California National Guard Directorate for Human Resources

1. 1 California National GuardDirectorate for Human Resources Mr. Todd Morrow, Labor Relations �Conduct Management � todd.morrow1@us.army.mil (916) 854-3600, DSN 466-3600, CAGNET 6-3600 Born: 11/26/1964 Mena, Arkansas Retired Air Force: 21+ years spent as a Air Traffic Controller and Manager AF Experience: Supervised over 100+ while at Travis some being GS-12 Bargaining Unit Members. I�ve made some bad decisions initially because I didn�t know the differences required by law, regulation, and CBA of supervising federal employees. Luckily, I learned the importance of calling the ER/LR/HR office to avoid/mitigate complaints early on though� Education: B.S. in Psychology through GI Bill, M.S. in Human Resource w/ Organizational Leadership Graduate Certificate through VA Vocational Rehab Program. Many USDA Courses specializing in Employee and Labor Relations. The Federal Government has spent a lot of money in getting me smarter on ER/LR program management and I want to assist you in any employee challenges you may be faced with as well as procedurally correct. ER/LR Background: 2 years at Bureau of Land Management prior to arrival at Cal National Guard. I�m paid to advise supervisors/management on procedural guidance dealing with CBA and Technician Program for all disciplinary actions. Born: 11/26/1964 Mena, Arkansas Retired Air Force: 21+ years spent as a Air Traffic Controller and Manager AF Experience: Supervised over 100+ while at Travis some being GS-12 Bargaining Unit Members. I�ve made some bad decisions initially because I didn�t know the differences required by law, regulation, and CBA of supervising federal employees. Luckily, I learned the importance of calling the ER/LR/HR office to avoid/mitigate complaints early on though� Education: B.S. in Psychology through GI Bill, M.S. in Human Resource w/ Organizational Leadership Graduate Certificate through VA Vocational Rehab Program. Many USDA Courses specializing in Employee and Labor Relations. The Federal Government has spent a lot of money in getting me smarter on ER/LR program management and I want to assist you in any employee challenges you may be faced with as well as procedurally correct. ER/LR Background: 2 years at Bureau of Land Management prior to arrival at Cal National Guard. I�m paid to advise supervisors/management on procedural guidance dealing with CBA and Technician Program for all disciplinary actions.

2. 2 Directorate for Human Resources (HRO) 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 is to provide comprehensive labor relations, adverse action and disciplinary consultation services to customer (management and supervisors). As well as, provide procedural guidance to technicians to include procedural rights.

3. 3 Labor Relations Conduct Management Training Progressive Discipline IAW TPR 752 Investigatory Meetings Weingarten Rights Supervisory Work Folder/NGB 904-1

4. 4 Supervisor and/or Management Responsibilities IAW TPR 752 ALWAYS consult with HRO/LR, whenever considering taking an adverse action. Ensures that misconduct and deficiencies are addressed as they surface and initiates the appropriate progressive discipline steps in a timely manner. Ascertain all facts (i.e., proper investigation of facts) and document appropriately. Are responsible for providing required documentation to process an adverse action, including but not limited to, pencil-annotated (initialed by both supervisor and technician) NGB 904-1 entries, time and attendance (T&A) sheets, doctor�s notes/medical certifications, witness statements, photos, accident/investigation reports, etc. May act as the proposing official for all adverse actions for whom they are in the line of supervision. May issue an oral admonishment to a technician without prior HRO consultation. Must support its reasons for a adverse action with a �preponderance of the evidence�, meaning a reasonable person would conclude as �more likely true than not true� when the record as a whole is weighted. Thus, the evidence in favor of the action must be found by the deciding official, Hearing Examiner, or TAG, to be �more likely true� than the opposing evidence. Must ensure the provisions of their respective Collective Bargaining Agreement (CBA) are followed prior to initiating any disciplinary or adverse actions. Ensures that no adverse action is taken without prior approval from the HRO. Management has a responsibility when contemplating an adverse action to consider any mitigating or aggravating factors involving penalty selection. Must ensure the provisions of their respective Collective Bargaining Agreement (CBA) are followed prior to initiating any disciplinary or adverse actions. Ensures that no adverse action is taken without prior approval from the HRO. Management has a responsibility when contemplating an adverse action to consider any mitigating or aggravating factors involving penalty selection.

