United States of America
BEFORE THE FEDERAL SERVICE IMPASSES PANEL
In the Matter of
DEPARTMENT OF JUSTICE
LOCAL 1145, AMERICAN
Case Nos. 05 FSIP 72
DECISION AND ORDER
The Department of Justice, Federal Bureau of Prisons (BOP), 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 Recreation Department (RD).
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 high security facility that houses approximately 2,600 inmates. The Recreation Department has both indoor and outdoor facilities, including a Gymnasium, Leisure Center, and hobby shop, and services about 700 to 800 inmates per day. 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 RD 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 CWS in the RD is causing an adverse agency impact "in all three areas delineated" in the Act: "diminished service, increased costs and decreased productivity in programs." Since its inception in October 2002, "there has been a decrease in programs, excessive staff absences and a general decline in the operational integrity of the [RD]." Recent events involving the RD staff's seven full-time employees have created a number of vacancies, two of which cannot be filled until the incumbents, who are on extended absence pending medical retirement, have their retirement status "approved and completed." The size of the institution and the "complexity of the mission," however, require that there be a minimum of four staff scheduled to work on any given day. Although there is only one employee currently using the CWS, it is impossible to meet this minimum staffing requirement while the CWS is in effect.
The CWS also "does not promote a sound use of staff time." In this regard, those on the CWS begin work at 9:30 a.m., 2½ hours before the Gym or Leisure Center are scheduled to open, and before the majority of programs offered in the RD begin. As a result, the cost associated with CWS employees' "idle time exceeds $77,000 per year." In addition, the Gym and Leisure Center are closed 50 and 70 percent of the time, respectively, "due to staff absences." Staff coverage has been further reduced by the elimination of two security posts within the RD because of the recent implementation of a BOP-wide budget initiative referred to as the Mission Critical Custody Roster. Thus, the lack of flexibility created by the CWS does not permit management to "provide coverage for all recreation program needs," which makes inmates reluctant to enroll in programs. Its termination, and a return to the traditional 5-day workweek, "will provide adequate staff coverage and consistent programs for the inmate population."
During 2003 and 2004, when the CWS was in effect, sick leave increased by 14 percent over prior years. Moreover, the number of times staff "called in sick on holidays when scheduled to work doubled in 2004." Consequently, with the staff shortage, scheduled events were cancelled and starting dates delayed. Inmate participation in leisure activities has declined, and "inmate morale is negatively affected." In conclusion, the CWS does not meet the staffing needs of the RD and "severely impedes" management's ability to accomplish the RD's 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. As required by BOP policy, the CWS was reviewed after a 6-month trial period and "there were no concerns raised by the Agency," nor have more recent routine reviews "identified any concerns." With respect to the 2½ hours of "idle time" it now alleges to be caused by the CWS, management apparently is counting such things as the lunch break, which is "idle whether staff are on a compressed schedule or not and will not change." More importantly, management has assigned employees duties during the 9:30 a.m. to noon time period (i.e., the shakedown of the entire Recreation Yard and to stand "main line" in the inmate dining hall), and could choose to assign them other duties as well. Moreover, contrary to the Employer's claim, inmate enrollment in leisure programs has not declined. Rather, the figures the Employer relies on "are simply due to a failure of departmental staff to upload the proper data into the computer system," which is not a CWS problem but a departmental one.
The Employer's allegations regarding the dollar costs of the CWS are based on "manipulated data." In fact, the "idle time" in question "has been used the way it was agreed to be used by the parties prior to the CWS's inception." The real problem in the RD "is not coverage of staff but a shortage of staff at this time." This is because there currently are only three Recreation Specialists assigned to the RD, one of whom is on a CWS. In essence, "management can not propose any schedule with three people assigned that will give flexibility to provide staff coverage and consistent programs for the inmate population."
In the area of diminished services, the Employer cites statistics that are "simply manipulated to show a decline in programs." It does not, however, provide the underlying documentation that would prove its statistics are accurate. An examination of the sign up forms for inmate sports programs, for example, does not support the Employer's claim. With regard to unscheduled leave use, the Employer's figures actually support the conclusion that RD staff has used less unscheduled leave in 2004 than in 2002. The real reason that the Gym and Leisure Center are closed as often as management has asserted is the failure of the Recreation Supervisor to administer sick and annual leave properly. Finally, the fact that the Employer proposed its own CWS alternative during negotiations implies that a CWS "can and does work in this department." As there currently is only one employee in RD using the CWS, the Union is willing to agree not to add any new employees to the CWS without the Employer's agreement. This would also allow the Employer to ensure that the "lone employee makes good use of his time while on 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 carefully considered the evidence presented, including the representations of the parties during the informal conference, we conclude that the Employer has demonstrated that the 4-10 CWS in the RD is causing an adverse agency impact by diminishing the level of services furnished to the public. In this regard, the Friday regular day off (RDO) of the Recreation Specialist currently on the CWS is preventing the RD from maintaining the level of service to inmates that was provided prior to the implementation of the CWS. Put another way, the employee's availability an additional day per week will increase the number of inmates who can participate in leisure activities. As this is an important element in maintaining the safety of the facility, 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(a)(2) of its regulations hereby orders the termination of the 4-10 CWS program in the Recreation Department.
By direction of the Panel.
H. Joseph Schimansky
May 18, 2005
5 U.S.C. § 6131(b) defines adverse agency impact as:
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: