Discipline Grievances

                         GRIEVANCES INVOLVING DISCIPLINE/ADVERSE ACTION

This type of grievance refers to disputes that arise when the agency takes disciplinary or adverse actions against employees.

A. Disciplinary Actions 

Definition:      Suspension of fourteen calendar days or less, disciplinary transfers, and written reprimands.

Reference:    Title 5 U.S.C. 7501 B 7504

5 C.F.R. 752.201 B 203

A.M. 2235

NBPC Contract, Article 32 (defines discipline as 14 days or less)

B. Adverse Actions 

Definition:      Removal, suspension for more than fourteen days, reduction in grade, reduction in pay or furlough of 30 days or less.

Reference:    Title 5 U.S.C. 7511 B 7513

5 C.F.R. 752.401 B 406

A.M. 2235

NBPC Contract, Article 32

NOTE:            By law, suspensions of more than 14 days may be taken to MSPB or to arbitration (but not both). 

TITLE 5, UNITED STATES CODE

                                GOVERNMENT ORGANIZATION AND EMPLOYEES

                                                         PART III ‑ EMPLOYEES

                 SUBPART F ‑ LABOR‑MANAGEMENT AND EMPLOYEE RELATIONS

                                              CHAPTER 75 ‑ ADVERSE ACTIONS

                          SUBCHAPTER I – SUSPENSION FOR 14 DAYS OR LESS

7501. Definitions 

For the purpose of this subchapter:

(1)  employee means an individual in the competitive service who is not serving a probationary or trial period under an initial appointment or who has completed 1 year of current continuous employment in the same or similar positions under other than a temporary appointment limited to 1 year or less; and

(2)  suspension means the placing of an employee, for disciplinary reasons, in a temporary status without duties and pay.

(Pub. L. 95-454, Oct. 13, 1978, 92 Stat. 1134.)

7502.    Actions covered 

       This subchapter applies to a suspension for 14 days or less, but does not apply to a suspension under section 7521 or 7532 of this title or any action initiated under section 1206 of this title.

(Pub. L. 95-454, Oct. 13, 1978, 92 Stat. 1135.)

7503.    Cause and procedure 

(a)  Under regulations prescribed by the Office of Personnel Management, an employee may be suspended for 14 days or less for such cause as will promote the efficiency of the service (including discourteous conduct to the public confirmed by an immediate supervisor’s report of four such instances within any one-year period or any other pattern of discourteous conduct).

(b)  An employee against whom a suspension for 14 days or less is proposed is entitled to:

(1)  an advance written notice stating the specific reasons for the proposed action;

(2)  a reasonable time to answer orally and in writing and to furnish affidavits and other documentary evidence in support of the answer;

(3)  be represented by an attorney or other representative; and

(4)  a written decision and the specific reasons therefor at the earliest practicable date.

(c)  Copies of the notice of proposed action, the answer of the employee, if written, a summary thereof, if made orally, the notice of decision and reasons therefor, and any order effecting the suspension, together with any supporting material, shall be maintained by the agency and shall be furnished to the Merit Systems Protection Board upon its request and to the employee affected upon the employee’s request.

(Pub. L. 95-454, Oct. 13, 1978, 92 Stat. 1135.)

7504.    Regulations 

The Office of Personnel Management may prescribe regulations to carry out the purpose of this subchapter.

(Pub. L. 95-454, Oct. 13, 1978, 92 Stat. 1135.)

