United States of America
BEFORE THE FEDERAL SERVICE IMPASSES PANEL
| In the Matter of
DEPARTMENT OF JUSTICE
AMERICAN FEDERATION OF GOVERNMENT
|Case No. 01 FSIP 177|
DECISION AND ORDER
The American Federation of Government Employees, Local 4048, 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, 5 U.S.C. § 7119, between it and the Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution (FCI), Lompoc, California (Employer or FCI).
Following an investigation of the request for assistance, which concerns compressed work schedules (CWS) for three departments at the FCI, the Panel determined that the dispute should be resolved through written submissions from the parties. Thereafter, the Panel would take whatever action it deemed appropriate to resolve the impasse, which could include the issuance of a Decision and Order. Written submissions were made pursuant to this procedure, and the Panel has now considered the entire record.(1)
The Employer operates a 1,000-inmate, low-security prison facility that is collocated with a Federal Penitentiary and Vandenberg Air Force Base (VAFB). It is responsible for programs that include an Immigration Hearing Center and Release Site, an Intensive Confinement Center or Boot Camp for first-time offenders, and a Spanish-English Drug Abuse Program. The Union represents 163 bargaining-unit employees at grades GS-5 through -11, who work in a variety of positions including correctional officer, counselor, case manager, mechanical service worker, teacher, physician assistant, legal instrument examiner, and medical record, accounting, and legal technician.(2) The parties are covered by a master collective bargaining agreement that expired on March 8, 2001; its provisions will continue to apply until its successor is implemented.
ISSUE AT IMPASSE
The parties disagree over whether to implement a 6-month pilot of 4-10 CWSs in the Inmate Systems Management and Unit Management Departments, and a 5-4/9 CWS in the Mechanical Services/Facilities Department.
POSITIONS OF THE PARTIES
1. The Union's Position
Under the Union's proposal, 6-month CWS pilots would be implemented in the following three Departments: (1) Inmate Systems Management - a 4-10 CWS for 6 of the 8 employees with a starting time of 6:30 a.m., and off days on Mondays, Tuesdays, and Fridays; no employees would take off either a Wednesday or a Thursday; and 2 employees would continue to work a 5-8 schedule; (2) Unit Management - a 4-10 CWS for 8 employees with starting times of 6:30, 7:30, and 10:30 a.m., and 3 consecutive off days; because these employees work a Saturday or a Sunday, the proposed off days adjoin a weekend day; (3) Mechanical Services or Facilities (Inside and Outside) - a 5-4/9 CWS for 12 employees who, on 9-hour days, would work from 6:30 a.m. to 4 p.m., and take a Friday or a Monday off; 4 employees would remain on a 5-8 schedule.(3) In emergencies, during training periods, and when an apparent staffing shortage is occurring, the schedules are to be suspended.
By testing these schedules, the parties will be able to "determine if the schedules [are having] an adverse impact to the Agency or if changes need to be made to the schedules which will allow them to meet the Agency's mission."(4) Two other FCIs, one in California and one in Arizona, permit employees who perform similar functions to work CWS. Overall, the schedules will assist the institution with maintaining security, and reduce "peak" hour overtime and sick leave use. On security, the longer hours ensure that staff is present for a greater proportion of the day. These longer days would save money by reducing the need to hold over or recall employees to perform duties on overtime. With respect to sick leave, employees will be able to schedule doctors' appointments on their off days. Furthermore, employees may decide to use an off day to volunteer in the community, which, in turn, would improve local attitudes toward the prison facility. Finally, and most importantly, the schedule "will allow the staff members to spend time with their families."
More specifically, in Inmate Systems Management, the proposed 4-10 CWS schedule accommodates inmate movement days,(5) Wednesdays and Thursdays, by ensuring that CWS participants do not take those days off. The longer days also will facilitate processing "late arriving inmates," thereby saving overtime costs. The schedule permits an afternoon open house to take care of inmates' concerns and "issuing out" inmates' property. Such improved service to inmates will help "decrease tensions at the facility."
For Unit Management, under the proposed 4-10 schedule, the extra hours will allow employees to take care of paperwork on inmates' halfway house placements and transfers, and to prepare for team meetings. As to team meetings, known as "teaming," where a three-person Unit Management team addresses an individual inmate's situation, they will continue to be held throughout the day and during evening hours. With only one or two fewer employees available under CWS than under the current schedule (supervisors, the third member of these teams, would continue to participate in evening teaming though they are not shown on Union's proposed schedule), it is expected that the 25-percent standard for evening teaming will be exceeded under the new schedule. Impromptu, open door availability to inmates the will also continue and such service is also predicted to improve because of the extended hours.
