United States of America
BEFORE THE FEDERAL SERVICE IMPASSES PANEL
DEPARTMENT OF JUSTICE
LOCAL 1145, AMERICAN
|Case Nos. 05 FSIP 69
and 05 FSIP 70
DECISION AND ORDER
The Department of Justice, Federal Bureau of Prisons, U.S. Penitentiary, Atlanta, Georgia (Employer) and Local 1145, American Federation of Government Employees, AFL-CIO (Union) filed separate requests 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 the Employer's decision to terminate a 4-10 compressed work schedule (CWS) for employees in the Facilities Department (FD).
After investigation of the requests for assistance, the Panel determined that the dispute should be resolved through an informal conference by telephone with Panel Member Mark A. Carter. The parties were advised that if no settlement were reached during the informal conference, Member Carter 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 Carter conducted an informal conference by telephone with the parties on May 9, 2005, but a voluntary settlement of the impasse was not reached. The Panel has now considered the entire record, including the parties' pre-conference submissions, and Member Carter'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 U.S. Penitentiary in Atlanta, Georgia is a high security facility that houses approximately 2,600 inmates. The FD manages the installation's physical plant and provides repair and maintenance of plumbing, electricity, the grounds, etc. Inmates assigned to the FD learn skills through the supervision of unit employees who mentor them in their areas of expertise. The Union represents about 544 employees, at grades GS-5 through -11, WG-5 through -9, and WS-7 through -11, who are part of a consolidated nationwide unit of about 23,000. 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)(3)(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 FD is supported by evidence that the schedule has caused an adverse agency impact.1/
POSITIONS OF THE PARTIES
1. The Employer's Position
The Panel should find that the 4-10 schedule in the FD is causing an adverse agency impact under all three of the criteria specified in the Act. In this regard, "the department's decreased productivity has had a considerable effect on the diminished level of services furnished to the institution and increased the cost of daily operations." The 17 FD employees who currently are on the CWS work from 6:30 a.m. to 4:30 p.m., while the general foremen who supervise them work from 7:15 a.m. to 3:45 p.m. As a result, "this leaves 2.5 hours per day with no direct supervision." In addition, "every week the general foremen are providing coverage to the inmate details because of minimal line staff on duty." The Employer's concern regarding the overall lack of supervision within the department is illustrated by the discovery, in October 2004, of an inmate with "escape paraphernalia" that was removed from the FD "which is supervised by staff working" the CWS.
The CWS also has caused a decrease in the responsiveness of the FD to other departments within the institution. Excluding lunch, inmates assigned to the FD work 6 hours per day, which "leaves three unproductive hours for compressed work staff" where inmates are not being supervised. Moreover, work in the FD is heaviest on Mondays and Fridays when "most of the staff [is] scheduled off." Further, as indicated in a Sick Leave Usage chart compiled by the Employer containing data from 2001 through 2004, "there has been an increase in the number of staff making doctors appointments and taking sick leave in conjunction with their days off" during the period when the CWS has been in effect (starting in November 2002) compared to the previous period.
Supervised work assignments "are the most effective means of reducing the likelihood of violent disruptions" by inmates, but "when most of the [FD] staff are out on Mondays or Fridays" there is a "serious gap" in the supervision of inmate work details. During the past year, on approximately 10 occasions foremen have had to supervise 3 to 4 details of 20 to 60 inmates per detail due to staff shortages. This has diminished the level of services that the FD has been able to provide, and is "not conducive to a safe and orderly environment for staff or inmates." Since the implementation of the CWS in FD "the number of work orders over 30 days old has increased" and the mandated 80-percent completion rate of preventive maintenance per month has not been met for at least one month "due to the shortage of staff." Hours of work are lost on Mondays and Fridays because staff "are accounting for two or more details." Thus, while CWS provides more hours per workday, those hours are "definitely less productive."
The lack of correspondence between inmate and CWS work hours creates approximately 3¾ hours per day where "staff are idle, and no work orders are completed." The cost of idle time is approximately $200,000 per year in salaries, which is unacceptable "in an age of budgetary restraints." Some FD employees also have violated the terms of the CWS agreement negotiated with the Union by taking paid lunch breaks. Finally, the CWS in FD should be terminated because it has had an adverse impact on the Employer's ability to respond during "special functions such as annual training, leave and emergencies," a problem that is particularly troublesome given the "age of the institution and the complexity of the mission."
2. The Union's Position
The Panel should find that the Employer has not met its burden under the Act of demonstrating that the 4-10 CWS has caused an adverse agency impact. Its allegations concerning the need for more staff supervision are exaggerated, given that the FD staff is highly experienced and "hired for their ability to work independently without supervision." The 2.5 hours daily of "unsupervised time" alluded to by the Employer is "misleading" as the numerous work activities employees perform during that time "would absolutely not be supervised by the general foreman" in any case. On the issue of staff supervision of inmates, "none of the Facilities staff questioned were ever aware of the general foremen supervising an inmate detail at any time, much less on a weekly or daily basis," as the Employer alleges. Further, according to the inmate detail rosters, the average detail consists of 15 inmates. The suggestion that foremen are supervising 3 to 4 details, which could consist of 20 to 60 inmates per detail, therefore, is a "gross exaggeration." It also is "totally false and absurd" for the Employer to assert that inmates obtained escape paraphernalia because of the FD's CWS. This is a "supervisory issue not related to compressed schedules," and the Employer has not "produced any evidence" to show that "this alleged breach of security even took place."
