1. POLICY. The Employer endorses and adopts the concept of progressive discipline. The procedures described in this Article will be used for disciplinary and adverse actions and, when practical, will be taken on a progressive and constructive basis. Employees will normally be given oral warnings and/or written counseling prior to the administration of formal disciplinary measures.
The Parties agree that emphasis should be placed on preventing situations which may result in disciplinary action. The Parties also agree that the objective of disciplinary measures is to correct, rehabilitate, and maintain discipline and morale among the other employees. Accordingly, it is the policy of the Employer that the minimum penalty which can reasonably be expected to achieve these objectives will be administered. However, nothing in this agreement shall preclude the Employer from imposing more severe disciplinary action when deemed appropriate for a major offense based on the individual circumstances of a given case.
All formal disciplinary actions shall be effected in a prompt, fair, and equitable manner with each employee's rights fully protected. In deciding what, if any, penalty is appropriate, the employer should consider the Douglas Factors, listed below, and any other factors that may be relevant in the particular case.
DOUGLAS FACTORS
No Employee will be the subject of an adverse action except for reasons that will promote the efficiency of the service. Discipline of Employees will be consistent with applicable laws, regulations and this Agreement, and be administered in a fair and equitable manner.
2. DISCIPLINARY ACTIONS. A disciplinary action for the purpose of this Article is a written warning or reprimand.
a) WRITTEN WARNING. A written warning is a statement given to an Employee for an act of misconduct or performance deficiency when oral warnings and/or written counseling has not resulted in improvement or is not expected to do so. A written warning will be in the form of a memorandum describing the reasons for the warning and will notify the Employee of a standard, which if not adhered to, may result in more severe disciplinary action being imposed.
The warning will not be placed in the Employee's Official Personnel (OPF), but will be retained in the Employer's files for six (6) months. The warning will be removed from the Employer's files and destroyed under the following circumstances:
(1) after six (6) months if no further action has been taken based on the warning;
(2) when the Employee leaves the Department in less than six (6) months; or (3) within less than six (6) months if the Employee's improvement of conduct or performance so warrants.
The warning may be retained in the Employer's files for an additional six (6) months from the date of any additional misconduct which occurs during the original six (6) month warning period. The Employee will be provided two (2) copies of their letter of warning. The additional copy may be provided to the Employee's Union representative at the Employee's discretion.
b) REPRIMAND. A reprimand is a statement of censure in the form of a letter given to an Employee for misconduct, or misconduct coupled with unacceptable performance, of such concern that a semi-permanent record of the incident should be established. This censure may also be given due to repetitive minor incidents of misconduct or performance deficiencies, for which the Employee has already been counseled.
The official Letter of Reprimand will:
(1) describe the reasons for its issuance;
(2) advise the Employee that a copy of the reprimand and any written explanation that he/she may furnish will be placed in his/her OPF;
(3) explain the Employee's right to Union representation;
(4) explain the right to grieve the issuance of the reprimand under the negotiated grievance procedure; and
(5) a statement of the withdrawal provisions.
The reprimand will remain in an Employee's OPF for one (1) year from the date on the letter. The reprimand will be withdrawn from the OPF and destroyed under the following circumstances:
(1) after one (1) year if no further misconduct has occurred nor action has been taken on the case;
(2) when the Employee leaves the Department within the one (1) year period (except in a transfer of function); or
(3) any time within the one (1) year period if the employer determines the Employee's conduct so warrants.
The reprimand may be retained in the OPF for an additional one (1) year period from the date of any additional misconduct which occurs during the original one (1) year period. The Employee will be provided two (2) copies of the letter of reprimand. The additional copy may be provided to the Employee's Union representative at the Employee's discretion.
3. ADVERSE ACTIONS. An adverse action for the purpose of this Article refers to a suspension, removal, reduction in grade or pay, not at the Employee's request, or a furlough of thirty (30) days or less. The following procedures will be followed: ADVERSE ACTION - GRIEVABLE UNDER NEGOTIATED GRIEVANCE PROCEDURES a) SUSPENSION FOR 14 CALENDAR DAYS OR LESS. An Employee against whom a suspension of fourteen (14) calendar days or less is proposed is entitled to:
(1) a fifteen (15) calendar day advance written notice that provides the following information:
(a) the specific reason(s) for the proposed action, including regulatory and/or legal cites;
(b) an explanation of the Employee's right to be represented by an attorney or Union representative;
(c) an explanation of the Employee's right to answer orally and/or in writing within ten (10) calendar days after receipt of such notice, and to submit affidavits or other evidence in support of his/her answer, including medical documentation (as defined in 5 CFR 339) to support any medical condition alleged to have contributed to the misconduct upon which the proposed suspension is based;
(d) the name and title of the management official (deciding official) to whom any response(s) should be addressed and who will make the final decision; and
(e) a statement signed by the Employee to acknowledge his or her receipt of the letter and the date of the receipt.
