# Presentation: 025991

## Objectives

**Identify and understand FAA’s discipline process**
**Identify and understand the elements of a**
**	****disciplinary action**
**Identify how to develop evidence needed to**
**	****determine if disciplinary action is warranted **
**Identify and apply the factors in deciding the penalty**
**Identify and understand the pitfalls to avoid in taking disciplinary action**
**Identify who to contact for assistance**

## ConductComplying with the written and unwritten rules of the workplace

- Examples of Misconduct:
- Coming to work late or leaving early
- Refusing to follow orders
- Misuse of Government Property
- Falsification of Government documents
- Threatening, harassing, or intimidating behavior

## Conduct and Discipline References

- Standards of Conduct Human Resource Personnel Manual (HRPM)– ER-4.1/FAPM 2635 Prescribes basic rules of conduct for FAA employees
- Human Resources Operating Instructions (HROI) – Table of Penalties/Appendix 1 of FAPM 2635

## Conduct and Discipline References (con’t)

- FAA’s Personnel Management System – 3/28/96
- PRIB #17 – Guaranteed Fair Treatment – Non-Bargaining Unit employees
- Appropriate disciplinary article in labor agreement outlining specific procedures for BUE’s

## Managers’ Responsibilities

Encourage employees to review the Standards of Conduct

Ensure, at least once, employees review Standards of Ethical Conduct for Executive Branch Employees

- Encourage employees to review the Standards of Conduct
- Ensure, at least once, employees review Standards of Ethical Conduct for Executive Branch Employees

## Provide positive leadership and serve as a role model

Communicate, embrace, fully 
	support, enforce, and comply with 
	all DOT and FAA regulations, policies, 
	and programs

Investigate allegations of misconduct

**Communicate, embrace, fully **
**	****support, enforce, and comply with **
**	****all DOT and FAA regulations, policies, **
**	****and programs**
**Investigate allegations of misconduct**

## Take necessary corrective action when employees under their supervision, commit offenses in violation of policies and programs

Refer employees to EAP when a personal problem may impact an employee’s conduct

**Refer employees to EAP when a personal problem may impact an employee’s conduct**

## FAA’s Policy

**Discipline is progressive**
**Discipline is corrective, **_**not Punitive**_
**Purpose of discipline:**
**Correct employee misconduct**
**Maintain morale**
**Promote efficiency**
**Use Minimum penalty expected to correct employee misconduct**

## Elements of a Disciplinary Case

**Prove that misconduct occurred**
**Nexus to efficiency of service**
**Penalty is appropriate**

## Burden of Proof

_**Preponderance**_
**	****That degree of relevant evidence which a reasonable person considering the record as a whole, might accept as sufficient to support a conclusion that a matter asserted is more likely to be “true than not true.”**
**	****Different than Criminal – “Beyond a **
**Reasonable Doubt”**

## How Do You Prove Misconduct?

**	****By Conducting An Effective Disciplinary Investigation**

## Conducting EffectiveDisciplinary Investigations

**Get the facts – Need evidence**
**Detailed documentation – Foundation for**
**sustaining a disciplinary action**
**Don’t prejudge **
**Don’t get evidence to support one side of the case.  Obtain the “Rest of the Story”**

## Conducting EffectiveDisciplinary Investigations (con’t)

**Plan the investigative interview**
**Secure documentary evidence – “e-mail”, T & A records, notes, policies, tapes, logs etc.**
**Interview all witnesses**

## Conducting EffectiveDisciplinary Investigations (con’t)

**Be familiar with Contractual and Statutory Rights**
**“****Weingarten” Right – Right to have representation by Union during **
**	****disciplinary investigation of a **
**	****Bargaining Unit Employee**

## Union’s Right –Employee has to request union representation
Obligated to give information – Employees are required in an administrative investigation to provide any information requested even if information is incriminating 
Criminal Activity – Right to invoke self-incrimination defense

