DISCIPLINARY AND ADVERSE ACTIONS

Section 1. This Article covers actions involving oral and written admonishments, written reprimands, suspensions, removals, reductions-in-grade or pay, or furloughs of thirty (30) days or less for reasons other than a lapse in Congressional appropriations. Administrative reassignments, transfers to other facilities or locations, retraining and/or recertification, or enforced leave, will not be used as disciplinary/adverse actions.
This Article does not apply to the removal of probationers.

Section 2. When the Employer decides that corrective action is necessary, consideration should be given to the application of measures which, while not disciplinary, will instruct the offending employee and/or remedy the problem. When it is determined that discipline is appropriate, informal disciplinary measures should be considered before taking a more severe action. However, it is not necessary to have taken an informal disciplinary measure before administering a formal measure.

Section 3. Disciplinary/adverse actions shall not be taken against an employee except for such cause as will promote the efficiency of the service. Any action taken by the Employer shall be supported by a preponderance of the evidence.

Section 4. All facts pertaining to a disciplinary/adverse action shall be developed as promptly as possible. Actions under this Article shall be promptly initiated after all the facts have been made known to the Employer.

Section 5. Except for oral and written admonishments and written reprimands, the following procedures will be used to take disciplinary/adverse actions:

1. The Employer shall give the employee written notice proposing the action. The notice period shall be as provided for in 5 USC 7513(b)(1). The notice must state the specific reasons for the action.
2. The employee has the opportunity to reply to the notice orally and in writing within fifteen (15) days from the date the employee receives notice proposing the action. However, if the action is taken under the "crime provision" the employee is entitled to a reasonable amount of time but not less than seven (7) days to reply. The employee's representative may participate in the employee's oral reply.
3. The Employer shall consider the employee's reply, and then give the employee a written decision concerning the proposed action.

Section 6. In addition to the provisions of Section 5, the following provisions are applicable to cases of reduction in grade or pay, or removal for unacceptable performance:

a. If the final decision is to sustain the proposed removal or downgrade, the decision letter must specify the instances of unacceptable performance on which it is based and the decision must be concurred upon by a management representative who is in a higher position than the management representative who proposed the action. The decision may only be based on those instances of unacceptable performance which occurred within one (1) year prior to the date of the written notice described in Section 5 (1).
b. If because of performance improvements by the employee during the notice period, the employee is not reduced in grade or removed, and the employee's performance continues to be acceptable for one (1) year from the date of the written notice described in Section 5 (1), any entry or other notation of the unacceptable performance for which the action was proposed shall be removed from any record relating to the employee.

Section 7. No advance written notice is required for the issuance of a written reprimand. The reprimand must state the specific reasons for the action. The employee may present an oral or written reply within fifteen (15) days of receipt of the reprimand. The Employer will consider the employee's reply and notify the employee in writing of the decision. If the reprimand is sustained, a copy of it, along with the employee's written reply, will be placed in the employee's official personnel folder in accordance with Article 44 of this Agreement.

Section 8. An employee against whom disciplinary/adverse action is proposed under this Article shall have the right to a copy of all the information relied upon to support the proposal.

Section 9. Management's action may not be sustained if a harmful error is shown.

Section 10. The employee and the Union representative shall be granted a reasonable amount of duty and official time of up to sixteen (16) hours, if otherwise in a duty status, in cases involving removal, reduction-in-grade or pay, furloughs of thirty (30) days or less for reasons other than a lapse in Congressional appropriations, or suspensions of more than fourteen (14) days; of up to eight (8) hours in other cases for preparation and presentation of answers to proposed actions under this Article. The employee�s duty time authorized in this Section may be extended upon request.

Section 11. For furloughs of thirty (30) days or less, each Air Traffic Manager and NAATS Facility Representative will work together to determine the most effective way for scheduling duty time to prepare and present a response. It is understood between the Parties that it may be difficult for the Employer to grant sixteen (16) hours of duty time to every employee who wishes to reply to a proposed furlough. However, the Employer will ensure that every bargaining unit employee who wishes to reply will be provided a reasonable amount of duty time to prepare and present his/her response. The scheduling of such time is subject to operational requirements.

The principal Facility Representative, and/or his/her designee, will be on official time, if otherwise in a duty status, for the period of time agreed upon to assist in the preparation and presentation of replies.

Section 12. Letters of confirmation of discussion shall not be considered disciplinary in nature, but may be used to document future disciplinary actions, provided the employee has been given a copy upon completion. The letters of confirmation of discussion shall be completed as soon as practicable after the event.

Section 13. Although not exhaustive, the Employer's table of penalties should be used, when applicable, as a guide to determine an appropriate penalty. If applicable, appropriate penalties for offenses unlisted in the table of penalties may be derived by comparing the nature and seriousness of the offense to those listed in the table, the employee's previous history of discipline, and other relevant factors in each individual case. In assessing penalties, consideration will be given to the length of time that has elapsed from the date of any previous offense. As a general guide, a two (2) year time frame should be used in determining freshness.

Section 14. In making its determination that disciplinary/adverse action is necessary and when determining the appropriateness of a penalty, the Employer shall consider the factors as outlined in Douglas v. Veterans Administration, 5 MSPB 313 (1981).

Section 15. Any notification to an employee which is not made personally shall be accomplished by certified mail return receipt requested.

Section 16. The Employer at the national level may allow an employee subject to removal or suspension of more than fourteen (14) days the opportunity to exhaust all appeal rights available under this Agreement before the suspension or removal becomes effective.

Section 17. An employee against whom an adverse/disciplinary action is taken may grieve that action under Article 67 of this Agreement, or any other applicable statutory procedure, but not both.

Section 18. An employee against whom action is proposed under this Article shall have the right to representation by the Union or by an attorney or other representative of his/her choice. As such the Union reserves the right to refuse representation on an individual case-by-case base.

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