Article 32 – Adverse Actions and Enforced Leave and Suspensions

Purpose

The purpose of this Article is to provide a method for the prompt and fair disposition of adverse actions initiated by the Library.

Employees may be offered or may request an alternative form of disciplinary action in lieu of traditional discipline for misconduct. (For an explanation of alternative discipline, see Section 14 below.) The Library and the Association recognize the Library has a legitimate interest in taking an adverse action against an employee who is not adequately performing his or her assigned tasks after being appropriately counseled and warned, or whose conduct interferes with the mission of the agency. The Association and the Library also recognize that it is in the best interests of all employees for the non-productive or disruptive employee to be subject to adverse actions. However, the Library and the Association also agree that any adverse personnel action represents a severe intrusion into the personal and professional standing of an employee, and the employee’s interest must be safeguarded by prompt and equitable procedures designed to determine the accuracy and truth of any charges which might be brought against an employee.

Section 1. Adverse Action Defined

The term “adverse action” for the purposes of this Agreement encompasses the following matters:

  1. Removal from the Library for cause.
  2. Transfer and reassignment for reason of performance or conduct.
  3. Suspension (non-pay status), except suspension provided under LCR 9-1070*, Administrative Leave, Enforced Leave, and Indefinite Suspension
  4. Demotion, i.e., change from one position to another of lower grade or salary within the Library. [An action terminating a temporary promotion does not fall within the meaning of demotion.].
  5. Official written reprimand when a copy is to be filed in the official personnel folder in the Directorate of Human Resources.

Section 2. Criteria for Considering Appropriate Misconduct Penalties

Management will consider the relevant facts and circumstances of each case, including the following:

  1. The nature and seriousness of the offense and its relation to the employees duties, position, and responsibilities, including whether the offense was intentional or technical or inadvertent, or was committed maliciously or for gain, or was frequently repeated.
  2. The employees job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position.
  3. The employees past disciplinary record.
  4. The employees past work history, including length of service, performance on the job, ability to get along with fellow workers, and dependability.
  5. The effect of the offense upon the employees ability to perform at a satisfactory level and its effect upon the supervisors confidence in the employees ability to perform assigned duties.
  6. Consistency of the penalty with those imposed upon other employees for the same or similar offences.
  7. Consistency of the penalty with any applicable agency table of penalties.
  8. The notoriety of the offense or its impact upon the reputation of the agency.
  9. 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.
  10. Potential for the employees rehabilitation.
  11. 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.
  12. The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee and others.

Section 3. Representational Rights

Any employee subject to an adverse action has the right to be represented by the Association if the employee so elects or by any other representative of his or her choice at every stage of the adverse action process following the giving of the original notice of the proposed adverse action. (Excluded from participation as representatives are supervisors and other non-bargaining unit members, and any member of the Directorate of Human Resources, the Equal Employment Opportunity Complaints Office, and the Librarians Office.) The employee’s representative shall have the following rights at each and every step of the proceedings:

  1. To be notified in advance of the time and place of all meetings;
  2. To be present at those meetings;
  3. To participate fully in those meetings and to speak for, or in lieu of, the employee; and
  4. To be furnished a copy of all written decisions or notices.

Section 4. Notice

  1. An employee against whom an adverse action is proposed is entitled to at least twenty (20) work days advance written notice of the proposed action.
  2. The notice shall state, in detail, the nature of the proposed adverse action, the grounds upon which it is based, and any specific instances of misconduct of the employee, if such conduct is part of the basis for the proposed adverse action.

Section 5. Examination of the Evidence

The material upon which the notice of the proposed adverse action is based, and which is relied upon to support the adverse action, including statements of witnesses, documents, and investigative reports not excluded by law or regulation of higher authority, shall be assembled for review and photocopying by the employee or the employee’s representative. The notice shall inform the employee where he or she may review the supporting material. Material which cannot be disclosed to the employee or to the representative may not be used by the Library to support the reasons for the notice. Any additional evidence obtained by the Library at a later date must likewise be made available promptly to the employee.

Section 6. Employee’s Response

  1. The Director of CRS or designee shall appoint a reply officer to receive the employee’s response. This official shall have the authority to recommend dismissal, modification, or acceptance of the proposed adverse action.
  2. The employee shall be entitled to a reasonable time, but not less than 20 work days after being given an opportunity to examine the evidence forming the basis for the charges against him or her, to respond to the charges before the reply officer. As part of his or her response, the employee may furnish affidavits, documentary evidence, briefs, or other written arguments, and may appear in person to present oral arguments.
  3. The Library shall allow a reasonable amount of official time to the employee and his or her representative for the purpose of preparing an answer to the adverse action charge.

Section 7. Reply Officers Recommendation

The reply officer appointed by the CRS Director or designee shall consider all evidence presented by the employee and representative. The role of the reply officer is to determine whether the facts of the case justify the recommendation being made. His or her recommendation should cover matters that were specifically alleged in the proposed adverse action and shall not cover unrelated allegations. The reply officer shall consult with the proposing official, the charged party, and his or her representative prior to making a final recommendation to the Director. The reply officer shall issue a written recommendation on the merits of the proposed adverse action within 15 working days of its presentation. The recommendation may recommend that the proposed adverse action be dismissed, modified to a lesser action, or carried out. A statement of the reasons and the evidence relied upon for reaching this conclusion must be part of the recommendation.

Section 8. Final Agency Decision

The Director of CRS or designee shall make the final decision after receiving, and fully considering, the recommendation of the reply officer.

Section 9. Right to a Formal Appeal

Any employee dissatisfied with the decision of the Director of CRS or designee has a right to request a formal hearing. The request must be made to the Employee Relations Division, Directorate of Human Resources, in writing within five work days of the receipt of the decision of the Director. The adverse action will not be stayed pending appeal; but if the appeal is successful, back pay will be awarded unless otherwise determined by the hearing officer.

