United States of America
BEFORE THE FEDERAL SERVICE IMPASSES PANEL
In the Matter of
DEPARTMENT OF JUSTICE
LOCAL 501, AMERICAN
Case No.05 FSIP 52
DECISION AND ORDER
Local 501, American Federation of Government Employees, AFL-CIO (Union), filed a 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 a decision by the Department of Justice, Federal Bureau of Prisons, Federal Detention Center, Miami, Florida (Employer), not to establish a 4/10 compressed work schedule (CWS) program for employees in the Correctional Services Department (CSD) as proposed by the Union.
After investigation of the request for assistance, the Panel determined that the dispute should be resolved through an informal conference with Panel Member Mark A. Carter, to be preceded by written submissions from the parties. The parties were advised that if no settlement were reached during the informal conference, Member Carter would notify the Panel of the status of the dispute, including the parties' final positions and his recommendation for resolving the dispute. 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.
In accordance with the Panel's procedural determination, Member Carter conducted an informal conference with the parties on February 9, 2006, in Miami, Florida, following receipt of their written submissions. During the course of the meeting the parties discussed various alternatives but a voluntary resolution was not reached. Member Carter has reported to the Panel, which has now considered the entire record, including the parties' pre-conference submissions.
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 secure. The Federal Detention Center (FDC) in Miami is responsible for the detention of pre-trial and holdover offenders going to court. The Union represents approximately 225 employees who typically work as correctional officers, inmate systems officers, case managers, case counselors, physician assistants, accountants, facilities foremen, food service foremen, and in various support staff positions, at grades GS-5 through -12 and WG-5 through -9. The dispute affects approximately 150 employees in CSD, primarily correctional officers. The master collective bargaining agreement (MCBA) covering these parties expired on March 8, 2001; its terms will continue in effect until negotiations over a successor agreement are completed.
ISSUE AT IMPASSE
In accordance with § 6131(c)(2)(B) of the Act, the issue in dispute is whether the findings on which the Employer bases its determination not to establish the CWS program the Union proposes is supported by evidence that the schedule is likely to cause an adverse agency impact.1/
POSITIONS OF THE PARTIES
1. The Union's Position
The Union proposes employees in CSD be permitted to work a 4/10 CWS, as follows: (1) Morning Watch Shift, 1 a.m. to 11 a.m., and (2) Day Watch Shifts, 5 a.m. to 3:30 p.m. and 3:15 p.m. to 1:15 a.m. The Union also proposes miscellaneous post work hours be implemented similar to the visiting room hours, 10:45 a.m. to 9:15 p.m. The parties would evaluate the effectiveness of the CWS within 6 months of its implementation, and every 6 months thereafter.
The Panel should find that the Employer has not met its burden under the Act of demonstrating that the proposed CWS is likely to cause an adverse agency impact. Both parties would benefit from implementing a CWS because the option would increase employee morale and translate into more productive employees who are less likely to use sick leave unnecessarily. Any cost to implement the CWS would be offset by its benefits, e.g., reduction of overtime costs, increased morale due to reduction in mandatory overtime, decreased use of sick leave, and an increase in employees available during emergencies.
The Employer's cost data are subjective and "fundamentally flawed" by failing to delineate between bargaining unit and non-bargaining-unit employees. In this regard, the data include supervisors and "nonessential" personnel, such as secretaries, special investigative technicians, the lock shop security officer, and the tool room officer. In addition, the Employer's projected increase in salary costs is "exaggerated." The evidence supports the contention that numerous employees are willing to work overtime; therefore, CWS could be implemented with the current complement of employees. Implementing a CWS will not substantially increase lieutenants' scheduling duties, as the Employer asserts, because "coordinating" employees' schedules is a normal part of the lieutenants' (shift supervisors) workday. Further, the Employer's claim of a 2-hour surplus in work time is unfounded since employees on CWS would be able to perform non-custodial duties during the remaining 2 hours of their shift, such as administering Breathalyzer tests and urinalysis to inmates.
2. The Employer's Position
The Panel should find that the evidence on which the Employer bases its determination not to implement the proposed CWS program establishes that the schedule is likely to cause an adverse agency impact as defined under the Act. If the Union's CWS proposal were implemented, the number of positions needed to meet mission requirements would increase by 12 positions from 155 to 167. This is because employees on the CWS would only work 4 days-per-week, requiring additional employees to backfill on regular days off, increasing salary expenditures by $537,576 annually. Overtime costs also would increase because it would be necessary to pay 8-hour shift employees overtime in order to cover for absent CWS employees. Furthermore, premium pay would increase by 118 hours per week ($43,598 annually) and night differential by 99 hours per week ($17,400 annually).2/
In addition to cost, lieutenants' duties would increase with the implementation of a CWS. For example, Article 18, Hours of Work, § h of the MCBA states, "ordinarily, minimum time off between shifts will be 7½ hours." Thus, employees working CWS could not be scheduled to work double shifts. If overtime becomes necessary, the lieutenant would have to schedule two employees to work overtime in order to comply with the terms of the MCBA. Finally, relieving an employee on an 8-hour shift with one on a 4/10 CWS would require "considerable additional coordination" by the Lieutenants' Office to locate duties for the 4/10 employee to perform during the last 2 hours of his or her shift.
Under § 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 not to establish a CWS if the findings on which it is based are supported by evidence that the schedule is likely to cause an "adverse agency impact." Panel determinations under the Act are concerned solely with whether an employer has met its statutory burden. 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 examined the arguments and evidence presented, we conclude that the Employer has met its burden of establishing that an adverse agency impact is likely to occur under the Union's proposal. During the informal conference, the Union conceded that the implementation of its proposed 4/10 CWS in CSD would increase the costs of overtime and premium pay. The only dispute between the parties in this regard concerns the degree of the impact, i.e., the Employer states that these costs would rise by $380,000, while the Union contends that they would only increase by $200,000. Even if the Union's lower cost figure is accepted, in our view, the increase is substantially more than the "reasonable administrative cost relating to the process of establishing a flexible or compressed work schedule" permitted under the Act. Moreover, we are not persuaded by the Union's additional argument that such higher overtime and premium pay amounts would be offset by decreases in the use of sick leave. Accordingly, we shall order the Union to withdraw its CWS proposal.
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 § 2472.11(b) of its regulations hereby orders the Union to withdraw its proposal.
By direction of the Panel.
H. Joseph Schimansky
April 4, 2006
Under 5 U.S.C. § 6131(b), "adverse agency impact" is defined 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).
The burden of demonstrating that the implementation of a proposed CWS is likely to cause an adverse agency impact falls on the employer under the Act. See 128 CONG. REC. H3999 (daily ed. July 12, 1982) (statement of Rep. Ferraro); and 128 CONG. REC. S7641 (daily ed. June 30, 1982) (statement of Sen. Stevens).
The Employer provided these cost estimates in its written statement prior to the informal conference.
See the Senate report, which states:
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).