Article 45
Adverse and Disciplinary Actions

Section 1. Employees Covered

This Article applies to the following bargaining unit employees:

a. employees in the competitive service who are not serving a probationary or trial period under an initial appointment or who have completed one year of current continuous employment in the same or similar positions under other than temporary appointment limited to one year or less;
b. preference eligibles in the excepted service who have completed one (1) year of continuous service in the same or similar positions in an Executive agency or in the U.S. Postal Service or Postal Rate Commission; and
c. individuals in the excepted service (other than preference eligibles) who are not serving a probationary or trial period under an initial appointment pending conversion to the competitive service, or who have completed two (2) years of current continuous service in the same or similar positions in an Executive agency under other than a temporary appointment limited to two (2) years or less.

Section 2. General

No bargaining unit employee will be the subject of an adverse action except for such just cause as will promote the efficiency of the service. Just cause means a legally sufficient reason to substantiate the action taken. The parties agree that the word “just” does not establish a higher standard than the “for such cause” standard set forth in 5 USC 7503 and 5 USC 7513.

Section 3. Employee Right to Review Material

An employee in the bargaining unit has the right to review such documentary evidence (including the notice of disciplinary or adverse action) as may be relied upon in support of an adverse or disciplinary action.

Section 4. Counseling, Warnings, Reprimands, or Admonishments

a. Oral counseling, warnings, reprimands, or admonishments are not considered disciplinary actions. They can neither be grieved by the employee nor be relied upon by Management as progressive discipline in any disciplinary action subsequently taken against the employee. However, such oral communication can be referenced in progressive discipline if the conduct objected to by management continues.
b. Counseling, warnings, reprimands, or admonishments which are reduced to writing must be shown to the employee if they are to be capable of being relied upon by Management in any subsequent disciplinary or adverse action against the employee. If the employee is dissatisfied with such written counseling, warning, reprimand, or admonishment, he/she may file a grievance pursuant to Article 43 of this Agreement.

Section 5. Notice of Proposed Action

a. When Management issues a notice of proposed action under this Article, the notice will state a reasonable time, not less than ten (10) work days, by which the employee's reply(ies) to the notice of proposal must be made.
b. When Management issues a notice of proposed action under this Article, the notice will include a statement that the employee is entitled to representation, including representation by Local 12. The notice will include the name and telephone number of the Local 12 Agency Vice President/Chief Steward in the employee's Agency.
c. When Management issues a notice of proposed action under this Article, it will notify Local 12 of the nature of the proposed action and the employee’s Agency.
d. The disallowance of an employee's choice of a representative during the notice period may be appealed to the servicing Human Resources Officer. Such appeals must be made in writing within seven (7) calendar days following receipt of the deciding official's disallowance.

Section 6. Adverse Action--Suspensions of Fourteen (14) Days or Less

a. The negotiated grievance procedure in Article 43 is ordinarily the exclusive procedure for appeals of actions taken under this Section. However, if the employee wishes to raise an allegation of discrimination on the basis of race, color, religion, sex, national origin, age, or disability in connection with the action, the employee may elect to pursue the matter either under the negotiated grievance procedure or under the Equal Employment Opportunity (EEO) complaint procedure, but not both. The employee shall be deemed to have exercised his/her option to raise the matter under either the negotiated grievance procedure or the EEO procedure at such time as the employee files a grievance or a formal EEO complaint.
b. When Management issues a notice of proposed action under this Section to an employee in the bargaining unit, he/she will be given an original and one (1) copy for referral to Local 12, if desired.

Section 7. Other Adverse Actions

a. Adverse actions covered under this Section are:

(1) a suspension for more than fourteen (14) days;
(2) a reduction in pay and/or grade; or
(3) a removal based on misconduct or unacceptable performance, or a combination of misconduct and unacceptable performance.

b. When Management issues a notice of proposed adverse action under this Section to an employee in the bargaining unit, he/she will be given an original and one (1) copy for referral to Local 12, if desired.
c. Except in cases where there is an allegation of discrimination on the basis of race, color, religion, sex, national origin, age, or disability in connection with the action, an employee covered by this Article may appeal an action taken under this Section through the negotiated grievance procedure or to the Merit Systems Protection Board (MSPB), but not both. The employee shall be deemed to have exercised his/her option to raise the matter under either the negotiated grievance procedure or the MSPB procedure at such time as the employee files a grievance or an appeal with the MSPB.
d. In cases where there is an allegation of discrimination on the basis of race, color, religion, sex, national origin, age, or disability in connection with the action, an employee covered by this Article may appeal an action taken under this Section through the negotiated grievance procedure, to the MSPB, or through the EEO complaint procedure. An employee who has elected to pursue the matter through the EEO complaint procedure or the MSPB appeal procedure may not appeal the matter through the negotiated grievance procedure. The employee shall be deemed to have elected the forum under which he/she wishes to proceed at the time he/she files a grievance, an appeal with the MSPB, or a formal EEO complaint.

Section 8. Pending Legal Charges

If an employee is the subject of a criminal investigation or other criminal proceeding and an adverse action is taken against him/her involving the same facts as those which gave rise to the criminal investigation or proceeding, the employee can elect to suspend his/her right to file a grievance appealing the adverse action until the completion of the criminal trial or other disposition of the criminal matter, if the matter is resolved prior to trial. The grievance must be filed within twenty (20) workdays of the date of the completion of the criminal trial or other disposition of the criminal matter. If an employee elects this option, an arbitrator may take notice.

Section 9. Furloughs of Thirty (30) Days or Less

A furlough of thirty (30) days or less will be processed in accordance with 5 U.S.C. 7513.

Section 10. Security Systems

The parties agree that the intent of any security system within the Department is to enhance security and to ensure the safety of all employees. The security system is not a time and attendance system. This does not preclude management from using such data as evidence to support a disciplinary action.