United States of America
BEFORE THE FEDERAL SERVICE
|In the Matter of
DEPARTMENT OF JUSTICE
LOCAL 1741, AMERICAN
Case No. 04 FSIP 150
DECISION AND ORDER
The Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Milan, Michigan (Employer) and Local 1741, American Federation of Government Employees, AFL-CIO (Union) filed a joint request for assistance with the Federal Service Impasses Panel (Panel) under the Federal Employees Flexible and Compressed Work Schedules Act of 1982 (Act), 5 U.S.C. § 6120 et seq., to resolve an impasse arising from the Employer's finding that the 4/10 compressed work schedule (CWS) for cook supervisors (CSs) in the Food Services Department (FSD) is causing an adverse agency impact and, therefore, should be terminated.
After investigation of the request for assistance, the Panel determined that the dispute should be resolved through an informal conference by telephone with Panel Member Richard B. Ainsworth, preceded by written statements from each side supporting their respective positions. The parties were advised that if no settlement were reached during the informal teleconference, Member Ainsworth would report to the Panel on the status of the dispute. The notification would include, among other things, his recommendations for resolving the impasse. 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.
Pursuant to this procedural determination, Member Ainsworth conducted an informal teleconference with the parties on November 9, 2004, following receipt of their written submissions. The parties, however, were unable to resolve their dispute. Subsequent to the informal teleconference, the parties submitted to the Panel, and each other, final summaries of their positions. The Panel has now considered the entire record, including the parties' pre- and post-conference 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 Union represents approximately 281 non-professional employees in
such positions as correctional officer and administrative support, in grades
GS-5 through -11 and WS-3 through -11. 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
In accordance with section 6131(c)(2)(b) of the Act, the issue before the Panel is whether the June 7, 2004, finding on which the Employer has based its determination to terminate the 4/10 CWS for CSs in the FSD is supported by evidence that the schedule is causing an adverse agency impact as defined under the Act. 1/
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 for CSs in the FSD establishes that the schedule is causing an adverse agency impact, as defined under the Act. The proposed schedule has increased the costs of agency operations. Since its inception, there has been an increase in sick leave and overtime usage. In this regard, "the total increase for sick leave has been 784.25 hours, with a total cost of $38,150.88; the total increase for overtime has been 925.25 hours, with a total cost of $46,840.33." In addition, the payout for holidays and Sundays is higher than it would be under the traditional 5/8 schedule. Reintroduction of the 5/8 schedule also would permit the FSD to return to a workforce level of 12 CS positions, saving $184,063.24 per year of the Agency's current budget allocated to salaries in FSD. In this connection, the Employer's "brief survey of 20 institutions structured similarly" to its facility "revealed an average of 12 CS positions authorized for an average inmate population of 1,512 inmates."
To ensure that each employee works a full 80 hours in a pay period and 10 hours per day, the CWS schedule requires that the CSs' two shifts overlap for a 5-hour period. 2/ This overlap "is not necessary." While each CS "must accomplish various assignments" during the current overlap period, "these tasks can be accomplished in an overlap period of one (1) hour." The first shift is essentially done with its work between 11:30 a.m. and noon, while the second shift is not fully productive until 11 a.m., and its crew of inmate workers does not report to work until noon. From around noon to 2 p.m., CSs on the first shift "will walk around the FSD; however, their presence is not essential or needed." Its contention that the current overlap period is unnecessary is supported by the fact that "it has become common practice for [CSs] to request the use of leave during this overlap period," i.e., annual leave "is requested 75 percent more often during the overlap period than outside the overlap period."
The "only reason" the FSD currently maintains 14 CS positions is because of the 4/10 CWS. By reducing the CS staff to 12 positions (through attrition and by returning a Correctional Officer now detailed to the FSD to his original post), and reintroducing the traditional 5/8 schedule, there would be "additional oversight of inmates." The number of CSs working in a typical day would increase to at least seven from the current average of six. The additional CS would supervise his own crew of inmate workers, as well as perform the "necessary law enforcement functions" and assist in providing approximately 4,200 meals per day. Moreover, because the 4/10 CWS reduces the number of days that inmates work at the FSD to 4 per week, each crew of inmate workers would work 5 days per week "which would reduce inmate idleness." Termination of the 4/10 CWS prior to reducing the number of CSs to 12 also would ensure that annual leave is not forfeited at the end of the leave year.
