United States of America
BEFORE THE FEDERAL SERVICE IMPASSES PANEL
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In the Matter of DEPARTMENT OF JUSTICE |
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and LOCAL 1300, AMERICAN FEDERATION OF
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Case No. 03 FSIP 128 |
DECISION AND ORDER
Local 1300, 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 determination by the Department of Justice, Federal Bureau of Prisons (BOP), Federal Correctional Institution (FCI), Florence, Colorado, not to establish a 4-10 compressed work schedule (CWS)(1) for employees working in the Facilities Department.
Following an investigation of the request for assistance, the Panel determined that the impasse should be resolved through single written submissions from the parties. The parties were informed that the Panel would resolve the dispute based on the written record. 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 Panel has now considered the entire record, including the parties’ submissions.
BACKGROUND
The Employer operates a prison complex consisting of (1) an Administrative Maximum Security Facility ("Supermax" or ADX); (2) a U.S. Penitentiary;(2) (3) a Medium-level Federal Correctional Institution; and (4) a Prison Camp. These operations cover 600 acres. Local 1300 represents 331 employees in the latter two entities, who mainly work as correctional officers at Wage Scale-6 through -10. Another 38 employees are under the General Schedule. In the Facilities Department, employees supervise inmate details that "perform all building maintenance [minor and preventative], such as plumbing repairs, electrical problems, painting, construction as required, etc." The parties are covered by a master collective-bargaining agreement (MCBA) which was to have expired on March 8, 2001; however, the MCBA has been extended while negotiators at the national level continue bargaining over a successor agreement.
ISSUE AT IMPASSE
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 4-10 CWS in the Facilities Department is supported by evidence that the schedule is likely to cause an adverse agency impact.(3)
POSITIONS OF THE PARTIES
1. The Employer’s Position
The Panel should find that the proposed schedule, if implemented, would cause an adverse agency impact under all three of the Act’s criteria. With respect to productivity, the 23 affected employees are chiefly engaged in supervising inmates who perform repairs. Under the proposed schedule, however, employees’ 10-hour work days would be 2 hours, 15 minutes longer than inmates’ work days; the CWS would, therefore, cause the loss of 207 man hours per week, hours when employees would not be supervising inmates and inmates would not be making repairs. Furthermore, work cannot be invented
for employees to do during such times, nor are the earlier starting times the Union proposes, as it contends, useful for contacting vendors. On this latter point, "the majority of the vendors utilized are located within the State of Colorado" in the same time zone as the FCI. As to diminished service to the public, which includes service to inmates, Friday and Monday days off (selected by 20 of the 23 employees who wish to participate in the CWS) would cause inmates to either be laid-in or added to another foreman’s detail.(4) In this regard, the FCI is so spread out (111 acres with 23 buildings) that the reduced number of staff present under the schedule on Mondays and Fridays would not be able adequately to supervise inmates and control tools; therefore, work could not be assigned to inmates on those days. As a result, a direct effect of the schedule would be to lessen the amount of supervised work the Facilities Department could provide inmates and, in turn, the amount of work that inmates could perform. Such work not only keeps the FCI in repair, but also functions to keep inmates out of trouble. Regarding extra expenses related to the CWS, insufficient staffing on certain days and inmate idleness would cost the FCI an estimated $218,462 per year.2. The Union’s Position
The Union proposes that the Employer implement a 4-10 CWS for 23 of the 29 employees who work in the Facilities Department. Their workday would begin at 6 a.m. (their current 8-hour day begins at 7 a.m.) and finish at 4 p.m. Under the proposal, 9 employees would be off on Monday, 1 on Tuesday, 2 on Wednesday, and 11 on Friday. In its view, "the Employer has failed to provide any statistical data or rational reason or explanation why not to implement the requested schedule." Contrary to the Employer’s position, "[t]he facility at FCI Florence appears to be one of the only institutions not currently on the compressed work week in this particular North Central Region." Even within the Facilities Department at FCI Florence, employees who operate the Power Plant are on a CWS. The 6 a.m. starting time should be acceptable since the Employer brings in employees at that hour following disturbances. In addition, the earlier starting time and longer day would increase the custodial presence, and save 50 percent on normal overtime costs for snow removal, which begins at 4 a.m. As to "positive attributes" related to the CWS, before inmates arrive and after they leave, the 10-hour day would permit employees to prepare inmate passes, new inmate orientation packets, work orders, and equipment requisitions, as well as to inspect for security breaches and retrieve material from the warehouse.
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."(5)
Having carefully evaluated the record before us, we conclude that the Employer has met its statutory burden. Based on the totality of the evidence, we are persuaded that the schedule would cause an adverse agency impact by reducing productivity and diminishing the level of service furnished to inmates.(6) In this regard, staffing on Mondays and Fridays would reduce supervision to a level insufficient to keep inmate details working. That 3 of 23 employees have indicated they would select midweek off days is inadequate to cure this deficiency. Similarly, the work that the Union claims employees could perform during extended hours does not, in our view, provide a benefit that justifies diverting them from their basic function of supervising inmates’ work. Moreover, these tasks are apparently being performed to the Employer’s satisfaction under the current schedule. Finally, even if it is true that most FCIs within the North Central Region permit employees to work the same CWS being proposed here, the Act requires the Panel to find in favor of an employer where it has met its statutory burden. 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 4-10 CWS for Facility Department employees.
By direction of the Panel.
H. Joseph Schimansky
Executive Director
January 15, 2004
Washington, D.C.
1.
Under a 4-10 CWS, in one standard pay period, employees would work eight 10-hour days, and have
two regular days off (RDOs), not including weekend days off.
2.
Employees at the “Supermax” and the Penitentiary are represented by two different locals.
3.
5 U.S.C. § 6131(b) defines adverse agency impact as:
(1) a reduction in the productivity of the agency;
(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).
To meet that burden, an employer need only demonstrate an adverse agency impact based on one of the three
criteria in 5 U.S.C. § 6131(b).
4.
A foreman who normally supervises 10 inmates would have to supervise 20 or 30.
5.
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).
6.
Inmates are part of the public the Employer services.