**EMPLOYEE/MANAGEMENT RELATIONS**

**1. REASON FOR ISSUE:** To revise Department of Veterans Affairs (VA)
delegations of authority for title 38 appeals to a Disciplinary Appeals
Board (DAB).

**2. SUMMARY OF CONTENTS/MAJOR CHANGES:** This directive contains VA
policies on employee/management relations. The pages in this directive
replace the corresponding page numbers in VA Directive 5021 dated April
15, 2002. They incorporate a change that revises coverage based on the
addition of Chiropractors as a new Title 38 occupation. They also
incorporate technical amendments to properly reflect the Secretary's
authority to issue regulations under 38 U.S.C. 7421. These changes will
be incorporated into the electronic version of VA Directive 5021 that is
maintained on the [Office of Human Resources Management Web
site](http://vaww.va.gov/ohrm/Directives-Handbooks/Direct_Hand.htm).

**3. RESPONSIBLE OFFICE:** The Employee Relations and Performance
Management Service (051), Office of Human Resources Management.

**4. RELATED HANDBOOK:** VA Handbook 5021, Employee/Management
Relations.

**5. RESCISSIONS:** None.

**CERTIFIED BY: BY DIRECTION OF THE SECRETARY**

**OF VETERANS AFFAIRS:**

/s/Robert T. Howard /s/Paul J. Hutter

Assistant Secretary for Executive in Charge of the

Information and Technology Office of Human Resources and Administration

ELECTRONIC DISTRIBUTION ONLY

**APPENDIX A. DISCIPLINARY AND GRIEVANCE PROCEDURES**

###### SECTION A. DISCIPLINARY AND MAJOR ADVERSE ACTIONS

**1. SCOPE AND AUTHORITY**

a\. This section governs disciplinary and major adverse actions based on
conduct or performance in the Department of Veterans Affairs (VA). The
provisions of this section apply to VA employees holding a full‑time,
permanent appointment under 38 U.S.C. 7401(l) who have satisfactorily
completed the probationary period required by 38 U.S.C. 7403(b).
Included in this category are: physicians, dentists, podiatrists,
optometrists, \[chiropractors,\] nurses, nurse anesthetists, physician
assistants and expanded‑ function dental auxiliaries. Henceforth,
\"employee(s)\" will be the term used to refer to the above categories
in this section, unless otherwise specified.

b\. This chapter does not apply to employees appointed under 38 U.S.C.,
chapters 3, 71 or 78, or to employees appointed under 38 U.S.C. 7306, 38
U.S.C. 7401(3), 38 U.S.C. 7405, or 38 U.S.C. 7406.

**(Authority: 38 U.S.C. 501(a), 7401, 7403(b), 7405, 38 U.S.C.
7461‑7464.)**

**2. REFERENCES**

a\. Section 203 of the Department of Veterans Affairs Health‑Care
Personnel Act of 1991 (Pub. L. 102‑40).

b\. Section 302 of the Veterans Healthcare, Capital Asset and Business
Improvement Act of 2003 (Pub. L. 108-170).

c\. Section 3 of the Department of Veterans Affairs Health Care
Personnel Act of 2004 (Pub. L. 108-445).

d\. Title 38, United States Code, chapter 74.

**3. DEFINITIONS.** Unless otherwise noted, the following definitions
apply to this appendix only.

a\. **Admonishment.** An official letter of censure to an employee for
minor act(s) of misconduct or deficiency in competence. This letter
normally remains in the employee\'s personnel folder for two years.

b\. **Discharge.** The involuntary separation of an employee from
employment based on conduct or performance.

c\. **Disciplinary Actions.** These are adverse actions, other than
major adverse actions, which include admonishment and reprimand based on
conduct or performance.

d\. **Disciplinary Appeals Board.** The three member board designated to
hear an employee\'s appeal of a major adverse action which is based in
whole or in part on a question of professional conduct or competence.

e\. **Grade.** The established grades for the positions covered by this
chapter will be as defined by 38 U.S.C. 7404, and the qualification
standards issued pursuant to 38 U.S.C. 7402. (See part II of VA Handbook
5005, Staffing.) \[ \]

f\. **Major Adverse Actions.** These are suspension, transfer, reduction
in grade, reduction in basic pay, and discharge based on conduct or
performance.

g\. **Mixed Case.** This is a case that includes both (1) a major
adverse action arising out of (or including) a question of professional
conduct or competence, and (2) a major adverse action which does not
arise out of a question of professional conduct or competence, or a
disciplinary action.

h **Professional Conduct or Competence.** A question of professional
conduct or competence involves direct patient care and/or clinical
competence. The term clinical competence includes issues of professional
judgment.

