CConductonduct MManagementanagement

Module 15Module 15

NNational ational GGuard uard

TTechnician echnician PPersonnel ersonnel MManagement anagement CCourseourse

Discipline and Adverse ActionTPR 752 & 752-1

Voluntary and Non-Disciplinary Actions

TPR 715

MAJ Dion Kaimihana

Labor Relations Specialist

TECHNICIAN DISCIPLINE IN THE GUARD32 USC 709

** TAG is FINAL Authority for all Discipline and Adverse Actions

(f) Notwithstanding any other provision of law and under regulations prescribed by the Secretary concerned—

(2) a technician may, at any time, be separated from his technician employment for cause by the adjutant general of the jurisdiction concerned;

(3) a reduction in force, removal, or an adverse action involving discharge from technician

employment, suspension, furlough without pay, or reduction in rank or compensation shall be accomplished by the adjutant general of the jurisdiction concerned; (4) a right of appeal which may exist with respect to paragraph (1), (2), or (3) shall not extend beyond the adjutant general of the jurisdiction concerned;

NGB Supervisory Development Training Conduct Mgt VG 14

SUPERVISOR RESPONSIBILITYParagraph 1-4

•Maintains an office or shop atmosphere which is conducive to good employee-management relations; •Practices and maintains discipline to reduce the need for formal discipline or adverse actions

•Ensures employees understand the duties and work practices, safety and security requirements and administrative procedures

•Ensures any disciplinary action is justified by the facts and circumstances and is consistent with agency policy, precedent, and applicable collective bargaining agreement

NGB Supervisory Development Training Conduct Mgt VG 5-A

TYPES OF 752 ACTIONS

• Non-Disciplinary (Pre-Disciplinary)

•Counseling •Oral

•Admonitions• Written in Work Folder

• Disciplinary

•Letter of Reprimand• Grievable but not appealable

• Adverse Actions

•Suspension without pay•Reduction to lower grade•Removal

NGB Supervisory Development Training Conduct Mgt VG 8

NON-DISCIPLINARY ACTIONS (Pre-Disciplinary)

•Non-Disciplinary Action (2-1) is appropriate where the offense is minor and cessation or non-repetition of the offense is a satisfactory resolution of the matter. (Different from Non-Disciplinary Acts in TPR 715).

•Counseling (2-2) Counseling is appropriate in the first instance. Counseling is oral and not recorded.

• Admonition (2-3) If after counseling misconduct continues or is repeated, but non-disciplinary action is still warranted.

•Written in Supervisors work folder (kept up to 1 year)•Technician has right to reply

DISCIPLINARY ACTION

• Letter of Reprimand (LOR)

•May require an investigation•Preponderance of the Evidence Standard•Must include:

• Written description of misconduct

•Time that letter will be placed in OPF (1-3 years)

•Notice that the LoR is grievable

•Statement that further offenses could result in Adverse Action,

to include suspension, change to a lower grade level or removal.

NGB Supervisory Development Training Conduct Mgt VG 7

TYPES OF ADVERSE ACTIONS

•Suspension

• Involuntary change to lower grade

• Removal

NGB Supervisory Development Training Conduct Mgt VG 8

5-STEP ADVERSE ACTIONS PROCESS

STEP 1. Notice of Proposed Adverse Action

STEP 2. Technician’s Reply

STEP 3. Original Decision Letter

STEP 4. Administrative Appeal

STEP 5. Final Decision

NGB Supervisory Development Training Conduct Mgt VG 10-A

NOTICE OF PROPOSED ADVERSE ACTION

• Initiated by someone in technician’s supervisory chain

• Must develop the facts by a pre-ponderance of the evidence •Notice Must Contain:

• The cause for action being taken• If for “off-duty” conduct, must fully explain nexus

• What penalty is being proposed• Table of Penalties Appendix D as a general guide

• Right to review evidence supporting the action

• Review and copy evidence, interview witnesses if they consent

• Right to reply

• Minimum 7 day suspense and 4 work hours to prepare

• Deciding Official’s Contact Information

• If investigation is conducted, preserve employee’s ”Weingarten Rights”

• Must be prepared in conjunction with HRO

ORIGINAL DECISION LETTER

• Deciding Official as named in proposed action latter

• Original decision contains:

