Article 1

Contents

Agreement

Between

UNITED STATES

PATENT & TRADEMARK OFFICE

AND

THE TRADEMARK SOCIETY

National Treasury Employees Union, Local 245

EFFECTIVE DATE:

December 22, 2000

TABLE OF CONTENTS

RTICLE 1

PREAMBLE

ARTICLE 2

RECOGNITION AND REPRESENTATION 5

RTICLE 3

PRECEDENCE OF LAWS, REGULATIONS

RTICLE 4

DEFINITIONS

GHTS

ARTICLE 5

MANAGEMENT RI 9

RTICLE 6 MANAGEMENT OBLIGATIONS

A 10

RTICLE 7

EMPLOYEE RIGHTS

RTICLE 8

EMPLOYEE OBLIGATIONS

RTICLE 9

UNION RIGHTS

RTICLE 10 UNION OBLIGATIONS

A 20

RTICLE 11

GRIEVANCE PROCEDURE

RTICLE 12

PROMOTION AND REASSIGNMENT

RTICLE 13 PERFORMANCE APPRAISAL

A 37

RTICLE 14

PHYSICAL FACILITIES

OVERTIME

ARTICLE 15 47

RTICLE 16

UNION REPRESENTATION AND OFFICIAL TIME

RTICLE 17

UNION FACILITIES

ARTICLE 18 LEAVE 53

RTICLE 19

CAREER DEVELOPMENT DETAILS

RTICLE 20

REPRODUCTION AND DISTRIBUTION

RTICLE 21

DURATION

RTICLE 22

PROFESSIONALISM

RTICLE 23

PART-TIME EMPLOYMENT

RTICLE 24 CHILD CARE

A 71

RTICLE 25 OUTSIDE EMPLOYMENT

A 72

RTICLE 26

WORK SCHEDULES

RTICLE 27

RECEIPT OF PAY

ARTICLE 28

AUTOMATION 82

RTICLE 29

EQUAL EMPLOYMENT OPPORTUNITY

RTICLE 30

REDUCTION-IN-FORCE

RTICLE 31

PERFORMANCE BASED AWARDS

RTICLE 32

DUES WITHHOLDING

RTICLE 33

IMPACT AND IMPLEMENTATION BARGAINING

RTICLE 34

TRIAL PERIOD EMPLOYEES

RTICLE 35

DISCIPLINARY ACTIONS

RTICLE 36

ADVERSE ACTIONS

100

RTICLE 37

PARTNERSHIP

103

PPENDICES

DEX

Contents

Article 1

Preamble

WHEREAS the Congress has found that experience in both private and public

employment indicates that the statutory protection of the rights of employees to organize,

bargain collectively, and to participate through labor organizations of their own choosing

in decisions which affect them, safeguards the public interest, contributes to effective

conduct of public business, and facilitates and encourages the amicable settlements of

disputes between employees and their employers involving conditions of employment;

and

WHEREAS the public interest demands the highest standards of employee performance

and the continued development and implementation of modern and progressive work

practices to facilitate and improve employee performance and the efficient

accomplishment of the operations of the Government; and

WHEREAS the well-being of employees and efficient administration of the Patent and

Trademark Office are benefited by providing employees an opportunity to participate in

the implementation of personnel policies and practices affecting the conditions of their

employment through the labor organization of their choice; and

WHEREAS the participation of employees should be improved through the maintenance

of constructive and cooperative relationships between labor organizations and

management officials; and

WHEREAS subject to law and the paramount requirements of public service, effective

labor-management relations within the Federal service require a clear statement of the

respective rights and obligations of all parties:

THEREFORE, labor organizations and collective bargaining in the Civil Service are in

the public interest.

The following articles and such supplemental agreements as may be made shall constitute

the Collective Bargaining Agreement by and between the U.S. Patent and Trademark

Office and the Trademark Society. It represents an attempt to state clearly the respective

rights and obligations of the parties. This is necessary if the parties are to deal with each

other effectively.

Contents

Article 2

Recognition and Representation

Section 1

In accordance with exclusive recognition first granted under Executive Order 10988 on

October 25, 1963, and continued under Title VII of the Civil Service Reform Act of

1987, 5 U.S.C. 7101, et seq., and as amended, the Office hereby reaffirms the recognition

of the Union as the exclusive representative of the employees in the bargaining unit as

follows:

All professional Trademark Attorneys and Examiners within the framework of the

Trademark Examining Operation of the Patent and Trademark Office and Interlocutory

Attorneys within the Trademark Trial and Appeal Board.