i\. **Reduction in Basic Pay.** The involuntary reduction, based on
conduct or performance, of the annual rate of basic pay to which an
employee is entitled under 38 U.S.C. 7404, including above minimum
entrance rates and special salary rates authorized under 38 U.S.C. 7455.
This includes a reduction in the market pay of a physician or dentist as
a result of an involuntary reassignment or change in assignment when
taken for disciplinary reasons. However, this does not apply to
reductions in pay other than basic pay, such as the loss of or reduction
in physician or dentist performance pay, nurse executive special pay,
head nurse differential, other differentials, allowances or premium pay
such as standby, on‑call, shift, overtime, Sunday, holiday, night work,
hazardous duty, and interim geographic adjustment. A reduction in market
pay for a physician or dentist is considered a reduction in basic pay
for purposes of this appendix only when the reduction results from an
involuntary reassignment or change in assignment for conduct or
performance reasons. A change in assignment refers to a permanent change
in official duty station, change in duty basis (i.e. to/from full-time,
part-time or intermittent), change in tier, or a significant change in
the duties of the position as determined by an appropriate management
official.

j **Reduction in Grade.** The involuntary assignment to a lower grade on
the same pay schedule based on conduct or performance.

k\. **Reprimand.** An official letter of censure to an employee for an
act of misconduct or deficiency in competence. A reprimand is a more
severe disciplinary action than an admonishment. This letter normally
remains in the employee\'s personnel folder for three years.

l\. **Suspension.** The involuntary placement of an employee, for
disciplinary reasons, in a non‑duty, non‑pay status for a temporary
period of time.

m\. **Transfer.** The involuntary movement of an employee from one VA
facility to another (under separate managerial authority) based on
conduct or performance and without a break in service.

**(Authority: 38 U.S.C. 501(a), 7421.)**

**4. RESPONSIBILITIES AND AUTHORITIES.** The Under Secretary for Health
or designee will appoint Disciplinary Appeals Boards to hear appeals of
major adverse actions and will review and take appropriate action on all
decisions rendered by Disciplinary Appeals Boards.

**(Authority: 38 U.S.C. 501(a)**\[**, 7421, 7461, 7462, and
7464**\]**.)**

**5. DISCIPLINARY ACTIONS**

a\. **Types of Disciplinary Actions.** This paragraph applies to adverse
actions, other than major adverse actions, which include admonishment
and reprimand based on conduct or performance (refer to paragraph 3 of
this section for definitions).

b\. **Procedural Entitlements**

\(1\) Prior to taking disciplinary action, employees must be given:

**SECTION B. GRIEVANCES**

**1. SCOPE AND AUTHORITY**

a**. General.** This section governs employee grievances under the VA
grievance procedure.

b\. **Employee Coverage**

\(1\) This section applies to all physicians, dentists, podiatrists,
optometrists, \[chiropractors,\] nurses, nurse anesthetists, physician
assistants, and expanded‑function dental auxiliaries who are not on
time-limited appointments.

\(2\) A bargaining unit employee may elect to use the VA grievance
procedure described in this section or the negotiated grievance
procedure, but not both, in the case of a disciplinary or major adverse
action covered under section A of this appendix which does not involve a
question of professional conduct or competence.

c\. **Disciplinary and Adverse Actions Covered.** Disciplinary and major
adverse actions, other than major adverse actions which involve
questions of professional conduct or competence, are covered by the
grievance procedures described in this section.

**(Authority: 38 U.S.C. 501(a), 7421, 38 U.S.C. 7461‑7464.)**

**2. REFERENCES**

a\. Section 203 of the Department of Veterans Affairs Health‑Care
Personnel Act of 1991 (Pub. L. 102‑40).

b\. Section 302 of the Veterans Healthcare, Capital Asset and Business
Improvement Act of 2003 (Pub. L. 108-170).

c\. Section 3 of the Department of Veterans Affairs Health Care
Personnel Act of 2004 (Pub. L. 108-445).

d\. 38 U.S.C. 501(a), 7421, \[ \] 7461‑7464.

**3. RESPONSIBILITIES.** The Under Secretary for Health and other key
management officials are responsible for delegating authority to
appropriate officials to decide grievances. The Under Secretary for
Health and facility directors, as appropriate, will designate such
officials in writing.

**(Authority: 38 U.S.C. 501(a), 7421, 38 U.S.C. 7461‑7464.)**

**4. DEFINITIONS**

a\. **Bargaining Unit Employee.** An employee included in an appropriate
unit, pursuant to 5 U.S.C. 7112 and 7135, for which a labor organization
has been accorded exclusive recognition.

b\. **Decision Official.** An official designated to (1) receive and
attempt to adjust formal grievances; (2) refer formal grievances for
further review and inquiry; and (3) decide formal grievances based on
the results of impartial reviews and recommendations.

