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40 FLRA No. 8

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES

LOCAL R4-45

(Union)

and

U.S. DEPARTMENT OF THE NAVY

NAVY RESALE AND SERVICES SUPPORT OFFICE

NORFOLK, VIRGINIA

(Agency)

0-NG-1859

DECISION AND ORDER ON NEGOTIABILITY ISSUE

April 9, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute) by the Union. The dispute concerns the negotiability of a proposal establishing a Schedule of Disciplinary Offenses and Recommended Remedies. For the following reasons we find the proposal to be nonnegotiable.

II. Proposal

The proposal is set forth in Appendix A attached to this decision.

III. Positions of the Parties

1. Agency

According to the Agency, this negotiability dispute arose during negotiations over the adoption of a schedule of disciplinary offenses and penalties at the local installation. The Agency claims that the proposal is a "modification" of its own proposed schedule. Agency's Statement of Position at 2. The Agency notes that the categories of offenses in the proposal are "generally consistent with" the Agency's schedule, but that the proposed penalties are not. Id. The Agency states that the proposal "typically provides for less severe disciplinary measures." Id.

The Agency contends that the proposal is nonnegotiable because it directly interferes with management's right to discipline employees under section 7106(a)(2)(A) of the Statute. The Agency notes that the Authority has held to be nonnegotiable proposals that incorporate into the parties' agreement terms governing the range of disciplinary actions that were drawn from existing agency regulations. Id. at 3-4, citing New York State Nurses Association and Veterans Administration, Bronx Medical Center, 30 FLRA 706, 732-35 (1987), reversed as to other matters sub nom. Veterans Administration Bronx Medical Center v. FLRA, No. 88-1150 (D.C. Cir. Sept. 27, 1988), decision on remand, 33 FLRA 377 (1988), request for reconsideration denied, 34 FLRA 805 (1990), petition for review dismissed sub nom. New York State Nurses Association v. FLRA, No. 88-1893 (D.C. Cir. April 11, 1989); West Point Elementary School Teachers Association, NEA and The United States Military Academy Elementary School, West Point, New York, 29 FLRA 1531, 1538-40 (1987), affirmed on other grounds sub nom. West Point Elementary School Teachers Association v. FLRA, 855 F.2d 936 (2d Cir. 1988) (West Point Elementary School); National Federation of Federal Employees, Council of Veterans Administration Locals and Veterans Administration, 31 FLRA 360, 399-410 (1988), remanded as to other matters sub nom. Veterans Administration v. FLRA, No. 88-1314 (D.C. Cir. Sept. 27, 1988), decision on remand, 33 FLRA 349 (1988). The Agency argues that the proposal in this case is "more intrusive" because the Union "is attempting to negotiate the penalties that may be imposed for various infractions." Id. at 4.

The Agency notes, for example, that, under the proposal, the penalties for "[u]nauthorized sale or transfer of a narcotic or dangerous drug on [G]overnment property or during duty hours" range from "[r]eprimand to removal" for a first offense, "5-day suspension to removal" for a second offense, and "10-day suspension to removal" for a third offense. Id. at 5. The Agency states that, under its own schedule of discipline, the penalty is simply "removal." Id. See Appendix B for the Agency's "Schedule of Offenses and Recommended Remedies." The Agency concludes that the proposal interferes with "managerial discretion with respect to determining appropriate disciplinary action for various infractions." Id. The Agency cites National Association of Government Employees, Local R4-6 and Department of the Army, Fort Eustis, Virginia, 29 FLRA 966 (1987) (Fort Eustis), in which a proposal prescribing a lesser penalty than that established by local installation regulations was held to be nonnegotiable.

The Agency also contends that the proposal directly interferes with management's right to determine its internal security practices under section 7106(a)(1) of the Statute. The Agency argues that management's right to determine its internal security practices includes the right to take "those measures necessary to exclude or remove personnel who pose a danger to [A]gency employees, property or operations." Id. at 6. The Agency concludes that because the proposal would interfere with management's ability to "expeditiously remove" employees for drug trafficking, the proposal interferes with management's right to determine its internal security practices. Id.

2. Union

The Union contends that the intent of the proposal is "to provide reasonable guidelines to be used in determining remedies for disciplinary offenses." Union's Petition for Review at 1. According to the Union, the proposal "provides a table of offenses and recommended remedies as well as preserving the Agency right to effect remedies outside the general range depending on the gravity of the offense, the past record, and the position of the employee." Id. The Union states that the proposal is essentially the same as the existing disciplinary schedule, which was itself the result of an impasse in negotiations that went to the Federal Service Impasses Panel and culminated in an interest arbitration award. Id.

