DEPARTMENT OF JUSTICE FEDERAL BUREAU OF PRISONS LOW SECURITY CORRECTIONAL INSTITUTION ALLENWOOD WHITE DEER, PENNSYLVANIA and LOCAL 0306, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO
In United States of America
BEFORE THE FEDERAL SERVICE IMPASSES PANEL
In the Matter of
DEPARTMENT OF JUSTICE
FEDERAL BUREAU OF PRISONS
LOW SECURITY CORRECTIONAL
WHITE DEER, PENNSYLVANIA
LOCAL 0306, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO
Case No. 99 FSIP 65
DECISION AND ORDER
Local 0306, 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 (Statute),(1) 5 U.S.C. § 7119, between it and the Department of Justice, Federal Bureau of Prisons (BOP), Low Security Correctional Institution Allenwood, White Deer, Pennsylvania (Employer).
After investigating the request for assistance, the Panel determined that the dispute, which arises from bargaining over CWS, should be resolved through an informal conference between a Panel representative and the parties. If no settlement was reached, the Panel representative was to notify the Panel of the status of the dispute; the notification would include the final offers of the parties and the representative's recommendations for resolving the matter. Following consideration of this information, the Panel would take whatever action it deems appropriate to resolve the impasse, including the issuance of a binding decision.
Pursuant to the Panel's determination, Supervisory General Attorney Ellen J. Kolansky conducted an informal conference at Allenwood with the parties on June 10, 1999, during which the outstanding issue remained unresolved. Accordingly, the parties submitted their final offers to Mrs. Kolansky, who reported to the Panel. The Panel has now considered the entire record.
The Employer is responsible for "protect[ing] society by confining offenders in prisons and community-based facilities" and "provid[ing] work and other self-improvement opportunities to assist offenders to be law-abiding citizens." The Union represents 175 bargaining-unit employees who are part of a nationwide, consolidated bargaining unit of approximately 25,000 employees. They work in positions such as case manager, counselor, secretary, correctional officer, physician assistant, psychologist, carpenter, and teacher, at grades GS-4 through -12. The parties’ master collective bargaining agreement (MCBA) is due to expire on March 8, 2001.
Allenwood is a low security correctional institution that operates 24-hours-a-day, 7-days-per-week. Following "disturbances" in 1973, unit management teams were established throughout the BOP correctional system. It is believed that unit team staff, by maintaining physical proximity and easy access to inmates, can identify inmates’ problems and "gripes" early, and avoid their escalation into more widespread "disturbances." Twenty affected employees make up 4 unit teams of 2 counselors, 2 case managers, and 1 secretary each. Unit team employees’ hours of work currently are 7:30 a.m. to 4 p.m. By rotation, all but the secretaries also take turns working two late nights per week (to 7:30 and 9 p.m., with 11 a.m. and 12:30 p.m. start times, respectively), and a Saturday or Sunday.
ISSUE AT IMPASSE
The parties disagree over whether bargaining-unit employees on the four unit teams should be permitted to work a 4-10 CWS during a 6-month pilot.(2)
a. The Employer’s Position
The Employer proposes that the regular 5-days-per-week, 8-hours-per-day work schedule be maintained because it is optimal for meeting the various needs of the unit team management program.(3) The program’s functions are critical to maintaining security at a low security facility such as Allenwood where inmates are not restrained under lock and key. That is why, even though 4 of 90 BOP facilities use 4-10 schedules for team management staff, none are low security facilities. Since affected positions are only two-deep per team, the extra 52 absences per year, per employee would make it more difficult for staff to maintain essential contacts with inmates, attend meetings between staff and inmates, and process actions related to inmates’ work, recreation, and ultimately, their release. Furthermore, case managers and counselors are not interchangeable, so they cannot substitute for one another; instead, each is assigned a list of inmates to follow. The once-a-week absence of the secretary would add to the hardship because this individual responds to telephone calls, takes notes at meetings, and performs other critical tasks.
If employees are away 3 days in a row, inmates with pressing problems might have to wait 79.5 hours before they can speak with their case manager, an increase of 16.5 hours over the longest current wait. Recent increases in the movement of the inmate population into and out of the institution ("4,970 moves in the last year"), including detainees awaiting Immigration and Naturalization Service appeals, and an increase in the number of disciplinary committee meetings, has created extra burdens for the staff. Similarly, as reflected by figures collected for 1997, overall rates of sick leave (228 hours), annual leave (389 hours), and training (348 hours) are high, reducing the number of service days available for keeping up with the workload. Finally, the 10-hour days will result in increased premium and differential pay costs in the neighborhood of $12,000 annually.
b. The Union’s Position
The Union’s proposal is set forth at Appendix A: Under its terms, all 20 bargaining-unit employees assigned to unit teams would be placed on a 4-10 CWS for 6 months, but could be excused for hardship reasons. Employees would select shifts quarterly based on seniority. This would provide employees, whose shifts would continue to include "proportional" shares of weekend and late days, with more flexibility in their personal lives. To address the Employer’s concern about adequate staffing levels, on Federal holidays and when two or more employees are away on annual leave, all employees would return to 8-hour days. In addition, secretaries on each of four unit management teams would rotate their off days in order to cover for each other. In a similar vein, to control costs, holidays would be counted as 8-hour days and sick leave days would be counted as 10-hour days.
