U.S. Federal Labor Relations Authority

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United States of America


In the Matter of
















Case Nos. 99 FSIP 153 and 99 FSIP 162


    The Department of Justice, Federal Bureau of Prisons, Federal Corrections Institute Tucson, Tucson, Arizona (Employer) and Local 3955, American Federation of Government Employees, AFL-CIO (Union), each filed requests for assistance with the Federal Service Impasses Panel to consider a negotiation impasse resulting from an agency determination to terminate a 4-10 compressed work schedule (CWS) under the Federal Employees Flexible and Compressed Work Schedules Act of 1982 (Act), 5 U.S.C. § 6120-6133.(1)

    Following an investigation of the request for assistance, the Panel determined that the impasse should be resolved on the basis of written submissions submitted by the parties followed by an informal telephone conference with a Panel representative. The parties were advised that if no settlement were reached, the representative would report to the Panel on the status of the dispute. After considering the written submissions and the report of its representative, the Panel would take whatever action it deems appropriate to resolve the impasse, including the issuance of a binding decision.

    Pursuant to the Panel’s determination, the parties submitted written statements(2) to the Panel and spoke by telephone with Panel Representative (Labor Relations Specialist) June M. Marshall on October 13, 1999. The parties did not resolve the dispute during the course of this procedure. Ms. Marshall has reported to the Panel and it has now considered the entire record.


    The Employer’s mission is to protect society by confining offenders in the controlled environments of prison and community-based facilities that are safe, humane, appropriately secure, and that provide work and other self-improvement opportunities to assist offenders in becoming law-abiding citizens. The Union represents a bargaining unit of 174 General Schedule (GS) employees who are part of a nationwide consolidated unit of 28,000 employees. The parties are covered by a master collective bargaining agreement (MCBA) that is due to expire March 8, 2001.

    This dispute affects nine Cook Supervisors in the Food Service Department. They are responsible for the supervision of a work crew consisting of approximately 160 inmates, working shifts which cover the hours between 4 a.m. and 7 p.m. Cook Supervisors oversee the preparation, servicing, and clean-up of three meals per day, 5 days per week. On Saturdays and Sundays, they cover the service of two full meals, along with an early morning continental breakfast. They must also oversee the sanitation and security of the food servicing area for this medium-security prison. In addition to cafeteria-style serving in the main dining room, the Cook Supervisors are responsible for serving meals in two satellite feeding areas.


    The parties’ dispute concerns whether Cook Supervisors should be permitted to continue to work a 4-10 CWS. The issue before the Panel, therefore, is whether the finding on which the Employer has based its determination to terminate the 4-10 CWS is supported by evidence that the schedule has caused an adverse agency impact, as defined under the Act.(3)


1. The Employer’s Position

    The Employer contends that the Panel should find that the evidence on which it bases its determination to terminate the 4-10 CWS establishes that the schedule has caused an adverse agency impact under the Act. A review of the 6-month CWS trial period, June 22, 1997, through January 31, 1998, reveals that the use of overtime during the period increased by 72 percent (from $6,100 to $10,500), an increase of $4,400. Based on this increase in overtime costs, in a review issued on March 5, 1998, the Western Regional Director recommended termination of the 4-10 CWS.(4)  In addition, the schedule presented a greater burden on managers who had been required to cover some 52 Cook Supervisor shifts during the trial period. Managers had to fill in for one Cook Supervisor position which remained vacant for the entire pilot. Their work helped to keep overtime costs to a minimum and maintain adequate supervision. This increase in overtime occurred despite a decrease in the average number of sick leave hours used per pay period. Sick leave decreased 83 percent during the trial period, from an average of 33.6 hours per pay period during the comparison period (October 27, 1996, through June 21, 1997), to an average of 10.5 hours per pay period. A review of leave usage during the three additional comparison periods following the end of the trial period reveals that sick leave usage increased steadily. This "is not due to sick leave abuse," but involved "all legitimate purposes for Federal employees to utilize their sick leave, and are events that often cannot be planned for, but must be accommodated." Overall, the CWS does not allow managers the same amount of scheduling flexibility as a conventional schedule would for covering unplanned occurrences such as sick leave.

2. The Union’s Position

    The Union contends that the record is sufficient to establish that the 4-10 CWS for Cook Supervisors has not had an adverse agency impact. Preliminarily, it was never involved in the assessment of the schedule, and was led to believe that the CWS was working well. More importantly, there are reasons other than the schedule that explain the increase in overtime during the pilot period. These include the existence of a vacancy in the Department throughout the 4-10 pilot period, and that the Food Service staff was frequently assigned to collateral duties and training. In essence, the Employer contributed to the increase in overtime by failing to fill the vacancy and by assigning staff to other duties and training. During subsequent negotiations, a seven-point proposal was submitted which contained several schedule-related changes that it believes would be of benefit to the Employer and assist with cost reduction. The Employer rejected these proposals in "toto."


