Conduct Management TPR 752, DISCIPLINE AND ADVERSE ACTION and TPR 752-1, ADVERSE ACTION APPEALS Karen Patnode Labor Relations Specialist

Conduct Management Conduct or performance

Progressive Discipline Or Adverse Action & Appeals

TYPES OF ACTIONS TO TAKE Chapter 2 – Non-Disciplinary Actions Includes Counseling and Admonitions -- Admonitions for Warnings and Oral Admonishments Chapter 3 –Disciplinary Actions (Appendix B) Letter of Reprimand (LOR) – If issued by higher level supervisor, first line supervisor is copied (not endorsed). Rational for starting at higher level is included in LOR. LOR timeframe filed in OPF is typically 1-3 years

TYPES OF ACTIONS TO TAKE Counseling Annotation no longer required on Supv’s 904-1 or electronic equivalent (pencil/line-through terminology eliminated) Admonitions When misconduct continues or is repeated, but non-disciplinary action is appropriate. Admonition is written in the Supervisor's Employee Brief. The employee must also be allowed to reply. Example - Write on the card 12/20/2014 Admonishment - On 18 Dec 14 you were late without approval for the second (2) time in 2 weeks etc……Absent a repeat of this action in 6 months from the above date, this will be expunged from your record.

DISCIPLINE & ADVERSE ACTIONS Discipline - Typically taken when a conduct-related incident occurs that warrants action by the supervisor; but less serious than adverse action situations. LOR HRO clearance is required. Adverse Action - Typically taken by the supervisor for more serious conduct-related incidents; resulting in more severe action(s), such as suspension, downgrade or removal.

TPR 752-1 5-Step Adverse Action Process STEP 1 – Notice of Proposed Adverse Action STEP 2 – Technician’s Reply STEP 3 – Decision Letter STEP 4 – Administrative Appeal STEP 5 – Final Decision

TPR 752 Chapter 5 – Proposed Action Letter (Appendix C) HRO clearance is required. Emphasis on “Preponderance of Evidence” (greater weight of the evidence to substantiate the facts) Reference the “Investigation” “Cause” should include the offense and address the who, what, when, and where of the offense Cause for Adverse Action is a 2-Part test (1st) A violation of employer-employee relationship; and (2nd) Action must promote the efficiency of the service

Adverse Actions Suspension Reduction In Grade Removal

Technicians Rights to Reply The right to interview witnesses who voluntarily agree to be interviewed The Right to Review Materials: Provide copies to the Technician unless there is a clear reason not to. All documents not provided should be made available. Note: the reply time does not start until the supporting documents are made available to the technician.

Chapter 6 – Technician’s Reply continued: More than one reply (oral and/or in writing) may be submitted during the reply step Witnesses will not be called; however, voluntary statements or documents may be submitted as a portion of reply The Right to Reply: Name, and contact information of the Deciding Official is given. Reply may be oral, written or both. Time-frame for replies is calendar days (minimum of 7 days) Process for requesting extensions of time to reply provided. At least 4 hours excused absence to prepare response

TPR 752 Chapter 7 – The Original Decision Letter (Appendix E) Deciding Official named in proposed letter must make the decision, and may not be delegated to anyone else. HRO clearance is required. Contains six elements: 1) What action has been decided upon; 2) date action will be effective; 3) Reference replies; 4) reasons for decision; 5) HRO assistance information; and 6) appeal rights with reference to TPR 752-1

TPR 752 Method of Delivery: In person with a signed acknowledgement is best; other methods are certified mail, registered mail. Delivery is to individual or their designated representative. Harmful Error: Burdon of proof is on Technician. Error must be of magnitude that had it not occurred, management may have reached a different conclusion. Must substantially prejudice the technician’s rights. Non-harmful errors can be corrected, e.g. giving additional time to reply, etc.

TPR 752 Appeal Rights Appellate review (by TAG) – HRO provides all evidence to TAG, who may or may not meet with the appellant Administrative Hearing (with HE recommendations to TAG for final decision) Notice will be given that if appeal is not made, the original decision letter will become final

TPR 752 The Final Decision: TAG determination is always final Fees and Pay: TAG decides on any awards of Attorneys fees or back pay if appellant prevails Official Files: HRO maintains all official adverse action files. Even if LORs are removed from the technician’s OPF, the HRO still maintains a copy of it

TPR 752 Corrective Actions - If an administrative or procedural error can be corrected to prevent or eliminate harm, the correction must be made. The adverse action may be corrected to rectify the error. Actions may be rescinded and re-served. Last Chance Agreements – May hold removals in abeyance on written conditions, signed by Deciding Official and Technician/Representative. Stay of Imposition of Penalties – May direct, but not impose, suspension/CLG if conduct improves under written conditions. Substance Abuse: No stay of punishment provisions. Make reasonable accommodations, and offer EAP.

TPR 752 Appendix F – The Douglas Factors Glossary – Terms Added Always use these factors in determining the appropriate remedy. Give a frame-work for looking at the whole person and the whole offense. No magic words are needed here, but you must decide that they have been considered. Glossary – Terms Added

New TPR 752 APPENDICES ADDED: Appendix A – References Appendix B - Sample Letter of Reprimand Appendix C – Sample Proposed Action Letter Appendix E – Sample Original Decision Letter Appendix F – The “Douglas Factors” Appendix G – Sample Letter of Representation

Managing Leave and Attendance Problems 1. When to use AWOL 2. How to Respond to Questionable Sick Leave Request

Other Issues to Consider The union may want to represent the technician. This is an appropriate role You must prove a clear relationship between the offense and the penalty selected

INVESTIGATING INTERVIEWS Weingarten Rights INVESTIGATING INTERVIEWS (5 USC 7114) TPR 752 Negotiated Contract

Weingarten Rights When employee request union representation, agency rep has three options: Grant Request or End interview And use Information Available or Reassure employee that answers will not result in discipline

INVESTIGATIVE INTERVIEW Role of the Union Representative: May not disrupt meeting May not answer questions for employee May not advise employee to remain silent May confer with employee concerning questions and framing response May ask employee questions and make observations on union’s behalf

ENFORCED LEAVE Management must have the technician leave the work site if/when… The technician is not ready, willing, and able to perform assigned duties; OR The technician’s continued presence is highly undesirable or presents a threat

ENFORCED LEAVE (CONTINUED) If acceptable resolution – business as usual Discontinue enforced leave and offer technician choice of approved type leave (paid or LWOP) If not – discipline or adverse action should be pursued

Summary Contact me if you have any questions karen.patnode@us.army.mil DSN: 489-4647 or 518-786-4647

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