United States of America
BEFORE THE FEDERAL SERVICE IMPASSES PANEL
|In the Matter of
DEPARTMENT OF JUSTICE
LOCAL 2441, AMERICAN
Case No. 05 FSIP 58
DECISION AND ORDER
The Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Morgantown, West Virginia, 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 arising from its decision to terminate a 4-10 compressed work schedule (CWS) for employees in the Correctional Services Department (CSD) who are represented by Local 2441, American Federation of Government Employees, AFL-CIO (Union).
After investigation of the request for assistance, the Panel determined that the dispute should be resolved through an informal conference at the Employer's facility in Morgantown, West Virginia, with Panel Member Richard B. Ainsworth. The parties were advised that if no settlement were reached during the informal conference, Member Ainsworth would report to the Panel on the status of the dispute, including the parties' final positions and 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 the procedural determination, Member Ainsworth conducted an informal conference with the parties on April 11, 2005. When the parties were unable to resolve their dispute, with the permission of Member Ainsworth, they submitted summary statements in support of their respective positions. The Panel has now considered the entire record, including all of 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 Federal Correctional Institution (FCI) at Morgantown is a minimum-security prison, which houses approximately 1,100 male inmates; the Employer runs a UNICOR (Federal Prison Industries, Inc.) automated data processing operation as well. The CSD provides inmate supervision within the housing units, in the compound, and outside of the institution.1/ The Union represents about 170 employees, mainly correctional officers, at grades GS-7 and -8. Other unit employees work as counselors, case managers, and mechanical and food service employees, at grades GS-9 through -11, WG-5 through -9, and WS (wage supervisor) -7 through -11. A master collective bargaining agreement (MCBA) that expired on March 8, 2001, and a locally negotiated Supplemental Agreement cover the parties; the provisions of the MCBA 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 in dispute is whether the findings on which the Employer bases its determination to terminate the 4-10 CWS in the CSD is supported by evidence that the schedule has caused an adverse agency impact.2/
POSITIONS OF THE PARTIES
1. The Employer's Position
The Panel should find that the 4-10 schedule in the CSD is causing an adverse agency impact and order its termination. For comparison purposes, data are derived from two time periods: March 30 through September 27, 2003, when correctional officers were on a 5-8 schedule; and March 28 through September 25, 2004, when correctional officers worked a 4-10 CWS (the evaluation period).3/ The comparison shows that the 4-10 CWS caused an adverse agency impact by increasing the CSD's overall operating costs by "13 percent during the evaluation period, which equates to $570,535 annually." In particular, overtime in the CWS period increased by 78 percent or $74,483.48. A part of this rise in overtime can be attributed to the 21 percent greater use of sick leave during the evaluation period.4/ In addition, the CWS created an inefficient, daily 4-hour staffing overlap for 10 posts. The overlap amounts to losing 3,185 man-hours every 6 months. By contrast, the 5-8 schedule caused only a 15-minute overlap or 455 lost man-hours during the 6-month period used for purposes of comparison; "by reverting to the 8 hour shift a gain of 199 man hours would be realized." Finally, non-custody employees on the Alpha roster took 25 percent longer to complete their normal assignments because they were assigned to cover vacant posts in the CSD caused by the 4-10 CWS.
As to the modifications that the Union suggests to free up three officers who otherwise are assigned to the tool room, the Special Housing Unit (SHU), and escort duties, none of these modifications are acceptable. BOP regulations require that correctional officers oversee the tool room. During annual refresher training, officers working the SHU complained that it was hard to get all of the work done with only two shifts, let alone a single shift. Finally, flexibility is needed with respect to escorted trips because it is uncertain when doctors can see inmate patients. Despite the Union's contention that the Employer has previously engaged in these practices, if true, such measures were relied on only briefly.