                                                TITLE 5, UNITED STATES CODE

                                GOVERNMENT ORGANIZATION AND EMPLOYEES

                                                         PART III ‑ EMPLOYEES

                 SUBPART F ‑ LABOR‑MANAGEMENT AND EMPLOYEE RELATIONS

                                              CHAPTER 75 ‑ ADVERSE ACTIONS

SUBCHAPTER II – REMOVAL, SUSPENSION FOR MORE THAN 14 DAYS, REDUCTION IN GRADE OR PAY, OR FURLOUGH FOR 30 DAYS OR LESS 

7511.    Definitions; application 

(a)  For the purpose of this subchapter:

(1)  employee means:

(A)  an individual in the competitive service who is not serving a probationary or trial period under an initial appointment or who has completed 1 year of current continuous employment under other than a temporary appointment limited to 1 year or less; and

(B)  a preference eligible in an Executive agency in the excepted service, and a preference eligible in the United States Postal Service or the Postal Rate Commission, who has completed 1 year of current continuous service in the same or similar positions;

(2)  suspension has the meaning as set forth in section 7501(2) of this title;

(3)  grade means a level of classification under a position classification system;

(4)  pay means the rate of basic pay fixed by law or administrative action for the position held by an employee; and

(5)  furlough means the placing of an employee in a temporary status without duties and pay because of lack of work or funds or other nondisciplinary reasons.

(b)  This subchapter does not apply to an employee:

(1)  whose appointment is made by and with the advice and consent of the Senate;

(2)  whose position has been determined to be of a confidential, policy-determining, policy-making, or policy-advocating character by:

(A)  the Office of Personnel Management for a position that it has excepted from the competitive service; or

(B)  the President or the head of an agency for a position which is excepted from the competitive service by statute.

(c)  The Office may provide for the application of this subchapter to any

position or group of positions excepted from the competitive service

by regulation of the Office.

(Added Pub. L. 95-454, title II, 204(a), Oct. 13, 1978, 92 Stat. 1135)

7512.    Actions covered 

(a)  This subchapter applies to:

(1)  a removal;

(2)  a suspension for more than 14 days;

(3)  a reduction in grade;

(4)  a reduction in pay; and

(5)  a furlough of 30 days or less;

But does not apply to:

(1)  a suspension or removal under Section 7532 of this title,

(2)  a reduction-in-force action under Section 3502 of this title,

(3)  the reduction in grade of a supervisor or manager who has not completed the probationary period under Section 3321(a)(2) of this title if such reduction is to the grade held immediately before becoming such a supervisor or manager,

(4)  a reduction in grade or removal under Section 4303 of this title, or

(5)  an action initiated under Section 1206 or 7521 of this title.

(Added Pub. L. 95-454, title II, 204(a), Oct. 13, 1978, 92 Stat. 1136)

7513.    Cause and procedure 

(a)  Under regulations prescribed by the Office of Personnel Management, an agency may take an action covered by this subchapter against an employee only for such cause as will promote the efficiency of the service.

(b)  An employee against whom an action is proposed is entitled to:

(1)  at least 30 days’ advance written notice, unless there is reasonable cause to believe the employee has committed a crime for which a sentence of imprisonment may be imposed, stating the specific reasons for the proposed action;

(2)  a reasonable time, but not less than 7 days, to answer orally and in writing and to furnish affidavits and other documentary evidence in support of the answer;

(3)  be represented by an attorney or other representative; and

(4)  a written decision and the specific reasons therefor at the earliest practicable date.

(c)  An agency may provide, by regulation, for a hearing which may be in lieu of or in addition to the opportunity to answer provided under subsection (b)(2) of this section.

(d)  An employee against whom an action is taken under the section is entitled to appeal to the Merit Systems Protection Board under Section 7701 of this title.

(e)  Copies of the notice of proposed action, the answer of the employee when written, a summary thereof when made orally, the notice of decision and reasons therefor, and any order effecting an action covered by this subchapter, together with any supporting material, shall be maintained by the agency and shall be furnished to the Board upon its request and to the employee affected upon the employee’s request.

(Added Pub. L. 95-454, title II, 204(a), Oct. 13, 1978, 92 Stat. 1136)

7514.    Regulations 

The Office of Personnel Management may prescribe regulations to carry out the purpose of this subchapter, except as it concerns any matter with respect to which the Merit Systems Protection Board may prescribe regulations.