2. The Union's Position
The Panel should find that the Employer has not met its burden under the Act. The Employer is "distorting the data" it is relying on in making its determination. For example, the statistics provided by the Employer on the increase in annual leave use by CSs during the overlap period only tell half the story:
A careful analysis of pay periods 1-18, 2004 reveals that while the 13 cook supervisors used 110 hours of AL (83.25 hours between 9a-2p) at the beginning or end of their shift [,t]he 2 FSD administrators utilized 64.5 hours of leave at the either the beginning or end of their work day. A comparison reveals that the average CS used 6.4 hours of unscheduled, occasional AL in a 36 week period versus 32.25 in the comparison period by the average manager. It can hardly be claimed that this is an adverse agency impact when the agencies managers use 5x the amount of leave in the same fashion, in spite of the fact that they generally work a traditional work schedule.
Regarding increased costs, the Employer cannot now claim an increase in holiday and Sunday pay as the basis for terminating the CWS since "the initial determination to approve and the subsequent continuation of the CWS was made with these administrative costs in mind, as per the MOU." In addition, its argument that overtime costs are too high should be rejected because "[t]he CWS has helped control this [OT] increase better than a traditional work schedule." Employees are only required to work an extra 5 hours to cover the second shift rather than the 7 hours that would be required with the traditional work schedule. As to the most significant cost savings alleged by the Employer, i.e., the vacating of two positions that would decrease the staffing level to 12 CSs, these vacancies have not yet occurred, much less been negotiated with the Union. Therefore, "[i]t is more than an illogical presumption to base claims of adverse agency impact on a scenario that has yet to be negotiated."
The Employer's identification of the time period between 9 a.m. and 2 p.m. as "overlap is a misnomer," and neither excessive nor unnecessary. CSs each have "specific post orders, duties and responsibilities," and the shared time is "not a waste, but actually assists us being productive and proactive as we have become since the inception of the CWS." The fact of the matter is that the Employer's arguments in this connection, as well as its others on budgetary hardship and inmate idleness "could and would have been resolved had the Agency accepted the Union's proposal in August." By doing so, the Employer also would have fulfilled its statutory requirement to "consider less drastic alternatives" before deciding to terminate the CWS. Based on all of these factors, and the Employer's inability to substantiate its claims of adverse agency impact, the Panel should order the continuation of the CWS.
Under section 6131 (c)(2) of the Act, the Panel is required to take final action in favor of the agency head's (or delegatee's) determination to terminate a CWS only if the finding on which it is based is supported by evidence that the schedule causes an "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." 3/
Having carefully considered the totality of the evidence before us, we are persuaded that the Employer has met its statutory burden. In our view, it has established that the 4/10 CWS in the FSD has caused a reduction in the Agency=s productivity, and diminished the level of services it furnishes to the public. In this regard, the record demonstrates that the 5 hours of overlap between the two current CWS shifts affords employees considerably more time than is needed to perform CS duties that are not directly related to supervising inmate work crews (e.g., completing inmate time sheets, exchanging information with incoming or outgoing staff members, etc.). In addition, the excessive overlap between the shifts, and the fact that individual inmate crews only work 4 days per week under the 4/10 CWS, has increased inmate idleness. Accordingly, given that inmates are among the Agency's "customers," we conclude that the Employer has demonstrated that the current 4/10 CWS has diminished the level of services the Agency furnishes to the public.
With respect to the Union's contention that the Employer's concerns could have been met by adopting a less drastic alternative than the termination of the existing 4/10 CWS, as stated previously, under the Act the Panel=s only role is to determine whether an employer has met its statutory burden. The Act does not permit the Panel to order compromise solutions in CWS termination cases. Given our conclusion that the Employer has met the statutory requirements of the Act, we shall order that the 4/10 CWS in the FSD be terminated.
Pursuant to the authority vested in it by the Federal Employees Flexible and Compressed Work Schedules Act, 5 U.S.C. § 6131 (c), the Federal Service Impasses Panel under § 2471.11(b) of its regulations hereby orders that the 4/10 CWS in the Food Services Department be terminated.
By direction of the Panel.
H. Joseph Schimansky
November 22, 2004
(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).
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 above-referenced criteria.
The agency will bear the burden in showing that such a schedule is likely to have an adverse impact. This burden is not to be construed to require the application of an overly rigorous evidentiary standard since the issues will often involve 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).