**Obligated to give information – Employees are required in an administrative investigation to provide any information requested even if information is incriminating **
**Criminal Activity – Right to invoke self-incrimination defense**

**Conducting Effective****Disciplinary Investigations (con’t)**

## Disciplinary Investigation?

**An arbitration hearing is scheduled at your facility on a five-day suspension for a bargaining unit (bu) employee.  The advocate for management handling the case arrives at your facility two days before the hearing and reviews materials relied on to take the disciplinary action.  He wants to interview some of the bu employees who made statements to resolve some conflicts in these statements.  You contact these bu employees and learn they don’t want to be interviewed prior to the hearing.**
**Are these employees required to attend these interviews with the management advocate?           Yes or No?**

## Conducting EffectiveDisciplinary Investigations (con’t)

**Use the 5 W’s as a Guideline - Who, What, Where, When and Why? of Incident**
**Use “open-ended” questions to provide overall picture.  Use “yes/no” questions to confirm factual data**
**Don’t accept generalities.  Ask clarifying **
**	****questions – Be inquisitive – Probe**

## Conducting EffectiveDisciplinary Investigations (con’t)

**Stick to the Facts – Avoid conclusions or impressions**
**Paint a picture – Sleeping on duty**
**Ask about any others who may assist Corroboration/Contradiction**
**Obtain written statement early**
**      ****from witnesses**

## Proving Your Case

**Preponderance of Evidence – “One on One”**
**No witnesses – Who do you believe?**
**Conflicting accounts – Don’t flip coin**
**Make credibility determination**
**MSPB – “Hillen” factors**
**Seven factors – “Weights in **
**   ****the scale of credibility”**

## Factor 1: The Opportunity and Capacity to Observe the Event or Act

**Witness’ opportunity – Place, time, and proximity**
**Don’t accept – “Witness didn’t hear/see anything”**
**Need to inquire – Should the witness be able to hear/see based upon place,**
**   ****time, and proximity?**

## Factor 2: Character

**Past record for falsification or providing inaccurate information**
**Poor reputation for truthfulness diminishes credibility**
**Need to provide evidence**

## Factor 3: Prior Inconsistent Statement

**Raises doubt about truthfulness of both stories **
**Changing story – less believable**
**Get written statements**

## Factor 3: Prior Inconsistent Statement (con’t)

**Prior inconsistent statement – “Antenna should go up” **
**Probe and dig deeper**

## Factor 4: Bias

**Any benefit to lie**
**Manager vs. Employee – everything equal – Manager more believable **
**Need to look at “hidden agendas”**
**Grudges – axe to grind**

## Factor 5: Contradiction by or Consistency with other Evidence

**Contradiction - mistaken about one fact – may be mistaken about others**
**Look for contradictions/corroboration **
**Contradictions – less believable**
**Corroboration – more believable**

## Factor 6: Inherent Improbability

**“****Swallow” test – hard to swallow, maybe untrue **
**Does story “ring true”**
**Bizarre or improbable – More likely untrue**

## Factor 7: Demeanor

**Behavior, manner, and appearance of witness **
**Poor eye contact, wanders from the point, squirms, fidgets – less believable  **
**Contrast – Sits still, looks directly at investigator, listens to and gives careful, responsive answers – more believable**

## Nexus Logical Connection between Misconduct and Efficiency of the Service

**On Duty – Easy**
**Off Duty – Negative Impact on one of the following:**
**Employee’s ability to effectively perform his or her job**
**Ability of other employees to effectively perform their job**
**Agency’s ability to effectively discharge **
**	****its mission****	**

## Off Duty Nexus?

**A managerial employee worked as an area program manager for the Morale, Welfare, and Recreation Department with the Marine Corps.  His office was responsible for providing support to Marine families, including families of deployed Marines.  The Manager engaged in an adulterous relationship with the wife of a deployed Marine major assigned to a unit supported by the manager.**
**Is there a Nexus?      Yes or No?**