Not included are the following:

(1) Management officials or supervisors; (2) confidential employees; (3) employees

engaged in personnel work in other than a purely clerical capacity; (4) employees

engaged in administering the provisions of Title VII of the Civil Service Reform Act of

1978; (5) members of the Trademark Trial and Appeal Board.

Section 2

The parties agree that the terms and conditions of this Agreement apply only to

employees and positions within the bargaining unit.

Section 3

Upon a showing of need by either party and at the request of either party, an amendment

of the bargaining unit shall be considered. Nothing in this section shall preclude either

party from seeking a clarification of unit from the Federal Labor Relations Authority.

Content

Article 3

Precedence of Laws, Regulations, Past Practices and Past Agreements

Section 1

In the administration of all matters covered by this Agreement, the Union and the Office

are governed by the following:

A. Existing and future laws;

B. Government-wide rules and regulations in effect upon the effective date of this

Agreement;

C. DOC rules and regulations in effect upon the effective date of this Agreement and

not in conflict with this Agreement;

D. Government-wide rules and regulations and DOC rules and regulations issued

after the effective date of this Agreement that do not conflict with this Agreement.

Section 2

This Agreement supersedes all previous agreements and past practices in conflict with

this Agreement. Past practices not in conflict with this Agreement shall continue, absent

written notification by either party of their intent to discontinue or modify a particular

practice. Upon the request of either party, the parties shall bargain over the change as

required by law or this Agreement.

Section 3

To the extent that provisions of the Patent and Trademark Office published regulations

and policies are in conflict with this Agreement, the provisions of the Agreement will

govern. Otherwise, published regulations and policies of the Office will govern.

Section 4

Copies of any such laws, regulations or policies referred to above in the possession of the

Office shall be available for inspection and study by the Union upon request.

Contents

Article 4

Definitions

In the interpretation and application of this Agreement, the following words or terms

shall have the following definitions:

1. "The Office" shall mean the U.S. Patent and Trademark Office.

2. "Department" shall mean the U.S. Department of Commerce.

3. "The Union" shall mean the Trademark Society, NTEU Chapter 245, or any of its

officers, executive committee members or representatives, when acting in their official

capacities.

4. "Negotiations" shall mean the process by which the Office and the Union present

and consider proposals and counterproposals in good faith and as equals, under an

obligation to attempt to reach an agreement.

5. "Consultations" shall mean the process whereby one party solicits and/or receives

the timely submitted views of the other party and gives these views fair and serious

consideration prior to making a final decision.

6. "The CSRA" shall mean Title VII of the Civil Service Reform Act of 1978

(Public Law 95-454).

7. "Computation of time": In computing any period of time prescribed or allowed in

the Agreement, the day of the act, event, or occurrence from which the designated period

of time begins to run shall not be included. When the last day of any time period for

taking action falls on a Saturday, Sunday, or holiday, or when the Office is closed for

business for all or part of the day, the action may be taken on the next succeeding

workday. "Day" means calendar day unless otherwise specified.

8. "Alternative Work Schedule" shall mean any working arrangement which enables

a full-time employee to fulfill the basic work requirement of 80 hours per pay period in

less than ten full work days; or the work requirement of 40 hours per week in less than

five work days.

9. "Non-work day" shall mean any scheduled day off, which will normally be

Friday, Saturday, Sunday, Monday or Wednesday.

10. "Flexitime" shall mean the opportunity for employees to report to work each work

day at any time during the morning flexible band, be present during core hours, and leave

any time after they accumulated eight hours of work, plus one half hour for lunch.

11. "Restricted flexitime" shall mean a limited form of flexitime which occurs when

certain employees are not permitted to report at a time of their own choosing during the

morning flexible band, but they may be required to report no earlier than a specified time

during the morning flexible band.

Contents

Article 5

Management Rights

Section 1

The Office has the right, subject to 5 U.S.C. Section 7106(a) and (b)(2) and (3):

A. To determine the mission, budget, organization, number of employees and

internal security practices of the agency; and

B. In accordance with applicable laws, (1) to hire, assign, direct, layoff, and retain

employees in the Office, or to suspend, remove, reduce in grade or pay, or take other

disciplinary action against such employees; (2) to assign work, to make determinations

with respect to contracting out, and to determine the personnel by which the Office

operations shall be conducted; (3) with respect to filling positions, to make selections for

appointments from among properly ranked and certified candidates for promotion or

from any other appropriate sources; and (4) to take whatever actions may be necessary to

carry out the Office mission during emergencies.