Regarding the Employer’s criticisms that the schedule would negatively affect unit management’s mission, the 10-minute teaming interviews between inmates and the assigned staff are currently held on Tuesdays and Thursdays; sample schedules the Union provides show that employees would be available to attend these meetings as usual. Furthermore, the meetings are not held on an emergency basis since it takes 4 hours to prepare for them. The schedule also would result in 2 hours more contact with inmates, not reduced contact as the Employer contends, because counselors and case managers would be present between 3:30 and 6 p.m., a peak period when most inmates are available in the housing units for contact with staff. Currently, when inmates return from their work assignments at 3:30 p.m., they are required to remain in their rooms for a census and then can respond to mail call, among other activities. Since most employees end their workday at 3:50 p.m. when they turn in their keys, there is little opportunity for contact with inmates between 3:30 and 4 p.m.
The Office of Personnel Management (OPM) states that "[t]he Panel will not find adverse agency impact when there is convincing evidence that an agency has successfully used flexible or compressed work schedules."(4) Although this case does not involve an allegation of adverse agency impact, the fact that four other BOP facilities(5) permit unit team employees to work 4-10 schedules, should have persuaded this Employer, consistent with OPM guidance, to do the same. Finally, as the proposal amounts to a test or pilot program, consistent with another recommendation of OPM, the Union should be an active partner in collecting data on the effects of the schedule. Joint data collection would serve to enhance its credibility.
Having carefully reviewed the evidence and arguments presented, we conclude that the parties should adopt the Union’s proposal to resolve their dispute. We are persuaded that the 6-month pilot will provide an opportunity to test the workability of the 4-10 schedule in the low security prison setting at Allenwood. In our view, the Employer has not provided sufficient evidence to establish that the schedule would hamper the ability of unit team employees to maintain the necessary level of contact with inmates and the other internal and external organizations working on their behalf. Furthermore, the proposal incorporates significant concessions, in the spirit of interest-based bargaining, to address the Employer’s concerns about the availability of staff and controlling costs. While, as the Employer contends, the 4-10 schedule clearly reduces the number of opportunities for the unit team to meet as a group, the sample 4-10 schedules show that they would not interfere with the current practice of holding teaming meetings twice a week. Finally, the proposal includes a joint labor-management procedure for evaluating the parties’ experience under the schedule, a feature which we believe should be an integral part of implementing any CWS schedule. In this regard, the parties are encouraged to establish baseline data that will allow them to evaluate objectively the outcome of the pilot in terms of cost, impact on leave use, etc. For these reasons, we shall order the adoption of the Union’s proposal.
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 pursuant to 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 following:
The parties shall adopt the Union’s proposal.
By direction of the Panel.
H. Joseph Schimansky
July 28, 1999
The Union’s proposal for a 6-month pilot of a 4-10 Compressed Work Schedule is:
1. The Unit Manager and Unit Staff from each housing unit will meet with the Union at least one month prior to the implementation of the tentative yearly compressed work schedule for the purpose of developing said schedule for that particular unit.
2. Determine seniority within the Unit.
3. With the understanding that all Case Managers and Counselors will rotate through all four shifts within the calendar year, assignments will be made by seniority, (i.e., the most senior person selects one shift within any of the four quarters; then the second in seniority does the same, and so on until all four quarters of the yearly schedule are filled.)
4. Unit Secretaries will follow the same procedures as outlined above, but will rotate among the four secretarial shifts (the third day off) rather than shifts within the unit as outlined in Exhibit 1 a, b, c, d. [The exhibits are not provided.]
5. Staff may mutually agree to exchange shifts within the roster; however, the unchanged roster agreed to at the roster committee meeting will be what is utilized to determine the equitable distribution.
6. Staff assigned to work Holidays will be determined by seniority. The staff member actually assigned to work on the Holiday will work a traditional 8 hour/5 day work week to ensure no increased costs Holiday pay.
7. When there are two or more unit staff members on scheduled annual leave, regardless of Holiday weeks, all line staff within the unit will revert back to a traditional 8 hour/5 day work week to avoid increased costs for Holiday pay.
8. Staff who request sick leave for one work day, upon approval, will be granted 10 hours of sick leave.
9. Staff who do not desire to work the compressed schedule must claim a personal hardship. Staff claiming the personal hardship will submit a memorandum to their immediate Supervisor citing their reasons for not being able to work the schedule. The Union will be given a copy of all hardship claims. Personal hardships will be mutually determined by management and the Union.
10. Night differential pay will be granted to staff who work after 6:00 p.m. Staff will be paid Sunday pay when required to work on Sundays.
Procedures of Evaluating a Compressed Work Schedule
1. Prior to the implementation of a schedule, the Union and management will meet to discuss in detail what will be monitored with respect to the implementation of the schedule.
2. The schedule will be implemented and after the sixth month, both parties will meet for the purpose of discussing the effectiveness of the schedule.
3. All data to be used in monitoring the effects of the compressed schedule will be provided to the Union prior to implementation (baseline data).
4. A Union representative will be given an active role in the agencies collection and evaluation of data used to monitor the effects of the implemented schedule.
5. The Union and management agree to meet regularly and/or when necessary for the purpose of addressing the possible development of any adverse affect with respect to the implementation of the schedule.
6. The intent of these meetings is to implement corrective action, short of revocation of the schedule, to deal with possible adverse affects.
7. During the six month meeting, the agency will provide the Union with a copy of all information that will be provided to the Office of General Counsel for the purpose of determining an adverse affect, if applicable.
1.The Union initially filed its request for Panel assistance under section 6131(c)(2) of the Federal Employees Flexible and Compressed Work Schedules Act of 1982 (the Act). It later amended its request to bring the case under the Statute when the Employer did not allege that the implementation of the Union’s proposed compressed work schedule (CWS) would cause an adverse agency impact, as required by the Act. The heavier burden of proof to establish adverse agency impact under the Act, therefore, does not play a role in a weighing of the evidence in this case.