United States of America
BEFORE THE FEDERAL SERVICE IMPASSES PANEL
In the Matter of
Case No. 04 FSIP 98
DECISION AND ORDER
Local 709, Council of Prison Locals, American Federation of Government Employees, AFL-CIO (Union) filed a request for assistance with the Federal Service Impasses Panel (the Panel) to consider a negotiation impasse under the Federal Service Labor-Management Relations Statute (the Statute), 5 U.S.C. § 7119, between it and the Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution Englewood, Littleton, Colorado (Employer).
Following an investigation of the request for assistance concerning starting times and lunch breaks for employees in the Business Office, the Panel determined to assert jurisdiction and resolve the issues through an informal conference, by telephone, with a Panel representative. The parties also were advised that if no settlement was reached, the Panel’s representative would report to the Panel on the status of the dispute, including the parties’ final offers and his recommendations for resolving the impasse. After considering this information, the Panel would take whatever action it deemed appropriate to resolve the impasse, which could include the issuance of a binding decision.
Pursuant to this procedural determination, Panel Member Richard B. Ainsworth convened a teleconference with the parties on July 28, 2004, during which the parties were able to reach agreement on the work schedules for several employee positions. With respect to the unresolved issues, Member Ainsworth requested that the parties exchange their final offers and, thereafter, submit summary statements of position with respect to them. Following receipt of the parties’ final offers, a Panel staff member convened a second teleconference with the parties, on August 9, 2004, to clarify the parties’ final offers.1/ On August 16, 2004, the Panel received statements of position from each side in support of their final offers. In its statement, the Employer for the first time raised jurisdictional questions concerning its obligation to bargain over the Union’s proposals.2/
The Employer’s mission is to protect society by confining criminal offenders in the controlled environments of prisons that are safe, humane, and appropriately secure. The local Union represents a bargaining unit consisting of approximately 260 General Schedule and Wage Grade employees, both professionals and non-professionals, who are part of a larger nationwide bargaining unit of about 25,000. The most recent master collective bargaining agreement (MCBA) covering these employees expired March 8, 2001; its terms will remain in effect until negotiations over a successor agreement are completed. At the local level, the parties have a supplemental agreement in effect as well as numerous memoranda of understanding on a variety of workplace issues.
The function of the Business Office is to “keep the institution in the black,” pay its bills, oversee credit card holders, maintain inmate trust funds, and issue inmate pay. The hours of operation for the Business Office are 7:30 a.m. to 4 p.m. The dispute herein affects two Business Office employees who hold the positions of financial program specialist and accounting technician #1. For several years, employees in the Business Office have had the option of working either 5-4/9 or 4/10 compressed work schedules (CWS), in addition to standard 8½-hour schedules. For those working a CWS, their schedules did not include a 30-minute duty-free lunch period; rather, they worked straight through, typically eating lunch and working at the same time. Generally, this was permitted so employees would be available to respond to inmate emergencies at any time during their shift.
The threshold jurisdictional question is whether the Panel should retain jurisdiction in light of the Employer’s newly-raised assertion that the Union’s proposals violate management’s rights; and, in the event the Panel determines to retain jurisdiction, whether the two employees should be required to: (1) have work schedules that include a 30-minute unpaid lunch break, and (2) start work at 7 a.m. or later.
POSITIONS OF THE PARTIES
1. The Union’s Position
The Union proposes that the financial program specialist and accounting technician #1 be permitted to start work at 6 a.m., with their schedules to include a 30-minute duty-free lunch break; in the alternative, the Union proposes that employees who hold those positions start work at 6:30 a.m., and work straight through the day without a 30-minute duty-free lunch break, thereby shortening their workday. There is a past practice of allowing employees to work the schedules proposed by the Union. Before the Employer changed the work schedules for these two employees, they had started work prior to 7 a.m., and had worked without a 30-minute duty-free lunch break. The Employer lacks any legitimate basis for altering the prior work schedules, other than they did not suit the personal preferences of a new administrator.3/ The Employer never voiced complaints that the previous work schedules were adversely affecting its ability to perform the mission of the Business Office. One other employee in the Business Office, as well as a supervisor, currently start work before 7 a.m.; the Employer has not articulated sufficient rationale for preventing the two employees from doing the same.