Section 2

The Office specifically retains the right to make decisions concerning the numbers, types

and grades of employees or positions assigned to any organizational subdivision, work

project or tour of duty, or on the technology, methods and means of performing work.

However, nothing in this section shall preclude the Office, at its election, from

negotiating with the Union over the foregoing.

Section 3

Subject only to the limitations and conditions of this Agreement, it is agreed that the

rights and authority of the Office are vested in officials of the Office. Included in this

authority is the right, in accordance with applicable laws and regulations, to direct the

workforce; to hire, to promote, to retain, to transfer, and to assign employees to positions

within the Office; and to suspend, to discharge, to demote, or to take other disciplinary

action against employees.

Section 4

The right to make rules and regulations shall be considered an acknowledged function of

management officials. In making rules and regulations relating to personnel policies,

practices and matters affecting working conditions, such officials shall abide by

obligations to negotiate or consult imposed by law or this Agreement.

Contents

Article 6

Management Obligations

Section 1

The Office shall have due regard for the rights of employees and of the Union under

appropriate statutes (including the CSRA), rules, regulations and this Agreement.

Section 2

The Office will consult or negotiate with the Union as required by law or this Agreement.

Section 3

The Office shall consult the Union concerning any significant reorganization which

would substantially affect employees of the Unit and which would involve changes in

grade, duties, responsibilities, or reduction-in-force actions.

Section 4

The Office shall furnish to the Union a list of newly hired known unit personnel and their

locations during their initial two weeks of employment.

Section 5

The Office agrees that it will not retaliate by exercise of disciplinary or other

discriminatory action against employees of the unit because they have filed a complaint

or given testimony under an Act, statutory appeal, and grievance procedure or negotiated

procedure.

Section 6

A. In order that members of the bargaining unit and the officers of the Union may be

better informed as to their rights, obligations and responsibilities, management will

supply to the Union a listing of all duly published Office policies, PTO administrative

instructions and Department of Commerce Administrative Orders relevant to the

Trademark Office and will upon request provide copies of all such documents to the

Union. It is agreed and understood that every effort will be made by the Office to comply

with this section, but that failure to list or provide a copy of any particular document does

not relieve any employee of the obligation and responsibility to comply with previously

issued instructions, orders or policies.

B. Each affected employee shall be given a copy of newly published Office policies.

Section 7

The Office agrees to list the name and office telephone number of the local chapter

president in the Trademark Examining Organization telephone directory.

Contents

Article 7

Employee Rights

Section 1

Each employee shall have the right to form, join, or assist any labor organization, or to

refrain from any such activity, freely and without fear of penalty or reprisal, and each

employee shall be protected in the exercise of such right. Except as otherwise provided

under the CSRA, such right includes the right:

A. To act for a labor organization in the capacity of a representative and the right, in

that capacity, to present the views of the labor organization to heads of agencies and other

officials of the executive branch of the Government, the Congress, or other appropriate

authorities; and

B. To engage in collective bargaining with respect to conditions of employment

through representatives chosen by employees under the CSRA.

Section 2

An employee has the right to bring matters of personal concern to the attention of

appropriate management officials. Nothing in this Agreement shall preclude the exercise

of this right. Exercise of this right does not limit the right of the employees or the Union

to bring timely grievances under the negotiated grievance procedure.

Section 3

Employees will be treated with dignity and respect by supervisory personnel.

Section 4

A. When an individual from outside the PTO makes a complaint to the Office

regarding a unit employee, the Office agrees whenever possible to follow the following procedures,

subject to the limitations set forth in section (B) below:

1. The complaint will be reduced to writing, either by the complainant or by a

representative of the Office, which writing shall include the date(s) of the complaint.

2. The employee shall be given a copy of the complaint and the opportunity to make

a written response; such written response shall be attached to the complaint and filed by

the Office along with the complaint.

B. The procedures set forth in section (A) above shall be subject to the following

restrictions and limitations:

1. These procedures shall not apply to communications made to the Office of

Trademark Quality Review or to any communications which relate to alleged violations

of criminal law.

