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· Holding: Municipal Licensing Officer violated the city’s “dress down” policy when she wore a tank top with spaghetti straps that exposed significant portion of her breasts.
In re
City of Lake Worth
and
AFSCME Local 1199
121 LA (BNA) 228
Case No. 00686
February 28, 2005
Phyllis Almenoff, Arbitrator
Statement of the Issues
The parties stipulated to the following issue:
Did the City have just cause to suspend the Grievant for three days? If not, what shall be the remedy?
The grievance dated August 21, 2004, states the following:
Union’s 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, S__. 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.
Articles/Sections: (And other applicable Statutes, Rules, Regulations and/or Policies) Article 4(C), Article 7(A), Article 9, Article 12(3), Article 13, & Article 25(A-I)
Corrective 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:
I have thoroughly evaluated the evidence, including the information, which was provided, during our meeting on October 14, 2004.
It is my decision to deny the grievance. I conclude that employee I__ engaged in the misconduct as alleged.
I note your arguments concerning employee I__’s 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 I__ was insubordinate to Mr. Bill Bucklew, B &Z Director and disrespectful to Director, Human Resources/Labor Attorney S__. The underlying circumstances, which led to employee I__’s 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.
The Union requested arbitration.
Pertinent Contract Language [See appendix]
Background
The 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.
I__, 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.
On or about August 16, 2004, City Officials received a number of complaints concerning the extremely revealing attire I__, the Grievant was wearing. 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 S__ wished to discuss dress code issues with W.B., the Grievant confronted S__ and said in a loud voice: “S__, if you have something to say to me, say it directly.” 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 S__’s statement that she should wear more appropriate clothing, I__ said “Well, I’ll try.”
When WB returned from lunch and was apprised of the events that had occurred, he went to I__ and indicated that he needed to see her. She responded in a very loud voice “If it is about S__—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 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.
I__
In 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.
DATE OF CONDUCT RESULTING IN DISCIPLINE: August 16, 2004
DESCRIPTION OF CONDUCT: Section 24: Group III Offense #6: Insubordination to the Department Director William Buckew. I__ failed to respond to a direct order “I need to see you now”. Response by I__ “no, not now, I’m too mad.” Mr. Buckew later told I__ to go home and change. I__ 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 I__ and all other Department personnel. In addition, an Evaluation/Performance Review of October 9, 1996 of I__ by Supervisor’s Genia Baker states the following: “I__ 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, S__. S__ approached John Kuntzman, the Chief Building Inspector, who was in charge to discuss dress code issue with employee. I__ overheard S__ and stated in a loud tone and rude manner, ‘All if you have something to say to me, say it to me directly.’”
The 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 I__. The Department Director’s position is to suspend I__ for Three (3) days beginning August 24, 2004 through August 26, 2004.
ACTION TAKEN: Suspension, from August 24, 2004 through August 26, 2004
Position of the Parties
Position of the City
The 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 arguments:
1. 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.)
2. 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.
3. On or about August 16, 2004, several complaints about I__’s attire were received and relayed to 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.
4. S__ and C.C. went to speak to W.B., her direct supervisor (who was out to lunch) about the complaints. The Grievant confronted S__ and spoke to him in a loud voice and a rude and disrespectful manner.
5. When W.B., her direct supervisor returned to City Hall, he asked the Grievant to meet with him. She refused to do so. I__’s refusal to follow the direct order of a supervisor constituted insubordination. W.B later told I__ to cover up or go home and change her clothes. She later appeared covered up.
6. 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.
7. 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 attire.
8. Previously, her former supervisor, G.B. sent the Grievant a memo concerning an incident which took place on August 6, 1996 stating “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 ...” Her performance review stated “...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, 1996. I__ reported to work wearing a “t-shirt” in direct violation of the stated policy ... It is the writer’s observation that 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 I__ 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.”
Position of the Union
The 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:
1. There is no mention of Dress Code in the Collective Bargaining Agreement.
2. 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.
