United States of America
BEFORE THE FEDERAL SERVICE IMPASSES PANEL
In the Matter of
DEPARTMENT OF JUSTICE
FEDERAL BUREAU OF PRISONS
FEDERAL CORRECTIONAL COMPLEX
AMERICAN FEDERATION OF
FEDERAL EMPLOYEES, AFL-CIO
Case No. 00 FSIP 129
DECISION AND ORDER
Local 3048, 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 between it and the Department of Justice, Federal Bureau of Prisons (BOP), Federal Correctional Complex, Lompoc, California (Employer) resulting from an agency determination not to establish either of two Union-proposed 5-4/9 compressed work schedules (CWS) under the Federal Employees Flexible and Compressed Work Schedules Act of 1982 (Act), 5 U.S.C. §§ 6120-6133.(1)
Following investigation of the request for assistance, the Panel determined that the impasse should be resolved on the basis of an informal conference, to be preceded by a written supporting statement of position from each party. Accordingly, the Panel received the written statements and Panel Chair Bonnie Prouty Castrey conducted an informal conference with the parties on October 3 and 4, 2000.(2) Although the parties explored settlement possibilities during the informal conference, the dispute was not resolved. Subsequent to the informal conference, the parties submitted additional written statements of position. The Panel has now considered the entire record.
At Lompoc, the Employer maintains prison facilities at three levels of security: maximum, medium, and minimum. It also operates three factories that provide work for inmates through a self-supporting Government corporation known as Federal Prison Industries, Inc. (FPI), or UNICOR.(3) Local 3048 represents approximately 439 bargaining-unit employees who are part of a nationwide, consolidated unit. The 29 to 35 affected bargaining-unit employees (Union and Employer estimates, respectively) are correctional officers, at grades WS-4 through -9, responsible for maintaining the security of the UNICOR facility by supervising inmates who produce furniture and other goods. The parties’ master collective bargaining agreement (MCBA) is due to expire on March 8, 2001; their local supplemental agreement is due to expire at the same time.
Under section 6131(c)(3) of the Act and section 2472.11(a)(1) of its regulations, the Panel is required to take final action in favor of the agency head’s (or his delegatee’s) determination not to establish a CWS if the finding on which the determination is based is supported by evidence that the schedule is likely to cause an adverse agency impact. If, however, the finding on which the determination is based is not supported by evidence that the schedule is likely to cause an adverse impact, under section 2472.11(b) of the Panel’s regulations, the Panel is to "take whatever final action is appropriate." Where a case, such as this one, involves the implementation, as opposed to the termination, of a CWS, and the Panel determines that the employer has not met its statutory burden, the parties are directed to negotiate over the Union’s proposal.(4)
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 determinations not to establish 5-4/9 CWSs under either of the Union’s alternative proposals (referred to herein as Union Proposal 1 and Union Proposal 2) are supported by evidence that the schedules would be likely to cause an adverse agency impact.(5)
Under Union Proposal 1, bargaining-unit employees would work the same "pilot" 5-4/9 schedule at each of the six operations at the UNICOR facility. On 9-hour days, employees would work from 7 a.m. to 4 p.m.; on the 8-hour day, they would work from 7 a.m. to 3 p.m. All unit employees on the schedule and inmates working at UNICOR would take the second Friday of each 2-week pay period off; UNICOR operations would essentially cease on that Friday. In addition, bargaining-unit employees would work a paid lunch and inmates would be granted the option of working through lunch. The Warden would have the discretion to move inmates (the work call) at 7:15 or 7:20 a.m. or if the inmate call schedule remained the same, staff would use the early morning period to search for contraband, catch up on paperwork, or attend production meetings. At the end of the workday, the Warden would have similar discretion to move inmates at 3:30 p.m. on Monday through Thursdays, and at 2:30 p.m. on the alternate Friday. The schedule would be subject to review in accordance with Article 18, Section b of the MCBA and "would not be terminated unless by mutual consent of both parties."(6)
Union Proposal 2 also concerns a pilot 5-4/9 CWS. The main difference between Union Proposal 1 and Union Proposal 2 is that RDOs would occur throughout the week to avoid closing the factory; each department would have a different off-day pattern which would be rotated among employees on a pay period or quarterly basis. Other features of Union Proposal 1 would be retained; these include employees’ working a paid, on-the-clock lunch and inmates having the option of working through lunch.