2. These procedures shall not be interpreted or applied to affect or jeopardize

management's compliance with any legal or regulatory prohibitions against the release of

information. Specifically, the Office shall not be required to release any information

where the release of such information is inconsistent with law, rule or regulation.

3. These procedures shall not be interpreted or applied to affect, jeopardize or

infringe upon management's right to protect its internal security or to determine its

internal security practices pursuant to 5 U.S.C. §7106.

4. These procedures shall not be interpreted or applied to limit management's right

to take disciplinary or other appropriate action.

C. * [A letter of reprimand will be removed from the employee's record no later than

12 months from the date of issuance. Oral admonishments confirmed in writing will be

removed after 3 months.]

D. If a written communication compliments the employee, a copy shall be given to

the employee.

E. This section does not abrogate employee rights to information under FOIA or

other sections of this Agreement.

Section 5

Unit employees will not be coerced or unduly pressured by supervisory personnel to

contribute to fund raising drives.

Section 6

A. Employees shall have the right to inspect their Official Personnel Folders in

accordance with reasonable Office policy.

B. All employees in the Unit shall be furnished a copy of any paper added to their

Official Personnel Folder which relates to their performance, conduct, or promotion

potential. Employees shall have an opportunity to submit a written statement of rebuttal

to be placed in the Official Personnel Folder. A copy of the rebuttal shall be furnished to

the employee's immediate supervisor.

Section 7

When a representative of management wishes to meet with an employee for the purpose

of obtaining information for determining whether disciplinary action shall be taken

against the employee, it shall be required that:

A. The management representative notify the employee of the general nature of the

meeting and of the right to have a union representative present.

B. In addition to the provisions of 5 USC 7114(a)(2)(b), which allows an employee

to have a Union representative present at a meeting when the employee reasonably

believes that an investigation, as part of the meeting, could lead to disciplinary action, the

management representative conducting the meeting shall notify the employee of the right

to Union representation, if the management representative reasonably recognizes that a

disciplinary action may result.

C. If the employee requests a Union representative, management shall be obligated

to wait a reasonable time to allow the employee the opportunity to secure representation,

before proceeding with the meeting.

D. None of the preceding subparagraphs shall apply to inquiries or counseling

sessions which apply solely to performance-based actions

Section 8

A. The Office shall notify the Union and the affected employee(s) of a proposed

substantial change in a bargaining unit employee position description, such as a

significant addition or reduction of duties or a change in grade level. The employee(s)

and the Union will have a reasonable period, not to exceed two weeks, to comment on the

proposed language which will not unduly delay issuance of the position description.

B. The Office shall provide the employees and the Union with the final amended

position description upon its issuance.

C. When an employee requests a desk audit, the Office shall conduct the audit within

a reasonable time under the circumstances.

Section 9

A. The Office will not deny access to information solely on the basis of the method

or manner of storage. The parties acknowledge that the Office is not obligated to write

new programs in order to retrieve data and that the Office is obligated to provide reports

which are generated in the normal course of business.

B. In the event of alternative means of providing information, the Office may choose

the least costly or time consuming alternative provided it does not unduly prejudice the

employees' rights to prompt and meaningful information.

Section 10

A. An employee may resign at any time and will normally give two weeks notice of

resignation.

B. Normally, resignations should be in writing. Requests to withdraw resignations

may be declined by the Office consistent with the provisions of 5 CFR, Subpart b, section

715.

C. When an employee resigns after receiving written notice of proposed disciplinary

or adverse action, the proposed action is to be included in the employee's records, unless

the Office and employee agree otherwise. When an employee resigns before receiving

written notice of proposed disciplinary or adverse action, no record will be maintained in

the Official Personnel Folder regarding the possibility of such action. All recorded

information within the control of the Office shall be specifically retained in a confidential

file maintained by the properly designated official in the Office of Personnel.

D. The Office shall not secure any employee's resignation by unlawful means.

D. An employee may withdraw his or her resignation up to the effective date of the

resignation or the time his or her position is legally committed, whichever occurs first.

Section 11

Any inquiry and investigation into allegations of off-duty misconduct must be based on

activity which, if verified, would have some nexus (i.e., some relationship) to the

employee's position. The parties agree that the conduct of employees while off duty shall

result in action only when there is a nexus between that conduct and the employee's

official position. Employees will not be subject to harassment or frivolous inquiries.

