DEPARTMENT OF JUSTICE FEDERAL BUREAU OF PRISONS FEDERAL CORRECTIONAL INSTITUTION BIG SPRING, TEXAS and LOCAL 3809, 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
LOCAL 3809, AMERICAN FEDERATION OF
DECISION AND ORDER
Local 3809, 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), 5 U.S.C. § 7119, between it and the Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution (FCI), Big Spring, Texas.
Following an investigation of the request for assistance, arising from negotiations over portions of an agreement on a pilot 5-4/9 compressed work schedule (CWS) in the Education Department,(1) the Panel determined that the impasse should be resolved through an informal conference by telephone with a Panel representative. The parties were advised that if no settlement was reached, the representative would report to the Panel on the status of the dispute, including the parties’ final offers and his recommendations for resolving the matter. After considering this information, the Panel would take whatever action it deemed appropriate to resolve the impasse, including the issuance of a binding decision.
Accordingly, Panel Member Mark A. Carter conducted a teleconference with the parties’ representatives on October 4, 2003; although the parties resolved two issues,(2) three others remain unresolved. Mr. Carter has reported to the Panel regarding the parties’ final offers on the issues, and it has now considered the entire record.
The Employer operates a low security facility, and a Unicor factory where inmates manufacture light carts for the military. The facility is also an immigration hearing site; 50 percent of the inmate population is awaiting immigration hearings. The Union represents 216 bargaining-unit employees who work in positions such as correctional officer, case manager, inmate system manager, teacher, physician’s assistant, and legal and accounting technician, at grades GS-5 through -11 and WS-3 through -5. The affected employees in the Education Department include seven teachers, an education technician, and a vocational training coordinator; an eighth teacher position is vacant. The master collective bargaining agreement (MCBA) covering these parties expired on March 8, 2001; its terms continue in effect until negotiations over a successor agreement are completed.
ISSUES AT IMPASSE
The parties disagree over three matters pertaining to the 5-4/9 CWS: (1) participants’ RDOs; (2) essentially, the extent to which, in assigning schedules, the roster committee will apply the recommendation in the MCBA that seniority be used when considering the schedule preferences of employees in the Education Department; and (3) basically, whether the education technician will participate in the monthly Saturday rotation, or the rotation will be based on an earlier agreed upon schedule.
POSITIONS OF THE PARTIES
1. The Employer’s Position
Under the Employer’s proposal, on the first issue, all CWS participants would take either a Tuesday, Wednesday, or Thursday RDO. On the second issue concerning the roster committee, it proposes the following wording:
Management agrees to establish a roster committee to determine schedules which includes schedule rotation which will meet yearly. The roster committee will consider preference requests in order of seniority and will make reasonable efforts to grant such requests. Reasonable efforts means that management will not arbitrarily deny such requests. Employees will rotate from schedule to schedule until all have been worked that correspond to their work schedule (CWS/NON-CWS) before returning to the previous schedule. [Only the highlighted wording is in disagreement.]
As to the third issue regarding the Saturday rotation, the "weekend schedule shall be rotated through all bargaining unit staff."(3)
Preliminarily, addressing issue 1, the first duty of all staff, because they are correctional officers, is to "share responsibility for maintaining a safe and secure environment for inmates and staff"; in the case of teachers, the educational functions they perform are subordinate. To this end, among other things, all FCI employees are trained in firearms techniques. Although FCI Big Spring is a low-security facility where inmates may "move throughout the institution, attending various educational and recreational programs," it "has a long history of violent disturbances that have resulted in injury to inmates and staff." As a result, for those working the 5-4/9 CWS, their RDOs must be limited to the 3 mid-week days to ensure that sufficient staff is available on Mondays and Fridays in the event that a disturbance arises.
Management has already approved Mondays off for employees working the Saturday rotation in the Education Department, and as many Mondays and Fridays off as it believes it safely can for other unit employees working CWS elsewhere at FCI Big Spring. Currently on those days, institution-wide, staffing is at its lowest, with 43 employees off, in part because of "historically  high leave usage" on Mondays and Fridays. By contrast, on Tuesdays, Wednesdays, and Thursdays, only 32, 29, and 28 employees, respectively, are off. When sufficient staffing levels are maintained, inmates are adequately occupied, the staff is "visible  at all times," and the likelihood of disturbances is reduced. In a recent deadly escape at a state prison in Texas, "inadequate supervision" was noted as a prime causal factor. Other institutions – Allenwood, LaTuna, Lompoc – that the Union cites as having comparable practices of granting employees Monday and Friday RDOs, are far less isolated than FCI Big Spring, which is 2 hours from the nearest facility capable of providing assistance in an emergency.