POSITIONS OF THE PARTIES
1. The Employer’s Position
The Panel should find that the evidence on which the Employer bases its determinations not to implement the proposed CWSs for UNICOR staff establishes that the schedule is likely to cause an adverse agency impact, as defined under the Act. The proposed schedules, if implemented, would diminish the level of services furnished to the public and reduce productivity. Addressing first Union Proposal 1, by closing operations 1 day per pay period, the proposed schedule would diminish service to the public. In this regard, the main function of the prison is to provide a "safe and secure environment for the benefit of Federal inmates, as well as for the general public." UNICOR is a "useful inmate management program" that promotes this function by keeping inmates who have a propensity for violent disruption "occupied in a productive manner." Shutting down the institution would idle 575 "high security" inmates (approximately one-third of the inmate population) and might create further unrest since inmates working 1 less day would earn less. The potential for serious security problems would be compounded because inmate idleness would coincide with the staff’s alternating Friday off; on these days, 30 fewer employees would be available to respond to emergencies. Off-day absences might also leave no one to monitor non-UNICOR metal detector posts and sensitive areas within factories.
Regarding business office and warehouse functions, they must be performed every day. These include receiving and issuing merchandise, paying bills and answering customer or vendor telephone calls, and procuring overhead and raw material items. The Union’s contention that CWSs are successful at other UNICOR facilities is unpersuasive because of the small number of participants: "[O]nly 3 UNICOR operations within institutions are on CWSs; they involve a total of 16 positions of which 8 directly impact the manufacturing of articles and supervision of inmates." Moreover, Union Proposal 1 is similar if not identical to a schedule that was proposed for the UNICOR facility at Allenwood, Pennsylvania, and rejected under the review provisions in Article 18 of the MCBA.
With respect to productivity, due to reduced production time under the schedule, UNICOR would likely lose $119,180.64 per year. The calculation is based on a "capacity loss of . . . 620 minutes per month." To overcome such losses, 8 hours of overtime for each inmate and 2 to 8 staff members per department would need to be assigned. Since sustained profit levels are needed to cover salaries of staff and inmates, the predicted losses would have an adverse agency impact on productivity. In a similar vein, any gain from inmates’ working through lunch, if that measure could even be instituted, would be eliminated by the time-consuming need to clear the factory during lunch call and to re-issue tools on inmates’ return. Losses could not be recouped by having inmates work overtime. Generally, inmates do not work overtime except when production losses occur due to emergency situations requiring inmates to be confined away from their work areas, and during monthly financial close-out periods. Furthermore, inmates might be unwilling to make such work schedule changes. Another disturbing consequence for inmates is the likelihood that the schedule would disrupt their ability to meet with unit team counselors and others after work. In addition, inmates’ increased demand for visitors might overwhelm the inmate visiting schedule on alternate Fridays.
Turning to Union Proposal 2, this 5-4/9 CWS also would cause an adverse agency impact for many of the same reasons provided above. Union Proposal 2 would diminish the level of services furnished to the public. In this regard, the adjustments the Union proposes would not solve the problems that the schedule will create. Under the schedule, for example, although the normal staffing ratio is 30 inmates to 1 supervisor, the Sign Factory could be left with a single correctional officer supervising 100 difficult inmates.(7) Such a high ratio would raise the likelihood of an assault to an unacceptable level. Again, even if off days are rotated, staffing shortages caused by RDOs would affect manning metal detectors, monitoring secure areas within factories, and covering for those on leave or attending training. Certain departments such as the Print Plant and the Business Office have small, specialized staffs that cannot be spared on a regular basis. Some of these employees have computer access that cannot be transferred to substitutes. As a result, some departments might have to be shut down on some days or be left dangerously shorthanded. At the Warehouse, daily deliveries and pickups preclude the use of CWSs, even with rotated off days. In addition, the work call, which now occurs at 7:30 a.m., if changed to permit inmates to begin work earlier at the Cable Factory, would double the work of moving inmates in the morning. Similar difficulties would be experienced if inmates’ afternoon schedules were extended because inmates must be in housing units in time for the 4 p.m. count.(8) Furthermore, inmate movement must not be held too early or too late because it is impermissible after dark. Finally, with regard to productivity in the Cable Factory, 1 hour of non-productive time per day under Union Proposal 2 could result in a $62,400 annual loss.
2.The Union’s Position
The Panel should find that the evidence the Employer offers to establish the likely adverse agency impact of its proposals is unconvincing. Regarding service to the public, the Employer currently is able to control inmates on weekends, holidays, and after the normal duty day, when they are idle and staffing levels are at their lowest. Staffing levels on proposed Friday off days would be higher than on weekend and holiday periods because other departmental staff would still be at work on Fridays. Furthermore, "alternative Fridays were chosen due to the large amount of inmate workers who are participating in other institutional programs, i.e., religious services, educational services, drug/alcohol/parenting programs, health services, scheduled/unscheduled appointments, and monthly staff re-calls that fall on Fridays."