Section 12

When an employee is the subject of an investigation and the employee reasonably

believes that his/her answer may incriminate himself/herself of criminal misconduct, the

employee may assert his/her 5th Amendment right to remain silent, unless the employee

is given assurances that his/her answer may only be used for administrative purposes. If

an employee receives such assurances, any refusal to answer may be the basis for

disciplinary action.

Section 13

All employees may participate in the political process as permitted by law.

Contents

Article 8

Employee Obligations

Section 1

All employees are presumed to know and expected to comply with all laws and duly

published regulations and policies which relate to their employment and conduct. The

fact that a particular law, regulation, or policy may not be called to their attention by the

Office will not excuse any violation on their part.

Section 2

All employees are expected to observe Office hours and refrain from unauthorized

absences and leave abuse.

Section 3

A. Employees will make a good faith effort to return telephone messages when

received the same work day or, if received after 2:00 p.m., not later than the next work

morning.

B. Bargaining unit members are responsible for setting up their outgoing voice mail

messages properly.

Section 4

Unit employees shall provide a current mailing address and home phone number to their

immediate supervisor.

Section 5

Each employee shall attempt to perform to the best of his or her capability.

Section 6

Employees are to maintain a neat, clean, business-like appearance during working hours.

Clothing and behavior must be appropriate to the conduct of government business and

shall not be of a kind that would reasonably bring criticism to the Office.

Section 7

In all contacts with the public and with other government employees, employees will be

responsive, courteous and considerate.

Section 8

Employees shall not intentionally falsify Office records. Falsification of any Office

records may be the basis for disciplinary action.

Section 9

The employer is entitled to require truthful answers from employees in response to

questions in matters of official interest. An employee who fails to provide such answers

is subject to disciplinary action, including removal. An employee need not answer a

question from a manager or management representative if it does not pertain to official

business.

Section 10

Bargaining unit members will utilize electronic mail for the purpose of both receiving

work related messages or information and for responding to work related inquiries made

by electronic mail. Electronic messages will generally be reviewed at least once a day.

An employee may consult with his/her manager to determine how to appropriately

respond to an external customers email.

Section 11

The parties acknowledge that from time to time the Office issues electronic versions of

Office policies and procedures that typically contain the most up-to-date and accurate

data available and that such versions are the preferred source of guidance and should be

utilized.

Contents

Article 9

Union Rights

Section 1

As exclusive representatives of employees in the unit, the Union is entitled to represent

all employees in the unit.

Section 2

The Union shall have the right to bargain concerning any changes in the conditions of

employment of unit members, for which there is a bargaining obligation, in accordance

with Article 33, Impact and Implementation Bargaining.

Section 3

The Union has the right to consult with the Office concerning any matter affecting the

employees' working conditions, upon the request of an employee.

Section 4

In order to implement the Union's rights under 5 USC 7114 (a)(2)(A) to participate in

formal meetings, the Office shall make every effort to provide the Union a minimum of

five (5) hours advance notice for such meetings. In any event such advance notice shall

be reasonable under the circumstances and sufficient to allow the Union time to arrange

for representation at the formal meeting. The Union shall have the right to one (1)

representative at such formal discussions.

Section 5

Advance notice under Section 4 above shall include the time, place and topic of

discussion.

Section 6

The Union shall have the right to speak to all new unit employees at an orientation

session. The Union will be given adequate notice of the schedule for its presentation.

The Union's presentation will not exceed fifteen (15) minutes and shall not include any

direct solicitation for membership. The Union may provide and distribute copies of the

Agreement, newsletter and other materials at its presentation. The Union will be allowed

one (1) representative, on official time, at such orientation sessions. Nothing in the

Union's presentation, either oral or written or in the materials distributed, shall bring the

agency or any agency official into contempt or disrepute.

Section 7

The Union shall be entitled to all other rights provided for in other articles of this

Agreement or otherwise provided for by law, notwithstanding that they are not set forth

in this article.

Contents

Article 10

Union Obligations

Section 1

The Union, as the exclusive representative of all employees in the unit, has the

responsibility to represent the interest of all such employees without discrimination and

without regard to employee membership in the Union.

Section 2

The Union shall abide by the standards of conduct for labor organizations required by the

CSRA and regulations.