(Added Pub. L. 95-454, title II, 204(a), Oct. 13, 1978, 92 Stat. 1137)

                                            THE SEVEN TESTS OF JUST CAUSE

1.         Did the agency give the employee forewarning of the possible disciplinary consequences of the employee’s conduct?

2.         Was the agency’s rule or order reasonably related to the orderly, efficient and safe operation of the agency?

3.         Did the agency, before administering discipline, make an effort to discover whether the employee actually violated a rule or an order?

4.         Was the agency’s investigation conducted fairly and objectively?

5.         At the investigation did the judge (proposing official) obtain substantial evidence or proof that the employee was guilty as charged?

6.         Has the agency applied its rules, orders, and penalties even-handedly and without discrimination to all employees?

7.         Was the degree of discipline administered by the agency reasonably related to (a) the seriousness of the employee’s proven offense and (b) the record of the employee in his tenure with the agency?

                      SAMPLE INFORMATION REQUEST IN A DISCIPLINARY CASE

Chief Patrol Agent U.S. Border Patrol

Dear Chief______________:

The Union has been designated to act on behalf of Agent________ in the disciplinary action proposed against him. In order to properly respond to the allegations set forth in the proposal, the Union requests the following information pursuant to 5 U.S. C. 7114 (b). Please note that each request is supported by reason(s) for the request, including the uses to which the Union will put the information and the connection between those uses and the Union’s representational responsibilities under the Statute.

1. The entire Office of Inspector General investigative file (# ) in this case, including, but not limited to, all investigative notes, all tape recordings and/or electronic recordings of all investigative interviews conducted, along with transcriptions of such recordings.

The Union needs this information in order to determine whether the investigation was conducted fairly and properly and to obtain any exculpatory evidence which may be contained in the file. Also, the Union may need to conduct its own independent investigation and will need to contact witnesses interviewed by OIG. The Union anticipates that such information will be used in the written and oral replies presented on behalf of Agent _______.

2. All pertinent sections of the agency’s Administrative Manual governing the alleged misconduct.

The Union needs this information in order to determine whether the agency has followed the requirements of the Administrative Manual. The Union anticipates that any findings of violations by the agency will be incorporated into the written and oral replies.

3. All proposal and decision notices for disciplinary and/or adverse action cases within the ______________ Region of the Immigration and Naturalization Service from three years prior to the date of the instant alleged offense to the present for the following or similar specifications. Please include settlement agreements.

a. Insubordination

b. Theft of government property.

c. Falsification of documents.

The Union needs this information in order to compare the discipline the agency has proposed against Agent ______________ with that given to other employees who had committed similar offenses. (See U.S. Department of Justice, Immigration and Naturalization Service, Northern Region, Twin Cities, MN and National Border Patrol Council, AFGE, 46 FLRA 1526 (1996). The Union anticipates that any findings of disparate treatment will be incorporated into the written and oral replies. 

Due to the anticipated volume and complexity of the requested material, an extension of the response time is hereby requested. The Union believes that an extension of thirty calendar days beyond the receipt of the requested material is reasonable under the circumstances. If this request is denied in whole or in part, please inform me of the name and the position title of the official making the decision to deny each item, and the statutory or regulatory basis on which the denial of each element is based.

Sincerely,

NAME

TITLE

AFGE Local

ON THE OTHER HAND, IF YOU HAVE NOT ARTICULATED YOUR PARTICULARIZED NEED, YOU WILL PROBABLY RECEIVE THE FOLLOWING: 

NAME

President

Local

Dear _____________

This is written in response to your request for information concerning a proposal for adverse action received by Border Patrol Agent __________________.

After receiving your request for information, I have determined that your initial request fails to meet the requirements discussed by the FLRA in Internal Revenue Service, Washington, DC. and Internal Revenue Service, Kansas City Service Cen­ter, Kansas City, Missouri, 50 FLRA 61 (1995). In that case the Authority held that a union making a request for information under the Statute must establish a particularized need for the requested information by articulating, with specificity, why the information is needed including the uses to which the information will be put, and the connection between those uses and the union’s representational ­responsibilities under the Statute.

