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Article 49 Adverse and Disciplinary Actions
Posted On: Nov 21, 2013

Article 49

Adverse and Disciplinary Actions

Section 1. Employees Covered

This Article applies to the following bargaining unit employees:

a. Employees in the competitive service who are not serving a probationary or

trial period under an initial appointment or who have completed one (1)

year of current continuous employment in the same or similar positions

under other than temporary appointment limited to one (1) year or less;

b. Preference eligibles in the excepted service who have completed one (1)

year of continuous service in the same or similar positions in an Executive

Agency or in the U.S. Postal Service or Postal Rate Commission; and

c. Individuals in the excepted service (other than preference eligibles) who are

not serving a probationary or trial period under an initial appointment

pending conversion to the competitive service, or who have completed two

(2) years of current continuous service in the same or similar positions in an

Executive Agency under other than a temporary appointment limited to two

(2) years or less.

Section 2. General

a. No bargaining unit employee will be the subject of an adverse action except

for such just cause as will promote the efficiency of the service. Just cause

means a legally sufficient reason to substantiate the action taken. The

parties agree that the word “just” does not establish a higher standard than

the “for such cause” standard set forth in 5 USC §7503 and 5 §USC 7513.

b. Definitions:

1. Day is a calendar day, unless specified otherwise.

2. Furlough means the placing of an employee in a temporary status

without duties or pay because of lack of work or other nondisciplinary

cause.

3. Suspension means placing an employee, for disciplinary reasons, in a

temporary status without duties or pay for any length of time.

4. Removal is an involuntary separation from federal service that

terminates the employer-employee relationship.

5. Indefinite suspension means the placing of an employee in a

temporary status without duties and pay pending investigation,

inquiry, or further agency action. The indefinite suspension

continues for an indeterminate period of time and ends with the

occurrence of the pending conditions set forth in the notice of action

which may include the completion of any subsequent administrative

action.

Section 3. Employee Right to Review Material

An employee in the bargaining unit and/or his/her designated representative shall

have the right to receive and review all documentary evidence (including the notice

of disciplinary or adverse action) relied upon in support of an adverse or

disciplinary.

Section 4. Counseling, Warnings, Reprimands, or Admonishments

a. Oral counseling, warnings, reprimands, or admonishments are not

considered disciplinary actions. They can neither be grieved by the

employee nor be relied upon by Management as progressive discipline in

any disciplinary action subsequently taken against the employee. However,

such oral communication can be referenced in a subsequent disciplinary

action to show that the employee had notice of the management’s objection

to the employee’s conduct if the conduct objected to by management

continues.

b. Counseling, warnings, reprimands, or admonishments that are reduced to

writing must be given to the employee if they are to be capable of being

relied upon by Management to support any subsequent disciplinary or

adverse action against the employee. If the employee is dissatisfied with

such written counseling, warning, reprimand, or admonishment, he/she may

file a grievance pursuant to Article 47 of this Agreement.

Section 5. Notice of Proposed Action

a. When Management issues a notice of proposed action under this Article, the

notice will state a reasonable time, not less than ten (10) workdays, by

which the employee’s reply(ies) to the notice of proposal must be made.

b. When Management issues a notice of proposed action under this Article, the

notice will include a statement that the employee is entitled to

representation, including representation by Local 12. The notice will include

the name and telephone number of the Local 12 Agency Vice

President/Chief Steward in the employee’s Agency.

c. When Management issues a notice of proposed action under this Article, it

will notify Local 12 of the nature of the proposed action and the employee’s

Agency.

d. The disallowance of an employee’s choice of a representative during the

notice period may be appealed to the servicing Human Resources Officer.

Such appeals must be made in writing within seven (7) calendar days

following receipt of the deciding official’s disallowance.