## Selecting Appropriate Penalty

**“****Douglas” factors – MSPB case**
**FAA factors – Incorporated in FAA Policy/Labor Agreements**
**12 Factors – Determine appropriate penalty**
**Not all relevant in every case**
**Some aggravating, some mitigating,**
**   ****some not relevant**

## Basic Principles

**No Mechanical, automatic, preordained formula**
**Reasonable balance of relevant factors**
**Specific individual considerations**
**No legitimate consideration – No Deference**

## Aggravating Factors

**Place in proposal**
**Give employee fair opportunity to respond **
**Not communicated in proposal – Might not be considered**

## Mitigating Factors

**Did Agency consciously consider relevant factors?**
**Mitigating factor consideration – Greater deference**
**No mitigating factor consideration – No deference**

## Douglas Factor 1: Nature and Seriousness of Offense

**First and foremost – Most important factor**
**Relationship with employee’s duties, position, and responsibilities**
**Intentional vs. technical or inadvertent**
**Frequently repeated or isolated**
**Maliciously committed/For Gain**

## Douglas Factor 2: Employee’s job level and type of employment

**Managers – Held to a higher standard of conduct than other employees**
**Role model – Responsible for ensuring workplace rules are followed**
**Status factored in Discrimination/EEO/Sexual Misconduct Offenses**

## Fiduciary – Position of Trust

Testing Designated Position (TDP) – Safety/Security

Law Enforcement/Security – Credibility, Integrity

Contacts with Public – Customer Service

Prominence of Position – Attorney, 
	Labor & Employee Relations Specialist

**Testing Designated Position (TDP) – Safety/Security**
**Law Enforcement/Security – Credibility, Integrity**
**Contacts with Public – Customer Service**
**Prominence of Position – Attorney, **
**	****Labor & Employee Relations Specialist**

## Douglas Factor 3: Prior Misconduct

**Prior discipline must be mentioned in proposal**
**Time Barred – Check negotiated agreements/policy**
**Dissimilar – Can be considered as second and third offense**
**More weight for similar priors**

## Douglas Factor 4: Employee’s Past Work Record

**Major Mitigating Factor**
**Length of service – Government position**
**Prior work record**
**Poor performance must be documented**
**Lengthy years of service – “Should have known better.” – Not Aggravating**

## Douglas Factor 5: Ability to Perform at Satisfactory Level Erosion of Manager Confidence

**Effect of offense on employee’s ability to perform at satisfactory level**
**Loss of Trust and Confidence**
**Cannot be based on vague conclusions**
**Position of trust – More likely erosion of manager confidence**

## Douglas Factor 6: Disparate treatment; Consistency of penalty with that imposed on other employees

**Board – Requires substantial similarity, similar offense, same work unit, Manager, geographical area, etc.**
**Arbitration – Not always same standard**
**Consistency of Penalty – Only one factor to be considered in mitigation of penalty**

## Douglas Factor 7:Consistency with Agency Penalty Guide

**Table of Penalties – Can select most severe penalty if warranted**
**Can impose greater or lesser penalty if circumstances dictate – Will be closely “Scrutinized”**
**If offense not listed, make comparison with most similar, related offense**

## Douglas Factor 8:Notoriety

_**Impact Upon Reputation of Agency**_
**Publicity – News Media**
**Customer Dissatisfaction **
**Offense in relationship to agency mission**
**Ex: DEA Agent – Convicted for Drug Trafficking**
**Bureau of Prisons Guard – Abuse of Inmate**

## Douglas Factor 9:Notice or Warning about Conduct in Question

**Standards of Conduct Briefing**
**Non-Disciplinary Counseling**
**Letters of Expectations**
**Other Briefings/Training**

## Douglas Factor 10:Potential for Rehabilitation

**Aggravating – prior discipline, prior notice, prior warning, seriousness of offense**
**Mitigating – no prior discipline, good prior performance, dependable work record, job dedication, long service**
**Early truthful admission**
**Remorse/Contrition**
**Getting Assistance to deal with problem**

