United States of America
BEFORE THE FEDERAL SERVICE IMPASSES PANEL
| In the Matter of
DEPARTMENT OF JUSTICE |
|
|
and LOCAL 3584, AMERICAN FEDERATION OF |
Case No. 03 FSIP 87 |
DECISION AND ORDER
Local 3584, American Federation of Government Employees, AFL-CIO (Union), filed a request for assistance with the Federal Service Impasses Panel (Panel) under 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 a determination of the Department of Justice, Federal Bureau of Prisons, Western Regional Office (WRO), Dublin, California (Employer) not to implement a 4-10 compressed work schedule (CWS)(1) for the Budget Analyst and the Administrative Officer in the Financial Management Department (FMD) of the WRO.
Following an investigation of the request for assistance, the Panel determined that the impasse should be resolved on the basis of single written submissions from the parties. The parties were advised that, after considering the entire record, the Panel would take final action in accordance with 5 U.S.C. § 6131 and 5 C.F.R. § 2472.1 of its regulations.
BACKGROUND
The WRO of the Federal Bureau of Prisons is responsible for policy development and oversight, providing operational guidance to field locations, and supporting functions in areas such as auditing, technical assistance, budget, and personnel. The FMD is responsible for fiscal planning, monitoring and allocation of regional fiscal resources, and the evaluation of institution programs. The Union represents approximately 220 employees who typically work as accountants, administrative officers, budget analysts, contract specialists, and in various support staff positions, at grades GS-3 through -12. The master collective bargaining agreement (MCBA) covering these employees expired on March 8, 2001; its terms will continue in effect until negotiations over a successor agreement are completed.
ISSUE AT IMPASSE
The sole issue in dispute is whether the Employer’s determination not to implement a 4-10 CWS for two employees in the FMD is supported by evidence that such a work schedule is likely to cause an adverse agency impact, as defined under the Act.(2)
POSITIONS OF THE PARTIES
1. Employer’s Position
Implementation of the Union’s proposed 4-10 CWS would reduce employees’ productivity, diminish the level of service provided to the public, and increase costs. The WRO only has one Budget Analyst and one Administrative Officer working in the Region. The Administrative Officer primarily performs proof checks and also assists field institutions; the Budget Analyst performs budgeting tasks in addition to working closely with field institutions to maintain the accountability of funds, generate reports, and meet short term deadlines for fund allocations and budgeting requested by the Central Office (BOP Headquarters). The employees are in specialized positions; thus, if they are permitted to be out of the office 1 day a week, co-workers who are qualified to perform the budget analyst and administrative officer functions would have to cover for them. The problem would be further exacerbated by permitting both employees to take the same RDO each week. Authorizing these employees to work a CWS "would seriously tax [the Employer’s] already diminished human resources in the [FMD]." Further, the CWS may reduce productivity, and "will certainly prevent an increase in productivity." With the additional demands from activating new prisons, the employees would be needed 5 days-per-week. As to increased costs, beginning the workday before 6 a.m. would require the Employer to provide electricity and heating/air conditioning from 5:30 a.m. to 6 a.m., and entitle these employees to night differential pay. 2. The Union’s Position
The Union proposes that the parties initiate a 6-month trial period, allowing the two employees to work a 4-10 CWS with Mondays as their RDO. During pay periods when the employees are on travel or attending training, they would revert to a 5-8 work schedule. The proposed CWS would benefit the Employer by making it easier to work with institutions in Hawaii and Arizona, which are in different time zones than the WRO. In addition, the CWS: (1) is consistent with the Executive Order concerning expanding Federal family-friendly work arrangements; (2) would reduce the employees’ sick leave usage because their doctor appointments could be scheduled on their RDO; and (3) improve employee morale. Furthermore, the option of working a CWS would be a valuable recruitment and retention tool.
As to the Employer’s assertions of increased costs, reduced productivity, and diminished service to the public, it has never provided the Union with any data or evidence supporting its assertions. Specifically, the Employer’s belief that allowing the employees to work a CWS would diminish services provided to the public is specious because one employee has no public contact and the other has minimal contact with public vendors. Moreover, if questions that require an immediate answer arise on the employees’ RDO, the budget analysts in the Central Office Execution Branch can be contacted. Since there is no evidence to support the Employer’s assertions, the parties should conduct a 6-month test in order to confirm or disprove the Employer’s claims.
CONCLUSIONUnder § 6131(c)(2)(B) of the Act, the Panel is required to take final action in favor of the head of the agency's or, in this instance, his delegatee's determination not to establish a CWS only if the finding on which it is based is supported by evidence that the schedule is likely to cause an "adverse agency impact." Having carefully considered the record before us, we find that the Employer has not met its statutory burden. In this regard, the Employer’s contentions appear speculative. With little record evidence to support the Employer’s claims, we are not persuaded that the proposed CWS is likely to reduce productivity or diminish service to the public. Moreover, the additional cost of providing electricity, heating/air conditioning, and ½ hour of night differential pay appears to be nominal. These concerns, as well as the Employer’s hesitancy in permitting both employees to have the same RDO, are ideal topics for discussion during the negotiation process. Therefore, in accordance with the intent of the Act, as established by its legislative history,(3) we shall order the parties to negotiate over the Union’s proposed CWS.
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 section 2472.11(a)(1) of its regulations, hereby orders the parties to negotiate over the Union’s proposed CWS.
By direction of the Panel.
H. Joseph Schimansky
Executive Director
October 30, 2003
Washington, D.C.
1.
Under a 4-10 CWS, employees work four 10-hour days and have one regularly scheduled day off during each
week of the pay period.
2.
Under § 6131(b), “adverse agency impact” is defined as:
(1) a reduction of 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 agency operations (other than a reasonable administrative cost relating to the process of establishing a flexible or compressed work schedule).
The Act requires the head of the agency to make adverse agency impact determinations. By letter dated November 22, 1999, Ms. Kathleen Hawk Sawyer, former Bureau of Prisons (BOP) Director, delegated to the Chief Executive Officers (Wardens) of all BOP institutions the authority to determine if a particular flexible or compressed schedule under the Act is likely to have an adverse agency impact. The burden of demonstrating that a proposed CWS would have an adverse agency impact falls on the employer under the Act. On May 29, 2003, the Regional Director of the WRO provided the Panel with his written determination why a 4-10 CWS for the two employees is likely to cause an adverse impact on the Employer’s operations.
3.
See, for example, the statement of Representative Ferraro regarding the next step when an employer fails to establish that a proposed schedule would cause an adverse agency impact:
If the agency’s presentation does not convince the Panel that the imposition of the particular alternative work schedule at issue would likely cause an adverse impact, the Panel will direct the parties to return to the bargaining table and to continue negotiations of an alternative work schedule. 128 CONG. REC. H3,999 (daily ed. July 12, 1982).