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

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