The Union claims that the proposal in this case is distinguishable from the proposals at issue in the cases cited by the Agency because it "provides for remedies outside the general range." Union's Response at 1. The Union notes that the proposed schedule "permits the Agency to consider such factors as the nature of the offense and whether an employee had previously committed the offense" in determining the appropriate penalty. Id. at 1-2. The Union concludes that, because "specific levels of discipline are not mandated" by the proposal, the proposal does not interfere with management's right to discipline. Id. at 2.

The Union also argues that the proposal would not interfere with management's right to determine its internal security practices because it would "preserve [management's] right to remove personnel who pose a danger to Agency employees, property or operations" and because it would not preclude management from invoking the "crime provisions" set forth in 5 U.S.C. § 7513(b)(1) and 5 C.F.R. § 752.404(d).

IV. Analysis and Conclusions

The proposal in dispute in this case prescribes the range of penalties that can be imposed on an employee for specified types of offenses. The proposal does not purport to "cover every possible type of offense." Appendix A. Rather, the proposal reserves to the discretion of management, consistent with the guidelines established by the proposal, the penalties to be imposed for offenses that are not listed in the proposal. However, the proposal does contemplate that the penalty imposed for a given offense "will generally range from the minimum remedy to the maximum" prescribed, except that, "depending on the gravity of the offense, the past record, and the position of the employee," penalties outside the prescribed range may be imposed. Id. We find that the disputed proposal directly interferes with management's right to discipline employees under section 7106(a)(2)(A) of the Statute and, absent a claim that the proposal constitutes an appropriate arrangement under section 7106(b)(3), we conclude that the proposal is nonnegotiable.

Proposals that restrict the penalty that can be imposed on employees for a given offense directly interfere with management's right to discipline employees under section 7106(a)(2)(A) of the Statute. See U.S. Department of the Navy, Naval Aviation Depot, Marine Corps Air Station, Cherry Point, North Carolina, 36 FLRA 28, 32-36 (1990) (Marine Corps Air Station); American Federation of Government Employees, Local 1770 and U.S. Department of the Army Headquarters, XVII Airborne Corps and Fort Bragg, Fort Bragg, North Carolina, 34 FLRA 903, 906-07 (1990) (Fort Bragg); West Point Elementary School, 29 FLRA at 1538-40; and Fort Eustis, 29 FLRA at 968-70.

The schedule of penalties prescribed by the proposal for various offenses modifies the Agency's schedule of penalties by limiting the range of penalties that can be imposed for a given offense. For example, the range of penalties for the offense of "careless workmanship resulting in delay in production or spoilage or waste of materials" under the Agency's schedule of penalties ranges from reprimand to removal for a first offense, 5-day suspension to removal for a second offense, and 10-day suspension to removal for a third offense. See Appendix B. Under the proposed disciplinary schedule, however, the penalties for "careless workmanship" range from reprimand to 5-day suspension for a first offense, 5- to 10-day suspension for a second offense, and 10-day suspension to removal for a third offense. See Appendix A. The effect of the proposal, therefore, is to more narrowly limit the range of penalties that can be imposed for that offense and, thereby, to modify the penalties prescribed by the Agency. Compare Appendix A and Appendix B as to such offenses as "unexcused or unauthorized absence," "unexcused tardiness," "disobedience to constituted authorities," gambling or betting, and unauthorized possession, use, loss or damage to Government property, for other examples of the way in which the proposal modifies the penalties prescribed by the Agency by reducing their range.

In Fort Eustis, the Authority held that a proposal reducing the minimum penalty that could be imposed for a given offense directly interfered with management's right to discipline employees. See also Marine Corps Air Station, 36 FLRA at 34. We note that the proposal in Fort Eustis, like the proposal in this case, modified the penalty prescribed by the agency's regulation. However, the proposal in this case not only reduces some of the minimum penalties prescribed in the Agency's schedule of penalties, for example, the penalty for a second offense of "unexcused or unauthorized absence," but it reduces the maximum penalty for many offenses as well, for example, the penalty for a third offense of "unexcused tardiness."

In our opinion, there is no difference, in terms of the effect on management's right to discipline, between a proposal that reduces the minimum penalty that management can impose for a given offense and a proposal that reduces the maximum penalty. In either case, a limitation is imposed on management's determination of the appropriate penalty. Consequently, consistent with Fort Eustis, the proposal would directly interfere with management's right to discipline employees under section 7106(a)(2)(A).

However, as we noted at the outset, the proposal permits management to impose penalties outside the range prescribed by the proposal "depending on the gravity of the offense, the past record, and the position of the employee." Union Response at 1. Appendix A. The proposal, that is, requires management to impose a penalty within the range prescribed by the proposal unless the offense is sufficiently serious to, or the employee's past record or the nature of the employee's position would, warrant a penalty outside the prescribed range. We turn, then, to the question of whether this exception to the limitations prescribed by the proposal is sufficient to render the proposal negotiable. We conclude that it is not.

