United States of America

BEFORE THE FEDERAL SERVICE IMPASSES PANEL

In the Matter of DEPARTMENT OF JUSTICE FEDERAL BUREAU OF PRISONS FEDERAL CORRECTIONAL INSTITUTION SHERIDAN, OREGON
and LOCAL 3979, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO	Case No. 03 FSIP 10

DECISION AND ORDER

   Local 3979, American Federation of Government Employees, AFL-CIO (Union), filed a request for assistance with the Federal Service Impasses Panel (Panel) pursuant to the Federal Employees Flexible and Compressed Work Schedules Act of 1982 (Act), 5 U.S.C. § 6120 et seq., to resolve an impasse arising from a decision by the Department of Justice, Federal Bureau of Prisons (BOP), Federal Correctional Institution (FCI), Sheridan, Oregon, not to establish a 6-12-8 compressed work schedule (CWS) for certain employees working in the Correctional Services Department (CSD).

   Following an investigation of the request for assistance, the Panel determined that the impasse should be resolved through an informal conference by telephone with Panel Member Richard B. Ainsworth. The parties were informed that if no settlement was reached during the informal conference, Member Ainsworth would notify the Panel of the status of the dispute. The notification would include, among other things, his recommendation for resolving the matter. After considering the information, the Panel would take final action in accordance with 5 U.S.C. § 6131 and 5 C.F.R. § 2472.11 of its regulations. The parties were also directed to submit statements of position prior to the informal conference. Accordingly, an informal conference by telephone was conducted by Member Ainsworth on March 6, 2003; the parties, however, were unable to resolve their dispute. The Panel has now considered the entire record, including the Employer’s pre-conference and the parties’ post-conference written submissions, and Member Ainsworth’s recommendation for resolving the dispute.

BACKGROUND

   The Employer’s mission is to protect society by confining criminal offenders in the controlled environments of prison and community-based facilities that are safe, humane, and appropriately secure. CSD is responsible for the day-to-day custody and security of over 1,900 inmates. The Union represents 318 employees who work as correctional officers, teachers, vocational specialists, secretaries, and accounting specialists, at GS-5 through -11 and WG-5 through -9. Some 94 bargaining-unit employees are correctional officers assigned to CSD. The parties’ master collective bargaining agreement (MCBA) expired on March 8, 2001; its terms remain in effect until negotiations over a successor agreement are completed.

ISSUES AT IMPASSE⁽¹⁾

   In accordance with section 6131(c)(2)(b) of the Act, the issue in dispute is whether the findings on which the Employer bases its determination not to establish a 6-12-8 CWS in CSD is supported by evidence that the schedule is likely to cause an adverse agency impact.⁽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 CWS in CSD establishes that the schedule is likely to cause an adverse agency impact, as defined under the Act. The proposed schedule, if implemented, would: (1) reduce the institution’s productivity; (2) diminish the level of service the institution furnishes to the public (inmates, staff, and the law enforcement and local communities); and (3) increase the costs of agency operations. It is important to note at the start that, although the impact of implementing the Union’s proposed CWS at FCI Sheridan is admittedly speculative, the Employer’s determination is reinforced by the reported findings of other FCIs within the BOP that have experimented with CWSs in their CSDs.

   With respect to reductions in productivity, implementation of the Union’s proposed CWS would severely alter Lieutenants’ duties,⁽³⁾ undercutting their overall effectiveness, particularly their ability "to accurately reflect the performance level of staff," and to provide the level of security that the CSD demands. Currently, Lieutenants spend about 4 to 6 hours of their workday making roster adjustments due to unscheduled absences and the need to schedule overtime. The time devoted to desk work would increase not only because of the complexities of handling numerous scheduling options in such a large operation, but because the software program used for developing and tracking 8 and 10-hour schedules is not designed to be used for preparing 12-hour shift schedules.⁽⁴⁾ Lieutenants would have to use an alternative, more time-consuming method for scheduling employees working 12-hour shifts. Further, the 12-hour schedule would have to be used in conjunction with the schedules prepared with the computer program in order to ensure that all posts are filled, simultaneously incorporating the requirements of all three shifts (8, 10, and 12-hours). All of this would have to be accomplished without running afoul of the seniority provisions of the MCBA. The importance of complying with MCBA provisions at FCI Sheridan is more than just theoretical.⁽⁵⁾ The Union’s proposal, therefore, is also inappropriate because it could put the Employer in the position of violating provisions of the MCBA concerning distribution of overtime, as well as provisions concerning the maximum length of employees’ workdays.

   By reducing the amount of time Lieutenants spend on non-administrative activities, the proposed CWS also would diminish the level of services furnished to the public, which includes inmates, staff, volunteers, contract employees, visitors, and the local community. The primary impact would be in the area of safety, where less time interacting with inmates and the correctional officers they supervise would increase the likelihood of "escapes and disturbances." The Union’s proposal also would have a negative impact on the level of safety because working 12-hour shifts would make correctional officers "less alert and less aware of his/her surroundings." In this regard, several journal articles support the position that employees working a 12-hour schedule would experience fatigue and be less alert at a time when "alertness is essential."

   Finally, a review of the costs incurred at the FCIs in Allenwood, Pennsylvania, and Elkton, Ohio, reveals that they have experienced significant increases in overtime as a result of implementing 4/10 CWSs; 12-hour shifts at FCI Sheridan would likely exacerbate such problems. Among other things, overtime costs would increase because it would take two employees working 8-hour shifts to replace an employee working a 12-hour shift who is on sick or annual leave; normally, one 8-hour shift employee would cover for another 8-hour shift employee. In instances where employees would be working their short day (8-hours), it would be necessary for the Employer to add an additional shift for these employees, and the probability is high that this would involve overtime. The additional work requirements also would be a burden on employees who have personal plans, are single parents, or have been working a shift without a meal break. While the Union "blithely assumes" that the "holes" left in the CSD roster "can be filled by mandatory overtime," as a Government facility, FCI Sheridan must be a "good steward of the taxpayer dollar."

