DEPARTMENT OF JUSTICE FEDERAL BUREAU OF PRISONS FEDERAL CORRECTIONAL INSTITUTION ESTILL, SOUTH CAROLINA and LOCAL 3976, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO

United States of America

    BEFORE THE FEDERAL SERVICE IMPASSES PANEL 

 In the Matter of 

DEPARTMENT OF JUSTICE
FEDERAL BUREAU OF PRISONS
FEDERAL CORRECTIONAL INSTITUTION
ESTILL, SOUTH CAROLINA


 

and

LOCAL 3976, AMERICAN FEDERATION
  OF GOVERNMENT EMPLOYEES, AFL-CIO

 

    Case No. 04 FSIP 63

 

 DECISION AND ORDER

     The Department of Justice, Federal Bureau of Prisons (FBOP), Federal Correctional Institution (FCI), Estill, South Carolina (Employer), filed a request 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 between it and Local 3976, American Federation of Government Employees, AFL-CIO (Union), arising from its finding that a 4/10 compressed work schedule (CWS) for certain employees in the Education/Vocational Training Department is causing an adverse agency impact and, therefore, should be terminated. 

     Following an investigation of the request for assistance, the Panel determined that the impasse should be resolved through an informal conference by telephone with Panel Member Joseph C. Whitaker.  The parties were informed that if no settlement were reached during the informal conference, Member Whitaker would notify the Panel of the status of the dispute.  The notification would include, among other things, his recommendation for resolving the matter.  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.  The parties were reminded that under the Act, the Employer bears the burden of demonstrating that the 4/10 CWS at issue has caused an adverse agency impact under at least one of the three criteria specified therein.1/  The Union also was directed to submit a statement responding to the arguments and evidence provided by the Employer in its request for assistance in support of its finding.  

     Accordingly, the Union submitted its statement, and an informal conference by telephone was conducted on April 28, 2004, between the parties and Member Whitaker, but a settlement of the dispute was not reached.  The Panel has now considered the entire record, including the parties’ submissions and Member Whitaker’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 FCI in this case is a medium security prison and a prison camp that house approximately 1,400 inmates. The Union represents about 240 employees, mainly correctional officers, at grades GS-5 through -11, WG-5 through -9, and WS-7 through -11.  There are 12 bargaining-unit employees in the Education/Vocational Training Department, and two additional positions remain unfilled.  The option of working the CWS has been available to certain Vocational Training employees since April 2001, and to certain other employees in Education/Vocational training since July 2001.2/  Currently, 6 of the 12 employees in the Education/Vocational Training Department are on the 4/10 CWS.  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 

     The issue before the Panel is whether the finding on which the Employer has based its determination to terminate the 4/10 CWS in the Education/Vocational Training Department is supported by evidence that the schedule is causing an adverse agency impact. 

POSITIONS OF THE PARTIES 

1.  The Employer’s Position 

     The Panel should find that the evidence on which the Employer bases its determination to terminate the 4/10 CWS establishes that the schedule is causing an adverse agency impact, as defined under the Act.  From FY 2001 through FY 2003, over 1,400 Education classes or services were not offered “due to an off day designated by the current CWS.”  During this time period, an average of at least 272 inmates did not attend education assignments.  In addition, there were 223 instances of unscheduled leave “taken in conjunction with established days off or at the beginning/ending of scheduled shifts,” and 116 specific examples of areas vacated and/or closed “due to an insufficient number of employees available to fill the void of a staff member on day-off status.”  There also were over 360 requests from employees to adjust the approved quarterly CWS, and 596 examples of holidays, training, scheduled annual leave, Correctional Services coverage, and/or Recreation coverage “which further complicates the CWS [] and disrupt services.”  These statistics demonstrate a significant decrease in the level of service furnished to the inmate population during the period the CWS has been in effect. 

     The data also show a reduction in the number of courses completed, course enrollments, and instructional hours in its core curricula since the beginning of the CWS.  For example, course completions, enrollments, and instructional hours in Parenting in FY 2001 decreased by 101 students, 76 students, and 2,082 hours, respectively.  Course enrollments in FY 2001 in General Educational Development (GED) decreased by 23 students, and course completions and instructional hours in GED decreased by 12 students and 20,257 hours, respectively, in FY 2002.  Instructional hours in English as a Second Language (ESL) decreased by 920 hours in FY 2001 and 236 hours in FY 2002, and instructional hours in Adult Continuing Education (ACE) decreased by 2,226 hours in FY 2001 and 1,884 hours in FY 2002.  Significantly, in FY 2003, when three employees who had been working on the 4/10 CWS returned to the 5/8 schedule, the number of instructional hours in GED increased by approximately 11,000 hours over FY 2002 levels, and the number of course enrollments increased by 22.  These increases in productivity are directly attributable to the return of the three employees to the 5/8 schedule, which permits instruction to occur an additional day per week per employee.  Moreover, because the total number of employees teaching GED courses remained essentially the same throughout the period from FY 2000 to the present, the fluctuations in productivity noted above are due to the CWS and not to any changes in staffing levels.    

