DEPARTMENT OF JUSTICE FEDERAL BUREAU OF PRISONS FEDERAL CORRECTIONAL INSTITUTION MILAN, MICHIGAN and LOCAL 1741, 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 1741, AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES, AFL-CIO
Case No. 01 FSIP 82
DECISION AND ORDER
The Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution (FCI), Milan, Michigan (Employer) 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), 5 U.S.C. § 7119, between it and Local 1741, American Federation of Government Employees, AFL-CIO (Union).
Following an investigation of the request for assistance, arising from negotiations concerning safety-toed footwear, overtime scheduling, and total leave year scheduling, the Panel determined that the dispute should be resolved through an informal conference by telephone with Panel Member Marvin Johnson. The parties were informed that if no settlement were reached, Member Johnson would notify the Panel of the status of the dispute, including the parties’ final offers and his recommendations for resolving the impasse. The Panel would then resolve the dispute by taking whatever action it deemed appropriate, which could include the issuance of a binding decision.
In accordance with the Panel’s procedural determination, Member Johnson conducted an informal telephone conference on July 24, 2001. Although the parties spent time exploring settlement options during the teleconference, they were unable to resolve their dispute. Member Johnsonhas reported to the Panel, and it has now considered the entire record, including the parties’ post-conference summary statements of position.
The Employer operates a minimum-security Federal prison in Milan, Michigan, which houses inmates convicted of non-violent crimes. The Union represents approximately 300 bargaining-unit employees who work in such positions as correctional officer, carpenter, case management worker, food service worker, educational technician, and recreation specialist at grades GS-6 through -11 and WG-6 through WG-8. The parties’ master collective bargaining agreement (MCBA) expired on March 8, 2001, but was extended while the parties are engaged in successor negotiations.
ISSUES AT IMPASSE
The parties basically disagree over whether: (1) safety-toed footwear should be provided to all unit employees; (2) overtime scheduling should be based on the total number of assignments to date; and (3) annual leave should be scheduled through one round of bids or three.
POSITIONS OF THE PARTIES
1. Safety-Toed Footwear
a. The Union’s Position
The Union proposes that all uniformed staff be issued safety shoes. By applying its Institution Supplement (Supplement), which defines the facility’s foot hazard areas, the Employer is jeopardizing the safety of employees. Inmates in every work detail at the facility are issued safety-toed footwear regardless of whether they work in areas designated as foot hazard areas, and staff directly supervise the work of the inmates. By issuing safety-toed footwear to inmates but not the staff, management is "grossly disregarding" the safety of staff and favoring the safety of inmates. Moreover, because uniformed staff must respond to emergency call-out and must "pass through" areas designated as foot hazard areas, they should be issued safety-toed footwear. Until the Employer changed the policy 2 years ago, the FCI had a 20-year practice under which all uniformed staff received safety-toed footwear. While this change was presumably prompted by an increase in safety at the FCI, the Employer will not permit OSHA to inspect the facility. Finally, the issuance of safety-toed footwear to all uniformed staff will enlarge the pool of employees to whom management may assign work in designated foot hazard areas, and thereby decrease work assignment disruptions.
b. The Employer’s Position
The Employer essentially would have the Panel order the Union to withdraw its proposal. Article 28, Section g, of the MCBA requires the Employer to issue safety-toed footwear to uniformed or non-uniformed employees who work in designated foot hazard areas. Furthermore, Article 9 of MCBA prohibits "local supplemental agreements" from conflicting with the MCBA. While contending that the application of the Supplement has created unsafe conditions for employees at the facility, the Union at the local level waived its right to bargain over the Supplement. The Supplement was issued in September 1998 and since that time twice has been subject to annual review at the local level. During an August 1999 review, the Union advised management that there were "no issues" over which to negotiate. The Union was again presented the Supplement in December 2000, but waived its right to negotiate by failing to present proposals and commence negotiations within 30 days, as required by the parties’ MCBA. Thus, because the Union waived its bargaining rights, "the identified list of designated foot hazard areas must stand, consistent with the parties’ earlier agreement."
On this issue, we must address at the outset the Employer’s allegation that the Union has waived its right to negotiate over the designation of foot hazard areas identified in the Supplement, which would automatically entitle certain employees to safety-toed footwear under the terms of the parties’ MCBA. Although this jurisdictional issue was introduced for the first time during the informal conference, it is well settled that either party in a dispute before the Panel may raise a duty-to-bargain question at any stage of the proceedings. Having carefully considered the Employer’s waiver allegation, we conclude that it is non-frivolous and that the Panel is not the appropriate forum for its resolution. Therefore, we shall decline to retain jurisdiction over this issue. While it is unclear whether the Union can, or should, pursue the matter under the negotiated grievance procedure or in the unfair labor practice forum, the Panel’s determination to decline to retain jurisdiction is without prejudice to the right of either party to file another request for assistance at such time as the aforementioned threshold question has been resolved and an impasse has been reached on the substantive issue.(1)
2. Overtime Scheduling
a. The Union’s Position
The Union proposes that employees be required to sign up for overtime in a bound ledger maintained for that purpose; a separate log showing the total number of overtime hours worked and/or declined by employees would be maintained with the bound ledger and jointly audited on a weekly basis; employees with the least number of overtime hours "to date" would be selected first for overtime assignments; employees who sign up for, but decline, an overtime assignment would have the number of hours for the declined shift added to the log showing employees’ cumulative overtime credit. Finally, the cumulative log would be renewed every 2 years.