As to manufacturing output, the Employer’s estimates of lost productivity are "pure speculation given no actual trial period data." Production might actually increase by 3,321 hours. In this connection, Union Proposal 1 gives the Employer the "flexibility of increasing inmate hours and pay while keeping the same [staffing] level and a possibility of increased production in UNICOR factories." Day-to-day observations by employees who supervise inmates suggest that hours routinely lost from "inmate absences, staff re-calls, short-term institution lock-downs, special counts, and liberal leave days, do not . . . change the production output or sales projections of the factories."
The Employer's contentions of adverse agency impact regarding Union Proposal 2 should also be found insufficient to meet the burden of proof under the Act. Union Proposal 2 contains a number of flexible measures that address the Employer’s concerns about sufficient coverage in each department.(9) For example, to meet the Employer’s concern that business office and warehouse functions be performed every day, Union Proposal 2 provides that these staffs have alternate Fridays off. By rotating employees’ off days, the Employer’s major objection to closing down 1 day per pay period, is resolved. Moreover, the Employer’s plan to attend job fairs in October and November might ease staffing shortages that otherwise make the schedule more difficult to manage. Other flexible measures suggested include slight modifications to the inmate movement schedule that would have "little or no impact on institution operations."(10) Employees on training or week-long assignments would return to a normal 8-hour schedule for that pay period.
Another reason for concluding that the Employer’s concerns are overblown is the fact that over 125 CWSs are in place throughout the BOP. Three of these are at UNICOR operations located elsewhere, demonstrating that a similar schedule can work at Lompoc. At FCI Allenwood, Pennsylvania, for example, employees "work a compressed work schedule which has been approved [through the procedure in Article 18 of the MCBA] and is very similar to the partial schedule of the Cable Factory department at Lompoc.(11)" In addition, bargaining-unit employees are interested in working the schedule. Implementation of the CWS would serve to "improve morale, decrease sick leave, further family ties, and allow staff to better schedule personal appointments." The availability of a CWS would also enhance retention and recruitment. Currently, staffing levels are low because of the community’s high cost of living, higher pay in the civilian sector, and the nature of the job, whose other benefits are minimal. During a trial period, the parties would be able to gather data jointly to evaluate the impact of the schedule.
Under section 6131(c)(2) of the Act, the Panel is required to take final action in favor of the employer’s determination only if the finding on which the determination is based is supported by evidence that a CWS is likely to cause an adverse agency impact. Having considered the record before us, we find that the Employer has met its statutory burden only with respect to Union Proposal 1. The UNICOR function, which keeps inmates productively occupied 5 days a week, contributes significantly to safety and order at Lompoc. Union Proposal 1, however, would close the UNICOR facility an additional 26 times a year. In our view, this clearly would have disruptive effects on inmates, thereby diminishing the level of service to UNICOR’s public. The Union’s attempt to minimize the impact of requiring inmates to take an additional day off every 2 weeks by equating it with the lower staffing levels that exist during evenings, weekends, and holidays, fails sufficiently to consider the unique environment of a Federal prison. In these circumstances, we are persuaded that the importance of maintaining 5-day per week inmate work schedules outweighs the significant benefits that employees would derive from participating in CWS under Union Proposal 1.
As to Union Proposal 2, we find that the Employer has not met its statutory burden because the record does not support a finding that the proposed CWS is likely to diminish service to the public or reduce productivity. Under Union Proposal 2, UNICOR operations would continue during all 10 days of the pay period, thereby avoiding the major defect identified above in connection with Union Proposal 1. Equally significant, in our view, are the existence of successful CWSs at the Allenwood UNICOR, and two other UNICOR facilities, which appear to have been approved by the BOP’s Office of General Counsel. In this regard, the Employer has not convincingly distinguished its circumstances from those at Allenwood, where a CWS similar to Union Proposal 2 currently is in effect. Moreover, many of its arguments seem to confuse administrative burdensomeness, which Union Proposal 2 would undoubtedly cause if implemented without further refinement, with the higher standard of adverse agency impact. For instance, we believe that the exercise of managerial discretion in regulating leave use and training schedules could ensure staffing does not fall to the critically low levels upon which the Employer’s direst predictions appear to be premised. As to the staffing of non-UNICOR posts, the Employer has not attempted to explain why these duties could not be performed by others when UNICOR employees are unavailable. Furthermore, the record supports the conclusion that there are ways to address the Employer’s numerous concerns pertaining to inmates’ schedules and their access to various support activities at the institution if the parties are willing to make adjustments so that the probability of a successful CWS is increased.