Contrary to the Employer's contention, a review of the FD's production data from FY 2001 through FY 2004 reveals that productivity has gone up, rather than down, during the time that the CWS has been in effect. While it is true that there was a reduction in the percentage of preventive maintenance work orders completed in FY 2003 (to 80 percent from 86 percent in FY 2002), the number of completed minor work requests during that first full year of CWS significantly increased in preparation for an accreditation review. In FY 2004, the completion rate was 93 percent, including an overall increase in the number of completed preventive maintenance work orders. In terms of staff productivity during hours when inmates are secured in their cells, employees are required to order and inventory supplies, complete inmate pay and performance paperwork, prioritize work orders, contact vendors for supplies, conduct inventories of tools, and perform area "shakedowns" of shop and equipment, among other things.
The Employer implies that the use of sick leave increased as a direct result of the CWS. The data it provides, however, also show periods after the implementation of CWS where sick leave use decreased. The data also include family sick leave associated with a number of unforeseen and tragic events that the Employer is trying to use to its advantage by "falsely implying" that staff are abusing sick leave as a result of the CWS. Moreover, the Employer "did not provide any documentation" to support its claim that staff are purposefully scheduling medical appointments in conjunction with their days off. If employees on CWS have abused sick leave the Employer should have counseled or disciplined them, but has not done so.
Overall, the level of services furnished to the public has not decreased in the FD since CWS has been in effect. This is clearly documented in the monthly reports prepared and forwarded to the Regional Office that include the quantity and timeliness of active and completed work orders for the current reporting period and the fiscal year to date. The productivity data relied on by the Union are drawn from the information included in these monthly reports, and indicate that productivity has increased since the implementation of the CWS. Additional support for the Union's view that the level of services has not diminished is found in the latest Program and Operational Reviews, both of which reveal that "the department is continuing to function at a very high level of performance."
Any implication that acts of violence within the confines of the Penitentiary are attributable to CWS should be rejected. Violence, unfortunately, is a part of prison life, but "compressed schedules do not affect that one way or the other." Moreover, the Employer's assertion that there are 3¾ hours of idle/non-productive time each day for staff on the CWS "is false." As indicated previously, numerous duties are performed during the times the inmates are unavailable, a fact that is confirmed by the employees' position descriptions. The Employer also should be required to document its allegation that $200,000 in salary is lost per year because of the CWS. In this regard, the Employer "has simply thrown out a figure to make an unsubstantiated claim of increased cost due to CWS."
While there have been a few employees who have taken lunch breaks in violation of the parties' negotiated CWS agreement in FD, "this is a managerial issue and has nothing to do with the compressed schedule." At this point, all employees are in compliance with the work rules, and the Union has indicated its willingness to negotiate a lunch break into the schedule if the Employer wishes to. Finally, the Employer's concern regarding the lack of staff resources during annual training and holiday leave periods has already been addressed through the recent issuance of a memorandum by the FD Manager, which limits the number of staff that may be placed on leave at any given time, and does not provide a valid basis for terminating 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 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."2/
Having considered the totality of the evidence before us, we find that the Employer has not met its statutory burden. In this regard, the record presented is insufficient to establish that the 4-10 CWS has reduced productivity, diminished the level of services furnished to the public, or increased the cost of its operations. Among other things, the Union has effectively countered the Employer's allegations with evidence taken from agency records demonstrating that the level of productivity in the FD, measured in terms of percentage and overall number of completed work orders and minor work requests, has at least been maintained during the period that CWS has been in effect. The Employer also has not substantiated its claim that the CWS has caused a decrease in the responsiveness of the FD to other departments within the institution. Most telling in this regard is the Employer's acknowledgement that while it is meeting strict Agency performance standards now, it believes it is inevitable that those standards will not be met in the future due to the CWS. The Panel must evaluate the current workplace, not the prospective. Finally, we are not persuaded by the Employer's estimates of the amount of non-productive time caused by the CWS, or the cost of such time to the Agency. In our view, its estimates are not reflected in the statistics measuring the FD's productivity, which we believe provide a more reliable benchmark in this case for determining whether adverse impact has occurred. Accordingly, based on the evidence presented, we shall order the Employer to rescind its determination to terminate the 4-10 CWS in the FD.3/
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 Employer to rescind its determination to terminate the 4-10 CWS in the Facilities Department.
By direction of the Panel.
H. Joseph Schimansky
May 18, 2005
/ 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).
/ 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).
Notwithstanding the outcome in this case, we note that under the Act, an employer may seek to terminate flexible or compressed schedules whenever the head of the agency finds that they are having an adverse agency impact. Panel decisions regarding particular flexible or compressed schedules, therefore, do not provide precedents for future cases, even if they involve the same schedule. Thus, should the elements supporting the declaration of an adverse agency impact occur as the Employer believes is inevitable, the Employer may file another case with the Panel concerning the termination of the CWS in FD at such time as it believes its determination is supported by evidence that the schedule has caused an adverse agency impact.