Section 10. Formal Hearing

  1. The formal hearing will be conducted as soon as practicable after receipt of the request for such a hearing.
  2. The formal hearing will be conducted by a hearing officer, who will be selected by the employee (with the assistance if so elected of a representative) and the Employee Relations Division, Directorate of Human Resources from a group of thirteen nominees submitted by the Federal Mediation and Conciliation Service. The Library and the employee (with the assistance if so elected of a representative) shall meet within five work days after receipt of the list of thirteen nominees. First the Library and then the employee shall strike one hearing examiner from the list of thirteen and repeat this procedure until one name remains. The remaining person shall be the duly selected hearing examiner.
  3. The hearing shall be open to the public unless otherwise requested by the employee. Subject to applicable law and Library regulations, the hearing officer will have the authority to rule on questions of fact and law. Strict rules of evidence will not apply. Unduly repetitious or irrelevant evidence may be excluded at the discretion of the hearing officer.
  4. Each party shall have the right to present oral and written evidence, affidavits from those who for good cause shown cannot appear, and to have witnesses testify. Each party may cross-examine witnesses. Any officer or employee of the Library requested to testify by the employee will be directed to do so by the Library unless the Library can demonstrate that such testimony would be entirely irrelevant. A complete transcript of the hearing shall be made and kept as a permanent part of the record. The Library has the burden of going forward and the burden of proof and must show by a preponderance of the evidence that the allegations forming the basis for the adverse action are true and that these facts form a valid and legal basis for the adverse action.
  5. The hearing officer shall communicate his or her decision, in writing, to all parties to the hearing within 30 days after the hearing unless the parties mutually agree to extend the time limit. The decision must be based on the record and must include a statement of reasons, findings of fact, and conclusions of law. The decision of the hearing officer shall be final and binding.
  6. The Library shall provide the employee or representative official time sufficient to adequately prepare for and participate in the hearing.
  7. The Library shall pay all costs associated with the hearing and appeal process.

Section 11. Implementation of the Adverse Action

If at any time the Library decides that the presence of an employee would be disruptive to the normal functioning of the Library, or to the health and safety of other employees, or to the public, the Library may place that employee on administrative leave, on enforced annual or sick leave as appropriate, or, in the absence of annual or sick leave, on suspension under LCR 9-1070, until the adverse action is resolved. At the employees discretion, Family and Medical Leave Act leave approved in accordance with LCR 9-1020* may be substituted for enforced annual leave, sick leave, or suspension from duty without pay. If after 30 work days a decision is not reached to return the employee to the workplace, the Library will begin adverse action proceedings, or if agreed to by the parties, the 30-day period may be extended.

Section 12. Retroactive Pay

Employees placed on leave or suspended under LCR 9-1070 may, in appropriate cases, be awarded retroactive pay.

Section 13. Procedures

Before proposing an adverse action, the Library may discuss allegations of misconduct with the employee. If during the course of the discussion it becomes clear that the matter has the potential to result in disciplinary action, the employee shall be notified of his or her right to Association representation.

Section 14. Alternative Discipline

  1. The objectives of the use of alternative discipline are to improve communications and interpersonal relationships between supervisors and employees; correct behavioral problems in the work place; and reduce the costs and delays inherent in traditional disciplinary actions.
  2. Alternative discipline is limited to permanent, indefinite, and indefinite NTE employees.
  3. Any form of alternative discipline must be approved by the Director of CRS or designee before an offer can be made to an employee.
  4. All uses of alternative discipline must be memorialized by a written agreement between the employee, his or her representative (if applicable), and the appropriate manager or supervisor. An employee has three workdays after an offer has been made to accept a proposed agreement. Failure to accept will result in the resumption of the traditional discipline process.
  5. Examples of the forms of alternative discipline are:

    1. Leave without pay in lieu of suspension. (Staff members covered under the provisions of the Fair Labor Standards Act who request leave without pay in lieu of suspension may not continue to report for duty.)
    2. Reduced suspension with the balance of the penalty held in abeyance pending the completion of the alternative discipline.
    3. Donation of annual leave to the voluntary leave program in lieu of suspension.
    4. Counseling or training.
    5. A formal apology.
    6. Service of suspensions incrementally (e.g., one day a pay period for five pay periods).
    7. Community service
    8. In lieu of a formal letter of reprimand the employee accepts a substitute letter which address the same issue, but which avoids formal action.
    9. In lieu of a formal letter of reprimand the employee admits in writing to having committed an infraction and agrees to avoid a future infraction, accepting that a repeated infraction will result in a more severe action (e.g., suspension).
    10. Any other forms of alternative discipline that management and the Director or designee shall approve.

  6. In the event of subsequent misconduct on the part of the employee under an alternative discipline agreement, said agreement may be considered a prior disciplinary action for purposes of progressive discipline and may be cited as such in a notice of proposed adverse action.
  7. The alternative discipline agreement will be placed in the employees Official Personnel File during the term of the agreement and will be removed on the employees fulfillment of all its terms and conditions, but no longer than two years.
  8. The existence of an alternative discipline agreement does not preclude the Library from taking disciplinary action with respect to subsequent misconduct not covered by the agreement.
  9. An employee shall be notified of a violation of the alternative discipline agreement and given an opportunity to respond before a decision is made to impose the traditional penalty as outlined in the agreement with no right to appeal.

* LCR 9-1070 was formerly LCR 2020-5, “Administrative Leave, Enforced Leave, and Indefinite Suspensions”.

* LCR 9-1020 was formerly LCR 2015-21, “Family and Medical Leave”.