    Under § 6131(c)(2) of the Act, the Panel is required to take final action in favor of the head of the agency or, in this instance, his delegatee’s determination to terminate the CWS, if the finding on which it is based is supported by evidence that the schedule has caused an "adverse agency impact."

    Having considered the record before us, we find that the Employer has not met its statutory burden. In particular, the record presented is insufficient to establish that the 4-10 CWS has increased overtime costs, which is the criterion the Employer has chosen to support its allegation that adverse agency impact has occurred. While the charts and raw data appear to demonstrate that overtime costs increased during the relevant period, they do not establish that the CWS is the reason for the increase. To persuade us of a causal connection between the two, the Employer also would have to show that there are no other factors which might account for the increase. In this regard, it is clear from the record that during the period the data was collected there was a vacancy in the Food Service Department, and three staff members who normally would have been available to participate in the CWS were performing collateral duties. In our view, the Employer’s failure to explain why these factors should be discounted when examining the causes of the increases in overtime are fatal to its case.

    This is essentially the same conclusion that the local Warden reached on January 23, 1998, when he recommended that the 4-10 CWS be continued. We also note that the Employer did not strengthen its position by waiting until January 19, 1999, almost a full year after the Warden’s report, to issue its final determination to terminate the 4-10 CWS. If the CWS were causing an adverse agency impact, as the Employer alleges, one would expect it to act more expeditiously to take steps to terminate the schedule.

    Accordingly, we conclude that the evidence provided does not support the Employer’s finding that the 4-10 CWS is causing an adverse agency impact, and shall order the Employer to rescind its determination to terminate the 4-10 CWS schedule in the Food Service Department.


    Pursuant to the authority vested in it by section 6131(c) of the Federal Employees Flexible and Compressed Work Schedules Act, the Federal Services Impasses Panel, under section 2472.11(a)(2) of its regulations, hereby orders the Employer to rescind its determination to terminate the 4-10 CWS. Thus, bargaining-unit employees shall continue to work their current 4-10 CWS.

By direction of the Panel.

H. Joseph Schimansky

Executive Director

October 29, 1999

Washington, D.C.

1.Under a 4-10 CWS, employees work four 10-hour days and have one regular day off each week.

2.The Employer did not submit a statement subsequent to the Panel’s assertion of jurisdiction, asking instead that the Panel consider the statement it provided in its original request for assistance.

3.Under § 6131(b), “adverse agency impact” is defined as:

(1) a reduction of the productivity of the agency;

(2) a diminished level of 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 implementation of a proposed CWS is likely to cause an adverse agency impact or, as in this case, that an existing CWS has had an adverse agency impact, falls on the Employer under the Act. In the instant case, the parties at the national level, through negotiations of their MCBA and subsequent approval by the Director, Federal Bureau of Prisons, delegated authority to make flexible and compressed work schedules determinations to the Office of General Counsel (OGC).

4.As part of its request for assistance, the Employer submitted graphs as visual representations of the overtime used before, during, and after the 4-10 pilot period, as well as a chart showing sick and annual leave usage. At the request of the Panel’s representative during the telephone conference, the Employer submitted the underlying data it used to develop the charts. Also included with this information were two summary reports with recommendations; a report issued on January 23, 1998, by the Warden of the facility recommended the continuation of the 4-10 CWS schedule for Cook Supervisors; a report issued by the Western Regional Director, referred to in the text above, recommended termination of the 4-10 schedule. According to the Warden’s January 23 assessment, use of sick leave decreased by 461 percent, overtime and compensatory time increased by 59.7 percent, quality of work increased by 10 percent, and service to the inmates increased by 15 percent. The Warden attributed the increase in overtime to a vacancy in the department and to the unavailability of three staff members who participated in collateral duties. He noted that as backup, the Assistant Food Administrator and the Food Service Administrator worked the vacant shifts so that the CWS could be continued. After evaluating the Warden’s summary and recommendations, the Western Regional Director’s March 5, 1998, summary report stated that the Warden’s assessment of the CWS was erroneous. The Employer relies upon the latter report, whose conclusions are summarized in the text, as the basis for its contention that the CWS has caused an adverse agency impact.

5.One of the Employer’s charts contained inaccuracies which were clarified during the informal telephone conference.