DEPARTMENT OF JUSTICE FEDERAL BUREAU OF PRISONS FEDERAL CORRECTIONAL INSTITUTION WASECA, MINNESOTA and LOCAL 801, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO
United States of America
BEFORE THE FEDERAL SERVICE IMPASSES PANEL
In the Matter of
DEPARTMENT OF JUSTICE
FEDERAL BUREAU OF PRISONS
FEDERAL CORRECTIONAL INSTITUTION
LOCAL 801, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO
Case No. 01 FSIP 44
DECISION AND ORDER
Local 801, American Federation of Government Employees, AFL-CIO (Union), 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, 5 U.S.C. § 7119, between it and the Department of Justice, Federal Bureau of Prisons (BOP), Federal Correctional Institution (FCI), Waseca, Minnesota (Employer).
Following an investigation of the request for assistance, which involved negotiations over compressed work schedules (CWS), the Panel directed the parties to participate in an informal conference by telephone with Panel Representative (Labor Relations Specialist) June M. Marshall for the purpose of resolving the outstanding issues. The parties were advised that if no settlement were reached, Ms. Marshall would report to the Panel on the status of the dispute, including the parties’ final offers and her recommendations for resolving the issues. After considering the report, the Panel would take whatever action it deemed appropriate to resolve the impasse, including the issuance of a binding decision.
Pursuant to the Panel’s determination, Ms. Marshall conducted the informal telephone conference with the parties on March 2, 2001, but they failed to reach a complete voluntary settlement of their dispute.(1) The parties submitted final offers and brief supporting statements on the four remaining issues. Ms. Marshall has reported to the Panel, and it has now considered the entire record.
The Employer’s mission is to protect society by confining criminal offenders in the controlled environments of prisons and community-based facilities that are safe, humane, and appropriately secure. The Union represents approximately 174 employees who typically work as correctional officers, physician assistants, medical officers, psychologists, maintenance workers, and in clerical positions at grades GS-5 through GS-15 and WG-3 through WG-9. The dispute affects 19 employees in the Facilities Department who work in various craft and trade positions, such as engineering technician, welding foreman, plumbing worker, and pipe fitter. The master collective bargaining agreement (MCBA) that governs these parties was due to expire March 8, 2001; parties at the national level are in the process of negotiating a successor agreement.
ISSUES AT IMPASSE
The parties disagree over: (1) the number of employees who can have a Monday or Friday off under a 4/10 and a 5-4/9 CWS; (2) the extent to which the Employer can require employees to revert to a 8-hour, 5-day-a-week work schedule during training periods; (3) the duration of the CWS trial period; and (4) whether the Employer should be required to request a waiver so that employees working a longer workday can access tools.
POSITIONS OF THE PARTIES(2)
1. The Union’s Position
The Union proposes the following wording:
a. The Facilities bargaining unit staff members will be offered three work schedules. They will have only one opportunity to select a compressed work schedule. A[n] employee may select to work a 4/10-hour schedule with either Monday, Wednesday, Thursday, or Friday off. These days will be equitably rotated quarterly. A[n] employee may select to work a 5-4/9 compressed work schedule with Monday or Fridays off. These days will be equitably rotated quarterly. Those employees not selecting either compressed work schedule will remain on 5/8.
The hours of work for the 4/10 CWS will be 6 a.m. until 4:30 p.m. The hours of work for the 5-4/9 CWS will be 6 a.m. until 3:30 p.m. Those staff that wish to remain on a five day work week, their hours will remain 7 a.m. until 3:30 p.m.
b. When a staff member who is on a CWS has to attend Bureau sponsored training, he/she will revert to 5/8-hour days, Monday through Friday, if necessary to accomplish said training. The parties agree that there may be times when said training can be accomplished without reverting back to a 5 day work week, for example, if training is scheduled Tuesday through Friday.
c. This schedule will begin no later than 30 days from the date of signing or the next pay period after OGC approves the agreed schedule. The CWS will be re-evaluated after 6 months by both the Union and Management. Management and the Union agree to discuss any perceived problems by either party. Management agrees to provide any documentation, data, or other evidence to the Union in a timely manner as problems occur prior to declaring any adverse agency impact. Both parties agree that they will attempt to correct any perceived problems prior to the completion of the 6-month trial period.
d. Management will request a waiver from Central Office authorizing the Facilities Department to issue tools between the hours of 3:15 p.m. and 4:15 [p]m. within 5 (Five) working days. If this waiver [cannot] be obtained within thirty (30) calendar days, management will determine a means to make available class B tools.