As to the 5-4/9 CWS for Mechanical Services, the current practice of covering another employees' crew when that employee is away on sick or annual leave will work as well to cover a co-worker's off day. By starting the work day at 6:30 a.m., employees would have time to review their crew kit (information on 15 inmates for whom the employee is responsible) and discuss supervisors' suggestions and goals for the day. Currently, lack of such time means employees conduct only a cursory review of their crew kits and speak to their supervisors only briefly. When coupled with some inmates' early arrivals and keeping inmates on the job longer, employees will spend their 9-hour days productively.
2. The Employer's Position
The Employer proposes that the status quo, 5-day-a-week, 8-hour-per-day schedules, be maintained. The Employer is not arguing that the three schedules the Union proposes would cause an adverse agency impact under the Act, and it recently agreed to a CWS for Health Service employees. Retaining a 5-8 schedule, however, is the best way to secure this "unique" facility where the staff is responsible for operating a number of complex programs and handling an inmate population that turns over an estimated three or more times a year. These numerous programs distinguish the Lompoc FCI from almost all other FCIs, including the two the Union cites. At those two facilities where similar functions are performed and CWSs are in place, employees work with female inmates and are responsible for many fewer programs.
With respect to emergencies, even though the FCI is a low security facility, all employees are called upon to provide "reinforcements" to fill posts at the U.S. Penitentiary when it is in a "lock-down" mode. The same is true when there is a major fire threatening VAFB and outlying missile sites, and during frequently-recurring fog patrol periods. In such emergencies, unlike the proposed CWSs, the regular 5-8 schedule ensures that staffing levels are adequate. The proposed CWSs will also reduce staff during "the staffing-intensive portions of the day," and extend work hours to periods when inmates are unavailable; such efforts are not warranted when they merely provide "personal comfort for a few." Furthermore, staff will be stretched more thinly in 6 months when 300 more inmates are added to the population; only 10 employees are to be hired to cover the increase.
In particular, in the Inmate Systems Management Department, the one employee "working early hours . . . has proven sufficient to cover the work load"; under the CWS, too many employees would be present then. Regarding legal instrument examiners, of the two that work at the Lompoc FCI, under the CWS only one would be working on a Monday or a Friday. Overtime would have to be assigned often on Mondays and Fridays when the sole legal instrument examiner is on leave so that their "highly specialized" and "crucial" functions are performed. Their absences will raise overtime costs. Similarly, in Unit Management, night and weekend coverage, a "crucial factor in managing and communicating with inmates," would be too limited, particularly during the weekend when only one member of the Unit Team will be available. The schedule would likely "preclude . . . maintaining compliance with the policy requirement of 'teaming' . . . 25 [percent] of the inmate population during the evening hours." If a 5-4/9 schedule is instituted in Facilities Management, productivity will decrease because employees will be present for 45 minutes in the morning and 15 minutes in the afternoon without any inmates to supervise. Furthermore, increasing reliance on the doubling of inmate work crews on a more regular basis is "ill-advised" since staff supervision would be diminished. In the past, crews have been taken off of jobs when their employee supervisor is unable to observe them at least once every 2 hours. The inmate scheduling changes the Union suggests are not workable since such changes "would require a shifting of staff in other departments."
Finally, employees in the three departments, who are exposed to personal risk, receive benefits that "substantially exceed those of regular civil service employees": retirement after 20 years and a law enforcement rate of pay. When "the presence or absence of five employees on any given day could make the difference in holding or losing control of this institution," it is not fitting to adopt schedules that "for the most part, have been designed for the convenience of the staff involved with minimal thought given to the ramifications to security or productivity."
Having carefully reviewed the evidence and arguments presented in this case, we conclude that the parties' dispute should be resolved by adopting the Union's proposal, as modified herein, establishing pilot CWSs in the Inmate Systems Management, Unit Management, and Mechanical Services Departments at the Lompoc FCI. The modification adds a procedure for the parties' joint monitoring and evaluation of the schedules. In reaching this resolution, we are persuaded that the 6-month pilot is a reasonable approach for testing the workability of the CWSs in the several departments identified. In this regard, the schedules the Union proposes contain certain controls to ensure the institution's security, and to preserve established patterns of inmate movement and teaming meetings. For example, one or more of the schedules may be suspended when staffing levels would otherwise be too low due to annual or sick leave use, training, and outright emergencies that tap staff to reinforce other urgent needs within the complex. In addition, the schedule in Inmate Systems Management does not permit off days on Wednesdays and Thursdays to maximize the presence of employees when most inmate movement occurs. In Unit Management, a review of the proposed schedule provides some support for the Union's position that sufficient staff members are present so that evening teaming can proceed at or above the recommended 25-percent level; nor do Saturday and Sunday staffing levels appear to be as low as the Employer suggests. In Mechanical Services, the system of doubling up, which the Employer apparently still condones despite the problems it alleges, could be used to cover employees' crews on an employee's off day.