5. 5 Labor Relations Training Progressive Discipline IAW TPR 752 Document, Document, and Document Counseling * � (Informal Action) This is not a disciplinary action Is a private matter between supervisor and technician. Subject matter may be casual or informational or instructional. Must be noted, in pencil, on the NGB Form 904-1, initialed by both the supervisor and the technician. Positive and constructive counseling can normally resolve a problem without the need for disciplinary or adverse action. Simply conveying information or describing a procedure does not constitute a counseling or warning. The technician should be advised the annotation on NGB 904-1 or the supervisor�s brief will remain until the supervisor determines it is no longer required or relevant to a continuing or recurring problem. It is recommended that counseling's and warnings be maintained for 6 to 12 months, unless there are recurring problems. Positive and constructive counseling can normally resolve a problem without the need for disciplinary or adverse action. Simply conveying information or describing a procedure does not constitute a counseling or warning. The technician should be advised the annotation on NGB 904-1 or the supervisor�s brief will remain until the supervisor determines it is no longer required or relevant to a continuing or recurring problem. It is recommended that counseling's and warnings be maintained for 6 to 12 months, unless there are recurring problems.

6. 6 Labor Relations Training Progressive Discipline Warning * � (Informal Action) This is not a disciplinary action More serious than a counseling. Private matter between supervisor and technician. Professional exchange of information. Conveys potential of future disciplinary or adverse action. Must be noted, in pencil, on the NGB Form 904-1. The annotation will be removed from the NGB 904-1 or supervisor�s brief by lining through the penciled entry and with initials and date. Refer to the applicable CBA concerning requirements for counseling and warnings. Counseling's and warnings serve the purpose of informing the technician of minor performance/conduct deficiencies. Do not confuse with an investigative meeting (i.e., Weingarten Rights). The annotation will be removed from the NGB 904-1 or supervisor�s brief by lining through the penciled entry and with initials and date. Refer to the applicable CBA concerning requirements for counseling and warnings. Counseling's and warnings serve the purpose of informing the technician of minor performance/conduct deficiencies. Do not confuse with an investigative meeting (i.e., Weingarten Rights).

7. 7 Labor Relations Training Progressive Discipline Oral Admonishment � (Formal Action) This is a disciplinary action Should take place as quickly as possible and in as private an environment as possible. Notifies technician to stop or commence an action. This is a two-way conversation with input from the employee. Must be noted, in pencil, on the NGB Form 904-1. Oral admonishments should take place as quickly as possible, in as private an environment as possible, and in the form of appropriate feedback necessary to correct the technician. During an oral admonishment, a supervisor must ensure that all relevant facts are raised, especially if there had been no previous counseling's or warnings. This is best done by discussing the facts with the technician and allowing for the technician�s input and explanation. The supervisor takes whatever time is necessary to decide if an oral admonishment is appropriate. If warranted, the technician is then orally admonished; if not warranted, the supervisor informs the technician the issue has been resolved without the need for further disciplinary action. The technician will be advised that the annotation on the NGB 904-1 will remain until the supervisor determines it is no longer relevant or necessary. The supervisor should create a timeline for removal of the annotation if the problem has been corrected. The annotation will be removed by lining through, initialing, and dating the entry. No further reference will be made regarding the admonishment. CBA may contain additional procedures/requirements and should be thoroughly reviewed before orally admonishing a technician.Oral admonishments should take place as quickly as possible, in as private an environment as possible, and in the form of appropriate feedback necessary to correct the technician. During an oral admonishment, a supervisor must ensure that all relevant facts are raised, especially if there had been no previous counseling's or warnings. This is best done by discussing the facts with the technician and allowing for the technician�s input and explanation. The supervisor takes whatever time is necessary to decide if an oral admonishment is appropriate. If warranted, the technician is then orally admonished; if not warranted, the supervisor informs the technician the issue has been resolved without the need for further disciplinary action. The technician will be advised that the annotation on the NGB 904-1 will remain until the supervisor determines it is no longer relevant or necessary. The supervisor should create a timeline for removal of the annotation if the problem has been corrected. The annotation will be removed by lining through, initialing, and dating the entry. No further reference will be made regarding the admonishment. CBA may contain additional procedures/requirements and should be thoroughly reviewed before orally admonishing a technician.