3. The Human Resources Director was discourteous to the Grievant.
4. 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.
5. Progressive discipline was not administered as the Collective Bargaining Agreement requires.
6. The Grievant has M.S. for which she receives injections that result in flu like symptoms so that she feels hot and cold.
7. I__ attempted to speak with her supervisor later that day but he was not available.
8. A suspension of three (3) days without pay is too severe a penalty for the alleged misconduct.
Analysis of the Evidence
The 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 the remedy?
There are several issues that must be considered. They are as follows:
1. Did the Grievant violate Personnel Policies?
2. Did the Grievant violate the Dress Down Policy?
3. Was progressive discipline administered?
4. Was disciplinary action taken for “Just Cause” and substantiated by a preponderance of evidence?
The 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 (S__) and the Assistant Labor Attorney (C.C.) testified that after receiving complaints about I__’s attire they went to her work area and S__ was confronted by the Grievant in a discourteous and loud tone. I__ testified that she used a normal conversational tone and it was S__ who was discourteous to her. Based on the corroboration of testimony by 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 is in contact while in the performance of duties” is a Group I Offense. I__ was discourteous to 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 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, 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 situation 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 discharge.
With 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__ 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 Lake 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 G.B.’s attire from the public.
The 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.
Based 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. 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.
Was Progressive Discipline administered? In view of the fact that I__ 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.
Did the City have just cause to suspend I__ for three days? A review of discipline for alleged employee misconduct requires an analysis of several factors.
1. Was there prior notice of the rule or policy and a warning about potential disciplinary action?
Yes, 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. 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. I__ had been warned previously in a memorandum and in her performance review that she needed to adhere to the Dress Policy.
2. 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 employees to project a positive image in the work environment. Workplace rules must be adhered to.
3. Did the employer investigate to determine if a violation had occurred prior to taking disciplinary action?
Yes.
4. Was the employer’s investigation fairly and objectively conducted?
Yes.
5. Did the employee engage in the actual misconduct as charged by the employer?
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.
6. Does the employer apply its rules, orders and penalties evenhandedly and without discrimination?
Yes.
7. Is the degree of discipline sought reasonably related to both the seriousness of the proven offense and the employee’s service record?
Yes. 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 some of these offenses. In view of the fact that she is a long-term employee and an exemplary worker she was suspended for three days
It is concluded that the standards for just cause have been met by a preponderance of evidence as required by the Collective Bargaining Agreement.
The 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.
The Grievance is denied in all respects and the three day suspension is sustained.
Award
Based 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 I__ for three days.
Pertinent Contract Language
Article 10—Grievance Procedure * * *
Section 1—Definitions
(A) 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. * * *
Section 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—Procedure
(A) 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.
(B) 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.
* * *
(D) Grievances shall be presented and adjusted in the following manner:
(1) Informal Discussion
(a) 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.
(b) 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.
(2) Step 1
(a) In filing a grievance at Step 1, the employee shall submit to the Step 1 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.
(b) 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 meeting.
(3) Step 2
(a) 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.
(b) 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 grievance.
(4) Step 3—Arbitration
(a) 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 decision.
(b) 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.
Article 4—No Discrimination
Section 1—Non-Discrimination Policy—Age, Sex, Race, Color, Religion, National Origin, Physical Handicap Disability, Marital Status. * * *
(C) Employees 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. * * *
Article 7—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. * * *
Article 9—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.
Article 12—Disciplinary Action * * *
Section 3
Disciplinary action may not be taken except for “Just Cause” which must be substantiated by a preponderance of evidence. * * *
Article 13—Dismissal/Demotion/Suspension
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
4. Dismissal * * *
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. * * *
Dress Down Policy
At 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.
Fridays only have been designated as “dress down days”. Casual slacks, dress denim jeans and “shorts” 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.
All other days of the week, employees are expected to dress appropriately for their position.
Your 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!