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. 03 FSIP 71

 

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 a determination by the Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, El Reno, Oklahoma (Employer) not to implement a 4-10 compressed work schedule (CWS)(1) for one engineering technician working in the Unicor (Federal Prison Industry) Metal Factory.

   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 would take final action in accordance with 5 U.S.C. § 6131 and 5 C.F.R. § 2472.1 of its regulations.

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 employee positions are correctional officers, unit secretaries, case managers, case counselors, physician’s assistants, accountants, teachers, psychologists, plumbing supervisors, 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.

ISSUE AT IMPASSE

   The sole issue in dispute is whether the Employer’s determination not to implement a 4-10 CWS for one of two engineering technicians in the Unicor Metal Factory at El Reno is supported by evidence that such a work schedule is likely to cause an adverse agency impact, as defined under the Act.(2)

POSITIONS OF THE PARTIES

1. Employer’s Position

   Implementing a CWS for the engineering technician would have an adverse impact on the institution’s productivity, diminish the level of services to the public, and increase the cost of agency operations. Regarding reduced productivity, as an engineering technician, the employee supports Federal customers, management staff, factory production staff, and private sector vendors and installers; Unicor management depends on the engineering technician to provide support throughout the quoting and manufacturing phases of his assigned projects. In order to maintain the same level of service when the employee is on his RDO, the employee’s supervisor would, at the neglect of his own duties, have to spend about 5 hours per RDO covering for him, at a projected cost of $8,179.20, per year. As to diminished level of service, the employee is a "project subject matter expert" who must be available to interpret specifications, advise both customers and management of necessary changes, and obtain authorization for abnormal expenses.(3) Participating in the proposed CWS would reduce the employee’s ability to perform these functions and, thus, have a negative impact on the service he provides to the public. Finally, under the criterion of increased costs, in addition to the $8,179.20 per year identified previously, if the production line has to be shut down because the engineering technician is on his RDO, the Employer would realize a loss of $34,797.12 per year in "idle time." In this regard, the engineering technician would not be available to answer questions and "review files, make calls to customers, and verify information with the installer or change drawings."

2. The Union’s Position

   The Union proposes that the Employer permit the engineering technician to work a 4-10 CWS, with Fridays as his RDO. First, the Employer’s assertion that the CWS would cause an adverse agency impact is inconsistent with the position it took as late as August 9, 2002, when it stated in writing that it was not alleging the Union’s proposed CWS would cause an adverse agency impact. It was only after the Union filed its request for Panel assistance on February 19, 2003, that the Employer changed its view. Second, adoption of the proposed CWS is "viable and acceptable" because the employee works independently, spending most of his time taking orders from customers, designing catwalks, and preparing specifications. Implementing the CWS would benefit both the Employer and the employee because, by extending the employee’s schedule from 8 to 10 hours per day, his productivity would increase. For example, he would able to assist customers in other time zones more easily, and he would experience fewer distractions by starting his work hours before the inmates’ shift begins, and staying after the inmates’ shift ends. As a further benefit to the Employer, the employee would provide additional security for the Custody Department since he would be available 2 hours more per work day. Allowing the employee to work a CWS would reduce his sick leave usage because he would be able to schedule his medical appointments on his RDO. Under a 4-10 CWS, the employee would spend 1 less day commuting 66 miles to and from work, thereby reducing gasoline expenses as well as wear and tear on his vehicle. Additionally, other departments in Unicor allow employees to work CWSs that extend beyond its hours of operation without problems.

   The Employer’s assertion that costs would increase because the supervisor would have to cover the employee’s duties on his RDO is erroneous. The "past practice has been that the Engineering Technicians pick up any slack that may occur when one technician is absent." When a technician will be absent for more than 1 day, the employee makes plans for coverage in order to meet his responsibilities. The cost increase the Employer speculates about "has no substance" because the supervisor is not paid overtime when he is assisting engineering technicians during their regularly scheduled work days. As to the Employer’s contentions addressing the production line, there has never been a need to shut down the factory when a technician is absent, i.e., when engineering technicians are on annual leave, sick leave, at on-site installations, or in training. Since inspections and shipments are rarely performed on the same day, shipping would not be delayed. Moreover, contrary to the Employer’s claims, these employees are rarely assigned special projects, and a log book is kept on all quotes and projects which is accessible to both the supervisor and the Factory Manager. Finally, both parties have worked in this same factory for the past 15 years, and "we cannot determine the origin of the figures [the Employer provides] or if they in fact are relevant."

CONCLUSION

    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." Having carefully considered the record before us, we find that the Employer has not met its statutory burden. In this regard, the evidence presented does not support a finding that the proposed CWS is likely to increase the costs of agency operations, reduce productivity, or diminish service to the public.

    In our view, the Employer’s relatively recent contentions that the CWS would diminish service to the public, reduce productivity, and increase costs are speculative, and based on a worst-case scenario. For example, the Employer asserts that its costs would increase by $8,179.20 per year because the supervisor would have to spend 5 hours each RDO covering for the employee. This amount appears predicated on assumptions that: (1) questions would arise on each of the employee’s RDOs; (2) such questions could not be put aside until the employee returns; and (3) the supervisor would have to spend 5 hours each RDO researching answers to them. This assertion runs counter to the Union’s unrebutted statement that engineering technicians keep a log book on all quotes and projects, which can be relied on by both the supervisor and the Factory Manager to answer questions. The Employer also predicts costs of $34,797.12 per year in "idle time" if the production line has to be shut down because the engineering technician is not present. Again, the Employer’s prediction appears to be based on its view that the production line would be shut down on every RDO; however, it provides no evidence to substantiate that the production line has had to be shut down in the past when an engineering technician is on leave, making on-site visits, or attending training. Therefore, in accordance with the intent of the Act as established by its legislative history,(4) we shall order the parties to negotiate over the Union’s proposed CWS.

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 parties to negotiate over the Union’s proposed CWS.

By direction of the Panel.

H. Joseph Schimansky
Executive Director

October 30, 2003
Washington, D.C.

1. Under a 4-10 CWS, employees work four 10-hour days and have one regularly scheduled day off during each week of the pay period.

2. 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 adverse agency impact determinations. By letter dated November 22, 1999, Ms. Kathleen Hawk Sawyer, former 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 is likely to have 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 March 28, 2003, the Warden of the prison at El Reno provided the Panel with his written determination that a 4-10 CWS for the engineering technician is likely to cause an adverse impact on the Employer’s operations.

3. “Abnormal expenses” are costs that are created due to unforeseen problems which occur during a particular project and have a negative impact on the Employer’s income statement.

4. See, for example, the statement of Representative Ferraro regarding the next step when an employer fails to establish that a proposed schedule would cause an adverse agency impact: 

If the agency’s presentation does not convince the Panel that the imposition of the part