DEPARTMENT OF JUSTICE FEDERAL BUREAU OF PRISONS FEDERAL CORRECTIONAL INSTITUTION EL RENO, OKLAHOMA and LOCAL 171, 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
EL RENO, OKLAHOMA

and

LOCAL 171, AMERICAN FEDERATION OF
  GOVERNMENT EMPLOYEES, AFL-CIO

Case No. 02 FSIP 184

 

DECISION AND ORDER

    Local 171, American Federation of Government Employees, AFL-CIO (Union), filed a request for assistance with the Federal Service Impasses Panel (Panel) under 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 the determination of the Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, El Reno, Oklahoma (Employer) not to implement a 5-4/9 compressed work schedule (CWS)(1) proposed by the Union, for an employee who works as a plumbing supervisor.(2)

   Following an investigation of the request for assistance, the Panel determined that the impasse should be resolved on the basis of written submissions from the parties, including rebuttal statements of position. The parties were advised that, after considering the entire record, the Panel shall take final action in accordance with 5 U.S.C. § 6131 and 5 C.F.R. § 2472.11 of its regulations.(3)

BACKGROUND

    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. It operates a medium-security male correctional facility which houses approximately 15,000 inmates in the main correctional institution and approximately 100 inmates in a low-security facility known as a Federal Prison Camp. The Union represents approximately 300 employees at those facilities who are part of a nationwide bargaining unit consisting of over 20,000 employees. Typical positions among bargaining-unit employees are correctional officer, unit secretary, case manager, case counselor, physician’s assistant, accountant, teacher, psychologist, plumbing supervisor, and various other positions including those within the food and health services. The parties are covered by a master collective-bargaining agreement (MCBA) which was to have expired on March 8, 2001; however, it has been extended while the parties at the national level continue negotiations over a successor agreement.

    Pursuant to Article 18, Hours of Work, Section b, of the MCBA, the parties at the local level have been delegated the task of negotiating over employee requests to work under flexible and/or CWSs. By memorandum, dated March 25, 2002, the local parties reached an agreement whereby three maintenance supervisors (bargaining-unit employees) who work in the Outside Facilities Department (4)were authorized to work a 5-4/9 CWS; these three have been on that schedule since April 2002. With respect to a fourth employee who works as a plumbing supervisor in the Inside Facilities Department, the Employer would not agree to allow him to work under a similar schedule because it asserts that doing so would result in an adverse impact upon agency operations.(5)

ISSUE AT IMPASSE

   The sole issue in dispute is whether the Employer’s determination not to implement a 5-4/9 CWS for the employee who works as a plumbing supervisor within the secure perimeter of the institution is supported by evidence that such a work schedule is likely to cause an adverse agency impact, as defined under the Act.

POSITIONS OF THE PARTIES

1. The Employer’s Position

    According to the Employer, the inside plumbing supervisor should not be permitted to work a 5-4/9 CWS because doing so would result in an adverse impact upon agency operations for the following reasons. If the inside plumbing supervisor is permitted to work under a CWS, the inmate work crew he supervises would have to be returned to the housing units when he takes his RDO every 2 weeks; returning seven or more medium to high-security inmates to their housing units would create an additional supervisory burden upon the correctional officers stationed there, and leave inmates unproductive and without earned income for 7 hours every 2 weeks.(6) A critical part of the Employer’s mission is to keep the inmates productively occupied, and having plumbing duties to attend to 5 days a week prevents them from becoming bored and restless, and creating disturbances. Moreover, housing unit correctional officers who work the day shift are charged with keeping close track of the frequent comings and goings of inmates. Adding more inmates to their roster would increase their duties and responsibilities.

    Assigning another plumber inside the perimeter, who is not on a CWS, to supervise both his inmate work crew and that of the second inside plumbing supervisor when he is on his RDO, would not solve the problem. The productivity of the plumber who is not on a CWS would be reduced, as he would be required to supervise too many medium and high-security inmates at the same time. This also would compromise the safety of the institution. While it is true that the Employer has agreed to permit lower security inmates to lay in when their maintenance crew supervisors are on their RDOs, this group of inmates does not require the same intense level of supervision as those inmates who reside inside the secure perimeter of the institution, and place less of a burden upon housing unit correctional officers.