By offering alternative proposals, the Union has demonstrated that it is willing to compromise on the matter. Employees prefer to start work earlier because it gives them more personal time with their families later in the afternoon. Starting at 6 a.m. also would allow employees to assist institutional staff coming off of late night shifts, as well as other staff and inmates who are “up and about” at that time; furthermore, an early starting time would provide employees with more opportunity to communicate with Central Office personnel in Washington, D.C. early in the day before that office becomes very busy. Many employees working in other parts of the institution, including those on CWS, are permitted to start work before 7 a.m. and not required to take a 30-minute duty-free lunch break. Since employees often work during their “duty-free” lunch breaks, it is only fair that they should be paid for their efforts; therefore, a mandatory unpaid lunch break should be eliminated.
2. The Employer’s Position
The Employer maintains that “(p)ursuant to management’s right to assign work, as delineated in 5 Code of Federal Regulations § 7106, [sic] management believes it is necessary to have these individuals arrive at work no earlier than 7 a.m. and to have a duty-free meal break.” On the merits, the Employer proposes that since the Business Office does not open to customers until 7:30 a.m., there is little need to have employees begin work more than ½ hour prior to opening. Requiring employees to start work at 7 a.m. or later means that they would be available to the prison’s customers, i.e., institution staff, inmates, and the institution’s clients throughout the regular course of the business day until the Business Office closes at 4 p.m. Comparability data show that employees who work in the Business Office at two other Federal prisons typically start work at 7 a.m. Employees should have a duty-free lunch break during the course of their workday because they work longer hours under a CWS and likely would benefit from a break from their official duties.
Having carefully considered the Employer’s jurisdictional argument, essentially questioning its duty to bargain over the Union’s proposals, the Panel declines to retain jurisdiction over the parties’ dispute. Among other things, we note that the Employer’s decision to raise this issue for the first time in its post-conference supporting statement deprived the Union of the opportunity to identify previous Federal Labor Relations Authority (FLRA) decisions where “substantively identical” proposals have been found negotiable.4/ Nevertheless, our independent research has failed to uncover previous FLRA decisions in which proposals substantively identical to the Union’s have been found within the duty to bargain. In these circumstances, we are reluctant to issue an order addressing the merits of the dispute until a decision regarding the negotiability of the Union’s proposals has been rendered in the appropriate forum. This determination to decline to retain jurisdiction is made without prejudice to the right of either party to file another request for assistance if an impasse is reached once the legality of the Union’s proposals has been established.
With respect to the Employer’s belated jurisdictional argument, while we recognize a party’s legal right to raise such issues at any point in the Panel’s process, its decision not to do so at its earliest opportunity, in our view, has resulted in avoidable negative consequences. Had the Employer raised its concerns during the preliminary investigation when it was specifically asked to do so, the Panel may have declined to assert jurisdiction so its underlying threshold questions could be resolved by the FLRA. Thus, the Employer’s decision has delayed a final resolution to the parties’ already lengthy dispute. It is disquieting to the Panel, and likely to the taxpayers, for the Panel to have spent considerable time and resources on a case that ultimately it cannot bring to closure because of the belated jurisdictional claims raised by management.5/
Pursuant to the authority vested in it by the Federal Service Labor-Management Relations Statute, 5 U.S.C. § 7119, and because the negotiability of the Union’s proposals has not been established, the Federal Service Impasses Panel under § 2471.11(a) of its regulations hereby declines to retain jurisdiction over the parties’ dispute.
By direction of the Panel.
November 8, 2004
/ During that discussion, the work schedules for two more positions were resolved.
/ During the Panel’s initial investigation into the request for assistance, the Employer’s representatives were asked specifically whether the Union’s proposals permitting employees to start work before 7 a.m., and to work straight through a shift without taking an unpaid lunch break, presented any negotiability questions concerning management’s right to assign work. The representatives did not raise any claims that the Union’s proposals interfered with any reserved management rights. Since there were no duty-to-bargain claims raised by the Employer, and the parties appeared to have reached a bargaining impasse over the substantive issues, the Panel determined to assert jurisdiction over the dispute.
/ On January 29, 2004, the parties reached a negotiated agreement that would have allowed the two employees to have work hours that started at 6:30 a.m., and did not include a 30-minute duty-free lunch break. According to the Union, the only reason it was not implemented is that a new warden refused to honor an agreement reached under the previous warden’s watch.
/ In this regard, where an employer raises questions concerning its duty to bargain over a union’s proposals in the course of a Panel proceeding, the Panel is guided by the FLRA’s decision in Commander, Carswell Air Force Base, Texas and American Federation of Government Employees, Local 1364, 31 FLRA 620 (1988) (Carswell AFB). As Carswell AFB makes clear, the Panel may resolve such questions only if the FLRA previously has found substantively identical proposals negotiable.
/ We estimate the total administrative cost of processing this case since the time the Panel asserted jurisdiction to be approximately $2,400.