2. The Union’s Position

   The Panel should find that the Employer has not met its burden under the Act. The information the Employer relies on in making its determination is "misleading." Contrary to the Employer’s assertions, implementing the CWS would increase employee productivity; employees would be able to spend more time with their families, less time commuting to and from work, and save on vehicle maintenance and gasoline. Thus, they would be "more willing to go the extra mile and do extra tasks." Further, the Employer’s contention that working 12-hour shifts would negatively impact employees’ health and the institutions’ safety is erroneous; employees normally work 16-hour shifts with no ill effects to either employees or the institution.

   As to the increased costs reported at the Allenwood and Elkton FCIs, the CWSs at those facilities are not comparable to the one the Union is proposing at Sheridan. Furthermore, the Employer’s interests regarding Lieutenants maintaining a presence with inmates would be met under the 6-12-8 CWS. Lieutenants would be able to spend less time administering work schedules, and more time increasing their visibility with inmates and correctional officers; the Employer would "gain an extra $56,000 in additional services from the Lieutenants a year under [the] proposed CWS." In addition, overtime costs would not increase; the procedure used for distributing overtime under the 6-12-8 CWS and the 5/8 work schedule would be the same. Actually, the Employer would realize cost savings because it would only have to "hire for two shifts, not the three [it does] currently." An added benefit would be that fewer employees would call in sick since fewer employees would be working, thus, the pool of employees available for overtime duties would be expanded.

CONCLUSIONS

   Under section 6131(c)(2) of the Act, the Panel is required to take final action in favor of the agency head’s (or 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." As its legislative history makes clear, Panel determinations under the Act are concerned solely with whether an employer has met its statutory burden. It also establishes that in hearing both sides of the issue, the Panel is not to apply "an overly rigorous evidentiary standard," but must determine whether an employer has met its statutory burden on the basis of "the totality of the evidence presented."⁽⁶⁾

    Having carefully considered the record before us, we conclude that the Employer has met its statutory burden. After evaluating the totality of the evidence, we are persuaded that, among other things, the implementation of the 6-12-8 CWS would reduce the productivity of the Lieutenants who are responsible for ensuring that staffing levels involving significant numbers of posts are adequate to meet the around-the-clock security needs within the CSD. In this regard, they would have to monitor at least two different rosters (one of which is not automated), and make frequent adjustments when employees on the CWS return to an 8-hour schedule or use sick or annual leave unexpectedly. These additional duties would reduce the amount of time the Lieutenants spend maintaining visibility with inmates, and could compromise the institution’s ability to maintain inmate control. It would also make them less effective as supervisors. While the impact that the Union’s proposed CWS would have on overtime costs is less predictable, it is sufficient for the purposes of the Act if only one of its three criteria have been met. Accordingly, we shall order the Union to withdraw its proposal.

ORDER

    Pursuant to the authority vested in it by the Federal Employees Flexible and Compressed Work Schedules Act, 5 U.S.C. § 6131(c), the Federal Services Impasses Panel, under § 2472.11(b) of its regulations hereby orders that the Union withdraw its 6-12-8 CWS.

By direction of the Panel.

H. Joseph Schimansky
Executive Director

May 23, 2003
Washington, D.C.

1. CSD currently operates three 8-hour shifts per day, 7 days per week. The shifts are: midnight to 8 a.m., 8 a.m. to 4 p.m., and 4 p.m. to midnight. Under the Union’s proposed CWS, in one standard pay period (80 hours), employees would work six 12-hour days, one 8-hour day, and have 3 consecutive regular days off. Employees scheduled to work holidays would work their usual 12-hour shift.

2. 5 U.S.C. § 6131(b) defines adverse agency impact as:

(1) a reduction in 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 operations (other than a reasonable administrative cost relating to the process of establishing a flexible or compressed work schedule). 

The burden of demonstrating that the implementation of a proposed CWS is likely to cause an adverse agency impact falls on the employer under the Act. See 128 CONG. REC. H3999 (daily ed. July 12, 1982) (statement of Rep. Ferraro); and 128 CONG. REC. S7641 (daily ed. June 30, 1982) (statement of Sen. Stevens). Moreover, under the Act employers are only required to demonstrate adverse agency impact under one of the three criteria in 5 U.S.C. § 6131(b) to meet their burden of proof.

3. Lieutenants are supervisory correctional officers (SCOs). Currently, the CSD at FCI Sheridan has a total of 15 Lieutenants.

4. The parties have apparently agreed to a limited number of 4/10 CWS posts in the CSD, although procedural aspects relating to implementation of the schedule remain unresolved.

5. Of significance in this connection is a previous arbitration decision involving overtime distribution which “resulted in a $455,000 payout which is under dispute at this time.” Another grievance concerning overtime disbursement errors also has been filed by the Union.

6. See the Senate report, which states:

The agency will bear the burden in showing that such a schedule is likely to have an adverse impact. This burden is not to be construed to require the application of an overly rigorous evidentiary standard since the issues will often involve imprecise matters of productivity and the level of service to the public. It is expected the Panel will hear both sides of the issue and make its determination on the totality of the evidence presented. S. REP. NO. 97-365, 97th Cong., 2d Sess. at 15-16 (1982).