Under the exception to the proposal, management would be unable to impose more than a 2-day suspension for a first offense of "unexcused or unauthorized absence" unless the offense was sufficiently serious, or the employee's past record or position was such, as to warrant that penalty, instead of the reprimand to 2-day suspension prescribed by the proposal. Thus, where the factors stated in the exception are not present, management would be precluded from imposing a penalty that is outside the range prescribed by the proposal. The effect of the exception to the proposal, therefore, is to establish a substantive restriction on management's determination of the appropriate penalty for a given offense.

As we noted above, proposals that establish substantive restrictions on management's determination of the penalty to be imposed for a given offense directly interfere with management's right to discipline employees. See, for example, Marine Corps Air Station, Fort Bragg, West Point Elementary School, and Fort Eustis. Because the proposed schedule of penalties, including the exception to that schedule, would substantively restrict management's determination of the penalty to be imposed for a given offense, we find that the proposal directly interferes with management's right to discipline employees under section 7106(a)(2)(A) of the Statute.

We note that the Agency's schedule of offenses and penalties contains a similar exception: "Remedies for offenses should normally fall within the range shown in the schedule unless mitigating or aggravating factors justify a remedy outside the range." See Appendix B. However, the fact that the proposal adopts an exception to the schedule of penalties that is substantively the same as that prescribed by the Agency does not affect the negotiability of the proposal. See Patent Office Professional Association and Patent and Trademark Office, Department of Commerce, 25 FLRA 384, 402, 406 (1987), aff'd mem. sub nom. Patent Office Professional Association v. FLRA, No. 87-1135 (D.C. Cir. Mar. 30, 1988) (per curiam).

Finally, we note that the Union did not specifically claim that the proposal constitutes an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute. Moreover, even if we considered the proposal as a proposed arrangement, there is an insufficient record on which to determine whether the arrangement is appropriate under section 7106(b)(3). Accordingly, we conclude that the proposal is nonnegotiable because it directly interferes with management's right to discipline employees under section 7106(a)(2)(A) of the Statute. In light of our conclusion, we need not address the Agency's additional claim that the proposal directly interferes with management's right to determine its internal security practices under section 7106(a)(1) of the Statute.

V. Order

The petition for review is dismissed.

 

APPENDIX A

SCHEDULE OF DISCIPLINARY OFFENSES AND RECOMMENDED REMEDIES

INSTRUCTION FOR USE OF SCHEDULE

1. This list is not intended to cover every possible type of offense. Remedies for offenses not listed will be prescribed by the head of the activity consistent with the guidelines contained herein.

2. Many of the items listed on this schedule combine several offenses in one statement, connected by the word "OR." Usage of the word "OR" in a charge makes it nonspecific. Use only the items which describe the employee's actual conduct and leave out parts which do not apply.

3. Remedies for disciplinary offenses will generally range from the minimum remedy to the maximum indicated. However, depending on the gravity of the offense, the past record, and the position of the employee, a remedy outside the general range may be imposed.

4. Suspension remedies on this schedule refer to CALENDAR DAYS.

5. For information concerning other offenses for which employees may be disciplined by removal, fine or imprisonment, see FPM Chapter 735.

OFFENSES AND RANGES OF REMEDIES (PENALTIES)

OFFENSES	FIRST OFFENSE	SECOND OFFENSE	THIRD OFFENSE
ATTENDANCE
EXCESSIVE  UNAUTHORIZED ABSENCE (MORE THAN 5  CONSECUTIVE WORK DAYS)	Reprimand to  removal	5-day suspension to removal	10-day  suspension to  removal
FALSIFYING ATTENDANCE RECORD FOR ONESELF OR ANOTHER EMPLOYEE	Reprimand to 5-day suspension	5-day suspension to  removal	10-day suspension to removal

LEAVING JOB TO WHICH ASSIGNED OR NAVY PREMISES AT ANY TIME DURING WORKING HOURS WITHOUT PROPER PERMISSION	Reprimand to   5-day   suspension	Reprimand to  10-day  suspension	Reprimand to  removal

UNEXCUSED OR UNAUTHORIZED ABSENCE ON ONE OR MORE SCHEDULED DAYS OF WORK OR ASSIGNED OVERTIME	Reprimand to  2-day  suspension	1 to 5-day  suspension	5-day  suspension to  removal

UNEXCUSED TARDINESS	Reprimand	Reprimand to	Reprimand to
		1-day	2-day
		suspension	suspension