2. The Union's Position
The Panel should find that the Employer has not met its burden under the Act of demonstrating that the existing 4-10 CWS has caused an adverse agency impact. In this regard, "if any adverse effect is at hand, it is of management's own doing by not properly staffing this facility." In this regard, during the CWS test, staffing fell by close to 6 percent. The increase in overtime is directly related to the fact that there are more correctional posts than available officers, as many as six more posts than officers that must be filled every day. While the vacant posts could be filled, and previously have been filled without an impact on overtime, instead of using the Alpha roster (made up of non-custody staff) during their regular shifts, during the 4-10 CWS period the Employer mainly filled them using overtime.5/ This occurred partly because the Employer amended the Alpha roster to curtail relief assignments from the roster after 4 p.m. and eliminated weekend relief. Previously, such assignments occurred 7 days a week. In the same vein, correctional officers who normally had been "assigned to S&A [sick and annual leave roster] at the beginning of a new quarter are immediately pulled and assigned to an existing vacated post," thereby creating the need to pay overtime to cover correctional officers' sick and annual leave absences.6/ So long as this pattern continues, whether employees work a 5-8 or a 4-10 schedule, overtime rates will be higher.7/
As to sick leave and Family Friendly Leave Act use, the Employer's own "comparison charts show that 156.5 hours [127.5 hours for sick leave only] less in overtime was paid out for sick leave usage while the CWS was in effect" than under the 5-8 schedule. Sick leave should not in any case be viewed as a relevant factor since it represents a benefit that the Employer is obligated to provide. On the overlap the Employer cites, the evening overlap actually increases productivity because the 4 p.m. count can be accomplished more quickly, and meals start on time. In turn, recreation and education activities can start earlier, giving inmates more time in such activities. The Employer also could "more effectively use the extra bodies" from 2 to 4 p.m. for monthly "shakedowns" and during 7 to 8 a.m. for added security during breakfast. As to the $13,000 the Employer claims to have saved during the annual refresher training, when, by agreement, employees revert to a 5-8 schedule, this year the Employer changed employees shifts and filled the day watch with non-custody staff, which decreased productivity in the facility's departments.
Finally, the Employer rejected the three suggestions that the Union made for freeing up correctional staff: (1) reducing the SHU from two shifts to one; (2) transferring tool room responsibilities to the Mechanical Services Department; and (3) limiting the number of days for escorted trips to 3. These suggestions are not new ideas, but instead reflect steps that the Employer has previously taken.
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 if the finding on which the determination is based is supported by evidence that the schedule has caused 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 on the basis of "the totality of the evidence presented."8/
Upon thorough examination of the evidence presented, we conclude that the Employer has demonstrated that the 4-10 CWS in the CSD is causing an adverse agency impact. While it is not clear that the marked increase in overtime costs the Employer cites are directly and entirely attributable to the 4-10 CWS, the impact of the 4-hour overlap on the CSD's efficiency is undeniable. Simply put, the overlap period places more employees on duty than the Employer requires. Thus, we find that the 4-10 CWS is causing an adverse agency impact by reducing productivity and that a return to the 5-8 schedule will result in the more efficient allocation of staff, an estimated gain by the Employer's calculations of two 8-hour posts a day. Accordingly, we shall order that the 4-10 CWS 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 § 2472.11(b) of its regulations hereby orders the termination of the 4-10 CWS program in the Correctional Services Department.
By direction of the Panel.
H. Joseph Schimansky
April 21, 2005
Overall, there are 60 supervisory and non-supervisory positions in the CSD. The
number of “available” unit employees in the Department has declined since
January 2003 from a high of 47 to a low of about 40 to 43 during the 2004 test
of the 4-10 CWS. During 2004, 20 correctional officers were on a 4-10 CWS, and
23 worked 8-hour days.
/ 5 U.S.C. § 6131(b) defines adverse agency impact as:
(1) a reduction in 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 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 CWS has caused 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, in part, relies on information from questionnaires responded to by the CSD’s supervisors.
/ The Employer states that it did not include figures related to protracted sick leave use by individual employees or that related to the illness of family members.
/ Available staffing while the 4-10 CWS was in effect “decrease[d] by 5.87 percent and no officers [were] assigned to the Sick and Annual (S&A) roster.”
/ The five known instances at an average of $30 per hour for 200 hours (5 weeks) would result in an estimated $6,000 in overtime costs.
/ On this point, the Union provides the following calculation:
[A]t an average of four weeks per staff a year, 156 weeks at 40 hrs per week, 6240 hrs of overtime would be needed for annual leave coverage at an average $30 hr for a yearly estimated cost of $187,200 with the current staffing level, an increase of $62,400 above what would normally be paid with proper staffing.
/ See the Senate report, which states:
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).