We reach the same conclusion regarding the Employer’s prediction that the implementation of Union Proposal 2 would result in annual productivity losses amounting to $62,400. Given the many variables affecting productivity at the facility, without actual experience under a CWS the projected losses cannot be viewed as anything more than speculative. Nor has the Employer refuted the Union’s contention that employees can still be productive, for example, by conducting work area searches, doing paperwork, or attending production meetings, even if inmates are not present.
Because we find that the Employer has not met its burden of showing that Union Proposal 2 is likely to cause an adverse agency impact, we are constrained by the legislative history of the Act to order the parties to return to the bargaining table for additional negotiations. This is done with some trepidation, as our experience suggests that the parties have difficulty engaging in collaborative problem solving. As indicated above, the Employer has raised some legitimate concerns that, though not rising to the level of demonstrating adverse agency impact, nevertheless will have to be addressed during subsequent negotiations if the parties are to avoid another impasse over this matter, this time under the Federal Service Labor-Management Relations Statute. The Union, on the other hand, has provided convincing evidence that affected unit employees solidly support CWS and would do everything in their power to make it work. Both sides are urged to move beyond narrow considerations of their rights under the Act(12) and focus on understanding and accommodating one another’s legitimate interests so that a voluntary settlement may be achieved.
Pursuant to the authority vested in it by section 6131 (c) of the Federal Employees Flexible and Compressed Work Schedules Act, the Federal Service Impasses Panel, under section 2472.11(a)(1) of its regulations, hereby orders the Union to withdraw proposal 1 and under § 2472.11(b) of its regulations, hereby orders the parties to negotiate over Union Proposal 2.
By direction of the Panel.
H. Joseph Schimansky
November 13, 2000
1. Under a 5-4/9 schedule, employees work eight 9-hour days, one 8-hour day, and have 1 regular day off (RDO) each pay period.
2. The informal conference was interrupted half-way through the first day when participants were required to respond to an inmate disturbance elsewhere at the facility. The conference resumed the next day.
3. The factories are: the Sign Factory (street and neon signs); the Print Plant (Government forms and templates); and the Cable Factory (electronic cable, fiber optics and AF Cables). The Employer also operates a warehouse, a quality assurance department, and a business office.
4. On this subject, the Act's legislative history quotes Representative Ferraro as follows:
If the agency's presentation does not convince the Panel that the imposition of the particular alternative work schedule at issue would likely cause an adverse agency impact, the Panel will direct the parties to return to the bargaining table and to continue negotiations of an alternative work schedule. 128 CONG. REC. H3, 999 (daily ed. July 12, 1982).
See also Senate Report on S. 2240, 97th Cong., 2d Sess. (1982) which, as subsequently amended with respect to other matters, was enacted into law as the Act. The Senate Report contains the following:
If the Panel finds there is not sufficient evidence to support a conclusion that an adverse impact will occur, it is expected that the Panel will direct the parties to fully negotiate out the particular schedule and not to simply impose it on the agency. S. REP. NO. 97-365, 97th Cong., 2d Sess. 15-16 (1982).
5. 5 U.S.C. § 6131(b) defines adverse agency impact 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's legislative history clearly indicates that the Employer bears the burden of proving adverse agency impact. S. REP. NO. 97-365, 97th Cong., 2d Sess. at 16.
6.Article 18, Section b, provides that the Office of the General Counsel in the Central Office will review CWS agreements within 30 days of signing. If the agreement is found "insufficient from a technical or legal standpoint" the parties may renegotiate the schedule or exercise statutory appeal rights.
7.Under the Employer's Sign Factory scenario, on Friday in week 1, staff member # 2 is off, staff member # 3 leaves at 3 p.m., and another staff member must be assigned to cover the metal detector. If another employee is away on leave or in training, the ratio of inmates to staff would rise to 100 to 1. On Friday in week 2, three employees take their RDO. The same low staffing ratio is predicted to occur. The Employer states under such circumstances it would close the Sign Factory on those days.
8.The count is essentially a mandatory roll call to ensure that no inmate has escaped.
9.In addition, during the informal conference the Union indicated it would be willing to consider a number of options, including possibly limiting the CWS to the Cable Factory because of the small size and daily operations of the Print Shop, the Sign Factory, and the Business Office.
10.The Union proposes moving inmates some 10 to 30 minutes earlier in the morning and later in the afternoon.
11.At UNICOR Allenwood, employees do not work a paid lunch; instead they begin 15 minutes earlier and end 15 minutes later than the Union proposes in the instant case.
12.In reflecting on the Panel's considerable body of experience evaluating adverse agency impact claims, we note that the framework of the Act appears to encourage parties to focus on their rights rather than their interests when negotiating CWS, and often leads to the early hardening of positions in circumstances where maximum flexibility and creativity is demanded.