40:0056(8)NG - - NAGE Local R4-45 and Navy Resale and Service Support Office, Norfolk, Virginia - - 1991 FLRAdec NG - - v40 p56
[ v40 p56 ]
40:0056(8)NG
The decision of the Authority follows:
40 FLRA No. 8
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.
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 | 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 |
Reprimand to |
Reprimand to |
Reprimand
to |
|
UNEXCUSED OR |
Reprimand to |
1 to 5-day
|
5-day |
|
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; |
|||
|
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, |
|
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, |
|
REFUSAL TO PROVIDE |
Reprimand to |
5-day |
30-day suspension |
|
A URINE SAMPLE |
removal |
suspension to |
to removal |
|
WHEN REQUIRED |
removal |
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
|
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
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
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
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
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 |
FOOTNOTES:
(If blank, the decision does not
have footnotes.)