Under the MCBA, selection of bargaining-unit employees for overtime must be made on a "fair and equitable" basis.(2) The current practice violates the MCBA because selection essentially is made on a "first to sign up, first selected" basis. The sign-up sheet is posted during the Morning Watch (M/W), so employees on that shift have essentially "monopolized" overtime assignments. In addition, the sign-up sheets have at times been subject to tampering; maintaining the sign-up list in a separate bound ledger would prevent "loose pages" containing the names of overtime volunteers from mysteriously turning up missing. The use of a separate cumulative log would enable supervisors to identify and select the employee with the least overtime hours for a specific overtime assignment, and thus ensure that overtime assignments are equitably rotated in accordance with the MCBA. Jointly auditing the logbook on a weekly basis would ensure the accuracy of the total overtime hours worked and/or declined by each employee.
b. The Employer’s Position
The Employer proposes that, for the Correctional Services posts: a sign-up sheet be posted by the M/W Operations Lieutenant on Sunday each week prior to commencement of the M/W tour for overtime assignments in the upcoming week; one sign-up sheet would be used for all overtime assignments; employees on the M/W would have first opportunity to sign up, and would volunteer for a specific shift/day; the form would have to be completely filled out; the sign-up sheet would be taken down and filed each Saturday night; staff would not be allowed to make changes to the form; staff would be selected in the order in which they signed up; to ensure equitable distribution, employees at the top of the list who have worked overtime during the week would not be selected "until the employee below him/her has received at least one overtime assignment"; employees contacted for overtime would respond "Accepted," "Rejected," or "No Answer"; any employee who signs up for but rejects an overtime assignment would be moved to the bottom of the list; the Employer would retain discretion to assign mandatory overtime in the event an employee calls in sick, or requests emergency annual or FMLA leave; if the post cannot be filled using this process, the Employer would announce to all employees on duty the availability of an overtime assignment; if no employee volunteers, the employee with the least seniority on the current shift would be assigned the overtime tour; if the selected employee has already worked a "double shift," the employee with the next least seniority would be selected; the assignment of mandatory overtime would be recorded.
The Union has not demonstrated that overtime assignments currently are not distributed in an equitable manner or that a minority of employees "monopolize" overtime assignments. As such, there is no need to alter the status quo. In addition, the Union’s proposal does not meet the requirements of the MCBA that overtime assignments be rotated equitably. In this regard, "to implement the Union’s idea, calling for a separate roster of staff who have previously worked overtime and the amount of overtime they had worked at any given point, would produce a situation where management officials [would have] to constantly make ‘judgment calls’ with respect to who to ‘pass over’ on any given sheet, presumably because they had already worked some amount of overtime and someone below them had not worked as much, or any at all." The Union’s proposal is also unrealistic because there are too many possibilities under which management would be forced to bypass employees on the list and direct mandatory overtime.
Upon careful consideration of the record presented by the parties on this issue, we shall order the adoption of compromise wording to resolve their impasse. We first note that an assessment of the merits of the dispute is particularly difficult given that the parties proffered little evidence to support their respective positions. For example, neither party has provided a statistical breakdown of actual overtime assignments to date to substantiate their opposing views as to whether certain employees have monopolized such opportunities. Nevertheless, we are persuaded that, under the current system, employees on the M/W, who have the first opportunity to sign up for overtime assignments, are disproportionately selected for overtime. Moreover, the Employer’s attempt to address the Union’s concern in its final offer appears to be an admission that there is some merit to the Union’s contention. The Union’s proposal, however, is defective because it is far less comprehensive than the Employer’s with respect to setting forth the mechanics of the overtime selection procedure to be used.
For these reasons, we favor a compromise approach which generally adopts the overtime selection procedure proposed by the Employer, but on the key point of how overtime assignments are distributed, requires the parties to maintain a separate log or list containing employees’ cumulative overtime credit, and mandates that employees with the least amount of overtime credit be the first ones selected for overtime assignments for which they have volunteered. To ensure its accuracy, the overtime credit log will be jointly reconciled each week. The Employer’s contention that the Union’s approach would require management officials to "constantly make ‘judgment calls’ with respect to who to pass over on any given sign-up sheet" is unpersuasive. The basis for this contention was not adequately explained either during the informal conference or in its written statement, and the contention is difficult to understand given that the weekly cumulative log proposed by the Union will provide supervisors with objective data from which the relative overtime credit of employees may be easily gleaned. In our view, such a procedure should result in little administrative burden to the Employer while ensuring that overtime assignments are equitably distributed among employees who volunteer to work them.
