Article 45
Bargaining History
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The parties agreed to add a new Section 1 which would extend the coverage of this Article to certain excepted service employees in accordance with the Civil Service Due Process Amendments of 1990.

The parties decided to keep the language in Article 45, Section 1 (now Section 2) of the 1980 Agreement which states that 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. It was agreed that this language was intended to have the same meaning as the statutory language at 5 U.S.C. 7503(a) and 7513(a) which provides that an Agency can only take an adverse action against an employee ". . . for such cause as will promote the efficiency of the service."

The parties agreed that Section 4 would contain the language which appeared at Section 4 of the 1980 Agreement. The parties discussed the meaning of the provision in Subsection a. that oral counseling, warnings, reprimands, and admonishments could not be relied upon by Management in any disciplinary action subsequently taken against the employee. It was agreed that this language did not mean that the oral counseling, warning, reprimand, or admonishment could not be mentioned in connection with the factual basis for the disciplinary action. The language is intended only to prohibit Management from relying on the oral counseling, warning, reprimand, or admonishment as a prior disciplinary action which would justify a more severe penalty than would otherwise be appropriate. The parties agreed that it was desirable to keep oral counseling, warnings, reprimands, and admonishments as informal as possible in order to encourage employees and supervisors to work out problems without the need to resort to the formal adverse action and grievance procedures.

The parties agreed that both the Union and Management had an interest in employees obtaining good representation at the proposal stage in adverse action proceedings. Thus, the parties agreed to add language in Section 5, Subsection b. requiring adverse action notices to include a statement that the employee is entitled to representation, including representation by Local 12, and to include the name and telephone number of the Local 12 Chief Steward in the employee's agency. The parties also agreed to add Section 5, Subsection c. requiring Management to notify Local 12 of the nature of the proposed action (if a suspension, the number of days proposed should be specified) and the employee's Agency whenever Management issues a notice of proposed adverse action. It is intended that such notification should be in writing. The language adopted by the parties meets both the interest of maximizing the opportunity for employees to obtain Union representation at the proposal stage of an adverse action and the interest of protecting employee privacy.

The parties adopted changes which appear in Section 6, Subsection a. and Section 7, Subsections c. and d., to bring the Agreement into conformity with the requirements of 5 U.S.C. 7121(d) and 29 CFR §1613.219 in relation to an employee's right to elect to proceed under the EEO complaint procedure if he/she wishes to raise an allegation of discrimination in connection with an adverse action. As the Statute and regulations provide, an employee must elect whether to proceed under the grievance procedure or a statutory appeals procedure (such as the Merit Systems Protection Board (MSPB) or Equal Employment Opportunity (EEO) procedures) and cannot do both.

The parties adopted Section 8 to provide for a procedure similar to that employed by the MSPB in cases where an employee requests that administrative proceedings in an adverse action case be suspended pending the disposition of a pending criminal matter against the employee involving the same facts. This provision was in response to the Union's concern that employees not be placed in a position where they would be required to risk self-incrimination if they testified in the grievance proceedings. In these circumstances the MSPB will, at the employee's request, dismiss the MSPB appeal without prejudice to the right to refile within twenty (20) days of the date of the completion of the criminal trial proceedings. Green v. U.S. Postal Service, 16 MSPR 203 (1983); Wallington v. Dept. of Treasury, 42 MSPR 462 (1989). The parties agreed that the procedure outlined in Section 8 could only be initiated at the employee's request and would only be permitted if the employee was the subject of a criminal investigation or other criminal proceeding which involved the same facts as those which were the basis of the adverse action. The parties also agreed that the suspension of the right to file a grievance would be terminated once the criminal matter was resolved or the criminal trial had been concluded, whichever occurred first. It was not contemplated by the parties that the suspension of the right to file a grievance would continue through the criminal appellate process. The parties also agreed that once the criminal trial or earlier resolution of the matter was concluded, the employee would have twenty (20) workdays in which to file the grievance.