    In addition to these reductions in the productivity of the agency, costs have increased because of the number of leave hours utilized by the staff.  In FY 2000, a year before the CWS began, a total of 2,902.50 hours of leave were taken.  In FY 2001, when the CWS started, the number decreased to 2,042.75 hours.  By FY 2002, it jumped to a total of 3,462.50 hours, and during FY 2003, the total number of sick leave hours taken increased again to 3,653.25 hours.  Based on the information provided above, the current CWS “severely impedes the accomplishment” of the FCI’s “vital mission,” has resulted in a “significant cost to the government,” and presents “viable security and productivity concerns.”  For these reasons, it should be terminated.     

2.  The Union’s Position 

     The Panel should find that the Employer has not met its statutory burden under the Act, and permit the 4/10 CWS in the Education/Vocational Training Department to continue, as it currently does at 19 other Education Departments of comparable size within the FBOP.  Preliminarily, “serious doubt should be placed on the date and validity of the documentation provided” by the Employer.  The “Six-Month Supervisory Assessment” of the CWS that it has put in the record, which alleges decreased productivity and service to the public and increased costs, is undated, and the request for the review was submitted 4 months past its due date.  Furthermore, there is no evidence that the review was completed, and a recommendation for termination presented to the FBOP’s Office of General Counsel, in accordance with the agency’s internal regulations.  Thus, the determination of the Warden at FCI Estill that the 4/10 CWS in the Education/Vocational Training Department is causing an adverse agency impact is procedurally defective.  Combined with the e-mail from FCI Estill’s Supervisor of Education to all the Education Departments within the FBOP, sent just 2 days after the completion of bargaining, requesting information “about dealing with the CWS,” it “goes to reason” that “the alleged adverse impact has been manufactured to fit the CWS rather that the CWS creating adverse agency impact.”  In reality, management’s decision to terminate the CWS is an attempt to retaliate against employees and the Union for a recent unfair labor practice the Employer admitted to committing which stemmed from a previous meeting the Associate Warden conducted in the Education Department with bargaining-unit employees in which the Union was by-passed. 

    Contrary to the Employer’s assertion that the CWS has diminished the level of services provided to inmates, numerous new programs and services have been added since its implementation, among them, three vocational courses, a tutor training program, and a computer program for students taking college correspondence courses.  The schedules and emails the Union has attached to its written response also show that coverage has continued to be provided as needed by the Education Department for staff shortages in the Correctional Services and Recreation Departments, contradicting the Employer’s allegations in this regard.  Most importantly, management’s statement that CWS off days have caused classes to be cancelled “is erroneous.”  FCI Estill Institution Supplements and a recent e-mail from the Supervisor of Education establish that “only the Associate Warden has the authority [to] cancel work/classes.”  Another document titled “Education Duties and Responsibilities,” dated October 23, 2000, demonstrates that “even prior to implementation of the CWS, classes/services were only offered 4 days per week.”  And a December 1, 2003, memorandum to the Education Department staff announcing that, effective immediately, all classes will met 5 days a week, proves that the CWS “has increased the amount of classes/services being provided.” 

     The Employer’s implication that the CWS has caused an increase in leave hours and, consequently, costs, “is misleading and/or untrue.”  The “Education Leave Usage Chart” management provided includes the leave usage of non-CWS staff and supervisors, and the numbers cited as “individual examples” do not show specific dates, types, or the duration of leave.  In fact, the chart demonstrates that CWS has had a positive effect on sick leave usage: the totals were highest in FY 2000 before CWS was implemented, lowest in FY 2001 and FY 2002 when 11 staff members were on CWS, and began to climb in FY 2002 and FY 2003 “when several staff came off of CWS.”  The real reason that sick leave usage increased during FY 2002 and FY 2003 is because three staff members were added to the Education Department.  Since annual leave must be approved by management, it is “disingenuous” for the Employer to approve such requests and then assert that annual leave usage is excessive.  The expense of annual leave is provided for in FCI Estill’s budget, and “does not cause an increased cost to the agency.” 