CONDUCT

ACTUAL OR ATTEMPTED	Reprimand to	5-day	10-day
THEFT OF GOVERNMENT	removal	suspension to	suspension to
PROPERTY OR THE		removal	removal
PROPERTY OF OTHERS

CRIMINAL, DISHONEST,	Reprimand to	5-day	10-day
INFAMOUS OR NOTORI-	removal	suspension to	suspension to
OULSLY DISGRACEFUL		removal	removal
CONDUCT ADVERSELY
AFFECTING THE
EMPLOYEE/EMPLOYER
RELATIONSHIP (ON
DUTY OR OFF DUTY)

DISOBEDIENCE TO	Reprimand to	5-day	10-day
CONSTITUTED	5-day suspension	suspension	suspension to
AUTHORITIES, OR		to removal	removal
DELIBERATE REFUSAL
TO CARRY OUT ANY
PROPER ORDER FROM
ANY SUPERVISOR
HAVING RESPONSI-
BILITY FOR THE WORK
OF THE EMPLOYEE; INSUBORDINATION, INCLUDING FAILURE TO FOLLOW KNOWN LOCAL OR HIGHER LEVEL POLICY

DISORDERLY CONDUCT;	Reprimand to	5-day	10-day
FIGHTING;	removal	suspension to	suspension to
THREATENING OR		removal	removal
ATTEMPTING TO
INFLICT BODILY
INJURY TO ANOTHER:
ENGAGING IN
DANGEROUS HORSEPLAY;
OR RESISTING
COMPETENT AUTHORITY

DISRESPECTFUL	Reprimand to	5-day	10-day
CONDUCT; USE OF	5-day	suspension to	suspension to
INSULTING, ABUSIVE	suspension	30-day	removal
OR OBSCENE LANGUAGE		suspension
TO OR ABOUT OTHER
PERSONNEL

FALSIFICATION	Reprimand to	5-day	10-day
MISSTATEMENT, OR	removal	suspension to	suspension to
CONCEALMENT OF		removal	removal
MATERIAL FACT IN
CONNECTION WITH ANY
OFFICIAL RECORD

FALSE TESTIMONY OR	Reprimand to	5-day	10-day
REFUSAL TO TESTIFY	removal	suspension to	suspension to
IN AN INQUIRY, IN-		removal removal
VESTIGATION OR OTHER
OFFICIAL PROCEEDING
EXCEPT REFUSAL TO
ADMIT/DENY COMMIS-
SION OF AN OFFENSE
WILL NOT BE GROUNDS
FOR DISCIPLINE

FILING FALSE CLAIMS	Reprimand to	5-day	10-day
AGAINST THE	removal	suspension to	suspension to
GOVERNMENT OR		removal	removal
KNOWINGLY AIDING AND
ASSISTING IN THE
PROSECUTION OF SUCH
CLAIMS (SEE 18 USC
287, 1001)

GAMBLING OR UNLAWFUL	Reprimand to	Reprimand to	Reprimand to
BETTING DURING	2-day	5-day	removal
WORKING HOURS	suspension	suspension

PROMOTION OF	Reprimand to	5-day	10-day
GAMBLING ON NAVY	removal	suspension to	suspension to
PREMISES		removal	removal

WILLFUL DAMAGE TO	Reprimand to	5-day	10-day
GOVERNMENT PROPERTY	5-day	suspension to	suspension to
OR THE PROPERTY OF	suspension	removal	removal
OTHERS

MISUSE OF A GOVERN-	Reprimand to	30-day	removal
MENT VEHICLE	removal	suspension to
		removal

RECKLESS DRIVING
OR IMPROPER
OPERATION OF MOTOR
VEHICLE:

CAUSING PERSONAL	Reprimand to	14-day	30-day
INJURY TO SELF OR	removal	suspension to	suspension to
OTHERS OR DAMAGE TO		removal	removal
GOVERNMENT PROPERTY
NO PERSONAL INJURY TO	Reprimand to	Reprimand to	14-day
SELF OR OTHERS OR	5-day	to 10-day	suspension to
DAMAGE TO GOVERN-	suspension	suspension	removal
MENT PROPERTY

PERFORMANCE

CARELESS WORKMAN-	Reprimand to	5 to 10-day	10-day suspension
SHIP RESULTING IN	5-day	suspension	to removal
SPOILAGE OR WASTE OF	suspension
MATERIALS OR DELAY
IN PRODUCTION

COVERING UP OR	Reprimand to	1 to 5-day	5-day
ATTEMPTING TO CON-	2-day	suspension	suspension to
CEAL DEFECTIVE WORK;	suspension		removal
DESTROYING SAME
WITHOUT PERMISSION