c\. **Employee.** Any physician, dentist, podiatrist, \[chiropractor,\]
optometrist, nurse, nurse anesthetist, physician assistant, or
expanded‑function dental auxiliary covered in the scope of this section.
Former employees of VA are also included, but only in connection with a
grievance over discharges or actions resulting in loss of pay or
benefits (for example, a former employee charged with 8 hours absence
without leave (AWOL) who has requested that the 8 hours of pay be
restored). Former employees must have filed a timely grievance in
accordance with the provisions of this appendix in order to receive
consideration.

d\. **Grievance.** A request by an employee, or group of employees, for
personal relief in a matter of concern or dissatisfaction relating to
employment which is subject to the control of agency management. Matters
not covered by the grievance procedure may be found in paragraph 14 of
this section.

e\. **Grievance File.** A separate file subject to the Privacy Act which
contains all documents related to the grievance, including, but not
limited to, statements of witnesses, records or copies thereof, the
report of the hearing if one is held, statements made by the parties to
the grievance, and the decision.

f\. **Personal Relief.** A specific remedy directly benefiting the
grievant, but may not include a request for disciplinary or other action
affecting another employee.

**(Authority: 38 U.S.C. 501(a), 7421, 38 U.S.C. 7461‑7464.)**

**5. REPRESENTATION**

a\. **Election of** **Representation.** An employee may present a
grievance with or without representation.

b\. **Designation of Representative.** An employee has the right to be
accompanied, represented, and advised by a representative of his or her
choice at any stage of the procedure. If a grievance is presented under
the formal grievance procedure, designation of a representative, will be
in writing and will be submitted to the decision official. Any change of
representative will be in writing.

c\. **Disallowance of Designated Representative.** An employee\'s
representative who is employed by VA may be disallowed by the facility
Director because of conflict of position, or conflict of interest. The
disallowance of a designated representative may be challenged in
accordance with part IV, chapter 3, paragraph 4 of VA Handbook 5021.

**(Authority: 38 U.S.C. 501(a), 7421, 38 U.S.C. 7461‑7464.)**

**6. TIME LIMITS FOR PROCESSING GRIEVANCE**

a\. **Time Limits.** A decision on a grievance will be issued within the
shortest time frame possible. To ensure timely and orderly processing,
the following time limits are established for each stage of the
grievance procedure:

**SECTION C. APPEALS TO THE DISCIPLINARY APPEALS BOARD**

**1. SCOPE, AUTHORITY AND DEFINITIONS.** This section governs appeals of
major adverse actions which arise out of, or which include, a question
of professional conduct or competence in the Department of Veterans
Affairs (VA). Major adverse actions are suspensions (including
indefinite suspensions), transfers, reductions in grade, reductions in
basic pay, and discharges. A question of professional conduct or
competence involves direct patient care and/or clinical competence. The
term clinical competence include issues of professional judgment. This
section applies to VA employees holding a full‑time, permanent
appointment under 38 U.S.C. 7401(l) who have satisfactorily completed
the probationary period required by 38 U.S.C. 7403(b). Included in this
category are: physicians, dentists, podiatrists, optometrists,
\[chiropractors,\] nurses, nurse anesthetists, physician assistants and
expanded‑function dental auxiliaries. The (preceding) categories of
individuals are included in the term \"employee(s)\" as used in this
section unless otherwise specified.

**(Authority: 38 U.S.C. 501(a), 7401, 7403(b), 7421, 38 U.S.C.
7461‑7464.)**

**2. REFERENCES**

a\. Section 203 of the Department of Veterans Affairs Health‑Care
Personnel Act of 1991 (Pub. L. 102‑40).

b\. Section 302 of the Veterans Healthcare, Capital Asset and Business
Improvement Act of 2003 (Pub. L. 108-170).

c\. Section 3 of the Department of Veterans Affairs Health Care
Personnel Act of 2005, (P.L. 108-445).

d\. 38 U.S.C. 501(a), 7421, 7461, 7462, 7464.

**3. FILING AN APPEAL TO THE DISCIPLINARY APPEALS BOARD**

a\. **Initiating an Appeal.** An employee subjected to a major adverse
action \[ \] which is based in whole or in part on a question of
professional conduct or competence, may file a written notice of appeal
to the Disciplinary Appeals Board under the provisions of this section.
The employee may request a hearing before the Board. Any such request
must be submitted in writing and accompany the employee\'s notice of
appeal. The appeal must contain (1) the appellant\'s name, address,
telephone number, designation of representative (if any), (2) a copy of
the notice of action proposed and decision letter, (3) a statement as to
whether the employee is requesting a hearing before the Board, (4) why
the appellant believes the major adverse action taken was in error or
should not have been taken, and (5) a statement describing the expected
relief. The original appeal and the request for hearing, if any, must be
submitted to the Under Secretary for Health or designee so as to be
received within 30 days after the date of service of the written
decision on the employee. Submission of the appeal must be by personal
service, facsimile, or certified mail ‑return receipt requested. A copy
of the appeal must be served on the decision official who took the
action being appealed and any management representative of record.