United States of America
THE FEDERAL SERVICE IMPASSES PANEL
In the Matter of
3976, AMERICAN FEDERATION
Case No. 04 FSIP 63
DECISION AND ORDER
The Department of Justice,
Federal Bureau of Prisons (FBOP), Federal Correctional Institution (FCI),
Estill, South Carolina (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 3976, 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 Education/Vocational
Training Department is causing an adverse agency impact and, therefore, should
Following an investigation of the request for assistance, the Panel
determined that the impasse should be resolved through an informal conference by
telephone with Panel Member Joseph C. Whitaker.
The parties were informed that if no settlement were reached during the
informal conference, Member Whitaker 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 by telephone was conducted on April 28, 2004, between the parties and
Member Whitaker, but a settlement of the dispute was not reached.
The Panel has now considered the entire record, including the parties’
submissions and Member Whitaker’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 and a prison camp that house approximately 1,400 inmates. The Union represents about 240 employees, mainly correctional officers, at grades GS-5 through -11, WG-5 through -9, and WS-7 through -11. There are 12 bargaining-unit employees in the Education/Vocational Training Department, and two additional positions remain unfilled. The option of working the CWS has been available to certain Vocational Training employees since April 2001, and to certain other employees in Education/Vocational training since July 2001.2/ Currently, 6 of the 12 employees in the Education/Vocational Training Department are on the 4/10 CWS. 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.
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
Education/Vocational Training Department is supported by evidence that the
schedule is causing an adverse agency impact.
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.
From FY 2001 through FY 2003, over 1,400 Education classes or services
were not offered “due to an off day designated by the current CWS.”
During this time period, an average of at least 272 inmates did not
attend education assignments. In
addition, there were 223 instances of unscheduled leave “taken in conjunction
with established days off or at the beginning/ending of scheduled shifts,” and
116 specific examples of areas vacated and/or closed “due to an insufficient
number of employees available to fill the void of a staff member on day-off
status.” There also were over 360
requests from employees to adjust the approved quarterly CWS, and 596 examples
of holidays, training, scheduled annual leave, Correctional Services coverage,
and/or Recreation coverage “which further complicates the CWS  and disrupt
services.” These statistics
demonstrate a significant decrease in the level of service furnished to the
inmate population during the period the CWS has been in effect.
The data also show a reduction in the number of courses completed, course
enrollments, and instructional hours in its core curricula since the beginning
of the CWS. For example, course
completions, enrollments, and instructional hours in Parenting in FY 2001
decreased by 101 students, 76 students, and 2,082 hours, respectively. Course enrollments in FY 2001 in General Educational
Development (GED) decreased by 23 students, and course completions and
instructional hours in GED decreased by 12 students and 20,257 hours,
respectively, in FY 2002. Instructional
hours in English as a Second Language (ESL) decreased by 920 hours in FY 2001
and 236 hours in FY 2002, and instructional hours in Adult Continuing Education
(ACE) decreased by 2,226 hours in FY 2001 and 1,884 hours in FY 2002. Significantly, in FY 2003, when three employees who had been
working on the 4/10 CWS returned to the 5/8 schedule, the number of
instructional hours in GED increased by approximately 11,000 hours over FY 2002
levels, and the number of course enrollments increased by 22.
These increases in productivity are directly attributable to the return
of the three employees to the 5/8 schedule, which permits instruction to occur
an additional day per week per employee. Moreover,
because the total number of employees teaching GED courses remained essentially
the same throughout the period from FY 2000 to the present, the fluctuations in
productivity noted above are due to the CWS and not to any changes in staffing
In addition to these reductions in the productivity of the agency, costs have increased because of the number of leave hours utilized by the staff. In FY 2000, a year before the CWS began, a total of 2,902.50 hours of leave were taken. In FY 2001, when the CWS started, the number decreased to 2,042.75 hours. By FY 2002, it jumped to a total of 3,462.50 hours, and during FY 2003, the total number of sick leave hours taken increased again to 3,653.25 hours. Based on the information provided above, the current CWS “severely impedes the accomplishment” of the FCI’s “vital mission,” has resulted in a “significant cost to the government,” and presents “viable security and productivity concerns.” For these reasons, it should be terminated.
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 the Education/Vocational Training
Department to continue, as it currently does at 19 other Education Departments
of comparable size within the FBOP. Preliminarily,
“serious doubt should be placed on the date and validity of the documentation
provided” by the Employer. The
“Six-Month Supervisory Assessment” of the CWS that it has put in the record,
which alleges decreased productivity and service to the public and increased
costs, is undated, and the request for the review was submitted 4 months past
its due date. Furthermore, there is
no evidence that the review was completed, and a recommendation for termination
presented to the FBOP’s Office of General Counsel, in accordance with the
agency’s internal regulations. Thus,
the determination of the Warden at FCI Estill that the 4/10 CWS in the
Education/Vocational Training Department is causing an adverse agency impact is
procedurally defective. Combined
with the e-mail from FCI Estill’s Supervisor of Education to all the Education
Departments within the FBOP, sent just 2 days after the completion of
bargaining, requesting information “about dealing with the CWS,” it “goes
to reason” that “the alleged adverse impact has been manufactured to fit the
CWS rather that the CWS creating adverse agency impact.” In reality, management’s decision to terminate the CWS is
an attempt to retaliate against employees and the Union for a recent unfair
labor practice the Employer admitted to committing which stemmed from a previous
meeting the Associate Warden conducted in the Education Department with
bargaining-unit employees in which the Union was by-passed.
to the Employer’s assertion that the CWS has diminished the level of services
provided to inmates, numerous new programs and services have been added since
its implementation, among them, three vocational courses, a tutor training
program, and a computer program for students taking college correspondence
courses. The schedules and emails
the Union has attached to its written response also show that coverage has
continued to be provided as needed by the Education Department for staff
shortages in the Correctional Services and Recreation Departments, contradicting
the Employer’s allegations in this regard.