## Douglas Factor 11:Mitigating Circumstances

**Personal Problems – Stressful Circumstances**
**Emotional Distress**
**Illness**
**Mental Condition**
**Unusual Job Tensions**
**Malice or provocation by others**

## Douglas Factor 12: Effectiveness of a Lesser Sanction

**Douglas Factor 12:**** ****Effectiveness of a Lesser Sanction**

**Only required penalty “Willful Misuse of Government Vehicle”**
**Zero tolerance does not mean removal**
**Why other Alternative Sanctions **
**	****are not reasonable?**
**Demotion vs. Removal of **
**	****Manager**

- Property of
- FAA

***Ralph’s ***
***Bar & Night ***
***Club***

## Elements of Just Cause Labor Agreement Standard

**Did the employee have prior warning that his or her conduct would result in discipline?**
**Was the rule or order reasonably related to the safe, efficient, and orderly operation of the organization?**
**Was an investigation held before the employee was disciplined?**

## Was the investigation fair and objective?

Did the investigation disclose sufficient evidence that the employee was guilty?

Was the disciplinary decision nondiscriminatory?

Was the discipline reasonably related to the seriousness of the offense and the employee’s record with the organization?

**Did the investigation disclose sufficient evidence that the employee was guilty?**
**Was the disciplinary decision nondiscriminatory?**
**Was the discipline reasonably related to the seriousness of the offense and the employee’s record with the organization?**

## Before Deciding to Take Corrective Action

**Consult with your servicing HRMD.**
**Evaluate the evidence you have.**
**What does the evidence prove?**
**Where are the holes?**
**Do you have the employee’s explanation?**

## How would you attack the evidence if you were the employee’s representative?

Is there additional evidence that will make a difference?

Try to get to the bottom of any conflicting accounts.

Where it’s simply one person’s word against another evaluate their relative 
	credibility – “Hillen” factors.

**Is there additional evidence that will make a difference?**
**Try to get to the bottom of any conflicting accounts.**
**Where it’s simply one person’s word against another evaluate their relative **
**	****credibility – “Hillen” factors.**

## Disciplinary Due Process Formal Actions - Reprimand to Removal

- Specific reason(s) for the disciplinary action.  The reason(s) and specification(s) must be in sufficient detail for the employee to make a reply
- Right to make an oral and/or written reply
- Right to representation
- Copy of all of the information relied upon to support the action unless otherwise prohibited by law

## Disciplinary Due Process Formal Actions - Reprimand to Removal (con’t)

**Right to a decision letter stating which reason(s)/charge(s) were sustained and which were not and the reason(s)**
**	****For reprimands – No reply, no decision letter needed **
**Right to file an appeal/grievance**
**	****(Consultation with servicing HRMD required)**

## Framing a Charge

**FAA uses Reason instead of Charge**
**Reason = Charge**
**Failure to prove the specific reason given – Agency will most likely lose**
**Stick to plain language that fits the evidence K.I.S.S. theory of charge writing – **_**K**_**eep **_**I**_**t **_**S**_**imple **_**Manager**_
**Charge what you can prove.  Avoid legalistic terms (i.e. threat, theft, assault, and hostile environment)**

## Framing a Charge (con't)

**    ****A grievant was suspended for 5 days for sexual harassment in violation of the FAA’s policy by bringing sexually explicit photographs to the workplace.  The photos were asked to be viewed by two employees and neither indicated that they were offended by the photos.**
** **
**   ****Would you sustain the agency’s charge?  Yes or No?**

## SpecificationSupporting Information to Prove Charge

**Describe in Enough Detail **-** **Due Process Rights
**Specification**
- Describes the relevant information - Who? What? When? Where? Why? of incident
- Explains impact
- Gives any other details which may be relevant