• Statement of what action has been decided upon• Uphold, reduce, or dismiss adverse action

• Date the action will be effective• If removal , cannot be sooner than 30 days from letter

• Reference to the Technician’s replies• Refer to all replies from technician and comment

• Reason for the decision• Note consideration of “Douglas Factors”

• HRO Assistance information• Appeal Rights

• Right to Appellate Review or NGB hearing examiner

• Notice that unless appeal in timely manner, letter become final

ADVERSE ACTION APPEALS & THE NATIONAL GUARD HEARING EXAMINER

PROGRAMTPR 752-1

•Hearing Examiner Program is NGB’s Alternative to MSPB

•NGB Certified• From a different state’s National Guard

•Hearing Examiner’s role:

•Attempt Mediation•Hear facts and merits of case•Create neutral record and findings of fact•Make recommendation to TAG• TAG has final authority, however:

•Possible outside interference from :

• Federal Labor Relations Authority – Unfair Labor Practice• Equal Employment Opportunity Committee - Discrimination

NGB Supervisory Development Training Conduct Mgt VG 7

VOLUNTARY AND NON-DISCIPLINARY ACTIONS

TPR 715

•Loss of military membership• Terminated 30 days later

•Failure to meet a condition of employment•Management Directed Reassignment

•Must be to same grade and pay•Notice must be given which includes:

•Reason for reassignment•Effective date for action•Provide reasonable amount of time to accept or reject (5 days)•Benefits information of technician rejects and is terminated

•Transfer of function•Technician must be given notice of:

•Explain why the transfer of function is occurring•Effective date for the action•Provide reasonable amount of time to accept or reject transfer (10 days)

NGB Supervisory Development Training Conduct Mgt VG 14

NON-DISCIPLINARY ACTIONS (CONT’D)

•Furlough of 30 days or less (22 work days)•Management has authority to furlough workforce for legitimate reasons•HRO prepares and issues written furlough notices

•Enforced leave•Management can require technicians to leave the worksite when:

•Tech is not ready, willing and able to perform assigned duties, and/or•Tech’s continued presence is highly undesirable or • presents an immediate threat to the government property or the well being of the tech, co-workers or the public

•Cannot be continued once management determines the technician is ready willing and able to perform assigned duties or the immediate emergency is resolved.• If no reasonable explanation, the LWOP•If reasonable, then give option to use leave •Examples: out of uniform, drunk, enraged, uncouth, emotionally unstable, etc…

NGB Supervisory Development Training Conduct Mgt VG 14

FAILURE TO MEET A CONDITION OF EMPLOYMENT

•Technicians who fail to maintain a condition of employment can be reassigned or a lower grade or terminated. Some examples:

•Failure to maintain a compatible assignment•Failure to maintain military appointment requirement•Failure to maintain rank required for position•Failure to maintain state driver’s license•Failure to maintain current qualifications as an aircrew member•Failure to meet the physical standards required for an aircrew•Revocation of authorization to carry a firearm•Failure to maintain security clearance•Failure to remain qualified in the Personnel Reliability Program•Failure to complete military training•Physical inability to perform technician duties efficiently and/or safely•Failure to maintain compatible military assignment• Failure to restore to technician status after 5 years of Uniformed Service.

NGB Supervisory Development Training Conduct Mgt VG 14

VOLUNTARY ACTIONS• Resignation

• A Tech can resign at anytime, advance notice not required• Management cannot demand, but can offer in alternative to removal• Tech can request to withdraw resignation before effective date• Management can deny, if position abolished or already committed

•Voluntary Change to Lower Grade• Must be in writing• Management cannot demand, but give option in lieu of adverse action• Tech can request to withdraw resignation before effective date• Management can deny, if position abolished or already committed

• Optional Retirement•A Tech can resign at anytime, advance notice not required• Management cannot demand, but can offer in alternative to removal• Technician can request to withdraw resignation before effective date

• Abandonment of Position• A Tech can be removed if fail to report to work in reasonable time (10 days)• Management must attempt to ascertain techs intent and document

NGB Supervisory Development Training Conduct Mgt VG 15

Questions?

MAJ Dion Kaimihana

Labor Relations Specialist