Section 3

The Union and Management agree to give reasonable advance notice of no less than 10

days, of the intent to file an unfair labor practice charge with the Federal Labor Relations

Authority (FLRA) so as to allow an opportunity for an informal disposition of the matter.

Section 4

The Union in discharging its duties, agrees to encourage its members to comply with

applicable regulations, the Agreement and Office policy.

Section 5

Pursuant to Section 7116(b) of the Civil Service Reform Act, the Union shall not:

A. Interfere with, restrain, or coerce any employee in the exercise by the employee of

any right under the Act or this Agreement;

B. Cause or attempt to cause an agency to discriminate against any employee in the

exercise by the employee of any right under this Agreement or the Act;

C. Coerce, discipline, fine, or attempt to coerce a member of the labor organization

as punishment, reprisal, or for the purpose of hindering or impeding the member's work

performance or productivity as an employee or the discharge of the member's duties as an

employee;

D. Discriminate against an employee with regard to the terms or conditions of

membership in the labor organization on the basis of race, color, creed, national origin,

sex, age, preferential or non preferential civil service status, political affiliation, marital

status, or handicapping condition;

E. Refuse to consult or negotiate in good faith with the Office as required by the Act;

E. Fail or refuse to cooperate in impasse procedures and impasse decisions as

required by the Act and the Agreement;

F. Call, or participate in, a strike, work stoppage, or slowdown, or picketing of an

agency in a labor-management dispute if such picketing interferes with an agency's

operations, or condone any such activity by failing to take action to prevent or stop such

activity. Nothing in this Article shall prohibit lawful informational picketing which does

not interfere with the Office's operations.

Section 6

The Union will not engage in unlawful coercion or intimidation against management.

Section 7

The Union supports maintenance of service-oriented and businesslike attitude and

behavior, particularly in dealing with the public, supervisors, management officials and

co-workers.

Section 8

Personal information about an employee received by the Union shall be safeguarded and

treated as confidential by the Union in order to protect employee privacy.

Contents

Article 11

Grievance Procedure

Section 1

The Office and the Union recognize and endorse the importance of considering employee

complaints and grievances promptly and, whenever possible, informally. The parties

agree that this grievance procedure will provide a mutually acceptable means of resolving

complaints and grievances at the lowest level possible, and the Office and Union agree to

work toward this end.

Section 2

A. The procedure described in these sections shall constitute the sole and exclusive

procedure available to bargaining unit members for resolving grievances under this or

any other negotiated agreement between the parties, e.g. flexitime.

B. This procedure is available to any member of the unit, to the Union on its behalf or on

behalf of member(s) of the bargaining unit, and to the Office. Any of the

aforementioned parties making use of this procedure shall be referred to, for the

purpose of this article, as the Grievant.

Section 3: Definition and Scope

A grievance is any complaint:

1. by a member of the bargaining unit concerning any matter relating to the employment

of that member; or

2. by the Union of the Office concerning any matter that relates to the employment of

any bargaining unit member or group of members or that relates to the rights of the

Union or the Office; or

3. by any bargaining unit matter that affects the member personally, or by the Union or

by the Office concerning:

(a) the effect or interpretation, or a claim of breach of this Agreement;

(b) any claimed violation, misinterpretation, or misapplication of any law,

regulation, or established personnel policy or practice affecting conditions of

employment;

Merit System principles of 5 USC § 2301; or any prohibited personnel

practice of 5 USC § 2302.

Section 4

The following matters are considered not grievable under the provisions of this

procedure: Those matters excluded from coverage under 5 U.S.C. §7121(c) relating to:

A. any claimed violation of prohibited political activities;

B. retirement, life insurance, or health insurance;

C. suspension of removal in the interest of national security;

D. any examination, certification or appointment;

E. the classification of any position which does not result in the reduction in grade or

pay of an employee;

Section 5

The Office may cease to process and terminate a grievance upon:

A. the Union’s written request, when the Union is the Grievant;

B. the voluntary termination of the Grievant’s employment except where pay relief is

involved;

C. the death of a Grievant , except where pay relief is involved;

D. failure of the Grievant or the Union to meet any of the time limits herein; or

E. failure of the Grievant to properly set forth the substance of this grievance as required

by section 11(A) of this article. However, if the Grievant has substantially complied

with the provisions of section 11(A) but has omitted some material, the Office shall

notify the Grievant at the first level of the grievance procedure and the Grievant shall

have five (5) working days to provide the omitted material to avoid termination. The

Office’s period for response to the grievance shall be reset to start from the time the

omission is corrected; or

F. the request of the grievant

Section 6

In the event the Office fails to meet the requirements of these sections, the Union or the

grievant is permitted to proceed to the next step of the grievance procedure. However, if

a decision is rendered after the time limit, that decision shall become a part of the record.

