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105 LRP 21939

U.S. Department of Justice, Federal Bureau of Prisons, U.S. Penitentiary, Atlanta, Georgia and Local 1145, American Federation of Government Employees, AFL-CIO

Federal Service Impasses Panel

05 FSIP 69

05 FSIP 70

May 18, 2005

Related Index Numbers

4.33 Federal Laws and Programs, Federal Employees Flexible and Compressed Work Schedule Act

44.322 Conditions of Employment, Schedule, Compressed Workweek

51.3 Federal Service Impasses Panel

Ruling

The FSIP found that the agency failed to meet its statutory burden to show that a particular compressed schedule had caused an adverse agency impact.

Meaning

To support its cancellation of a compressed schedule an agency must show that the schedule caused a decrease in productivity, a diminished level of customer service or an increase in costs. The FSIP evaluates the current workplace and not a prospective one.

Case Summary

Seventeen employees in the correctional institution's facilities department worked a 4/10 schedule. The agency contended the schedule resulted in reduced productivity, leading to a decline in customer service as well as a cost increase. According to the agency, employees were without direct supervision for two hours each day. The agency also contended that sick leave usage had increased because employees scheduled medical appointments in conjunction with their off days. The differences between employee work hours and inmates' hours had also resulted in much idle time for employees, the agency asserted. The agency's production data also indicated an increase in the number of pending work orders and a failure to meet work completion rates during one month.

The union claimed the data was exaggerated and much of the problems identified by the agency were not attributable to the 4/10 schedules. The leave issue, for example, resulted from management failures to administer leave properly, the union contended.

The FSIP, seemingly ignoring several issues raised by the agency, explained that the union effectively countered the agency's productivity and customer service argument using data from the agency's own records. The FSIP found the number and percentage of completed work orders and minor work requests at least had been maintained since establishment of the 4/10 schedule. Most telling, according to the FSIP was the agency's acknowledgement that it is meeting strict production standards. The agency predicted an inability to meet such standards in the future, but the FSIP explained that it must rule on the current situation and not predictions.

The FSIP noted that if the agency's prediction of declining performance is accurate it may cancel the schedule at that time, and the matter may again come before the FSIP.

Full Text

DECISION AND ORDER

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.

BACKGROUND

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 Facilities Department is

supported by evidence that the schedule has caused an adverse

agency impact.

1/ 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

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 2 001

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

(daily ed. June 30, 1982) (statement of Sen. Stevens).

inmates." Since the implementation of the CWS in FD "the number

of work orders over 3 0 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 3% 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 2 003 (to 80 percent from 86 percent in FY

2 002), 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 3% 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.

CONCLUSIONS

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/ 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

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.-''

presented. S. REP. NO. 97-365, 97th Cong., 2d

Sess. at 15-16 (1982).

3/ 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.

ORDER

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.

Statutes Cited

5 USC 6120

5 USC 6131