Missouri National Guard Directorate for Human Resources Mr. Bill Miller Deputy HRO On behalf of Mr. Adam Miller, Labor Relations (Deployed) “Supervisor Labor Management ” adam.l.miller44.mil@mail.mil (573) 638-9500 x 37148

Labor Relations Purpose & Responsibilities Primary Purpose is to provide comprehensive labor relations, adverse action and disciplinary consultation services to customer (management and supervisors). As well as, provide procedural guidance to technicians to include procedural rights. Labor Relations Specialist Responsibilities: Provides guidance and direction to all managers and supervisors on disciplinary responsibilities, rights, and obligations. Assists supervisors and managers with the procedural aspects of an action before issuance of a proposed action. Provides necessary training to managers and supervisors on the subject of this regulation. Represents and/or advises The Adjutant General (TAG) or TAG representative in disciplinary and adverse action cases. Provides general and procedural guidance and case information to the effected technicians.

Labor Relations Conduct Management Training Progressive Discipline IAW TPR 752 Non-Disciplinary Actions TPR 715 Investigatory Meetings Weingarten Rights (Union Representaton) AGMO FORM 904-1 Performance Issues Impact and Implementation Bargaining Preventing and Resolving Grievances Types of Technicians

Supervisor and/or Management Responsibilities IAW TPR 752 ALWAYS consult with HRO/LR, whenever considering taking an adverse action or plan to make a change to working conditions. Ensures that misconduct and deficiencies are addressed as they surface and initiates the appropriate progressive discipline steps in a timely manner. Ascertain all facts (i.e., proper investigation of facts) and document appropriately. Are responsible for providing required documentation to process an adverse action, including but not limited to, pencil-annotated (initialed by both supervisor and technician) AGMO 904-1 entries, time and attendance (T&A) sheets, doctor’s notes/medical certifications, witness statements, photos, accident/investigation reports, etc. May act as the proposing official for all adverse actions for whom they are in the line of supervision. May issue an oral admonishment to a technician without prior HRO consultation. Must support its reasons for an adverse action with a “preponderance of the evidence”, meaning a reasonable person would conclude as “more likely true than not true” when the record as a whole is weighted. Thus, the evidence in favor of the action must be found by the deciding official, Hearing Examiner, Arbitrator, or TAG, to be “more likely true” than the opposing evidence.

Labor Relations Training TPR 752, Discipline and Adverse Action Appendix D, Table of Penalties Penalties for various offenses Penalties are progressive in nature Punishment should fit the misconduct

Labor Relations Training Progressive Discipline IAW TPR 752 Document, Document, and Document Counseling * – (Informal Action) This is not a disciplinary action Is a private matter between supervisor and technician. Subject matter may be casual or informational or instructional. Must be noted, in pencil, on the AGMO Form 904-1, initialed by both the supervisor and the technician. Erase entry in 3 months

Labor Relations Training Progressive Discipline Warning * – (Informal Action) This is not a disciplinary action More serious than a counseling. Private matter between supervisor and technician. Professional exchange of information. Conveys potential of future disciplinary or adverse action. Must be noted, in pencil, on the AGMO Form 904-1.

Labor Relations Training Progressive Discipline Oral Admonishment – (Formal Action) This is a non-disciplinary action Should take place as quickly as possible and in as private an environment as possible. Notifies technician to stop or commence an action. This is a two-way conversation with input from the employee. Must be noted, in pencil, on the AGMO Form 904-1. Erase in 6 months

Labor Relations Training *Special Situations Regarding a Counseling or a Warning - If at any time during these meetings, the discussion turns to implementing a disciplinary action and/or investigatory type of questioning the supervisor needs to inform the employee of the right to union representation prior to proceeding. More to follow on right to union representation.