Section 7

In the event either party should declare a grievance non-grievable or non-arbitrable, the

original grievance shall be considered amended to include this issue. The earlier this

declaration is made, the better. However, in no event can such declaration be made after

the issuance of the second step answer. All disputes of grievability or arbitrability shall

be referred to arbitration as a threshold in connection with the related grievance.

Section 8

When the Office and the Union agree that grievances should be combined, the Union

will select one case for processing under the grievance procedure. The employees will be

advised that in processing one grievance for the group, the decision of the case selected

will be binding on all other cases. Names of all employees involved in this procedure

will be made a part of the record of the case selected for processing, and when a decision

is made on the grievance, each employee will be individually notified.

Section 9

A matter of concern or dissatisfaction orally expressed by an employee to his or her

supervisor is not a grievance provided for by this section and is not subject to them.

Section 10

A Grievant shall have the right to represent herself/himself.

Section 11

The following steps constitute the required steps for processing grievances:

A. First Step

1. The grievance must be reduced to writing. The written grievance shall be

submitted within (30) calendar days after the event or action prompting the

grievance, or the date the Grievant became aware of, or should have become

aware of, the event or action. If the grievant files a FOIA or information request

simultaneously with the grievance and the information is received before a

hearing occurs or a decision is rendered, the grievanct, at his or her request, will

be granted a five (5) working day extension to amend the grievance. However,

such amendment must be within the scope of the original grievance and must be

based upon the information received. The deciding official will be allowed five

(5) additional working days to render a decision.

2. The written grievance shall be submitted to the lowest level supervisor with

authority to resolve the grievance (usually the employee’s immediate supervisor),

who shall render a written decision within five (5) working days. If the

management official to whom the grievance is submitted feels that he or she does

not have the authority to resolve the grievance, he or she will direct the grievance

to the proper official within three (3) working days. If, because of the nature of

the grievance, either the Union or the Office feels that immediate supervisor is not

the appropriate Step One official, that party may contact the Labor Management

Relations (LMR) Office to discuss whether such supervisor should hear the

grievance. LMR will consult with the appropriate official(s) and shall designate

the Step One official. If an employee is grieving a performance rating and has

already requested reconsideration by the approving official, the grievance will

begin at Step Two. The proper official shall render a written decision within five

(5) working days of receiving a grievance from the management official. If the

proper official is the Commissioner for Trademarks, second step procedures will

be used.

3. In the case of an Office grievance, the designee of subparagraph A.4(f) of this

section should be the employee who will handle the grievance for the Office and

the Union President shall be the person to receive the written grievance.

4. The written grievance must contain the following information:

a) name, grade, title, and work unit of the Grievant, name of the person

representing the Grievant, or name of the person representing the Union

if it is a Union grievance;

b) the name and title of the official to whom the grievance is submitted and

the date submitted;

c) a detailed statement describing the facts involved, the date the incident

occurred which gave rise to the grievance, or the date the Grievant

became aware of the incident;

d) the Agreement article(s) and section(s), law(s), regulation(s), rule(s)

and/or other item(s) violated, misinterpreted or misapplied;

e) the remedy desired;

f) a statement that the Union, or its designee, is representing the Grievant,

or that the grievant chooses self representation; and

g) the Grievant’s signature

B. If the first step fails to produce a satisfactory resolution, the Grievant may proceed to

the second step.

C. Second Step

1. Within five (5) working days of the decision at the first step, the grievant must

present in writing a request to proceed with the grievance to the Commissioner for

Trademarks or a designated representative, who may not be the step one decision

maker.

2. The written request shall include a copy of the original grievance, the step one

decision and preferably should specify that portion of the step one decision to

which Grievant has objection.

3. The Commissioner for Trademarks or designated representative shall conduct an

investigation which may include a conference with the Grievant, the Grievant’s

representative, the Union, and/or witnesses, if requested and shall render a written

decision. However, the Grievant may waive his or her right to have a conference

at any time after the decision at the first step. If a conference is requested and

later waived, the deciding official will have ten (10) working days from the

waiver date to render a decision.