(2) review, or have a designated representative review, the material relied upon to support the reason(s) given in the proposed suspension notice and be provided a copy upon request. (The name and address of the person who can arrange the review will be included in the proposal notice.)
(3) be approved to use a reasonable amount of duty time, based on the complexity of the case, to review all the evidence and the material relied on to support the charge(s), to secure affidavits or other written statements, and to prepare an answer to the notice. In order to use official time, the Employee must be in an active duty status and must obtain approval in advance from the immediate supervisor.
(4) A written decision at the earliest practicable date that:
(a) considers only the reason(s) specified in the notice of proposed action.
(b) considers any response made by the Employee or the Employee's representative, any medical or other documentation furnished, and any entitlement to reasonable accommodation under 29 CFR 1614.203(c).
(c) specifies the reason(s) for the decision.
(d) specifies the employee's right to file a grievance under the negotiated grievance procedure with Union representation or an EEO complaint. (e) includes a statement to be signed by the Employee to acknowledge his or her receipt of the letter and the date of the receipt. The Employer will deliver the notice of decision specifying the date of suspension at or before the time the action will be effective. The Employee will be provided two (2) copies of the decision. The additional copy may be provided to the Employee's Union representative at the Employee's discretion.
a)ADVERSE ACTIONS - GRIEVABLE UNDER NEGOTIATED GRIEVANCE PROCEDURE OR APPEALABLE TO THE MERIT SYSTEMS PROTECTION BOARD
b) SUSPENSION FOR MORE THAN 14 CALENDAR DAYS, REMOVAL. REDUCTION-IN-GRADE OR PAY, OR FURLOUGH FOR LESS THAN 30 DAYS. The employee entitlement and notice content for these actions will include the items described in Section 3 above, with the following exceptions or additions:
(1) The Employee will receive thirty (30) days advance written notice unless there is a reasonable cause to believe that the Employee has committed a crime for which a sentence of imprisonment may be imposed (5CFR 752.404(d)(1)) or the furlough without pay is due to unforeseeable circumstances or sudden emergencies requiring immediate curtailment of activities (5CFR 752.404(d)(2)); and
(2) The received written decision will state the Employee's right to either appeal the decision to the Merit Systems Protection Board (MSPB) or the EEOC if applicable, or to file a grievance under the negotiated grievance procedures, but not both. The Employee will also be informed that he/she will be deemed to have exercised his/her option to raise the matter under one procedure at the time that the Employee files a timely written grievance or files a written appeal under applicable MSPB procedures. The Employer will deliver the notice of decision at or before the time the action will be effective. The Employee will be provided two (2) copies of the decision. The additional copy may be provided to the Employee's Union representative at the Employee's discretion.
c) ACTIONS BY THE DECIDING OFFICIAL. The deciding official will base the decision upon the evidence available. If the deciding official determines any of the charges cited in the proposal notice are not sustained by the evidence, those charges may not be relied upon in deciding on the appropriate action. The deciding official must then determine whether the sustained charges warrant the action proposed. The deciding official has the authority to:
(1) withdraw the proposed action;
(2) to reduce the proposed penalty, but may not impose a more severe action than that proposed;
(3) to effect the proposed action; or
(4) to propose or implement an abeyance, last chance or other form of agreement.
4. UNION REPRESENTATION. Bargaining unit Employees are entitled to Union representation during investigations under the provisions of Weingarten rights. The Union has a right to be present at a meeting related to disciplinary and adverse actions, that meets the definition of a formal discussion, and upon the Employee's request, at the presentation of any oral reply.
5. CONFIDENTIALITY. Disciplinary and adverse actions are matters of personal privacy and will be accomplished confidentially. Interviews and inquiries will be conducted privately and in such a manner as to minimize personal embarrassment of bargaining unit Employees. The number of persons involved in a particular action will be decided on the individual's need-to-know. Information relating to such actions will only be released to individuals with a legitimate need-to-know, or upon the signed authorization of the Employee.
6. PRELIMINARY INVESTIGATION. Prior to taking a disciplinary action or issuing a proposed notice of adverse action, the Employer may undertake fact-finding discussions and/or investigations deemed necessary to fully understand the facts of the situation at hand. A bargaining unit Employee who is examined in the course of such fact-finding has a right to be represented by the Union if the conditions prescribed under Weingarten are met or the meeting is a formal discussion. If the Employee requests representation, the examination will not begin or continue until a Union representative has been given a reasonable opportunity to be present.
7. TIME FRAME FOR REPLIES. The periods of time for reply or decision indicated in the procedures above may be extended by mutual agreement of the Parties. Each request for an extension will be considered on its own merits and on a case-by-case basis. If requested by the Employee, a local Union representative may be present during an oral reply.
8. LIST. The Employer will provide the Union with an annual summary of disciplinary and adverse actions of bargaining unit Employees. This list shall include the position held, Section Bargaining Unit Status, proposed charge and final decision/action.