United States of America

BEFORE THE FEDERAL SERVICE IMPASSES PANEL

    Following an investigation of the request for assistance, the Panel determined that the impasse should be resolved through an informal conference by telephone with a Panel representative. The parties were informed that if no settlement was reached, the Panel would take final action in accordance with section 6131(c) of the Act and section 2472.11 of its regulations.

    Accordingly, on August 29, 2001, Panel Representative (Staff Attorney) Marianne Perciaccante conducted an informal conference by telephone with the parties. Although a settlement was reached concerning a CWS for the UNICOR accountant in a second case involving these parties, Case No. 01 FSIP 133, they were unable to reach agreement over the issues in the instant case. Ms. Perciaccante has reported to the Panel, and it has now considered the entire record.

    The Employer’s mission is to house male criminal offenders in a low security facility. The Union represents about 174 bargaining-unit employees, who range in grade from GS-5 to -13, and WS-4 to -9. They work as correctional officers, psychologists, counselors, case managers, plumbers, pipe fitters, teachers, recreation specialists, fabric worker supervisors, and accountants, among other things. The parties’ master collective bargaining agreement was due to expire on March 8, 2001, and is currently being renegotiated.

    Under the Union’s proposals, the FWSs and the MHS would work 5-4/9 CWSs.⁽¹⁾ The Employer asserts that the proposed CWSs would cause an adverse agency impact by reducing the productivity of the agency and by increasing the cost of its operations. The issue before the Panel, therefore, is the following:

Whether the agency head’s findings on which the Employer has based its determination not to establish the Union's proposed 5-4/9 CWSs is supported by evidence that the schedule is likely to cause an adverse agency impact as defined under the Act.⁽²⁾

POSITIONS OF THE PARTIES

1. The Employer’s Position

    The Panel should find that the evidence on which the Employer bases its determination not to implement the proposed CWSs for the FWSs and the MHS establishes that the schedules are likely to cause an adverse agency impact as defined under the Act. In this regard, a 5-4/9 CWS would result in the absence of one of four FWSs 4 days out of every 10. Each FWS normally supervises 48 inmate workers.⁽³⁾ Every time a FWS takes a CWS off day, other FWSs would supervise at least an additional 16 inmate workers. This could result in security concerns and an inability to adequately supervise the quality of the product, especially when FWSs take leave or attend training on another FWS’s off day. With respect to security, if it is possible to regularly allow FWSs to supervise an additional 16 inmates, then maybe staffing should be reduced. Supervision of additional inmates would be difficult given the floor plan of the factory, which does not provide for even spacing between FWSs and inmates. Also, inmates would have to work 9-hour days with their FWSs, otherwise the FWSs would be idle for 1 hour every day. Inmates could not, however, take an off day since inmate idleness can lead to security problems. This would mean that inmates would work 45 hours per week, thereby increasing inmate overtime costs for the Employer, and increasing productivity to such an extent that "production levels would exceed the customer’s requirement, which could cause the factory to be out of work 2 to 3 months before the end of the customer’s contract." Also, inmates would have difficulty "eat[ing] breakfast and turn[ing] in laundry before having to report to work call." These factors, among others, such as the unwillingness of some inmates to work overtime, could lead the inmates to become dissatisfied. On the other hand, if inmates were left idle on CWS off days, "[d]owntime in one operation could cause a bottleneck on the line causing an unbalanced production flow and a poor use of manufacturing space."

    As for the MHS, it is not possible to place him on a 5-4/9 CWS with a regular Friday off day once per pay period because his position is one deep. On days when he is out it would be difficult to keep the warehouse open unless the accountant was transferred there. In turn, this would interfere with the accountant’s performance of her regular duties. The Union’s assertion that, because the Employer closes the institution’s food and supply warehouse every Friday for employees’ CWS off days, it also should be able to close the UNICOR warehouse for CWS off days, is inapposite; it is not necessary to have the institution’s supply warehouse open every day, as it only receives goods, but it is necessary to have the UNICOR warehouse open in order to supply the factory production line; to receive incoming supplies; and to ship the product on a regular basis. Finally, closing the UNICOR warehouse would require six inmates to be reassigned to another detail for 8 hours every 2 weeks.

2. The Union’s Position

    The Union proposes that on 9-hour days, FWSs would work from 6:30 a.m. until 4 p.m., and on 8-hour days from 7:30 a.m. until 4:00 p.m., with either Mondays or Fridays off, as determined by seniority. The MHS would work from 6:30 a.m. until 4 p.m. on 9- hour days, and from 7 a.m. until 3:30 p.m. on the 8-hour days, with the second Friday of the pay period off. With respect to both FWSs and the MHS, when necessary during annual refresher training, employees would revert to a 5/8 schedule. Also, the work schedules of employees on a CWS would be adjusted so that when a Federal holiday occurs on a Friday, the scheduled day off would be Thursday, and when a Federal holiday occurs on a Monday, the scheduled day off would be Tuesday. The schedules would begin no later than 30 days from the date of signing or the next pay period after OGC approves the agreed schedule. The CWS would be re-evaluated after 6 months by both the Union and the Employer in joint discussions. Finally, the Employer would be required to provide documentation of problems as they develop to attempt to avoid a declaration of adverse agency impact.