8. 8 Labor Relations Training *Special Situations Regarding a Counseling or a Warning - If at any time during these meetings, the discussion turns to implementing a disciplinary action and/or investigatory type of questioning the supervisor needs to inform the employee of the right to union representation prior to proceeding.

9. 9 Labor Relations Training Written Reprimand (Letter of Reprimand-LOR) This is a disciplinary action Must be approved by HR-LR before presentation to the technician Issued after other forms of counseling have proven ineffective, or if the conduct/violation is so serious it warrants a LOR. This action requires investigation, documentation, witness statements, and/or copy of NGB Form 904-1 entries. Normally issued by supervisor, but may be issued by any higher-level supervisor (in chain of command) with a copy furnished to the first line supervisor. Supervisor/proposing official must ensure all relevant facts are obtained and reviewed concerning the incident or conduct involved. This is best accomplished by discussing the facts with the technician and allowing for the technician�s input and explanation. The supervisor takes whatever time is required to decide if a letter of reprimand is appropriate. CBA may contain additional procedures/requirements and should be thoroughly reviewed. A LOR must include: (1) Description of violation in sufficient detail to enable technician to understand why the reprimand is being given. (2) A timeframe the reprimand will remain in effect. (3) Grievance info. (4) EAP information. Once a letter of reprimand is removed from the OPF, it is as if it never happened and may not be referenced as past discipline and/or considered for table of penalties determination (i.e., next offense would be considered 1st if timeframe has expired for LOR. Normally issued by supervisor, but may be issued by any higher-level supervisor (in chain of command) with a copy furnished to the first line supervisor. Supervisor/proposing official must ensure all relevant facts are obtained and reviewed concerning the incident or conduct involved. This is best accomplished by discussing the facts with the technician and allowing for the technician�s input and explanation. The supervisor takes whatever time is required to decide if a letter of reprimand is appropriate. CBA may contain additional procedures/requirements and should be thoroughly reviewed. A LOR must include: (1) Description of violation in sufficient detail to enable technician to understand why the reprimand is being given. (2) A timeframe the reprimand will remain in effect. (3) Grievance info. (4) EAP information. Once a letter of reprimand is removed from the OPF, it is as if it never happened and may not be referenced as past discipline and/or considered for table of penalties determination (i.e., next offense would be considered 1st if timeframe has expired for LOR.

10. 10 Labor Relations Training Adverse Action Is an official personnel action which adversely affects an employee. The procedures and protections outlined in CNGFPR 752 must be followed. There are only three types of adverse actions that may be taken against a technician Suspension Change to Lower Grade Removal Procedures: Always consult the Directorate for HR, LR, whenever considering taking an adverse action. The HR/LR provides advice in fact-finding, weighing evidence, and penalty selection. Fact finding is critical in disciplining technicians; management must demonstrate, by a preponderance of evidence, that the misconduct or other wrongdoing occurred, that there is a rationale connection, or nexus, between the misconduct or other cause of action and the �efficiency of the service.� The determination of which penalty to impose in a particular situation requires the application of responsible judgment. Management must observe the principle of �like penalties for like offenses in like circumstances� thereby ensuring the penalty selected does not clearly exceed the limits of reasonableness. Metz Factors and Douglas Factors analysis.Procedures: Always consult the Directorate for HR, LR, whenever considering taking an adverse action. The HR/LR provides advice in fact-finding, weighing evidence, and penalty selection. Fact finding is critical in disciplining technicians; management must demonstrate, by a preponderance of evidence, that the misconduct or other wrongdoing occurred, that there is a rationale connection, or nexus, between the misconduct or other cause of action and the �efficiency of the service.� The determination of which penalty to impose in a particular situation requires the application of responsible judgment. Management must observe the principle of �like penalties for like offenses in like circumstances� thereby ensuring the penalty selected does not clearly exceed the limits of reasonableness. Metz Factors and Douglas Factors analysis.

