Participant’s Handout

OBJECTIVE: At the end of this class, the participant should be able to:

1. Distinguish between discipline, adverse and unacceptable performance actions.

2. Describe the procedures management must follow for taking each action.

3. Outline an employee’s and steward’s rights in an investigatory interview.

INVESTIGATORY INTERVIEWS The Weingarten Right (5 USC Section 7114(a)(2)(B))- An exclusive representative of an appropriate unit in an agency shall be given the opportunity to be represented at any examination of an employee in the unit by a representative of an agency in connection with an investigation if - (I) the employee reasonably believes that the examination may result in disciplinary action against the employee; and (ii) the employee requests representation. The employee, who is the subject of an investigation or a witness, has the right to have a union representative attend any meeting which meets the following test:

1. Is it an examination or information gathering event?

2. Is the employee in the bargaining unit?

3. Is the meeting conducted by a representative of the agency?

4. Is it related to a investigation of misconduct?

5. Is there objective evidence to believe that there is a potential for discipline?

6. Is the employee requesting union representation?

Kalkines Right- You are here to answer questions pertaining to your employment with... and the duties you perform for the .... You have the option to remain silent, although you may be subject to removal from employment... if you fail to answer material and relevant questions relating to your performance of your duties as an employee. You are further advised that answers you may give to questions propounded to you at this interview, or any information or evidence that is gained by reason of your answers, may not be used against you in a criminal proceeding except that you may be subject to criminal prosecution for any false answers you may give. Miranda Rights- You have the right to remain silent, you have a right to an attorney, anything you say can be used against you in court or other proceedings, ... if you decide to answer questions now with or without a lawyer, you still have the right to stop the questioning at any time or to stop the questioning for the purpose of consulting a lawyer.

The steward can do the following things for the employee:

1. Prepare the employee by reminding him or her how serious these meetings are. Removal and even prosecution are possible. Practice the employee with some test questions.

2. Urge the employee not to lie to the investigators and to generally brief you on the facts in advance. However, ask him to refrain from telling you of criminal activity.

3. Remind him or her to volunteer nothing. This includes possible recollections or anything else about which he or she can claim to be uncertain.

4. Open the investigation by clarifying whether the employee is the subject or a witness, whether immunity from criminal prosecution is to be offered, and whether that can be confirmed in writing. If the investigators believe there is a possibility of criminal prosecution or if you and the employee believe there is, refuse to answer until immunity is granted. Also ask about the specific topic of the investigation.

5. Listen for anything during the meeting that suggests the investigator’s interests in criminal activity by the employee. As soon as you hear it, invoke Kalkines or Miranda.

6. Try to clarify investigator questions so that they require only yes or no answers. Get in the way of requests that the employee just talk until stopped. Watch for the investigator trying to seem like the employee’s friend.

7. Demand to see any documents or other evidence mentioned by inspectors before responding to a question about them.

8. Before the employee answers any significant question, caucus with him to advise him how to answer. Call for a caucus whenever the employee is ignoring your advice or getting intimidated. However, at no time can you deliver the answer for him.

9. Use your right to object to any trick or otherwise unfair questions. This should alert the employee to possible traps.

10. Insist on regular breaks. If need be, call a caucus to get one. Stop at the end of the workday.

11. Try to record all questions and answers even if you have to ask inspectors to go more slowly than they want. Record any memorable events that may help a defense immediately after the interview and have the employee initial it with you.

Look over the factual situations listed below and identify what the union representative should do in the situation. Refer to THE NTEU STEWARD'S ONE PAGE GUIDE TO INVESTIGATORY INTERVIEWS for suggestions.

1. As the employee finishes explaining about his use of a government car on the night the inspectors questioned him about, he starts talking about how similar it was to other times he has used the government car after hours.

2. The Inspector opens this part of the meeting by saying, "We have a police report that describes your involvement in an incident on the night of January 6th. Tell us all about that night." You know that your employee had a drunk driving arrest that night.

3. The Internal Affairs agent says, "Tell us everything you know about employees taking property from a government office."

4. As you listen to the employee you sense he is getting confused. It sounds like he just contradicted his earlier statement.

5. After you ask a question, the investigating agent gives you and answer that ends with, "Now shut up for the rest of the time. This is not an interview of you, but I can arrange that if you want it."

6. The manager just asked about an incident that you know the employee knows little about. Despite that the employee starts providing his version of what he "thinks" must of happened.

The three terms "discipline," "adverse," and "unacceptable performance" action each have specific definitions and separate procedures. It is important to be able to distinguish them. In the column on the left are the definitions of the terms while on the right are the procedures for taking those actions.

Disciplinary Actions are reprimands or suspensions of 14 days or less that are normally based on misconduct charges; however, they can be based on performance problems also.

Adverse Actions are suspensions of more than 14 days, reductions in grade, reductions in pay, furloughs of 30 days or less, and removals that are normally based on misconduct charges; however, they can be based on performance problems also. An adverse action has to promote the "efficiency of the service" to be sustained

Unacceptable Performance Actions involve demotions, reassignments or removals for poor performance, i.e., unacceptable ratings in one or more critical elements.

