Article 44
Adverse Actions

Section 44.01

A. For the purpose of this Article an adverse action is defined as a suspension for more than fourteen (14) days, reduction in grade or pay, furlough for 30 days or less, or removal.

B. Adverse actions will be taken under 5 U.S.C. Chapter 75 only for such cause as will promote the efficiency of the service.

C. A meeting between an employee and the Employer during which the principal topic of discussion is adverse action or potential adverse action against the employee will entitle the employee to request to be accompanied by the National field representative and either the NTEU president or area steward during such meeting. If such a request is made it will be honored.

D. The procedures of this Article do not apply to any bargaining unit employee serving a probationary or trial period or an employee under a temporary appointment. The merits of such employees' removals are not subject to the grievance/arbitration procedures of this agreement.

Section 44.02

A. In all cases of proposed adverse action an employee will be given at least a thirty (30) calendar day advance written notice stating the specific reasons for the proposed action.

B. The employee will be given a reasonable time, but not less than ten workdays, to respond orally and/or in writing, and to furnish affidavits and other documentary evidence in support of the reply. Reasonable requests for an extension will be granted if submitted in writing prior to expiration of the time allowed stating the reasons for desiring more time. The proposal notice will specify who will receive the oral and/or written reply. In making a reply the employee may set forth mitigating circumstances and give reasons as to why the proposed action should not be effected.

C. The proposal shall inform the employee of the right to review the material relied upon to support the reasons for the action given in the notice. Copies of the material relied upon will be furnished to the employee if requested. When the Employer has relied upon the statements of witnesses to support the reasons for the proposed action, the Employer will include these statements in the material relied upon and make them available to the employee.

D. The employee will have the right to be represented in the preparation and presentation of the reply. The employee and his/her representative will receive a reasonable amount of official time to prepare and present the reply.

E. The Employer will make a written summary of the employee's oral reply. A copy of the summary will be included in the material relied upon.

Section 44.03

The final decision in an adverse action covered by this Article must be made by a higher level official than the official who issued the notice of proposed action. The decision letter will state which charge or charges are sustained.

In deciding what action may be appropriate, the Employer will give due consideration to the relevance of any mitigating and/or aggravating circumstances. The "Douglas factors" included herein for purposes of illustration, are neither meant to be exhaustive nor intended to be applied mechanically, but rather to outline the tolerable limits of reasonableness:

A. The nature and seriousness of the offense, and its relation to the employee's duties, position, and responsibilities, including whether the offense was intentional or technical and inadvertent, or was committed maliciously or for gain, or was frequently repeated;

B. The employee's job level and type of employment including supervisory or fiduciary role, contacts with the public, and prominence of the position;

C. The employee's past disciplinary record;

D. The employee's past work record; including length of service, performance on the job, ability to get along with fellow workers, and dependability;

E. The effect of the offense upon the employee's ability to perform assigned duties;

F. Consistency of the penalty with those imposed upon other employees for the same or similar offenses;

G. The notoriety of the offense or its impact upon the reputation of the agency;

H. The clarity with which the employee was on notice of any rules that were violated in committing the offense, or had been warned about the conduct in question;

I. Potential for the employee's rehabilitation;

J. Mitigating circumstances surrounding the offense such as unusual job tensions, personality problems, mental impairment, harassment, or bad faith, malice or provocation on the part of others involved in the matter; and

K. The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others.

Section 44.04

The thirty (30) calendar day advance written notice is not required in those cases when the crime provision is invoked; i.e., when there is reasonable cause to believe the employee has committed a crime for which a sentence of imprisonment may be imposed.

Section 44.05

In the event the Employer sustains the reasons and effects an adverse action against a bargaining unit employee, the employee may appeal the decision to the Merit Systems Protection Board in accordance with applicable law or NTEU may directly invoke arbitration in accordance with the terms of this agreement, but only one of these avenues of review may be pursued.

Section 44.06

NTEU will receive sanitized copies of any advance notice letters that are issued pursuant to this Article when the employee receives such letter. NTEU will also receive any decision letters, when the employee receives such letter, where it has not previously been designated as the employee representative in the matter.

Section 44.07

Each advance notice letter and final decision letter issued pursuant to this Article will contain a notification of the right to representation, including NTEU representation and the name and telephone number and mail routing symbol of the current NTEU chapter president.