2. The Union’s Position

    The Union contends that the Employer has not met its burden of proving that adverse agency impact is likely to occur if the proposed 5-4/9 CWS for the inside plumbing supervisor is implemented. The Employer’s concerns are merely speculative because the inside plumbing supervisor has never worked under a CWS; thus, no hard evidence has been provided by the Employer to substantiate its claims of adverse agency impact. The three other maintenance supervisors who lead work crews outside the secure perimeter are permitted to work under a 5-4/9 CWS, and the Employer has failed to provide persuasive reasons why the plumber who supervises an inmate work crew inside the secure perimeter should not also be permitted to do so. In this regard, the Employer’s contention that inmates on the inside plumbing supervisor’s work crew would have to lay in on his RDO and be unable to work and earn money is equally true for inmates who work on the outside maintenance crews, yet the Employer has determined to allow those employees to work a CWS. In addition, it is unclear why having seven inmates lay in 1 day every 2 weeks would pose any significant burden on the housing unit correctional officers. Finally, 10 other departments within the Employer’s correctional facility have implemented CWSs, with some having been in effect since 1995; this shows that management and employees have been able to use such schedules to their mutual benefit, and further diffuses the Employer’s claim of adverse agency impact should the proposed 5-4/9 schedule be implemented for the inside plumbing supervisor.

CONCLUSIONS

    Under § 6131(c)(2)(B) of the Act, the Panel is required to take final action in favor of the head of the agency's or, in this instance, his 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."(7)

    Having carefully considered the record before us, we find that the Employer has met its statutory burden. In this regard, when inmates lay in, they are not doing the maintenance work which the Employer needs to have accomplished; thus, the Employer’s productivity necessarily would be reduced for at least 1 day per pay period. In addition, we are persuaded that the increased safety risk involved in laying in medium to high security inmates outweighs the inside plumbing supervisor’s desire to work a CWS. Finally, the Employer’s willingness to permit certain inmates to lay in to accommodate maintenance supervisors’ RDOs in the Federal Prison Camp appears to be based on a reasonable distinction between the level of risk associated with different types of inmates, and does not appreciably support the Union’s position.

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 Service Impasses Panel, under section 2472.11(a)(1) of its regulations, hereby orders the Union to withdraw its proposal.

By direction of the Panel.

H. Joseph Schimansky
Executive Director

May 8, 2003
Washington, D.C.

1. Under a 5-4/9 compressed work schedule, an employee works 8 9-hour days, 1 8-hour day and has 1 regular day off (RDO) during a biweekly pay period.

2. Although the position is referred to as “supervisor,” it is within the bargaining unit represented by the Union.

3. Following the receipt of the parties’ written statements of position, a Panel representative convened a conference call with the parties to clarify certain information in their submissions.

4. Employees who work outside the secure perimeter of the correctional facility work for the Outside Facilities Department; those who work within the secure perimeter work for the Inside Facilities Department.

5. Under § 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). The Act requires the head of the agency to make the determination that the CWS has had an adverse agency impact. By letter dated November 22, 1999, Ms. Kathleen Hawk Sawyer, Bureau of Prisons (BOP) Director, delegated to the Chief Executive Officers (Wardens) of all BOP institutions the authority to determine if a particular flexible or compressed schedule under the Act has had an adverse agency impact. The burden of demonstrating that a proposed CWS would have an adverse agency impact falls on the employer under the Act. On December 4, 2002, the Warden of the prison at El Reno provided the Panel with his written determination why a 5-4/9 CWS for the Facilities Department (Inside) plumber would create an adverse impact on the Employer’s operations.

6. Inmates typically work 7 hours a day, 5 days a week.

7. See the Senate Report, which states:

The agency will bear the burden in showing that such a schedule is likely to have an adverse agency impact. This burden is not to be construed to require the application of an overly rigorous evidentiary standard since the issues will often involve the