Most importantly, management’s statement that CWS off days have caused
classes to be cancelled “is erroneous.”
FCI Estill Institution Supplements and a recent e-mail from the
Supervisor of Education establish that “only the Associate Warden has the
authority [to] cancel work/classes.” Another
document titled “Education Duties and Responsibilities,” dated October 23,
2000, demonstrates that “even prior to implementation of the CWS,
classes/services were only offered 4 days per week.”
And a December 1, 2003, memorandum to the Education Department staff
announcing that, effective immediately, all classes will met 5 days a week,
proves that the CWS “has increased the amount of classes/services being
The Employer’s implication that the CWS has caused an increase in leave
hours and, consequently, costs, “is misleading and/or untrue.” The “Education Leave Usage Chart” management provided
includes the leave usage of non-CWS staff and supervisors, and the numbers cited
as “individual examples” do not show specific dates, types, or the duration
of leave. In fact, the chart
demonstrates that CWS has had a positive effect on sick leave usage: the totals
were highest in FY 2000 before CWS was implemented, lowest in FY 2001 and FY
2002 when 11 staff members were on CWS, and began to climb in FY 2002 and FY
2003 “when several staff came off of CWS.”
The real reason that sick leave usage increased during FY 2002 and FY
2003 is because three staff members were added to the Education Department.
Since annual leave must be approved by management, it is
“disingenuous” for the Employer to approve such requests and then assert
that annual leave usage is excessive. The expense of annual leave is provided for in FCI Estill’s
budget, and “does not cause an increased cost to the agency.”
The charts provided by the Employer in connection with its claim that the
CWS has caused reductions in productivity “demonstrate faulty comparisons.” CWS was not in effect for the entire year during FY 2001, so
“the only legitimate comparison should be made between the years [FY] 2000 and
[FY] 2002.” Based on the
information for these 2 years, the conclusions to be drawn after the
implementation of CWS are that: (1) three new Vocational Training courses were
added; (2) seven out of nine programs showed increases; and (3) the decreases in
GED completions and increase in costs per completion were “negligible,” and
accounted for by factors other than the CWS, such as the introduction of a new,
more difficult GED test, and an increase in voluntary inmate withdrawals.
In addition, ACE enrollments and instructional hours should not be
considered because ACE programs are voluntarily taught by inmates, not staff
members. Nor has the Employer
verified the decreases its chart shows in GED instructional hours, particularly
where the FY 2002 Annual Education Service Program Report indicates an increase
in overall instructional hours from FY 2000 of 60,809 hours.
Finally, verification that productivity has not decreased can be found by
comparing this same report, which states that the Education Department secured
the rating of “Good” during its program review for that year, with another
Program Review conducted as recently as September 23-23, 2003, which indicates
“the Education Department rating was also good.”
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
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.”4/
Having considered the totality of the evidence before us, we are
persuaded that the 4/10 CWS has caused a reduction in the agency’s
productivity, and diminished the level of services furnished to its customers (i.e.,
inmates) and, consequently, the public. In
this regard, the Employer’s contention that CWS off days limit its ability to
provide inmates instruction in GED courses is substantiated by the statistics it
has provided regarding the FY 2002-2003 period. Instructional hours and inmate enrollments in GED increased
significantly in FY 2003 over FY 2002 levels when the number of employees
working the 4/10 CWS decreased by three. During
this same period, the total number of staff providing GED instruction remained
constant. While the Union argues
that other factors, such as inmate withdrawal rates, provide an alternative
explanation for the increase in instructional hours and enrollments, the figures
in the record for voluntary and involuntary inmate withdrawals during the FY
2002-2003 period do not support its position.
We also credit the Employer’s statement that, at any given time, there
are between 75 and 100 inmates on a list waiting to be enrolled in GED courses,
so that inmates who withdraw from GED courses
are replaced by those on the waiting list when openings occur.
Finally, turning to the CWS established in April 2001 for two Vocational
Training employees, in our view it too has caused a diminished level of services
furnished by the agency to the inmate population. Once again, among other things, the CWS off days of these
employees resulted in a reduction in the number of instructional hours provided
to inmates enrolled in Vocational Training courses.
Given our conclusion that the Employer has met its statutory burden, consistent with the requirements of the Act, we shall order that the CWS in the Education/Vocational Training Department be terminated.
Pursuant to the authority vested in it by 5 U.S.C. § 6131 (c) of the
Federal Employees Flexible and Compressed Work Schedules Act, the Federal
Service Impasses Panel, under 5 C.F.R. § 2472.11(b) of its regulations, hereby
orders that the 4/10 CWS in the Education/Vocational Training Department be
By direction of the Panel.
5 U.S.C. § 6131(b) defines adverse agency impact as:
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/ The CWS was implemented through separate Memoranda of Agreement for the two groups of employees.
With respect to the Union’s claim that the Warden’s determination
of adverse agency impact is procedurally defective, on November 22, 1999,
Kathleen Hawk Sawyer, former Director of the FBOP, issued a “Memorandum
For All Chief Executive Officers,” delegating to the Chief Executive
Officers (CEOs) of all FBOP institutions “the authority to determine if a
particular flexible or compressed schedule under 5 U.S.C. § 6131 had or
would have an adverse agency impact.”
Since the Warden is the CEO at FCI Estill, and there is no evidence
that the authority delegated to him by the former Director of the FBOP has
been rescinded, the Union’s contention that the Warden’s determination
is procedurally defective is hereby rejected.
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).