Labor Relations Training Written Reprimand (Letter of Reprimand-LOR) This is a disciplinary action Must be approved by HR-LR & Legal before presentation to the technician Issued after other forms of counseling have proven ineffective, or if the conduct/violation is so serious it warrants a LOR. This action requires investigation, documentation, witness statements, and/or copy of AGMO Form 904-1 entries. Filed in eOPF for up to 1 year.

Labor Relations Training Adverse Action Is an official personnel action which adversely affects an employee. The procedures and protections outlined in TPR 752 and Labor Agreement, Article 27 must be followed. There are only three types of adverse actions that may be taken against a technician Suspension Change to Lower Grade Removal Procedures: Always consult the Directorate for HR, LR, whenever considering taking an adverse action. The HR/LR provides advice in fact-finding, weighing evidence, and penalty selection. Fact finding is critical in disciplining technicians; management must demonstrate, by a preponderance of evidence, that the misconduct or other wrongdoing occurred, that there is a rationale connection, or nexus, between the misconduct or other cause of action and the “efficiency of the service.” The determination of which penalty to impose in a particular situation requires the application of responsible judgment. Management must observe the principle of “like penalties for like offenses in like circumstances” thereby ensuring the penalty selected does not clearly exceed the limits of reasonableness. Metz Factors and Douglas Factors analysis.

Labor Relations Training 7 Common Mistakes in Investigations Delaying the investigation. Evidence may be lost and witness recollections may be blurred. Failing to obtain statements. Witnesses may be unavailable later or forget some of the details. Losing documents/evidence. If the evidence is gone, so is your case. Failing to obtain all sides of story. You may misdirect the investigation from the beginning, and the results are unlikely to convince a third party. Interviewing witnesses in a group. This invites inaccurate testimony, whether the inaccuracies are intended or not. Setting out to justify a preconceived outcome. Such investigations are not only biased, they are usually obviously biased and their results are unlikely to be sustained. Failing to apply logic in evaluating evidence. Remember to consider basic rules of cause and effect, e.g., “if Jones shouted, people nearby would have heard him.”

Labor Relations Training What Are NOT Adverse Actions Performance standards, ratings Actions based on classification or job grading determinations RIFs Mandatory retirement Termination or reduction of entitlements not involving loss of base pay (night differential, hazardous pay, environmental pay). TPR 715, Voluntary and Non-Disciplinary Actions.

Labor Relations Training What Are NOT Adverse Actions TPR 715, Voluntary and Non-Disciplinary Actions. Resignation Retirement Voluntary Change to Lower Grade Abandonment of Position* Loss of Military Membership Failure to Meet Conditions of Employment* Management Directed Reassignment Transfer of Function Furlough for 30 days or less

Labor Relations Training Adverse Action – Appeal Rights Original decision may be appealed through – Appellate review (TAG); or Administrative hearing (Hearing Examiner) But not both. Regardless of the method selected, a final decision is issued by TAG. There is no further administrative review of TAG’s final decision.

Labor Relations Training Adverse Action (Removal or suspension more than 14 days) – Appeal Rights Original decision may be appealed through – Appellate review (TAG) Administrative hearing (Hearing Examiner) Merit Systems Protection Board

Labor Relations Training Investigatory Meeting Best be defined as asking an employee - What did you do? Why did you do it? AND, ASKING YOURSELF … What am I going to do about it? Prior to asking these questions you must provide the employee with his/her Weingarten (Union) Rights.

Labor Relations Training Weingarten Rights 5 USC 7114. Representation rights and duties. 7114 (2)(A), (B), (3) Labor Management Agreement (LMA) TPR 752, Discipline and Adverse Actions

Labor Relations Training Weingarten Rights Pursuant to 5 USC 7114(a)(2)(B) you have the right to labor organization representation during the interview about to take place. IF:   a) you reasonably believe that the results of this interview may result in disciplinary action against you; AND IF b) you request representation, representation will be provided by the labor organization.