FAILURE OR DELAY IN	Reprimand to	1 to 5-day	5-day
CARRYING OUT ORDERS,	2-day	suspension	suspension to
WORK ASSIGNMENTS, OR	suspension		removal
INSTRUCTIONS OF
SUPERIORS

LOAFING, WASTING	Reprimand to	1 to 5-day	5-day
TIME, OR INATTENTION	2-day	suspension	suspension to
TO DUTY	suspension		removal

SLEEPING ON DUTY	Reprimand to	5-day	10-day suspension
	5-day	suspension to	to removal
	suspension	30-day
		suspension

a. WHERE LIFE OR	Reprimand to	5-day	10-day
PROPERTY IS EN-	removal	suspension to	suspension to
DANGERED		removal	removal

UNAUTHORIZED USE OF	Reprimand to	5-day	10-day suspension
OR POSSESSION OF	2-day	suspension to	to removal
LOSS OF OR DAMAGE TO	suspension	30-day
		suspension

SAFETY

FAILURE TO OBSERVE	Reprimand to	1 to 5-day	10-day suspension
PRECAUTIONS FOR	2-day	suspension	to removal
PERSONAL SAFETY	suspension
POSTED RULES, SIGNS,
WRITTEN OR ORAL
SAFETY INSTRUCTIONS
OR TO USE PROTECTIVE
CLOTHING OR
EQUIPMENT

VIOLATION OF SAFETY	Reprimand to	5-day	10-day suspension
REGULATION WHICH	5-day	suspension to	to removal
ENDANGERS LIFE OR	suspension	30-day
PROPERTY		suspension

ENDANGERING THE	Reprimand to	5-day	10-day suspension
SAFETY OF OR CAUSING	removal	suspension to	to removal
INJURY TO PERSONNEL		removal
THROUGH CARELESSNESS

FAILURE TO OBSERVE	Reprimand to	5-day	10-day suspension
NO SMOKING	removal	suspension to	to removal
REGULATIONS OR		removal
CARRYING MATCHES IN
RESTRICTED AREAS

VIOLATING TRAFFIC	Reprimand to	Reprimand to	5 to 10-day
REGULATIONS,	2-day	5-day	suspension
RECKLESS DRIVING ON	suspension	suspension
NAVY PREMISES, OR
IMPROPER OPERATION
OF MOTOR VEHICLE

SECURITY

FAILURE TO SAFEGUARD	Reprimand to	Reprimand to	10-day suspension
CLASSIFIED MATTER OR	5-day	14-day	to removal
OTHER SECURITY	suspension	suspension
VIOLATIONS

A. WHEN CLASSIFIED	Reprimand to	5-day	10-day suspension
MATERIAL HAS BEEN	removal	suspension to	to removal
COMPROMISED		removal

PROHIBITED PERSONNEL
PRACTICE

COMMITTING	Reprimand to	5-day	10-day suspension
PROHIBITED PERSONNEL	removal	suspension to	to removal
PRACTICE IN		removal
VIOLATION OF 5 USC
2302

UNAUTHORIZED DISCLOSURE
OR USE OF PROTECTED
MATERIAL

UNAUTHORIZED DISCLOSURE	Reprimand to	14-day	30-day suspension
OR USE OF INFORMATION	removal	suspension to	to removal
OR OTHER PROTECTED		removal
MATERIAL (e.g., RECORDS
COVERED BY THE PRIVACY
ACT OR UNDER 42
CFR PART 2 (CEAP
RECORDS)

DISCRIMINATION

DISCRIMINATION AGAINST	Reprimand to	14-day	30-day suspension
AN EMPLOYEE OR APPLICANT	removal	suspension to	to removal
BASED ON RACE COLOR
RELIGION, SEX, HANDICAP,
NATIONAL, ORIGIN, OR
AGE, OR ANY REPRISAL
OR RETALIATION
ACTION AGAINST A
COMPLAINANT,
REPRESENTATIVE, WITNESS, OR OTHER PERSON INVOLVED IN THE EEO COMPLAINT PROCESS

SEXUAL HARASSMENT	Reprimand to	14-day	30-day
	removal	suspension	to removal
		removal

INTOXICANTS

REPORTING FOR DUTY	Reprimand to	5-day	10-day suspension
OR BEING ON DUTY	removal	suspension	to removal
UNDER THE INFLUENCE		to removal
OR INTOXICANTS, UN-
AUTHORIZED PROSSES-
SION OF OR ATTEMPT-
ING TO BRING INTOXI-
CANTS ON NAVY PREM-
ISES

REPORTING FOR DUTY	Reprimand to	5-day	10-day suspension
WHILE UNDER THE	removal	suspension to	to removal
INFLUENCE OF A NAR-		removal
COTIC OR DANGEROUS
DRUG, UNAUTHORIZED
POSSESSION OF, OR
USE OF SAME ON
GOVERNMENT PROPERTY
OR ON DUTY