While it is unclear at this point whether the advantages the Union sets forth in favor of its proposed CWSs will be realized, the Employer's arguments against implementing any CWS whatsoever in these departments, in our view, consists mainly of speculation regarding their potential ill-effects. In circumstances such as these, where the record developed by the parties contains no data on the actual effects that CWSs have had on such factors as productivity, customer service, or overtime costs, insufficient basis has been provided for denying an experiment which would test the Employer's predictions of dire consequences. We believe such an outcome is consistent with the intent of the Congress in enacting the Act, wherein it found that "the use of flexible and compressed work schedules has the potential to improve productivity in the Federal Government and provide greater service to the public."(6)
Should any aspects of the CWSs prove unworkable, the additional procedures which shall be adopted to evaluate them are designed to facilitate collaborative efforts between the parties to correct such problems. Further, under § 6131(c)(3)(A) of the Act the Employer need not await the conclusion of the 6-month pilot period to attempt to terminate the schedules. If intermediate steps fail to resolve difficulties, the Employer is free to seek relief under the conditions specified in the Act at any time after the schedules have been implemented, should it conclude that one or more of them is causing an adverse agency impact. Upon making such findings, supported by evidence that the schedule has caused adverse agency impact, the Act permits an employer to attempt to terminate the schedule notwithstanding the terms of any collective bargaining agreement (or Panel-imposed resolution). The Panel "shall rule on such impasse not later than 60 days after the date the Panel is presented the impasse."(7)
Pursuant to the authority vested in it by the Federal Service Labor-Management 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 adoption of the following:
1. The Union's proposal for a 6-month pilot of 4-10
compressed work schedules in Inmate Systems Management and
Unit Management, and a 5-4/9 in Mechanical Services (Inside
and Outside). In emergencies, during training periods, and
when an apparent staffing shortage is occurring, the
schedules will be suspended.
2. Procedures for Evaluating a Compressed Work Schedule:
a. 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
b. The schedule will be implemented and after the 6th month,
both parties will meet for the purpose of discussing the
effectiveness of the schedule.
c. All data to be used in monitoring the effects of the compressed work schedule will be provided to the Union prior to implementation (baseline data).
d. A Union representative will be given an active role in the Employer's collection and evaluation of data used to monitor the effects of the implemented schedule.
e. The Union and the Employer 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.
f. The intent of these meetings is to implement corrective action, short of revocation of the schedule, to deal with possible adverse affects.
g. During the meeting after the schedule has been in effect for 6 months, the Employer will provide the Union with a copy of all information that will be provided to the FBOP Office of General Counsel for the purpose of determining an adverse affect, if applicable.
By direction of the Panel.
H. Joseph Schimansky
October 31, 2001
1.In accordance with the Panel's procedural determination letter, the parties' written submissions and rebuttal statements were due on September 14 and 28, 2001, respectively. While the Union's statements were filed on time, the Employer failed to respond within the specified time limit. Following telephone inquiries by Panel staff and the Executive Director, a written statement was received from the Employer on October 11, 2001, 13 days after the final due date, with the explanation that, during this period, the statement was under review by the warden. The Union agreed to permit the Employer to submit its response late and was given an opportunity during a conference call held on Friday, October 12, 2001, between the parties and the Panel's Staff to rebut the Employer's post-deadline submission.
2.Another AFGE local represents employees at the Federal Penitentiary.
3.Inmate Systems employees receive and discharge prisoners and calculate the time inmates must serve. Employees in Unit Management work directly with inmates to schedule work, visitors, handle inmate problems, etc. Currently, their starting times are staggered to increase the time period when they are able to meet with inmates; the standard set by the Employer is to hold team meetings with 25 percent of inmates during evening hours. Mechanical Services employees supervise inmates who perform repair and other maintenance work at the FCI.
4.Under section 6131(c)(2) of the Federal Employees Flexible and Compressed Work Schedules Act of 1982 (the Act), an employer may allege that the implementation of a CWS would cause an adverse agency impact. In such a case, an employer has a burden of proof to establish an adverse agency impact under the criteria of the Act. Those criteria do not play a role in a weighing of the evidence in this case since it arises under the Statute rather than the Act. Under Section 6131 (b) of the Act, adverse agency impact means:
(1) a reduction of the productivity of the agency;
(2) a diminished level of 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 schedule).
5.The term "movement" refers to times and activities associated with inmates arrivals and departures at the FCI.
6.5 U.S.C. § 6120.
7.5 U.S.C. § 6131(c)(3)(C).