All clothing must be clean, neat and comply with the guidelines outlined in this policy. It is never appropriate to wear stained, wrinkled, frayed or revealing clothing to the workplace.
b. Skirts/Dresses/Blouses:
1. Dresses/blouses with low tops, bare shoulders or bare backs are not appropriate in the healthcare environment unless worn with a jacket, sweater or other covering (e.g. evening/party/sundresses).
2. No bare midriff garments will be allowed.
c. Pants:
1. Jogging suits, sweat suits, warm-ups, bib overalls are not appropriate dress in the clinic.
d. Shirts:
1. Casual shirts, golf shirts, sweaters and turtlenecks are acceptable.
2. Inappropriate items include: tank tops, sweatshirts (except for the official VAOPC and AFGE sweatshirt), shirts with large lettering and/or slogans, halter-tops, muscle shirts and t-shirts unless worn under another blouse, shirt, jacket or jumper. Clothing having sexual, political and/or negative connotations written or pictured is not permitted.
e. Shoes:
1. Shoes should be neat and clean.
f. Other:
1. Hats and caps are not to be worn while inside the clinic or buildings associated with the clinic unless required as a protective measure for the duties being performed.
2. Buttons or clothing displaying partisan political advertising and/or slogans are not permitted.
g. Religious Exceptions: Reasonable accommodations may be made on an individual basis for employees with properly documented religious needs. Requests with supporting documentation should be submitted to the employee's service chief/care line manager.
h. Medical Exceptions: Deviation from this policy for a medical condition will require a physician's statement that includes a time period for the exception.
Service chiefs/care line managers and supervisors are responsible for explaining this policy to their current employees and assuring employees in the work environment are meeting the standards of personal appearance. Job applicants, at the time of acceptance of a position, will be informed of the dress code policy and given a copy of it.c. Service Chiefs/Care Line Managers and Supervisors:
d. All Employees: Employees are responsible for compliance with the standard contained in this policy. If they have questions about the appropriateness of any particular dress item, they should discuss it with their supervisor. All employees will be furnished a copy of this policy. New employees will be given a copy at the time of acceptance of a position.
e. Compliance:
1. When employees are in conflict with the established dress code policy, a good faith effort will be made with the employee, supervisor and an AFGE representative to resolve the conflict at the lowest level. The following procedure will be used if an employee is deemed to be inappropriately attired;
a. Supervisor will immediately contact 2 members of the Dress Code Committee (one from Management, one from AFGE).
b. The supervisor and committee members will make initial determination of appropriateness/non-appropriateness of employees attire.
c. If no agreement can be reached, the matter will be referred to the Dress Code Committee and Mr. Richard B. Ainsworth (if tie-breaker needed).
f. Dress Code Committee
1. Dress Code Committee will be comprised of two Management and two AFGE representatives with back-ups assigned for each member.
2. The Committee will be formed within two weeks of the approval of the Dress Code Policy.
3. The Dress Code Policy will not be placed in effect until the Dress Code Committee is fully functional.