    None of the Employer’s concerns are insurmountable. In fact, the proposed schedules would "increase the quality of the product, increase the level of direct supervision . . . increase the security, safety, and efficiency of the UNICOR operations and be a benefit not only to the staff members participating, but the Employer as well." With respect to the Employer’s claim that FWSs do not perform enough non-supervisory work to justify spending 1 hour per day without inmates to supervise, FWSs "have numerous job assignments that can and/or should be accomplished in the absence of inmate workers." Therefore, if FWSs have 1 hour per day to do paperwork without supervising inmates, then the time they spend with inmates could be devoted more fully to inmate supervision. Nor does the proposed CWS in any way necessitate a change in inmate work hours. To the contrary, since the factory has been on overtime lately, the Employer may incur less in overtime costs should it choose to have employees work longer days. Moreover, it is unclear from the Employer’s statements during the informal conference whether it would require inmates to work 9-hour days. If it decides not to require inmates to work 9-hour days, the Employer would not experience inmate overtime costs related only to implementation of the CWS, or a situation where production goals would be met well in advance of contractual commitments.

    As for the MHS, UNICOR’s mission would not suffer by closing the warehouse once every 2 weeks, since the institution closes its own supply warehouse once a week to accommodate employees’ CWS off days. If the entire institution can continue to function when its supply warehouse is closed, then UNICOR can continue to function as well with a closed warehouse. This is evident from the fact that the UNICOR warehouse and the UNICOR factory have slightly different daily hours, and the UNICOR warehouse is not open when the factory is on overtime, which occurs regularly. Moreover, "[n]o goods movements are conducted on Fridays. As a direct result of the institution warehouse not operating, Friday deliveries are extremely rare." Additionally, to accommodate the MHS’s off day, the Employer may be able to make small adjustments, for example, allowing the accountant to perform her regular duties in the warehouse on the MHS’s off day. The inmates who work under the accountant can be assigned to duties in the factory when she is in the warehouse. Reassigning the inmates under the accountant’s supervision would make sense, since they are insufficiently occupied in the accountant’s office. Also, on the MHS’s off day, the inmates who normally work under the MHS could, like the institution warehouse’s inmate employees, be assigned to short-staffed outside work details, such as landscaping.

CONCLUSIONS

    Under section 6131(c)(2) of the Act, the Panel is required to take final action in favor of the head of the agency's or, in this instance, a delegatee's determination not to establish a CWS only if the finding on which it is based is supported by evidence that the schedule is likely to cause an "adverse agency impact." Having considered the record before us, we find that the Employer has not met its statutory burden. In our view, the record does not support a finding that the proposed CWSs are likely to reduce productivity in UNICOR, diminish service to the public, or increase the cost of agency operations. In fact, with the exception of potential inmate overtime costs, which the Employer is already incurring, none of the Employer’s arguments appear directly to address criteria set forth in the Act for determining whether a schedule would have an adverse agency impact. Because we conclude that the Employer has not met its burden of showing that the CWSs for the FWSs or the MHS is likely to cause an adverse agency impact, we shall order the parties to negotiate over the Union’s CWS proposals.

    With respect to the FWSs, the Employer has failed to supply evidence clearly demonstrating that its projected adverse effects would in fact develop. For example, the Employer has provided little support for its contention that FWSs would be idle for 1 hour every day when they have no inmates to supervise. Also, the Employer’s argument that a CWS would lead to overproduction and a resulting shutdown is contradicted by its current need to pay inmates overtime to meet production quotas. Similarly, evidence is lacking for the Employer’s assertion that production bottlenecks would develop if the Employer laid in inmates on their FWS’s off day. Even if the Employer did lay in inmates, we fail to understand why bottlenecks necessarily would result, as other inmates also would be laid in on the off days of their FWSs. As for security concerns if inmates are not laid in and staff is reduced, we note that the Employer currently has a means of supervising inmates when FWSs take annual or sick leave, or are at annual training. Admittedly, this could turn out to be administratively burdensome on days where one FWS has an off day, and another takes leave. In the absence of real experience under a CWS in these circumstances, however, we are unable to conclude that whatever administrative burdensomeness might result would rise to the level of adverse agency impact contemplated by the Act.

    As for the MHS, while we recognize that the MHS is the only employee in his department, the Employer regularly relies on a substitute during periods when the MHS is not available to work in the UNICOR warehouse. Although the Panel has sometimes found an adverse agency impact when a position is only one deep,⁽⁴⁾ the Panel also has decided that where a regular substitute is available for a one-deep position that does not handle emergencies an adverse agency impact allegation is "significantly undercut."⁽⁵⁾ In this case, the UNICOR accountant appears to be available to substitute for the MHS, who occupies a non-emergency position. Additionally, even if the accountant were not available to substitute for the MHS, we are not persuaded that the UNICOR warehouse could not be closed once every 2 weeks, particularly in circumstances where the institution’s supply warehouse is closed once per week to accommodate CWS off days. In any event, the concerns expressed by the Employer with respect to CWSs for both FWSs and the MHS, while not clearly demonstrating adverse agency impact under the criteria of the Act, are precisely the sorts of issues which should be addressed by the parties during the negotiations which should follow as a result of our order in this case.

ORDER

By direction of the Panel.

H. Joseph Schimansky

Executive Director

September 14, 2001

Washington, D.C.

1.Before the informal conference, the Union proposed a 4/10 schedule for the material handler supervisor. Under a 5-4/9 schedule, employees would work 9 hours a day for 9 days per pay period, work 1 8-hour day, and have 1 day off per pay period. Under a 4/10 schedule, employees would work 10 hours a day for 4 days and have every fifth day off.

2.Under 5 U.S.C. § 6131(b), "adverse agency impact" is defined as:

(1) a reduction of the productivity of the agency;

(2) a diminished level of the services furnished to the public by the agency; or

(3) an increase in the cost of agency operations (other than a reasonable administrative cost relating to the process of establishing a flexible or compressed work schedule).