United States of America
BEFORE THE FEDERAL SERVICE IMPASSES PANEL
|In the Matter of
DEPARTMENT OF JUSTICE
LOCAL 4047, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO
Case No. 03 FSIP 62
DECISION AND ORDER
The Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution (FCI), White Deer, Pennsylvania (Employer), filed a request for assistance with the Federal Service Impasses Panel (Panel) pursuant to the Federal Employees Flexible and Compressed Work Schedules Act of 1982 (Act), 5 U.S.C. § 6120 et seq., to resolve an impasse between it and Local 4047, American Federation of Government Employees, AFL-CIO (Union), arising from its finding that a 4/10 compressed work schedule (CWS) for certain employees in the Correctional Services Department is causing an adverse agency impact and, therefore, should be terminated.
Following an investigation of the request for assistance, the Panel determined that the impasse should be resolved through an informal conference with Panel Member Richard B. Ainsworth. The parties were informed that if no settlement was reached during the informal conference, Member Ainsworth would notify the Panel of the status of the dispute. The notification would include, among other things, his recommendation for resolving the matter. After considering this information, the Panel would take final action in accordance with 5 U.S.C. § 6131 and 5 C.F.R. § 2472.11 of its regulations. The parties were reminded that under the Act, the Employer bears the burden of demonstrating that the 4/10 CWS at issue has caused an adverse agency impact under at least one of the three criteria specified therein.(1) The Union also was directed to submit a statement responding to the arguments and evidence provided by the Employer in its request for assistance in support of its finding.
Accordingly, the Union submitted its statement, and an informal conference was conducted at the Panel’s offices in Washington, D.C., between the parties and Member Ainsworth on March 5, 2003, but a settlement of the dispute was not reached. The parties were provided an opportunity to submit supplemental post-conference statements of position. The Panel has now considered the entire record, including the parties’ submissions and Member Ainsworth’s recommendation for resolving the dispute.
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. The FCI in this case is a medium security prison that houses approximately 1,400 inmates. The Union represents about 235 employees, mainly correctional officers, at grades GS-5 through -11, WG-5 through -9, and WS-7 through -11. There are 129 non-supervisory positions in the Correctional Services Department, which operates 24 hours per day, 365 days per week. The option of working the CWS has been available to employees in Correctional Services since April 2001. Currently, 70 employees are on 4/10 CWS posts, 39 work 8-hour days, and the rest provide relief to both compressed and non-compressed posts. The parties are covered by a master collective bargaining agreement (MCBA) that expired on March 8, 2001; its provisions will remain in effect until a successor agreement is implemented.
ISSUE AT IMPASSE
The issue before the Panel is whether the finding on which the Employer has based its determination to terminate the 4/10 CWS in the Correctional Services Department is supported by evidence that the schedule is causing an adverse agency impact.
POSITIONS OF THE PARTIES
1. The Employer’s Position
The Panel should find that the evidence on which the Employer bases its determination to terminate the 4/10 CWS establishes that the schedule is causing an adverse agency impact as defined under the Act. In this regard, "at a minimum, the CWS has increased the cost of agency operations by at least $179,159.40, reduced productivity, diminished management’s flexibility, and increased the threat to staff, inmates, and public safety." In terms of cost, evaluative data comparing 12- to 18-month periods prior to and after the implementation of the CWS demonstrate increases attributable to the CWS in at least the following six areas: (1) overtime ($14,357); (2) holiday pay ($42,445); (3) Sunday premium pay ($28,135); (4) night differential pay ($3,236); (5) lost productivity ($50,986); and (6) the creation of a position because of the complexity of administering the CWS ($40,000).
Overtime increases were calculated by analyzing time sheets in Correctional Services from the pre-CWS period of April 1999 through October 2000, and the CWS period of April 2001 through October 2002. The higher costs are not surprising because the CWS "increases overtime by 2 hours for every CWS 10-hour post filled by overtime." It determined the increase in holiday pay by multiplying 2 hours of additional holiday pay for 70 CWS posts times 10 holidays, and adding the cost of moving the holidays of 23 CWS posts to an alternate workday, as required by law. The cost of Sunday premium pay went up primarily because applicable Government-wide regulations require a 25-percent premium to be paid for all hours of duty when any part of an employee’s tour falls on a Sunday. In this connection, the implementation of the CWS "affected the start and stop times of numerous posts, to include shifts beginning prior to 6 a.m. or ending after 6 p.m., and caused a portion of a shift either to begin or end on a Sunday."