     The charts provided by the Employer in connection with its claim that the CWS has caused reductions in productivity “demonstrate faulty comparisons.”  CWS was not in effect for the entire year during FY 2001, so “the only legitimate comparison should be made between the years [FY] 2000 and [FY] 2002.”  Based on the information for these 2 years, the conclusions to be drawn after the implementation of CWS are that: (1) three new Vocational Training courses were added; (2) seven out of nine programs showed increases; and (3) the decreases in GED completions and increase in costs per completion were “negligible,” and accounted for by factors other than the CWS, such as the introduction of a new, more difficult GED test, and an increase in voluntary inmate withdrawals.  In addition, ACE enrollments and instructional hours should not be considered because ACE programs are voluntarily taught by inmates, not staff members.  Nor has the Employer verified the decreases its chart shows in GED instructional hours, particularly where the FY 2002 Annual Education Service Program Report indicates an increase in overall instructional hours from FY 2000 of 60,809 hours.  Finally, verification that productivity has not decreased can be found by comparing this same report, which states that the Education Department secured the rating of “Good” during its program review for that year, with another Program Review conducted as recently as September 23-23, 2003, which indicates “the Education Department rating was also good.”  

CONCLUSIONS 

     Under section 6131(c)(3) of the Act, the Panel is required to take final action in favor of an employer’s determination if the finding on which the determination is based is supported by evidence that a CWS has caused adverse agency impact.3/  As its Legislative History makes clear, Panel determinations under the Act are concerned solely with whether an employer has met its statutory burden.  It also establishes that in hearing both sides of the issue, the Panel is not to apply “an overly rigorous evidentiary standard,” but must determine whether an employer has met its statutory burden on the basis of “the totality of the evidence presented.”4/ 

     Having considered the totality of the evidence before us, we are persuaded that the 4/10 CWS has caused a reduction in the agency’s productivity, and diminished the level of services furnished to its customers (i.e., inmates) and, consequently, the public.  In this regard, the Employer’s contention that CWS off days limit its ability to provide inmates instruction in GED courses is substantiated by the statistics it has provided regarding the FY 2002-2003 period.  Instructional hours and inmate enrollments in GED increased significantly in FY 2003 over FY 2002 levels when the number of employees working the 4/10 CWS decreased by three.  During this same period, the total number of staff providing GED instruction remained constant.  While the Union argues that other factors, such as inmate withdrawal rates, provide an alternative explanation for the increase in instructional hours and enrollments, the figures in the record for voluntary and involuntary inmate withdrawals during the FY 2002-2003 period do not support its position.  We also credit the Employer’s statement that, at any given time, there are between 75 and 100 inmates on a list waiting to be enrolled in GED courses, so that inmates who withdraw from GED  courses are replaced by those on the waiting list when openings occur.  Finally, turning to the CWS established in April 2001 for two Vocational Training employees, in our view it too has caused a diminished level of services furnished by the agency to the inmate population.  Once again, among other things, the CWS off days of these employees resulted in a reduction in the number of instructional hours provided to inmates enrolled in Vocational Training courses. 

Given our conclusion that the Employer has met its statutory burden, consistent with the requirements of the Act, we shall order that the CWS in the Education/Vocational Training Department be terminated.     

ORDER 

     Pursuant to the authority vested in it by 5 U.S.C. § 6131 (c) of the Federal Employees Flexible and Compressed Work Schedules Act, the Federal Service Impasses Panel, under 5 C.F.R. § 2472.11(b) of its regulations, hereby orders that the 4/10 CWS in the Education/Vocational Training Department be terminated. 

By direction of the Panel.

H. Joseph Schimansky
Executive Director

 

May 3, 2004
Washington, D.C.


1/   5 U.S.C. § 6131(b) defines adverse agency impact 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).

2/   The CWS was implemented through separate Memoranda of Agreement for the two groups of employees.

3/   With respect to the Union’s claim that the Warden’s determination of adverse agency impact is procedurally defective, on November 22, 1999, Kathleen Hawk Sawyer, former Director of the FBOP, issued a “Memorandum For All Chief Executive Officers,” delegating to the Chief Executive Officers (CEOs) of all FBOP institutions “the authority to determine if a particular flexible or compressed schedule under 5 U.S.C. § 6131 had or would have an adverse agency impact.”  Since the Warden is the CEO at FCI Estill, and there is no evidence that the authority delegated to him by the former Director of the FBOP has been rescinded, the Union’s contention that the Warden’s determination is procedurally defective is hereby rejected.  

4/   See the Senate Report, which states: 

The agency will bear the burden in showing that such a schedule is likely to have an adverse agency impact.  This burden is not to be construed to require the application of an overly rigorous evidentiary standard since the issues will often involve the imprecise matters of productivity and the level of service to the public.  It is expected the Panel will hear both