United States of America
BEFORE THE FEDERAL SERVICE IMPASSES PANEL
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In the Matter of DEPARTMENT OF JUSTICE OFFICE OF THE UNITED STATES ATTORNEY FOR THE DISTRICT OF COLUMBIA SUPERIOR COURT DIVISION WASHINGTON, D.C. |
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AND LOCAL 3620, AMERICAN FEDERATION OF STATE, COUNTY, AND MUNICIPAL EMPLOYEES, AFL-CIO
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Case No. 96 FSIP 42 |
DECISION AND ORDER
Local 3620, American Federation of State, County, and Municipal Employees, AFL-CIO (Union), 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 arising from the determination of the Department of Justice, Office of the U.S. Attorney for the District of Columbia, Superior Court Division, Washington, D.C. (Employer) not to establish an alternative work schedule (AWS)(1) as proposed by the Union in the Papering Intake Section of the Grand Jury component.
Following an investigation of the request for assistance, the Panel determined that the impasse should be resolved on the basis of an informal 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, including the parties’ final positions and the representative’s recommendation for resolving the matter. After considering the report, the Panel would take final action in accordance with § 6131(c) of the Act and § 2472.12 of its regulations.
Pursuant to the Panel's determination, the parties met with Panel Representative (Staff Attorney) Ellen J. Kolansky on June 13, 1996. The parties did not resolve the dispute. On June 27, 1996, Mrs. Kolansky visited the office where the affected employees work to observe workflow patterns. She has reported to the Panel and it has now considered the entire record.
BACKGROUND
The Employer is responsible for prosecuting both local and Federal criminal matters which arise in the District of Columbia. The Union represents 160 nonprofessional bargaining-unit employees. Currently, there are four criminal history analysts and four legal technicians in the Papering Intake office; two additional legal technician positions have been vacant for over a year.(2) The legal technicians mainly: (1) assist attorneys, family members, and witnesses at a walk-up window; (2) collect, assemble, and type labels and the charging document (called an information) for folders called "jackets" which identify arrestees; (3) assist police officers with citations issued when arrestees are released; and (4) assist U.S. attorneys in court with handling the jackets. Criminal history analysts are 20-year veterans of the police force who, among other things: (1) check whether arrestees may be linked with other crimes, have violated parole, have prior convictions, and are wanted in other jurisdictions; (2) track the use of firearms; and (3) locate missing vehicles and other stolen property (some of these tasks are performed in other offices). The office is open 6 days a week; employees sign up for overtime on a voluntary basis to cover the 6th day, a Saturday. From Monday through Friday, the legal technicians work set schedules; their starting times are staggered so that they begin at 7:30, 8, 8:30, or 10:30 a.m., respectively, and finish 8½ hours later. Criminal history analysts work set schedules of 7 a.m. to 3:30 p.m. daily. The parties are covered by a collective bargaining agreement (CBA) which expired on July 7, 1996.
In the summer of 1995, the parties reached agreement on a 1-year AWS pilot program. That program is to conclude on September 1, 1996, but employees are to remain on AWS if the evaluation of the program extends beyond that date. As relevant to the instant dispute, on September 1, 1995, in accordance with Section C.2.(b) of the pilot agreement, the Employer notified the Union of its determination to exclude employees in the Papering Intake office from participation in the AWS pilot.(3) Although the parties engaged in negotiations over the Employer’s determination, they were unsuccessful in resolving the matter.
ISSUE AT IMPASSE
The dispute essentially concerns whether two of the four legal technicians in the Papering Intake office should be permitted to participate in the 5-4/9 AWS pilot. The issue before the Panel, therefore, is the following:
Whether the agency head’s findings on which the Employer has based its determination not to establish the Union's proposed AWS pilot in the Papering Intake office is supported by evidence that the schedule is likely to cause an adverse agency impact as defined under the Act.(4)
POSITIONS OF THE PARTIES
1. The Employer’s Position
Essentially, the Panel should find that the evidence on which the Employer bases its determination not to implement the 5-4/9 AWS establishes that the schedule is likely to cause an adverse agency impact as defined under the Act. By letter dated March 20, 1996, U.S. Attorney Eric H. Holder, Jr., stated that the schedule would cause "an adverse impact, i.e., a diminished level of services and a reduction in productivity."(5) To meet Superior Court requirements, each day this office must complete jackets for all adult arrestees who arrive at the court’s cellblock by 3 p.m. When police conduct a "sweep" or protesters hold a demonstration, the number of defendants held in the "lock up" can increase substantially; typically, on any given day, the caseload may be as low as 60 or as high as 180. Legal technicians’ current staggered schedules are ideally suited to handling the unpredictable, pressured workload which peaks twice each day at 8 to 11:30 a.m. and 1:30 p.m. Under the proposed schedule, however, the office would be shorthanded every Friday when one legal technician would take an AWS off-day; the office already is understaffed because the two vacant legal technician positions cannot be filled due to the hiring freeze. Other offices, also affected by the hiring freeze, cannot loan employees to provide coverage when employees are away, nor is it efficient for criminal history analysts to abandon their critical research tasks to act as substitutes. Furthermore, the kind of work available does not justify keeping all four legal technicians on the job after 4:30 p.m., one result of the proposed schedule. Although the Union suggests that such time could be spent restocking forms in the interview rooms and assisting U.S. attorneys in court during prolonged sessions, the former is not a critical task and the latter assignment already is covered by the employee who begins work at 10:30 a.m. With respect to the employee who was commended for singlehandedly preparing jackets for 197 arrestees in 1 day, this was an exceptional circumstance. Requiring legal technicians to repeat such heroic efforts on a daily basis could lead to errors which, in turn, might result in the cases being dismissed.