Overall, the Employer has failed to provide "documentary evidence" to support any of its proposals. The Union’s proposal is fairer because it "allows all 19 employees in the Facilities Department the option of a CWS schedule," while the Employer’s proposal only "allows a total of 12 employees to consider a CWS option." Additionally, Facilities Departments at 26 other BOP institutions have some type of CWS in operation. Of the institutions with the CWS option, 22 allow a 4/10 option and 4 allow employees to work a 5-4/9 schedule, with 1 of those 4 giving employees the option to select either a 4/10 or a 5-4/9 schedule. Furthermore, rotating days-off under these schedules is designed to be equitable to all foremen who wish to participate in a CWS.
On the issue of training, the Union’s proposal simply reflects the practice in other departments at FCI Waseca. Regarding the evaluation period, the Employer’s proposal to add a second evaluation period is unnecessary because "5 U.S.C. already gives management the right to declare adverse impact on the agency at any time." Finally, the Union’s proposal regarding access to tools is necessary because the tool room is "operated solely by the Correctional Services Department." Facilities Department employees must have access to tools in order to be productive during the extra work hours of a 9- or 10-hour day. Providing tools should not be a problem for the Employer because "90 percent of BOP Facilities Department shops have class B tools in their areas," and "FCI Waseca has five (5) shops with class B tool cages for the purpose of issuing tools to inmates."
2. The Employer’s Position
The Employer proposes the following:
a. The Facilities bargaining unit staff members will be allowed three work schedules, a 4/10 schedule, a 5-4/9 schedule, and a 5/8 schedule. The week days scheduled off will be limited to a total number of three staff on Monday, three staff on Wednesday, three staff on Thursday, and three staff on Friday, at the election of management. This determination will be based on, but not limited to, job skills and seniority. The hours of work for the 4/10 CWS will be 6 a.m. until 4:30 p.m. The hours of work for the 5-4/9 CWS will be 6 a.m. until 3:30 p.m. Those staff that wish to remain on a five day work week, their hours will remain 7 a.m. until 3:30 p.m. They will have only one opportunity to select a compressed work schedule.
b. When a Facilities Department staff member has to attend training, management will notify the union shop steward if it is determined, based upon legitimate needs of the institution, whether a staff member on a CWS will revert to a 5/8 schedule.
c. This schedule will begin no later than 30 days from the date of signing or the next pay period after OGC approves the agreed schedule. The CWS will be re-evaluated after 6 and 12 months by both the Union and Management. Management and the Union agree to discuss any perceived problems by either party. Management agrees to provide any documentation, data, or other evidence to the Union in a timely manner as problems occur and prior to declaring any adverse agency impact. Both parties agree that they will attempt to correct any perceived problems at the completion of the 6 and 12-month trial periods.
The proposed CWS is based on "the need to maintain the level of service, provide correctional coverage as previously agreed to by the Union, afford facility’s staff opportunities for training and annual leave, and provide inmate supervision and accountability." It both "meets the needs of the institution and provides the opportunity for facility’s staff to enjoy the benefits of a [CWS]." Under the Union’s proposed CWS, up to 17 employees could select a schedule with Monday or Friday off which "would significantly diminish the level of service provided by this department and significantly reduce the number of available annual leave slots." Additionally, due to problems experienced during this year’s Annual Refresher Training (ART), there may be a need for an employee to revert back to a 5/8 schedule during those periods so that additional employees are available for posts, as needed. Further, the review at 12 months is necessary to ensure that the impact of CWS on training is assessed because the annual ART period will occur after the first 6-month trial period is completed.