Increases in night differential payments occurred, once again, due to the operation of Government-wide regulations which mandate that employees who work between the hours of 6 p.m. and 6 a.m. receive an additional 10 percent of their annual rate of pay. As to lost productivity, currently "five of the 10-hour positions established under the CWS actually overlap other positions for 2 hours." Thus, some employees are working posts requiring only 8 hours of coverage (e.g., Front Entrance and Special Housing Recreation posts), creating 50 hours a week "where the employee has no specific job assignment." The Employer calculated the amount of lost productivity attributable to this aspect of the CWS by multiplying the number of hours lost times each employee’s hourly rate of pay. Turning to the last area of increased costs it identifies, the Time and Attendance (T&A) clerk position was created solely because of the CWS, and $40,000 in salary would be saved if the CWS is terminated.
The FCI has a budget deficit of over $542,000, faces an additional budget reduction of 2.9 percent, and must vacate 29 out of 287 authorized positions due to the FBOP’s "mandated 90 percent funding level for all staff positions." Given its overall financial situation, and "the Union’s rejection of management’s offer of a reduced CWS," its "only option" is to attempt to terminate the CWS. The reduction in costs resulting from elimination of the CWS would allow additional positions to be filled, and stop the chain reaction which currently exists whereby management has to detail employees from other areas of the institution to maintain the necessary safe staffing level of 98 percent within Correctional Services, thereby diminishing the services that other departments provide to their customers. Its termination also would eliminate the root cause of the "lack of consistency, poor communications, and inefficiency which has created low morale among the Correctional Services staff." Finally, there is little merit to the Union’s argument that increases in cost are primarily the result of promotions, within grade increases (WGIs), and quality step increases (QSIs), rather than CWS. The Employer has accounted for these factors in its calculations and demonstrated that they are minimal compared to the increases in premium pay hours caused by the CWS.
2. The Union’s Position
The Panel should find that the Employer has not met its statutory burden under the Act, and permit the 4/10 CWS in Correctional Services to continue. There are alternative explanations for all the increased costs that management alleges have been caused by the CWS. Among the most important is the effect of promotions, WGIs, and QSIs, which the Employer refused to account sufficiently for in its monetary totals. In addition, while it states that it subtracted all the overtime, holiday pay, night differential, and Sunday premium pay spent on 11 temporary positions which existed during the time the CWS has been in effect, in fact, "much of the CWS time frame management did not fill all of those temporary positions," even though 11 "posts" were filled, often by higher salaried permanent employees. As a result, the figures the Employer presents do not permit a "true and fair comparison" between the non-CWS and CWS periods with respect to cost. Moreover, where expenditures have increased, the responsibility rests with the Employer for not permitting actions to be taken which would have prevented this from occurring.
To illustrate some of the fallacies in the Employer’s argument, its overtime totals include 126 (out of 487) hours of overtime during the 18-month CWS period which were paid to settle a grievance and, therefore, are not attributable to CWS. Its calculations also do not include a 6-month period prior to the start of the CWS, which was likely omitted because it does not help the Employer’s case. Since there is little employee turnover, the work force earns progressively higher amounts of annual leave each year, resulting in increased annual leave use; sick leave use has increased as employees have became familiar with their rights under the Family Friendly Leave Act. These factors, which have nothing to do with the CWS, require additional overtime, and account for the increases the Employer is attempting to blame on the CWS. Furthermore, when the CWS was implemented in April 2001, the parties agreed to revert to 8-hour shifts during holidays. Subsequently, the previous Warden decided he would rather absorb increased holiday pay than switch back to 8-hour shifts during weeks with holidays. The current Warden has refused the Union’s offer to abide by the original terms of the parties’ CWS agreement. Thus, the Employer has made it impossible for the Union to decrease holiday pay. Additionally, the Employer’s calculations of increased holiday costs fail to account for an 11th holiday which unexpectedly occurred during the CWS period, so the actual increase is closer to $25,000.