Section 6. Disciplinary Action--Suspensions of Fourteen (14) Days or

Less

a. The negotiated grievance procedure in Article 47 is ordinarily the exclusive

procedure for appeals of actions taken under this Section. However, if the

employee wishes to raise an allegation of discrimination on the basis of

race, color, religion, sex, national origin, age, or disability in connection with

the action, the employee may elect to pursue the matter either under the

negotiated grievance procedure or under the Equal Employment

Opportunity (EEO) complaint procedure, but not both. The employee shall

be deemed to have exercised his/her option to raise the matter under either

the negotiated grievance procedure or the EEO procedure at such time as

the employee files a grievance or a formal EEO complaint.

b. When Management issues a notice of proposed action under this Section to

an employee in the bargaining unit, he/she will be given an original and one

(1) copy for referral to Local 12, if desired.

Section 7. Adverse Actions

a. Adverse actions covered under this Section are:

(1) a suspension for more than fourteen (14) days;

(2) a reduction in pay and/or grade; or

(3) a removal based on misconduct or unacceptable performance, or a

combination of misconduct and unacceptable performance.

b. When Management issues a notice of proposed adverse action under this

Section to an employee in the bargaining unit, he/she will be given an

original and one (1) copy for referral to Local 12, if desired.

c. Except in cases where there is an allegation of discrimination on the basis of

race, color, religion, sex, national origin, age, or disability in connection with

the action, an employee covered by this Article may appeal an action taken

under this Section through the negotiated grievance procedure or to the

Merit Systems Protection Board (MSPB), but not both. The employee shall

be deemed to have exercised his/her option to raise the matter under either

the negotiated grievance procedure or the MSPB procedure at such time as

the employee files a grievance or an appeal with the MSPB.

d. In cases where there is an allegation of discrimination on the basis of race,

color, religion, sex, national origin, age, or disability in connection with the

action, an employee covered by this Article may appeal an action taken

under this Section through the negotiated grievance procedure, to the

MSPB, or through the EEO complaint procedure. An employee who has

elected to pursue the matter through the EEO complaint procedure or the

MSPB appeal procedure may not appeal the matter through the negotiated

grievance procedure. The employee shall be deemed to have elected the

forum under which he/she wishes to proceed at the time he/she files a

grievance, an appeal with the MSPB, or a formal EEO complaint.

Section 8. Stays of Certain Adverse Actions

a. Upon timely filing of a grievance within five (5) workdays after receipt of a

decision to suspend an employee under 5 U.S.C. § 7512, the Department

agrees to stay only the following types of actions for the following terms:

1. Suspensions of fifteen (15) days or more – 45 day stay

2. Involuntary downgrades – 45 day stay

3. Removals – No stay

b. Exception: No stay will be provided for an employee or for any action

specifically excluded from coverage by 5 U.S.C. 4303, 7502, or 7512. No

stay will be provided for any other type of adverse action or for any

employee that is not covered or any action that is excluded from coverage

under 5 CFR Part 752, Subpart D. No stay will be provided for any

personnel action taken in response to criminal allegations or for national

security.

Section 9. Pending Legal Charges

If an employee is the subject of a criminal investigation or other criminal

proceeding and an adverse action is taken against him/her involving the same

facts as those which gave rise to the criminal investigation or proceeding, the

employee can elect to suspend his/her right to file a grievance appealing the

adverse action until the completion of the criminal trial or other disposition of the

criminal matter, if the matter is resolved prior to trial. The grievant can elect to file

within twenty (20) workdays of the date of the completion of the criminal trial or

other disposition of the criminal matter. If an employee elects this option, an

arbitrator may take notice.

Section 10. Furloughs of Thirty (30) Days or Less

A furlough of thirty (30) days or less will be processed in accordance with 5 U.S.C.

§7513.

Section 11. Security Systems

The parties agree that the intent of any security system within the Department is

to enhance security and to ensure the safety of all employees. The security

system is not a time and attendance system. This does not preclude management

from using such data as evidence to support a disciplinary action.


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