As to issue 2, rotating weekday assignments is more equitable to less senior staff, and gives all staff an opportunity "to become familiar with the events occurring within the institution throughout the week." In addition, the rotation "minimizes stagnation and lowers the risk of inmate manipulation of staff." Finally, on issue 3, consistent with Bureau of Prisons Program Statements 1315.07 and 1542.06, "inmates [are to] have access to the Law Library whenever practical, including evening and weekend hours." The Saturday rotation essentially implements this policy. Because the "work is primarily a correctional responsibility, [it] can be accomplished by any Education Department staff member," including the educational technician.
2. The Union’s Position
The Union proposes that, for the group of employees currently asking to be placed on the 5-4/9 CWS, the third day off (issue 1) be:
Monday or Friday. The number of teachers scheduled off on Monday or Friday shall not exceed two each day, and the staff member requesting to be added to the schedule shall choose between Tuesday, Wednesday, or Thursday for their day off.
On the subject of the roster committee (issue 2),(4) it shall be established "in accordance with the MCBA."(5) When the committee considers preference requests, the parties have proposed comparable wording on seniority and making "reasonable efforts to grant such requests." To clarify the meaning of "reasonable efforts," the Union proposes the following addition: "Reasonable efforts means that Management will not arbitrarily deny such requests in accordance with the provisions of the collective bargaining agreement" [emphasis added]. As to the Saturday rotation (issue 3), the Union proposes that "the weekend shift  rotate on a monthly basis determined by an earlier agreed upon schedule."(6)
Regarding issue 1, the initial five participants should be permitted a Monday or Friday RDO, their preference, because it is more "family-friendly." Clearly, the Employer has not demonstrated that one or two fewer employees in the Education Department or at the institution on those days would measurably affect the facility’s security.(7) Its security concerns are speculative. This is underscored by the Employer’s release of 34 managers to attend a training class on a Friday in October, and that similar facilities elsewhere grant their employees Monday and Friday RDOs. At those institutions, help is not solicited, as the Employer contends, from other places in emergencies. Furthermore, of the six most serious incidents at FCI Big Spring, none occurred during regular hours on a Monday or Friday. To accommodate Employer’s concerns, however, future CWS participants would be assigned mid-week days off. On issue 2, the roster committee ought to use seniority because it is the method generally agreed upon in the MCBA for assigning schedules. In no way should the rights inherent in that agreement be waived.
As to issue 3 on the Saturday rotation, while the Employer’s right to assign work to all employees is acknowledged, the position description of the teachers indicates that they are to work evenings and weekends, but the position description of the educational technician does not. Her work involves testing and certain clerical duties; she has no training in supervising inmate tutors, a task that would arise on Saturdays. Moreover, she is known for her cooperative spirit, regularly making herself available when asked to fill in for last-minute absences; her dependability in those circumstances should be rewarded, and she should not be made to participate in the Saturday rotation.
Having carefully considered the entire record in this case, including the evidence and arguments presented by the parties, on the first issue, we shall order the parties to adopt the Union’s proposal, and on the second and third issues, the Employer’s proposals. As to the Monday and Friday RDOs, the Employer has not established that its capacity to fulfill its mission is necessarily frustrated by adopting the Union's proposal for a 6-month trial period. In this regard, the RDOs would be spread over 4 different Mondays and Fridays, with only one or two more employees off per day, and the Union agrees that Education Department employees who seek the CWS in the future would have to select a mid-week day. Should the Employer obtain evidence during the trial period establishing adverse agency impact, it may bring that evidence to the attention of the Panel, consistent with the requirements established under the Federal Employees Flexible and Compressed Work Schedules Act of 1982 (Act), 5 U.S.C. § 6120 et seq.
On the second issue concerning the roster committee, in our view, requiring employees to rotate through all available schedules is more likely to give them a broad perspective on conditions within the Education Department, and avoid potential problems cited by the Employer regarding stagnation and familiarity. Moreover, the Union has failed to substantiate its allegation that the adoption of the Employer’s proposal would waive its contractual rights. Finally, as to full participation by the staff of the Education Department in the Saturday rotation (issue 3), we believe that sharing such duties is reasonable, particularly given that the size of the staff would require their performance only once every 9 or 10 months.
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: