ngarng.list.j1-hro-lrs@mail.mil Mr. Poppler – (916) 854-3600 1LT Thomas – (916) 854-3646

1. Labor Relations Training Presentation ng.ca.caarng.list.j1-hro-lrs@mail.mil Mr. Poppler – (916) 854-3600 1LT Thomas – (916) 854-3646 SrA Kelly – (916) 854-3701

2. Agenda • Labor Relations (LR) Purpose and Responsibility • Disciplinary Actions • Progressive Discipline • Non Disciplinary and Disciplinary Actions • 904-1 • Steps Prior to Disciplinary Actions • Disciplinary Actions • Adverse Actions • Metz Factors • Douglas Factors • Weingarten Rights • Grievance • Website and Union Points of Contact

3. Responsibilities: Provides guidance and direction to all managers and supervisors on disciplinary responsibilities, rights, and obligations. Assists supervisors and managers with the procedural aspects of an action before issuance of a proposed action. Provides necessary training to managers and supervisors on the subject of this regulation. Represents and/or advises The Adjutant General (TAG) or TAG representative in disciplinary and adverse action cases. Provides general and procedural guidance and case information to the effected technicians. Primary Purpose: Provide comprehensive labor relations, adverse action and disciplinary consultation services to customer (management and supervisors). Provide procedural guidance to technicians to include procedural rights. Purpose & Responsibilities

4. Disciplinary Actions • Use CNG FPR 752… TPR 752 is National level regulation – use it as a reference. • SHOW “Progressive Discipline”: History from NGB Form 904-1 (5 W’s plus further conduct could be grounds for taking further disciplinary or adverse action) • Supervisors and Technician must initial the NGB 904-1. • Part of Supervisor’s Employee Work Folder CNG FPR 293: http://www.calguard.ca.gov/HRO/Documents/Pubs/FPR/CNGFPR_293.pdf CNG GPR 752: http://www.calguard.ca.gov/HRO/Documents/Labor/Discipline%20and%20Adverse%20Actions%20FPR_752.pdf TPR 752: http://www.calguard.ca.gov/HRO/Documents/Labor/NGB%20TPR%20752.pdf

5. Progressive Discipline • Progressive discipline is the process of using increasingly severe steps or measures when an employee fails to correct a problem after being given a reasonable opportunity to do so. • The goal is not to punish the employee but to more strongly alert the employee of the need to correct the problem. • Take the least severe action that is necessary to correct the situation will help determine which step to use. • Early, less stringent, measures are skipped for serious offenses such as theft, fighting, Sexual Harassment, ect. All steps are typically used for attendance or general work performance problems

6. Elements of Progressive Discipline • The employee is explicitly informed of the unacceptable behavior or performance and is given specific work-related examples (5 W’s). • Explain acceptable behavior or performance standards and give the employee reasonable time to comply. • The employee is informed of the consequences of failing to comply. This gives the employee reasonable expectations of the consequences if change does not occur.

7. Progressive Discipline Removal Letter of reprimand or suspension Oral admonishment 904-1

8. Levels of Discipline • Timeliness- immediate and appropriate action • Refer to TABLE OF PENALTIES FOR VARIOUS OFFENSES found in TPR 752 • Provisions of a collective bargaining agreement establish the requirements under which the organization operates. • Non Disciplinary Actions: • 904-1 counseling session • 904-1 Warning • Disciplinary Actions: • Oral Admonishment • Letter of Reprimand • Adverse Actions

9. 904-1 • Counseling(non-disciplinary) • Positive and constructive counseling can normally resolve a problem without the need for disciplinary or adverse action • annotated in pencil and initialed by both the supervisor and the technician on NGB Form 904-1 • Warning Session (non-disciplinary) • conveys the message that a disciplinary or adverse action may result if the problem is not corrected • annotated in pencil and initialed by both the supervisor and technician on NGB Form 904-1 • Oral Admonishment (disciplinary)

10. Steps prior to disciplinary Actions • Fact Finding/Investigate (Air=CDI) (Army=AR15-6) • Weingarten Rights • Ensure the provisions of their respective Collective Bargaining Agreement (CBA) are followed prior to initiating any disciplinary or adverse action • Douglas Factors • Gather documentation: NGB 904-1 entries, time and attendance (T&A) sheets, doctor’s notes/medical certifications, witness statements, photos, accident/investigation reports, etc. • Contact Labor Relations

11. Weingarten Rights • NLRB v. J. Weingarten, Inc. • 5 USC 7114(a)(2)(B) http://www.law.cornell.edu/uscode/text/5/7114 • CNG FPR 752, Paragraph 10c (Investigations) http://www.calguard.ca.gov/HRO/Documents/Labor/Discipline%20and%20Adverse%20Actions%20FPR_752.pdf • Recommend advising employee • Annotate NGB Form 904-1 http://www.calguard.ca.gov/HRO/Documents/Labor/fillable%20904-1.pdf • Annual Notice to employees • Sent via TAAI http://www.calguard.ca.gov/HRO/Documents/Pubs/TAAI/2013/TAAI_13-02.pdf 420 U.S.251 (1975)

12. Douglas Factors“Consistency” • Determine the appropriate remedy • “Like penalties for like offenses in like circumstance.” • Nature and seriousness of the offense • Job level and contact with public • Past discipline • Work record and length of service • Effect of the offense • Consistency of penalty imposed on others • Consistency of penalty compared to higher HQ guidance penalties • Notoriety of the offense • Clarity of rules • Potential for rehabilitation • Mitigating circumstances • Adequacy and effectiveness of alternative sanctions • Paragraph 7, paragraph 19, and Attachment 2, CNG FPR 752

13. Disciplinary Actions • Oral Admonishment • Paragraph 5a, CNG FPR 752 • Verbal counseling that puts Technician on notice – modify improper behavior • NGB Form 904-1 entry • May issue to a technician without prior HRO consultation • Letter of Reprimand (LOR) • Paragraph 5b, Attachment 3, and Attachment 4, CNG FPR 752 • Must be reviewed and approved by LR before presenting to Technician • NGB Form 904-1 entry • Signed copy emailed to LR

14. Adverse Actions • Paragraph 6, CNG FPR 752 • Pay affecting actions • Suspensions • Change to Lower Grade • Removals • Management MUST contact LR ASAP • Evidence in form of police report, sworn statements, annotated NGB Form 904-1… is required to show preponderance • Investigation conducted using CDI guide or AR 15-6 procedures • Commanders, managers, and supervisors must receive prior approval from LR to present ANY adverse actions to a Technician

15. Adverse Actions • LR will collaborate with JAG for sufficiency • Supervisors must demonstrate a history of “Progressive Discipline” by annotating NGB Form 904-1s, referencing all Policies, Memorandums, and Regulations related to the Suspension or Removal

16. Adverse Actions • Proposed Action Letter (PAL): • “Usually” supervisor (rater) is proposing official • Paragraph 19, CNG FPR 752 (Step 1) • Metz Factors (attachment 1 of CNG FPR 752) • Douglas Factors (attachment 2 of CNG FPR 752) • Table of Penalties (attachment 3 of CNG FPR 752) • PAL Sample (attachment 5 of CNG FPR 752) • EAP offer • All supporting documentation used in proposing penalty as enclosures • Technician allowed 4 hours of “official time” • 20 days from date of presentation to reply to Deciding Official (Step 2) • Patience – takes 3-6 weeks depending on case and workload

17. Adverse Actions • Original Decision Letter (ODL): • “Usually” next level supervisor or manager (reviewer) • Paragraph 19, CNG FPR 752 (Step 3) • Douglas Factors (attachment 2 of CNG FPR 752) • Table of Penalties (attachment 3 of CNG FPR 752) • ODL Sample (attachment 6 of CNG FPR 752) • Appeal option – gives 20 days for Technician to decide • EAP offer • Can lessen penalty but NOT raise it • All supporting documentation used in deciding penalty as enclosures • Patience – takes 1-2 weeks depending on case and workload

18. Disciplinary Actions- Leave • Warning on Leave Usage (Non-disciplinary) • Paragraph 9, CNG FPR 752 • Attachment 8 (Local use - typically this is the first supporting document) • NGB Form 904-1 entry • Leave Restriction Notice - Paragraph 9, CNG FPR 752 • Attachment 9 (Disciplinary in nature/formal notice) • Must be reviewed and approved by LR before presenting to Technician • NGB Form 904-1 entry • Signed copy emailed to LR

19. Metz Factors“Workplace Violence” • Metz v. Department of the Treasury, 780 F.2d 1001 (Fed. Cir. 1986), the Federal Circuit Court stated that to determine if the words constituted a threat, the Merit Systems Protection Board must use the connotation that a reasonable person would give the words. The Court listed several factors to consider in making a determination of a threat: • listener’s reactions; • listener’s apprehension of harm; • speaker’s intent; • conditional nature of the statements; and • attendant circumstances • Paragraph 7 and Attachment 1, CNG FPR 752 http://federal-circuits.vlex.com/vid/metz-treasury-enforcement-training-37657672

20. Employee Assistance Program (EAP) • Employee Assistance Program (EAP) • Offer at any time • Must be part of any formal notice • For Dual Status: Military One Source at (800) 342-9647 or www.militaryonesource.mil • For Non Dual Status: Federal Occupational Health at (800) 222-0364 or www.FOH4You.com • CNG FPR 820 http://www.calguard.ca.gov/HRO/Documents/Pubs/FPR/CNGFPR_820.pdf

21. Technician’s Rights • Weingarten Rights • Respond to charge(s) within the time period allowed • May initiate an appeal • Appellate Review by TAG • Administrative hearing by NGB Examiner

22. Union POC List (Continued) ACT Local 109 (129th RQW – Moffett Field) President: Francis Schmidt francis.schmidt@actnat.com (510) 701-6145 David King

23. Website and Union POC List http://www.calguard.ca.gov/HRO/Pages/Labor.aspx LIUNA Local 2163 (Army) President: Brent Shintaku (Deployed) Business Manager: Dave Ingles d.ingles@liuna-ngdc.org (209) 518-9310

24. NOW WHAT? ?? QUESTIONS ??