2. The Union’s Position
Basically, the Employer has not established that a 5-4/9 AWS in the Papering Intake office would have an adverse agency impact. Although the workload is unpredictable, previously, when employees have been away on leave, substitutes from another office and criminal history analysts have assisted at the walk-up window and in preparing jackets. On Fridays, the three legal technicians would be sufficient to handle the workload: one legal technician could be assigned to the court, leaving two to take care of the walk-up window and jacket preparation tasks. In this regard, the letter of commendation to 1 employee who singlehandedly dealt with 197 cases shows that even 1 employee can cope with a heavy caseload. In addition, Fridays are lighter days. Finally, contrary to the Employer’s view that there is inadequate work during the last hour of a 9-hour day, employees could copy and restock forms for the interview rooms, and assist in the courtroom.
CONCLUSIONS
Under § 6131(c)(2) of the Act, the Panel is required to take final action in favor of the head of the agency's or, in this instance, her delegatee's determination not to establish an AWS if the finding on which it is based is supported by evidence that the schedule is likely to cause an "adverse agency impact."
Having considered the record before us, we find that the Employer has met its statutory burden. In this regard, we are persuaded that the unique functions performed on a mandatory basis and daily pressures dealt with by the Papering Intake office, when coupled with the office’s being short-staffed, establish that the proposed 5-4/9 schedule is likely to diminish service to the public and reduce productivity. In particular, the division of labor within the office, which includes the main task of preparing jackets that serve to identify arrestees, along with serving at the walk-up window and assisting in the courtroom, must be met, as regularly as possible, with the full complement of legal technicians. Heavy workloads are as likely to arise on Fridays as other days, since the workload is directly related to the number of arrests made on a given day. Of special concern is the possibility that errors could occur when fewer legal technicians are present to process such large caseloads; the resulting errors could cause criminal cases to be dismissed for technical reasons. Regarding the exchange of current midday hours on Fridays for 16 added late afternoon hours on 8 workdays, this part of the proposed scheduling pattern is clearly at odds with the greater importance of handling the regularly occurring, midday workload spikes. On the other hand, if, in the future, the two vacant positions are filled, a proposal for such a schedule might be revisited. In light of existing conditions, however, we shall order the Union to withdraw its proposed 5-4/9 AWS.
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 § 2472.12(a) of its regulations, hereby orders the Union to withdraw its proposal.
By direction of the Panel.
Linda A. Lafferty
Executive Director
August 5, 1996
Washington, D.C.
1.Under a 5-4/9 AWS, during the 2-week pay period, employees work eight 9-hour days, one 8-hour day, and take 1 off-day.
2.The Employer states that a hiring freeze, which continues, has prevented it from filling the vacant positions during this period.
3.Section C.2.b.(1) of the AWS Pilot Program reads:
4.Under § 6131(b), "adverse agency impact" is defined as:
(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). 5.Under section 8 of the agency’s Administrative Procedures Handbook, U.S. attorneys are delegated the authority to establish and approve AWS.
Within 2 weeks of the beginning of the pilot program, which will commence on the effective date of this Addendum, Division Chiefs, based only on the factors set out in subsection A.6., above, will designate the Divisions or the organizational components in the respective Divisions, if any, which will not participate in 5-4/9 work schedules. If the Union disagrees with a decision by the Employer under this paragraph, it may refer the dispute to the Federal Service Impasses Panel under Title 5, United States Code, Section 6131.
(1) a reduction of the productivity of the agency;
The burden of demonstrating that implementation of a proposed AWS is likely to cause 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 (daily ed. June 30, 1982) (statement of Sen. Stevens).