Having carefully reviewed the evidence and arguments presented by the parties, we conclude that they should adopt a compromise to resolve the dispute. With respect to the 4/10 CWS schedule, we shall impose compromise wording which will limit to three the number of employees who may select any given weekday off. Under the 5-4/9 schedule, employees may select, without limitation, either a Monday or a Friday as an off day. In addition, days off will be rotated among employees working a CWS on a quarterly basis. Concerning training, we shall order adoption of compromise wording which gives the Employer the option of temporarily placing an employee working a CWS on a five 8-hour day schedule when unusual workload needs, operational exigencies, or low-staffing levels arise. Regarding the length of the CWS trial period, we shall order adoption of the Union’s proposal limiting the trial period to 6 months and requiring the parties to correct perceived problems prior to the conclusion of the pilot. On the issue of tools, we shall order adoption of the Union’s wording that the Employer is to request a waiver and, if a waiver is not forthcoming, the Employer is to determine a means to make class B tools available to employees on a longer CWS workday.
On the matter of available off days under the 4/10 CWS, we are persuaded that the compromise wording appropriately balances the Employer’s interest in having sufficient staffing-levels with the Union’s interest in expanding employees’ options under CWS. In this regard, the Union’s proposal, which does not limit the number of employees who may select a particular weekday off, could have a negative impact on staffing levels. Under a 5-4/9 schedule, however, the Employer has not presented sufficient evidence to justify a similar restriction. This is underscored by the Employer’s willingness in its December 21, 2000, letter to the Union, to accept a 5-4/9 schedule over a 4/10 schedule with Mondays and Fridays as days off.
We are also persuaded by the Employer’s contention that it needs greater flexibility to require an employee on CWS to revert to 8-hour days during training periods to avoid staffing shortages that might impair fulfilling mission-related work functions. The Union’s focus, which appears to be on adjusting CWS schedules to coincide with training classes, in our view, misses the more central concern: preventing workload imbalances. Regarding the length of the CWS trial period, our decision to adopt compromise wording on training, which gives the Employer more flexibility to manage the workload during ART, makes unnecessary an additional 6-month trial period to study the effect of CWS during the ART. In reaching this conclusion, the parties are reminded that under the Federal Employees Flexible and Compressed Schedules Act, 5 U.S.C. § 6120, et seq., the Employer may declare at any time that the CWS is having an adverse agency impact and take the necessary steps to terminate it. Finally, to ensure the success of the CWS program, we believe that our order should reflect the parties’ oral understanding, reached during the informal conference, that the Employer would take steps to provide work tools to the employees who work additional hours so that they may continue to be productive. In this regard, the Union’s proposal, which includes a requirement that the Employer request a waiver from the Central Office, is superior to the approach of the Employer, whose proposal is silent on the matter.
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 adoption of the following wording:
1. The Facilities bargaining unit staff members will be allowed three work schedules, a 4/10, a 5-4/9, and a 5/8 schedule. They will have one opportunity to select a compressed work schedule. Hours of work for the 4/10 schedule will be 6 a.m. to 4:30 p.m., with scheduled days off limited to a maximum of three employees each on Monday, Wednesday, Thursday, and Friday. The hours of work for the 5-4/9 schedule will be 6 a.m. to 3:30 p.m., with Mondays and Fridays as days off. Selection of a specific CWS or day off will be based on seniority and job skills, i.e., if more than three employees select a particular off day, the three employees who are more senior and do not have required skills would get that off day. Days off under both CWS schedules will be equitably rotated quarterly. Those employees not selecting either CWS will remain on a 5-day work schedule from 7 a.m. to 3:30 p.m.
2. When a Facilities Department staff person has to attend work-related training, the employee will convert to a 5, 8-hour day, Monday through Friday schedule, if necessary to accomplish said training. The parties understand that occasions may arise where the CWS must be temporarily su