UNAUTHORIZED SELLING	Reprimand to	5-day	10-day suspension
OR INTOXICANTS ON	removal	suspension to	to removal
NAVY PREMISES		removal

UNAUTHORIZED SALE	Reprimand to	5-day	10-day suspension
OR TRANSFER OF A	removal	suspension to	to removal
NARCOTIC OR DANGEROUS
DRUG ON GOVERNMENT
PROPERTY OR DURING
DUTY HOURS

DRUG TESTING

SUBSTITUTING,	Reprimand to	5-day	30-day suspension
ADULTERATING OR	removal	suspension to	to removal
OTHERWISE

TAMPERING WITH A

URINE SAMPLE,

TESTING EQUIPMENT

OR RELATED

PARAPHERNALIA

ATTEMPTED OR	Reprimand	5-day	30-day suspension
ACTUAL FALSIFI-	to removal	suspension to	to removal
CATION, MISSTATE		removal
MENT OR CONCEAL-
MENT OF A MATERIAL
FACT, RECORD
CORRESPONDENCE
OR OTHER COMMUNI-
CATION PREPARED IN
CONNECTION WITH
THE COLLECTION, HANDLING, TRANSPORTATION OR TESTING OR URINE SAMPLES

REFUSAL TO PROVIDE	Reprimand to	5-day	30-day suspension
A URINE SAMPLE	removal	suspension to	to removal
WHEN REQUIRED		removal

APPENDIX B

SCHEDULE OF OFFENSES AND RECOMMENDED REMEDIES

1. Instructions for Use. This schedule is a guide. Remedies for offenses should normally fall within the range shown in the schedule unless mitigating or aggravating factors justify a remedy outside the range. For example, remedies greater than those shown can be appropriate when an aggravated offenses, frequent infractions, or simultaneous multiple offenses are established.

a. The schedule does not cover every possible offense. When specifying an offense not listed on the schedule, the use of terms such as "theft" or "fraud," which require establishing the element of intent, should only be used when the element of intent can be proven. Management officials may contact their servicing civilian personnel office for assistance.

b. Some of the offenses listed in this schedule combine several offenses in one statement connected by the word "OR." Use only the part of the statement which describes the employee's actual conduct; leave out parts which do not apply.

c. Due to the nature of their positions, offenses by supervisors or managers may warrant more severe remedies than the same offense committed by a non-supervisory employee.

d. The schedule generally provides for a range of remedies, e.g., Reprimand to Removal, to provide flexibility in correcting conduct deficiencies. Selection of a reasonable remedy from such a broad range should be made with good judgment. Excessive arbitrary or capricious remedies, and remedies selected without consideration of mitigating factors may be reversed by third parties if challenged.

e. All disciplinary actions are to be taken following the provisions of law.

f. Servicing civilian personnel offices can provide advice and assistance with issues such as establishing the required nexus between off-duty misconduct and the efficiency of the service, appropriate wording of the charge(s), application of mitigating factors, consistency of remedies, etc., based on current case law. Activity heads/commanders, managers, and supervisors delegated authority to propose and/or decide disciplinary actions are encouraged to take advantage of such assistance to ensure conformance with this instruction.

2. Past Offenses

a. When used to select a range of remedies or remedy, a past offense must be described in sufficient detail to enable the employee to understand and respond to it. Past offenses may be used in determining a range of remedies or remedy when:

(1) The employee was disciplined in writing;

(2) The employee was provided the opportunity to dispute the action to a higher level; and

(3) The action was made a matter of record in the employee's Official Personnel Folder.

b. Any past offenses may form the basis for proposing a remedy from the next higher range of remedies for a subsequent offense. The offenses need not be identical or similar.

c. The following actions may not be counted as past offenses for determining a range of remedies (however, actions discussed in paragraphs (1) and (2) may be considered when determining an appropriate remedy within a range for any subsequent offenses):

(1) Oral admonishments and letters of caution or requirement.

(2) Letters of Reprimand dated more than two years before the date of any advance written notice required under this CPI.

(3) Reductions in grade or pay not effected for disciplinary reasons.

3. Other Statutory and Regulatory Offenses. For information concerning other offenses for which employees may be disciplined by removal, fine or imprisonment, including offenses which require minimum mandatory remedies (such as misuse of government vehicles, Hatch Act violations, and giving gifts to superiors), see SECNAVINST 5370.2H and Chapter 735 of the Federal Personnel Manual (FPM).