11. 11 7 Common Mistakes in Investigations Delaying the investigation. Evidence may be lost and witness recollections may be blurred. Failing to obtain statements. Witnesses may be unavailable later or forget some of the details. Losing documents/evidence. If the evidence is gone, so is your case. Failing to obtain all sides of story. You may misdirect the investigation from the beginning, and the results are unlikely to convince a third party. Interviewing witnesses in a group. This invites inaccurate testimony, whether the inaccuracies are intended or not. Setting out to justify a preconceived outcome. Such investigations are not only biased, they are usually obviously biased and their results are unlikely to be sustained. Failing to apply logic in evaluating evidence. Remember to consider basic rules of cause and effect, e.g., �if Jones shouted, people nearby would have heard him.� Steps for conducting investigation: Plan investigation � Call LR for assistance Interview Witnesses Obtain all evidence (time and attendance records, NGB 904-1, statements from all parties, and even pictures sometimes) Evaluation Evidence, TPR 752, Douglas Factors, Table of Penalties Prepare a memo and call LR for assistanceSteps for conducting investigation: Plan investigation � Call LR for assistance Interview Witnesses Obtain all evidence (time and attendance records, NGB 904-1, statements from all parties, and even pictures sometimes) Evaluation Evidence, TPR 752, Douglas Factors, Table of Penalties Prepare a memo and call LR for assistance

12. 12 Labor Relations Training What Are NOT Adverse Actions Performance standards, ratings Actions based on classification or job grading determinations RIFs Mandatory retirement Termination or reduction of entitlements not involving loss of base pay (night differential, hazardous pay, environmental pay). CNGFPR 715, Voluntary and Non-Disciplinary Actions.

13. 13 Labor Relations Training Adverse Action � Appeal Rights Original decision may be appealed through � Appellate review (TAG); or Administrative hearing (Hearing Examiner) But not both. Regardless of the method selected, a final decision is issued by TAG. There is no further administrative review of TAG�s final decision. Define appellate review and administrative hearingDefine appellate review and administrative hearing

14. 14 Labor Relations Training Investigatory Meeting Best be defined as asking an employee - What did you do? Why did you do it? AND, ASKING YOURSELF � What am I going to do about it? Prior to asking these questions you must provide the employee with his/her Weingarten Rights. Employee triggers Weingarten Rights; unless CBA requires you to notify employee before questioning.Employee triggers Weingarten Rights; unless CBA requires you to notify employee before questioning.

15. 15 Labor Relations Training Weingarten Rights 5 USC 7114. Representation rights and duties. 7114 (2)(A), (B), (3) LIUNA CBA, Article 6, Section 8; Article 7, Section 5; Article 22, Section 1 and Section 2; Appendix A CNGFPR 752, Discipline and Adverse Actions, paragraph 10 , pages 6-7 Background of �Weingarten� law suit Review 752, para 10Background of �Weingarten� law suit Review 752, para 10

16. 16 Labor Relations Training Investigatory Meeting The most important thing to remember when conducting an investigatory meeting is that it is �management�s meeting.� It is essential that you actively guide the tone and progress of the meeting. In this way, you prevent confusion and also show you understand the rights, responsibilities and limits of both parties.

