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
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.
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.
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.
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.
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
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
1/ 5 U.S.C. §§ 6131(b) defines adverse agency impact as:
(1) a reduction in the productivity of the
(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
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
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.
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
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
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
5 USC 6120
5 USC 6131