4. Drug and Alcohol Abuse Offenses. Any employee who engages in misconduct involving drugs and/or alcohol shall be disciplined according to this Appendix. Special situations are described below.

a. Voluntary referral to the Civilian Employee Assistance Program (CEAP). An employee who voluntarily refers himself or herself to the CEAP as a user of illegal drugs under the "safe harbor" provision of CPI 792 will be exempt from disciplinary action for the admitted acts of illegal drug use, including possession incident to such use, provided the employee meets and complies with the requirements of CPI 792-3, paragraph 7e(2).

b. Assertion of a handicapping condition in reply to a proposed action. Any employee who asserts a physical or mental impairment (handicapping condition) in connection with drug or alcohol-related unacceptable performance or misconduct shall be provided reasonable accommodation when the employee:

(1) Establishes by competent medical evidence that he or she is a qualified handicapped person, and

(2) Demonstrates that the unacceptable performance or misconduct is caused by the handicapping condition of alcoholism or drug dependency.

NOTE: See McCaffrey v. U.S. Postal Service, 88 FMSR 5043, 36 MSPR 224 (1988), and Brinkley v. Veterans Administration, 88 FMSR 5314, 37 MSPR 682 (1988), for a thorough description of a employee's burdens in meeting these two requirements, as applied by the U.S. Merit Systems Protection Board. Note, also, that under Terry v. Department of the Navy, 88 FMSR 5024, 39 MSPR 561 (1989), an activity must inquire sufficiently to substantiate an employee's claim of handicapping condition where the activity has reasonable notice of the possible existence of the handicap.

c. Undue hardship on an activity/command. 29 CFR 1613.704(c) provides that reasonable accommodation is not required when it would impose an undue hardship on the operation of the program of the employee's activity/command, such as continuing an unreliable employee in a critical function or in duties which could affect the health or welfare of others.

d. Conduct which takes an employee outside the protection of the Rehabilitation Act. Similar to paragraph c. above, the MSPB has held that there are ". . . certain actions of misconduct which, when committed by an employee who is an alcoholic or drug addict, take that employee outside the scope of the protecting legislation because the misconduct renders that person not a 'qualified' handicapped individual." Egregious or notorious misconduct that hampers an employee's ability to perform his or her duties or to represent the agency, or which strikes at the core of the job or the agency's mission, can, standing alone, disqualify a Federal employee from his or her position (see Hougens v. U.S. Postal Service, 88 FMSR 5345, 38 MSPR 135 (1988)).

e. Trafficking. Trafficking in drugs is misconduct which does not normally entitle an employee to reasonable accommodation. Accordingly, an employee who traffics in drugs will be subject to remedies as provided for in this appendix.

OCPMINST 12752.1 CH-1

CPI 752-B

SCHEDULE OF OFFENSES AND RECOMMENDED REMEDIES

RANGE OF REMEDIES

	FIRST	SECOND	THIRD
OFFENSE	OFFENSE	OFFENSE	OFFENSE

ALCOHOL ABUSE

Unauthorized possession, sale	14-day	30-day	Removal
or transfer of alcohol on	suspension	suspension
duty or on a military ship,	to removal	to removal
aircraft, or installation

*Use of, or being under	14-day	30-day	Removal    (R
the influence of alcohol on	suspension	suspension
duty or on a military ship,	to removal	to removal

ATTENDANCE

Excessive unauthorized	Reprimand	10-day	Removal
absence (more than 5	to removal	suspension
consecutive workdays)		to removal

Leaving job to which assigned	Reprimand	Reprimand	Reprimand
or Department of the Navy	to 5-day	to 10-day	to removal
premises at any time during	suspension	suspension
working hours without proper
authorization

Unexcused or unauthorized	Reprimand	5-day	10-day
absence on one or more	to	suspension	suspension
scheduled days of work or	removal	to removal	to removal
assigned overtime

Unexcused tardiness	Reprimand	Reprimand	Reprimand
		to 5-day	to removal
		suspension

* See paragraph 4b of this appendix.

 

OCPMINST 12752.1 CH-1

CPI 752-B

SCHEDULE OF OFFENSES AND RECOMMENDED REMEDIES

RANGE OF REMEDIES (CONTINUED)

 

DISCRIMINATION

Discrimination against an	Reprimand to	14-day	30-day
employee or applicant based	removal	suspension	suspension
on race, color, religion, sex,		to removal	to removal
handicap, national origin,
or age, or any reprisal or
retaliation action against a
complainant, representative,
witness, or other person
involved in the EEO complaint
process

Sexual harassment	Reprimand to	14-day	30-day
	removal	suspension	suspension
		to removal	to removal

DRUG ABUSE

* Unlawful use or possession	Reprimand	Removal
of drugs or drug paraphernalia	to removal
on or off duty

* Unlawful distribution, sale,	Removal
or transfer of drugs or drug
paraphernalia on or off duty

* Unlawful use or possession	Removal
of drugs or drug paraphernalia
on a military ship or aircraft

DRUG TESTING

Refusal to provide a urine	Reprimand	Removal
sample when required	to removal

* See paragraph 4b of this appendix.