Emergency Crime-related Actions are those for which a sentence of imprisonment may be imposed. They usually involve indefinite suspensions.

Reprimands come via final decision letters and generally without notice.

Suspensions of any length are preceded by an advance written notice of the charges and specifications; a reasonable time to reply orally and/or in writing; the right to a representative (including a private attorney); a written final decision at the earliest practicable date.

Adverse Action-based Reductions in grade or pay, Furloughs of 30 days or less and Removals are preceded by an advance written notice of the charges and specifications; a reasonable time to reply orally and/or in writing; the right to a representative (including a private attorney); a written final decision at the earliest practicable date.

Unacceptable Performance-based Reductions in grade/pay, Furloughs of 30 days or less and Removals get the same as adverse actions, but also are preceded by a 60+day performance improvement period.

Emergency Indefinite Suspensions require advance notice, at least 7 days to reply orally and/or in writing; the right to an attorney or representative; a written decision at the earliest practical date.

Once action has been proposed, the union can raise four defenses.

1. Harmful Error- "Error by the agency in the application of its procedures that is likely to have caused the agency to have reached a conclusion different from the one that it would have reached in the absence or cure of the error. The burden is upon the appellant to show the error is harmful, i.e., that it caused substantial harm or prejudice to his or her rights." (5 CFR 1201) The following are examples of possible harmful error:

   1. unclear charges, including failure to cite rules allegedly violated.

   2. withholding necessary evidence from the employee.

   3. requiring premature replies.

   4. using of tainted evidence, e.g., Weingarten violations.

   5. consideration of factors or behavior not included in the charges.

   6. a failure to consider the reply.

2. Lack of Sufficient Proof- Agencies have the burden of proof to show that the proposed action "will promote the efficiency of the service." They do this by "substantial" evidence for discipline and the "preponderance" of the evidence for adverse action. Ignore the niceties of the difference and focus on attacking their case. First, have the employee write out the reasons why each charge is untrue. Make him note the proof he has. Second, consult the Chief Steward or National Field Representative to see if there are any special proof standards related to the charges in questions. For example, for Insubordination there must be an order (not necessarily in writing) from someone with authority to direct the employee which the employee understood and refused to obey; for Falsification there must be a false statement, knowingly made with the intent to deceive; for AWOL there must be an unauthorized absence and no good reason to extend authorized leave;.

3. Lack of Nexus- In some cases the misconduct occurs off-duty or it is on duty, but so unrelated to the efficiency of the service that the employee can claim there is no connection (nexus) between the complained of behavior and the efficiency of the service. If we can prove that, the charge must be dropped. For example, an arrest a driving offense off-duty does not necessarily have a nexus.

4. Mitigation of Penalties- Statute and case law provide that we can argue for the penalty to be reduced even if all the other defenses fail. There are 11 arguments you can raise to do this. They will be covered elsewhere. These only apply to discipline and adverse action.

THE NTEU STEWARD'S ONE PAGE GUIDE TO MITIGATING PENALTIES

Another defense the steward can raise is that, even if the employee is guilty or partially guilty, the penalty may be too harsh. The so-called Douglas factors should be applied to determine that.

1. Is the nature and seriousness of the offense related to the employee's duties, position and responsibilities. Moreover, was the offense intentional, technical, inadvertent, committed maliciously or for gain, or frequently repeated?

2. How does the offense affect the employee's job level and type of employment, e.g. any supervisory or fiduciary role, contacts with the public and prominence of the position?

3. Does the employee have a past disciplinary record. Otherwise, discipline should be progressive and corrective rather than punitive?

4. Does the employee's past work record, including length of service, performance on the job, ability to get along with fellow workers and dependability, reflect favorably on her?

5. What is the effect of the offense upon the employee's ability to perform at a satisfactory level and upon the supervisor's confidence in the employee's ability to perform assigned duties?

6. Is the penalty consistent with those imposed upon other employees for the same or similar offenses?

7. Is the penalty consistent with any agency table of penalties? Look particularly for race, gender or age bias.

8. What is the notoriety of the offense or its impact on the reputation of the agency?

9. Was the employee clearly on notice of any rules that were violated in committing the offense or warned about the conduct in question?

10. What is the potential for the employee's rehabilitation?

11. Are there 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 ?

12. Are there adequate and effective alternative sanctions to deter such conduct in the future by the employee or others?

Over 2,000 employees a year in NTEU bargaining units hear these words or something similar. Federal agencies are very aggressive in taking disciplinary and adverse action, despite rumors to the contrary. Unless you are properly represented, an action can ruin your career as well as your private life even if you are innocent.

NTEU stewards and officers are trained to represent employees in these matters. Moreover, there are over 100 professional staff members of the union who do these types of cases for a living. If an agency proposes action against you, you need to contact the union representative. They can tell you about such technicalities of a defense as,

*If you do not know what these are or how to use them, you might as well admit guilt and take whatever penalty management imposes. As the saying goes, "Anyone who represents himself has a fool for a client."

When an employee goes to the U.S. Merit Systems Protection Board, the employee loses 70% of the time.

When an employee is represented in arbitration by NTEU, he wins 70% of the time. The details of your case will be held in the strictest confidence.