Labor Relations Training Investigatory Meeting The most important thing to remember when conducting an investigatory meeting is that it is “management’s meeting.” It is essential that you actively guide the tone and progress of the meeting. In this way, you prevent confusion and also show you understand the rights, responsibilities and limits of both parties.

Labor Relations Training Investigatory Meeting and Weingarten Rights When an employee makes a request for a union representative to be present, management has three options: Temporarily stop the questioning until the representative arrives; Deny the request and end the interview immediately; Offer the employee the alternative of having the interview without representation.

Labor Relations Training Investigatory Meetings and Weingarten Rights The Union representative cannot answer for the technician, break up the meeting or prevent management from carrying out the interview. A technician may not ask for a lawyer during an investigatory meeting. The Weingarten Rights only apply to Union representation.

Labor Relations Training Investigatory Meetings Technicians should be advised that failure to disclose material facts during an inquiry may result in disciplinary or adverse action. Technicians should be advised that failure to answer the investigator’s questions may be grounds for removal. However, Weingarten Rights apply.

Labor Relations Training Investigatory Meetings The Fifth Amendment protection against self-incrimination is not infringed upon by orders to answer questions where there is no likelihood of criminal investigation. If it comes to this point, the investigator and HRO will obtain advice from the Staff Judge Advocate’s Office.

Labor Relations Training AGMO Form 904-1 Per Article 27-2D, Labor Agreement. Any counseling or warning by the Employer to any employee will be recorded on AGMO Form 904-1 and shall be initialed by the employee. Upon request, an employee may review and be provided with a copy of the AGMO Form 904-1. IF IT’S NOT IN WRITING … IT DIDN’T HAPPEN! MFR, Witness Statements, Counselings, 904-1, etc…

Labor Relations Training CONDUCT ISSUES TPR 752 Discipline Counseling Oral Admonishment Written Reprimand Adverse Actions Suspension Reduce in Grade Removal Warning

Labor Relations Training PERFORMANCE ISSUES Article 21 and TPR 430 You must do the performance plan & appraisal Make sure the performance plan (standards): Reflects what the tech is doing Is in the position description (amend if necessary) Is quantifiable Is written with the assistance of the tech Must be electronically approved each year at the beginning of the appraisal cycle

Labor Relations Training PERFORMANCE ISSUES Counseling should always be a part of performance management Rule of thumb: 30, 60, 90, 180, 90-120, 30 days If a technician does not improve after a Performance Improvement Plan actions include: Reassignment Reduce in grade Remove

Labor Relations Training PERFORMANCE ISSUES

Labor Relations Training Impact and Implementation Bargaining Article 13, I & I Bargaining. Takes place as a result of management exercising its rights They cannot bargain whether or not management can take an action, just offer options to lessen the impact upon the bargaining unit, and how we implement the change Union may or may not request bargaining, we just have to notify

Labor Relations Training Impact and Implementation Bargaining If subject is covered by LMA there is no need for I & I. Changing work hours - The LMA spells out how to do it. No I & I. Management wants to move a unit - Union must be notified and given chance to I & I. Union may ask for a meeting to discuss the move.

Labor Relations Training Preventing and Resolving Grievances Follow the Labor-Management Agreement Follow rules, policies, Regs, Law Do not take a grievance personally We are on the same team Try to resolve at lowest level Call the Labor Relations Specialist

Labor Relations Training RELEASING TECHNICIANS Trial/Probationary Employees (1-year) Release at your discretion before the end of first year Temporary Technicians Release at your discretion Indefinite Technicians Must receive a written 30-day notice from HR Permanent Technicians Release IAW TPR 752 or TPR 715 Source: Technician Act of 1968//TPR 752 and TPR 715

Human Resources/Labor Relations Websites

Human Resources/Labor Relations Websites http://www.moguard.com/labor-relations.html http://www.moguard.com/human-resources.html http://www.ngbpdc.ngb.army.mil/pubs/TPR/tprpage.htm QUESTIONS?