 

OCPMINST 12752.1 CH-1

CPI 752-B

SCHEDULE OF OFFENSES AND RECOMMENDED REMEDIES

RANGE OF REMEDIES (CONTINUED)

DRUG TESTING

Substituting, adulterating	30-day	Removal
or otherwise tampering with a	suspension
urine sample, testing equip-	to removal
ment or related paraphernalia

Attempting or actual falsifi-	Reprimand	14-day	30-day      (D
cation, misstatement or con-	to removal	suspension	suspension
cealment of a material fact,		to removal	to removal
record, correspondence or other
communication prepared in
connection with the collection,
handling, transportation or
testing of urine samples

MISCELLANEOUS OFFENSES

Betting, gambling, or the	Reprimand	5-day	10-day
promotion thereof on duty or	to removal	suspension	suspension
on Department of the Navy		to removal	to removal
premises

Careless workmanship resulting	Reprimand	5-day	10-day
in delay in production or	to	suspension	suspension
spoilage or waste of materials	removal	removal	to removal

Criminal dishonest infamous	Reprimand	14-day	30-day
or notoriously disgraceful	to removal	suspension	suspension
conduct		to removal	to removal

Disobedience to constituted	Reprimand	5-day	10-day      (R
authorities; deliberate	to removal	suspension	suspension
refusal or failure or delay		to removal	to removal
in carrying out any proper
order, work assignment or
instruction; insubordination,
including failure to follow
local or higher level policy

 

OCPMINST 12752.1 CH-1

CPI 752-B

SCHEDULE OF OFFENSES AND RECOMMENDED REMEDIES

RANGE OF REMEDIES (CONTINUED)

 

MISCELLANEOUS OFFENSES

A)	Disrespectful conduct use of	Reprimand	5-day	10-day
	insulting abusive or obscene	to 5-day	suspension	suspension
	language to or about other	suspension	to removal	to removal
	personnel

R)	Falsification (or aiding or	Reprimand	14-day	30-day
	assisting in falsification) of	to removal	suspension	suspension
	time and attendance records or		to removal	to removal
	claims against the government

A)	Falsification, misstatement,	Reprimand	14-day	30-day
	or concealment of material	to removal	suspension	suspension
	fact in connection with any		to removal	to removal
	official record

A)	False testimony or refusal	Reprimand	14-day	30-day
	to testify in an inquiry,	to removal	suspension	suspension
	investigation or other		to removal	to removal
	official proceeding

	Loafing; wasting time;	Reprimand to	5-day	10-day
	inattention to duty;	5-day	suspension	suspension
	sleeping on duty	suspension	to removal	to removal

R)	Making threats to other	Reprimand	5-day	10-day
	employees or supervisor;	to removal	suspension	suspension
	fighting; engaging in dangerous		to removal	to removal
	horseplay

	* Misuse of a Government	Reprimand	30-day	Removal
	vehicle	to removal	suspension
			to removal

R) * 31 U.S.C. 1349(b) requires a minimum suspension of one month even for the first offense, if the misuse was willful, i.e., employee acted either with knowledge that the intended use would be characterized as unofficial or with reckless disregard of whether such use was unofficial.

 

OCPMINST 12752.1 CH-1

CPI 752-B

SCHEDULE OF OFFENSES AND RECOMMENDED REMEDIES

RANGE OF REMEDIES (CONTINUED)

MISCELLANEOUS OFFENSES

Reckless driving or improper
operation of motor vehicle:

	Causing personal injury to	Reprimand	14-day	30-day
	self or others or damage to	to removal	suspension	suspension
	government property		to removal	to removal

	No personal injury to self	Reprimand	Reprimand	14-day
	or others or damage to	to 5-day	to 10-day	suspension
	government property	suspension	suspension	to removal

Unauthorized possession, use,	Reprimand to	14-day	30-day
loss or damage to government	removal	suspension	suspension
property or the property of		to removal	to removal
others

PROHIBITED PERSONNEL PRACTICE

Committing a prohibited	Reprimand to	14-day	30-day
personnel practice	removal	suspension	suspension
(See 5 U.S.C. 2302)		to removal	to removal

SAFETY

Failure to observe posted	Reprimand	5-day	10-day
smoking prohibitions	to removal	suspension	suspension
		to removal	to removal

Failure to use protective	Reprimand	5-day	10-day
clothing or equipment	to removal	suspension	suspension
		to removal

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FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

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