If the Union does not respond within ten calendar days after receipt of this letter, I will consider its request for information withdrawn.

Sincerely,

Chief

For further discussion of particularized need, see Chapter 12, Page 11 of this manual. 

                 SAMPLE RESPONSE TO REQUEST FOR PARTICULARIZED NEED

February 4, 1997

John Doe

Chief Patrol Agent

City, State

Dear Chief Doe

RE:     Request for Information

On December 26, 1996 I received your response to my request for information. Pursuant to your request, as you are well aware, Agent ___________ has a right under the Statute to present a written and oral response to a notice of proposed removal. The Union intends to present a comprehensive response to this proposal in order to fulfill its obligations to act as the designated representative of Agent __________. Nothing in 5 U.S.C. 7513 circumscribes the affidavits and other documentary evidence that an employee is entitled to submit in support of the oral or written reply.

We shall now articulate with specificity why we need the requested information, including the uses to which the Union will put the information and the connection between those uses and the union’s representational responsibilities under the Statute. We will also demonstrate that the required information is necessary in order to represent Agent ____________.

For ease of reference I shall repeat here the specific information requests followed by the Union’s particularized need for each request.

1. Agent ____________ Employee Performance Folder which shall include

(1) a copy of Agent _____________ 1994‑1995 Performance Appraisal

(2) a copy of Agent _____________ 1995‑1996 Performance Appraisal

The Union requests these documents to determine whether any reference was made or whether Agent ______________ was evaluated on his ability or inability to partici­pate in details. Furthermore, the Union anticipates that these documents will be included in Agent’s _____________ written response. 

(3) a copy of Agent _____________ Performance Work Plan (Form G‑769)

The Union requests this document to determine whether the Performance Work Plan contains any reference to the performance of and participation in the assignment of details. In addition, it is anticipated that this document will be included in Agent _________ written response.

(4) copies of Agent __________ written response(s) to any tentative ratings assigned by the rating official.

The Union requests this document to determine whether Agent _____________ was evaluated on his participation in detail assignments and, if so, whether he challenged such an evaluation. 

(5) all forms, memoranda or other documents used by supervisors to recommend this personnel action

The Union requests this information to determine whether any improper bias or lack of understanding of an employee’s rights under the Rehabilitation Act has been exhibited by management in recommending this personnel action. The Union anticipates that such documents will be included in Agent _____________ written response.

2. All documents contained in the Supervisory Work Folder maintained in accordance with AM 2230.14 (12) (c).

The Union needs this information in order to determine whether the employee must be protected against the accumulation of negative evaluations maintained by his supervisor that have led to his proposed removal and to determine whether the action proposed is justified by his work record. (See American Federation of Gov­ernment Employees, Local 1345 v. FLRA, 793 F.2d 1360 (D.C. Cir. 1986). The Union anticipates that such documents will be included in Agent __________ written response.

3. A copy of Agent ____________ Official Personnel Folder

The Union needs this information in order to have in its possession a complete employment record of Agent _____________ . The Union also needs this information to ascertain the number of details in which Agent ______________ has participated during his tenure with the Border Patrol. The Union anticipates that some of this information will be included in Agent ____________ written response.

4. All documents pertaining to all long term (i.e. up to 35 days) operational details in which the Sector was required to participate since January of 1993. This should include: a) location of detail, b) name and title of person(s) authorizing/requesting detail, c) name of detail (Operation Alliance etc.), d) purpose of detail, e) number of days notice time from selection for detail to participation in detail, f) anticipated duration of detail, g) actual duration of detail, h) number of employees selected from each station in the Sector, i) method of selecting employees for each detail, and j) number of points assigned for participation in each detail for OCORS purposes.