17. 17 Labor Relations Training Investigatory Meeting and Weingarten Rights When an employee makes a request for a union representative to be present, management has three options: Temporarily stop the questioning until the representative arrives; Deny the request and end the interview immediately; Offer the employee the alternative of having the interview without representation.

18. 18 Labor Relations Training Investigatory Meetings and Weingarten Rights However, the Union representative cannot answer for the technician, break up the meeting or prevent management from carrying out the interview. A technician may not ask for a lawyer during an investigatory meeting. The Weingarten Rights only apply to Union representation.

19. 19 Labor Relations Training Investigatory Meetings Technicians should be advised that failure to disclose material facts during an inquiry may result in disciplinary or adverse action. Technicians should be advised that failure to answer the investigator�s questions may be grounds for removal. However, Weingarten Rights apply.

20. 20 Labor Relations Training Investigatory Meetings The Fifth Amendment protection against self-incrimination is not infringed upon by orders to answer questions where there is no likelihood of criminal investigation. If it comes to this point, the investigator and HRO will obtain advice from the Staff Judge Advocate�s Office.

21. 21 Labor Relations Training NGB Form 904-1 Per Article 22, Progressive Discipline, Section 4 Any counseling or warning by the Employer to any employee shall be in writing on NGB Form 904-1 and shall be initialed by the employee. Upon request, an employee may review and be provided with a copy of the NGB 904-1. IF IT�S NOT IN WRITING � IT DIDN�T HAPPEN! Copy of 904-1Copy of 904-1

22. 22 Labor Relations Training Supervisory Work Folder Items that can be included in the folder NGB 904-1. Performance-related records for current assignment. Conduct-related records until they are no longer relevant. Copy of the current position description. SF-52s, until the action is completed. Documents required for the position (e.g. licenses, training certificates).

23. 23 Labor Relations Training Supervisory Work Folder (cont.) Prohibited Documents: Personnel Action Forms (SF-50) Security investigative documents, unless required by the position. Pre-employment information Race and National Origin ID (SF-181) Self-ID of Medical Disability (SF-256) Personal medical information Letters of indebtedness Employee�s photograph

24. 24 Labor Relations Training Supervisory Work Folder (cont.) Employees have the right to see and initial the notes concerning their performance or conduct. Employees may review the contents of their Work Folder upon request. When an employee separates or transfers to another activity or agency, the Work Folder should be destroyed after 60 days.

25. 25 End Of Lesson Exercise Break out into groups of 5 � 7 Each group will evaluate a scenario and discuss best course of action Each group will elect a spokesperson to present their findings to entire class After findings are presented, we will discuss findings and make additional comments�if needed. Groups will have 10 minutes to discuss scenario and make notes for group leader to present findings. Presentation by group leader must include: (1) Read scenario, (2) Synopsis of group discussions, concerns, (3) Any differing opinions in group, (4) Findings (i.e., steps group feel would be appropriate in addressing problem), and (5) Any concerns you have and/or comments your group has on understand supervisor/managements roles in process) Group 1: Formal Discussion Scenario Group 2: Weingarten Rights Scenario Group 3: Time and Attendance, EAP Scenario Group 4: Not following Regulation (Safety involved) Scenario Group 5: Discourteous Conduct and/or Workplace Violence Group 6: Insubordination or Failure to follow ScenarioGroups will have 10 minutes to discuss scenario and make notes for group leader to present findings. Presentation by group leader must include: (1) Read scenario, (2) Synopsis of group discussions, concerns, (3) Any differing opinions in group, (4) Findings (i.e., steps group feel would be appropriate in addressing problem), and (5) Any concerns you have and/or comments your group has on understand supervisor/managements roles in process) Group 1: Formal Discussion Scenario Group 2: Weingarten Rights Scenario Group 3: Time and Attendance, EAP Scenario Group 4: Not following Regulation (Safety involved) Scenario

26. 26 J1 Manpower and PersonnelWebsites http://www.calguard.ca.gov/cahr/ http://www.calguard.ca.gov/j1 QUESTIONS?