## Concept of Progressive Discipline

**Informal Discipline**
**Oral Admonishment**
**Written Admonishment**
**Formal Discipline**
**Letter of Reprimand**
**Suspension**
**Reduction in Grade, Band or Pay**
**Removal**

## “Formal Disciplinary Actions”  
Suspensions of 14 days or less; Written Reprimands

Bargaining Unit Employees Appeals
Negotiated Grievance Procedure

Non – Bargaining Unit Employees Appeals
FAA Grievance Procedure –PRIB #17

**Suspensions of 14 days or less; Written Reprimands**
_**Bargaining Unit Employees Appeals**_
**Negotiated Grievance Procedure**
_**Non – Bargaining Unit Employees Appeals**_
**FAA Grievance Procedure –PRIB #17**

## APPEALS

_**“**__**Adverse Actions”**_** – Suspension of more than 14 days; reduction in grade, band, or pay; removal **
_**Bargaining Unit Employees Appeals**_
**Merit Systems Protection Board (MSPB) or**
**Guaranteed Fair Treatment (GFT) or**
**Negotiated Grievance Procedure**
_**Non – Bargaining Unit Employees Appeals**_
**MSPB or GFT**

## Common Mistakes in Taking Disciplinary Actions

- _Not completing a thorough investigation_
- Don’t rush to judgment
- Need to get all the facts
- Interview all witnesses

## Common Mistakes in Taking Disciplinary Actions (con’t)

_**Inconsistent application of workplace rules**_
**Must enforce rules evenhandedly **
**No selective prosecution**
**Disparate treatment**
**Don’t protect certain employees**

## Common Mistakes in Taking Disciplinary Actions (con’t)

_**Failure to Take Progressive Discipline**_
**Ignoring the problem – “It will not go away”**
**Frustrations build up –Tendency to want to           overreact with penalty**
**Need to recognize corrective nature of discipline**

## Common Mistakes in Taking Disciplinary Actions (Con’t)

_**Timeliness in Taking Disciplinary Action**_
**Timeliness = Fairness**
**Morale and Productivity may suffer **
**Witnesses’ memories fade**
**Third parties ask why it took so long**

## Common Mistakes in Taking Disciplinary Actions (con’t)

_**Paying “Lip Service” to Douglas Factors**_
**Need to apply and balance relevant factors**
**Show thorough consideration – Get deference**

## Conduct and Discipline Quiz

**Standards of Conduct ER-4.1 applies to all FAA employees.**
**	****	****	****True****	****	****	****	****False**
**	**

## Managers are required to ensure at least once, employees have under their supervision have reviewed Standards of Ethical Conduct for Executive Branch Employees.
			True				False

**	****	****	****True****	****	****	****	****False**
**	**

## To sustain a disciplinary action, you must prove your charge beyond a reasonable doubt.
			True				False

**	****	****	****True****	****	****	****	****False**
**	**

## Nexus in a disciplinary action is a logical connection between the misconduct and efficiency of the service.
			True				False

**	****	****	****True****	****	****	****	****False**
**	**

**Douglas factors only include mitigating factors.****	****	****True****	****	****	****	****False**** **
**	**

## All penalties must fall within the range of penalties identified in table of penalties.
			True				False

**	****	****	****True****	****	****	****	****False**
**	**

## Bargaining Unit employees are required to assist management in preparing for an arbitration hearing by being re-interviewed after a disciplinary decision has been effected.
			True				False

**	****	****	****True****	****	****	****	****False**
**	**

## Avoid legalistic terms when you are deciding to charge an employee for misconduct.
		  True				False

**	****	****  ****True****	****	****	****	****False**
**	**

## A bargaining unit employee who has been suspended for 30 days can file one of the following:  A grievance through the    negotiated grievance procedure, an MSPB appeal, or an GFT appeal.
			True				False

**	****	****	****True****	****	****	****	****False**
**	**

## A Non-Bargaining Unit employee can file an MSPB appeal on a 10-day suspension
			True				False

**	****	****	****True****	****	****	****	****False**
**	**