While it agrees that Sunday premium pay increased by about $27,000 during the CWS period, this minimal amount is caused by the requirements of law, rather than the CWS, and offset by the money that it claims the CWS has saved since it went into effect, and an increase in the morale of employees. The Employer has provided no evidence of increased hours between 6 p.m. and 6 a.m. under the CWS, which "covers the exact same amount of posts as the non-CWS," to support its allegations concerning higher night differential costs. Any increase in the payment of night differential, therefore, is attributable solely to increases in promotions, WGIs, and QSIs. As to the contention that the CWS results in some employees working 10-hour shifts in posts requiring only 8 hours of coverage, there were even more nonproductive hours prior to the CWS than during it. In this regard, the CWS actually saved 234 hours over the 18-month period from April 2001 through October 2002. When the Union offered during the informal conference to eliminate all but 20 of the 50 hours per week the Employer alleges are wasted under the CWS, the Employer refused. This leads to a question regarding the Employer’s real motivation in ending CWS rather than attempting to fix it.
It is the Employer who insisted on a T&A clerk during previous negotiations as a condition for implementing the CWS, thereby creating a position which is unnecessary. Moreover, the use of new computer software to track T&A makes the job easier. In any case, staffing levels within Correctional Services did not increase by one as a result of "creating the T&A position," so the position did not cost the Employer any more money. The Employer also raises a new argument for the first time in its post-conference submission, contrary to instructions provided to the parties, that three positions were "lost" during the conversion to the CWS, so this contention should be given no credence. Nor should the Employer’s allegation that the relief roster of non-custody staff is regularly used because the CWS limits custody staff availability, diminishing the level of service provided to the customers of non-custody staff. In this connection, the Warden recently announced that the relief roster will no longer be used as of April 23, 2003. This shows that the relief roster was only needed to cover the 11 posts that management created when it was given the 11 temporary positions, but failed to eliminate after those positions went out of existence, and had nothing to do with the implementation of the CWS.
Under section 6131(c)(3) of the Act, the Panel is required to take final action in favor of an employer’s determination if the finding on which the determination is based is supported by evidence that a CWS has caused adverse agency impact. As its Legislative History makes clear, Panel determinations under the Act are concerned solely with whether an employer has met its statutory burden. It also establishes that in hearing both sides of the issue, the Panel is not to apply "an overly rigorous evidentiary standard," but must determine whether an employer has met its statutory burden on the basis of "the totality of the evidence presented."(2)
Having considered the record before us, we are persuaded that the Employer has met its statutory burden. By the Union’s own admission, at the very least, the current CWS has caused the cost of holiday pay and Sunday premium pay to increase by approximately $25,000 and $27,000, respectively. In addition, employees at five posts currently work 10-hour shifts where only 8 hours of coverage are required, which equates to $50,000 in salary and benefits for which the Employer receives no return on its investment. In our view, these costs are significant, and cannot be dismissed simply because they are required by law or Government-wide regulations. It is regrettable that the parties were unable to reach a compromise, either bilaterally or with the Panel’s assistance, which would have preserved the ability of some employees to continue the CWS. Nevertheless, consistent with the requirements of the Act, we shall order that the CWS in Correctional Services be terminated.
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(b) of its regulations, hereby orders that the 4/10 CWS in the Correctional Services Department be terminated.
By direction of the Panel.
H. Joseph Schimansky
March 31, 2003
1. 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).
2. See the Senate Report, which states:
The agency will bear the burden in showing that such a schedule is likely to have an adverse agency impact. This burden is not to be construed to require the application of an overly
rigorous evidentiary standard since the issues will often involve the imprecise matters of productivity and the level of service to the public. It is expected the Panel will hear both
sides of the issue and make its determination on the totality of the evidence presented. S. REP. NO. 97-365, 97th Cong., 2d Sess. at 15-16 (1982).
The agency will bear the burden in showing that such a schedule is likely to have an adverse agency impact. This burden is not to be construed to require the application of an overly rigorous evidentiary standard since the issues will often involve the imprecise matters of productivity and the level of service to the public. It is expected the Panel will hear both sides of the issue and make its determination on the totality of the evidence presented. S. REP. NO. 97-365, 97th Cong., 2d Sess. at 15-16 (1982).