3. Total Leave Year Scheduling
a. The Union’s Position
The Union proposes that the status quo be maintained, i.e., employees would be entitled to select their entire annual leave entitlement each year (up to 5 weeks for the most senior employees) by seniority in a single round. The current selection procedure ensures that annual leave selections are based on seniority, consistent with Article 19, Section e, of the parties’ MCBA.(3) There is no provision in the MCBA for annual leave selection to be based on "rounds," as the Employer proposes, and such a selection method would violate the MCBA. Seniority is the "prevailing method used in resolving conflicts in selections in all case law except where emergency or severe interference with the safety and security of the institution may occur." In addition, the Employer has improperly sought to discourage Union membership and circumvent the MCBA by advising less-senior employees that they would not be able to select leave during the summer months for several years.
b. The Employer’s Position
The Employer proposes selection of annual leave in three rounds for all departments:(4) During the first round, the senior-most employee would choose any two (2) weeks of annual leave, and selection would proceed in descending order of seniority; a second round would then be conducted in the same manner until each employee had selected another two (2) weeks of annual leave; a third and final round would then be conducted in the same manner for the remaining one (1) week of annual leave. Under the current selection procedure, the senior-most employees select the most desired vacation slots, e.g., during summer months, and force junior employees to take annual leave at less desirable times of the year (non-summertime). The proposal distributes the most desired annual leave slots in a more equitable manner among all bargaining-unit employees, will increase the Employer’s recruitment and retention efforts, and improve morale among all employees. Contrary to the Union’s contention, the MCBA does not prohibit a selection procedure that results in the distribution of more desirable annual leave slots to a larger pool of bargaining-unit employees, so long as the selections are based on seniority. The proposal is consistent with previous Panel decisions which have adopted selection procedures which more equitably distribute annual leave among bargaining-unit employees.(5)
After thoroughly considering the parties’ final offers on annual leave scheduling, we are persuaded that the impasse should be resolved on the basis of compromise wording discussed during the informal conference. Preliminarily, as we also noted with respect to the last issue, our analysis of the merits of the parties’ positions is made more difficult by the absence of significant substantiating evidence in the record before us. Instead, the parties chiefly rely on arguments which for the most part are unsupported. For example, the Employer contends with little evidentiary basis that it has experienced morale, recruitment, and retention problems on account of the current annual leave selection process. Neither party provides specific information regarding past annual leave scheduling to establish whether less senior employees are routinely denied prime vacation periods. In addition, the Union strenuously maintains, but fails to demonstrate, how a selection procedure based on "rounds," as advocated by the Employer, would violate the seniority provisions in the MCBA.(6)
Notwithstanding these deficiencies, the Panel’s mandate is to bring finality to the collective bargaining process even in a circumstance such as this where the record is incomplete. On balance, we believe that a procedure based on seniority which permits employees to bid twice on annual leave slots, the first round for up to 3 weeks of annual leave, the second for up to 2 weeks, would ensure that the interests of both parties are accommodated: the Union’s in protecting the seniority rights of bargaining-unit employees, and the Employer’s in enhancing employee morale, and in recruiting and retaining employees to enable it to effectively carry out its mission. In our view, the broader distribution of annual leave scheduling opportunities that would occur using this approach is unlikely to have a significant impact on many senior employees. One of the few things the record does establish is that a majority of unit employees accrues 4 weeks of annual leave per year, so they will be able to select 75 percent of their leave at the most desirable times of the year. Finally, we shall order that the compromise apply only to employees in the Correctional Services Department. The Employer’s belated attempt to expand the scope of the Panel’s jurisdiction over this issue to include all of the departments at the facility must be rejected because it appears from the record that the parties’ previous bargaining over annual leave scheduling concerned only that department.
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 following:
1. Safety-Toed Footwear
The Panel declines to retain jurisdiction over the Union’s proposal.
2. Overtime Distribution
The parties shall adopt the following wording:
For Correctional Services posts: the M/W Operations Lieutenant will post a sign-up sheet on Sunday each week prior to commencement of the M/W tour for overtime assignments for the following workweek; one sign-up sheet will be used for all overtime assignments; during the workweek, employees will sign up for a specific day/shift; the sign-up sheet must be completely filled out, and will be taken down and filed each Saturday night; staff will not be allowed to make changes to the sign-up sheet; to ensure equitable distribution, a separate log showing employees’ cumulative overtime credit will be maintained with the sign-up sheet; at the commencement of each fiscal year only, overtime assignments will be made based on seniority, the most senior qualified employee being offered overtime first; for the remainder of the fiscal year, the employee with the least amount of overtime credit will be selected for overtime assignments for which the employee has volunteered; in the event two or more qualified employees have the same amount of overtime credit, the overtime assignment will be offered to the senior-most qualified employee; employees contacted for overtime will respond "Accepted," "Declined," or "No Answer"; an employee who signs up for but declines or is unavailable