FSIP REJECTS AGENCY’S CWS “ADVERSE IMPACT” CLAIM
While there are cob webs all over the FLRA headquarters thanks to our President’s decision to slow down the administration of justice, some decisions do manage to break free of the morass. A recent one came from the Impasses Panel when an agency tried to reduce the number of employees who would be allowed to continue on a Compressed Work Schedule. The agency claimed that if it could not reduce the number it would create “an adverse impact,” which is the statutory term for the sky is falling, babies are dying, and zombies will be everywhere. Fortunately, the law and regulation require that an agency carries the burden of proving that. When the Bureau of Prisons tried to do that, the Panel outlined why it failed-giving unions a little more clarity on where to punch holes in an agency’s claim. Below is the core of the Panel’s reasoning.
“Having carefully considered the totality of the evidence presented in this case, I find that the Agency has not met its statutory burden of establishing that an adverse agency impact is likely to occur if the Union’s proposed CWS is implemented. While it appears that the Union’s proposal would result in some additional administrative burden, it is unclear, in the absence of a trial period, whether this would rise to the level of adverse agency impact. In any case, such Employer concerns can be addressed by the parties during the negotiations that will occur as a result of this decision. In addition, the Employer’s assertions that implementation of the proposed CWS would result in substantial increases in costs are undercut, in some cases, by its own contradictory estimates and statements, and are not adequately supported on the basis of the evidence provided.
“The analysis of the data provided by the Agency focuses on problems which occurred in the past, not in the present. The Agency believes that similar problems will occur if it re-establishes the CWS, but this relies purely on speculation.
“This arbitrator is struck by what appears to be an apparent contradiction between the attitudes and practices of the Agency. On the one hand, the Agency emphasizes that the various component parts of the RDAP are very structured and require a specific number of hours for successful implementation of the program and achievement of the results required. In fact, the Agency notes that other correctional facilities in the area are sending inmates to FCI Phoenix for enrollment in the drug treatment program, implying successful outcomes associated with the Phoenix RDAP Program. But if the program requires a specific number of hours for success, and the Program’s success is attracting inmates from other correctional facilities, why have open positions remained unfilled? Where does the Agency directly address the impact of its having open, unstaffed DTS positions for more than two years?
“The Agency obviously has something good going with its RDAP Program. This Arbitrator believes that most, if not all, of the Agency concerns about the impact of a CWS will be addressed by filling the DTS position to its appropriate level, and the rest will be addressed in negotiations with the Union.
You can find in the decision at DOJ, BOP, Phoenix and AFGE Local 3954, 2024 FSIP 079 (January, 2025)