4. The Commissioner for Trademarks or designated representative shall render a

written decision within ten (10) working days if no conference is held, or within

ten (10) working days after any conference is held.

5. If the Grievant represents himself/herself, the Union shall have the right to have

an observer at the conference.

D. Referral to Arbitration

In the event that step one in the case of an Office grievance, or step two in the case in the

individual or a Union grievance, fails to produce a satisfactory result, either the Office or

the Union may proceed to arbitration as provided in Section 14.

Section 12: Institutional Grievances

For institutional grievances, in lieu of step-by-step procedures outlined above, the Union

may submit a written grievance to the Commissioner for Trademarks, or designated

representative. Upon request of the Union, the Office and the Union shall meet within

ten (10) working days to discuss the grievance. A written decision shall be rendered

within ten (10) working days after the meeting or within ten (10) working days of the

filing of the grievance if no meeting is requested. If the Union is not satisfied with the

decision, the Union may proceed to arbitration as specified in Section 14

Section 13: Rights of Parties

A. An employee is entitled to representation at any of the steps of the grievance

procedure. However, nothing in this Agreement shall require the Union to represent

an employee if the Union considers the grievance to be invalid, without sufficient

merit, or for other good reasons (e.g., financial)

B. A copy of any document becoming part of the grievance record under this article shall

be furnished to the Grievant, Union, Offices, and parties (if combined grievance

under Section 8) by the person presenting the document.

C. The Office shall provide requested information, records and evidence under its

control or in its possession in a timely and accurate manner accordance with

applicable law. Such requests should be reasonable. If a dispute arises over access to

information in connection with a grievance, it will be joined to the grievance unless

the Union decides to pursue an Unfair Labor Practice (ULP) with the Federal Labor

Relations Authority (FLRA)

D. Since dissatisfactions and disagreements may occasionally arise among people in any

work situation, the Office agrees that no reprisal will be taken against any employee

for initiating a grievance.

E. The Union has the right to advance notice of and to be present at any Office initiated

meeting with the Grievant or any meeting with the Grievant after the step one

decision is rendered.

F. If the Union is not the designated representative of the Grievant, the Union shall

have the right to file an “amicus-type” statement for informational purposes. This

statement shall become part of the grievance record.

Section 14: Arbitration

A. The Union and the Office shall have the right to have a grievance submitted to

binding arbitration. The Union or the Office shall initiate arbitration by filing written

notice with the Chief of the Employee/Labor Relations Division or with the President

of the Union, as applicable, of its desire to arbitrate within twenty (20) calendar days

after the final Office or Union decision has been rendered. Arbitration may be

invoked only by the Union or by the Office. An employee does not have the right to

invoke arbitration.

B. The parties shall attempt to select a mutually acceptable Arbitrator within ten (10)

calendar days from the date of receipt of the notice in Section 14(A) by the other

party.

C. If the parties fail to agree on an Arbitrator within this time period, the parties shall

request a panel of seven (7) arbitrators from the Federal Mediation and Conciliation

Service. Within fourteen (14) days of receipt of the list, the parties shall meet to

choose an Arbitrator. The party to make the first strike shall be determined by a coin

toss. Each party shall alternate in striking through the name of an Arbitrator until one

Arbitrator remains. That arbitrator shall be deemed selected and shall specify the

procedures to be followed during the arbitration proceedings as long as such

procedures are in accordance with the provisions of this Article.

D. The Federal Mediation and Conciliation Service shall be empowered to make a direct

designation of an Arbitrator or allow one party to specify an Arbitrator to hear the

case in the event;

1. Either party refuses to participate in the selection of an Arbitrator; or

2. There is inaction or undue delay on the part of either party.

E. Arbitration is provided in this grievance procedure as a means of obtaining the

services of a third party, when necessary, to assist in the resolution of grievances.

The arbitration procedure set forth herein shall not be extended to include matters

related to changes or proposed changes in this Agreement, such changes being subject

to negotiation under the terms of this Agreement, nor shall it be extended to disputes

over any matter excluded from the grievance procedure by this Agreement.

F. The Arbitrator shall have the authority to interpret this Agreement as necessary to

render a decision consistent with the provisions of this Article. The decision of the

Arbitrator shall in no way change or amend this or any supplemental agreements or

regulations which take precedence over this agreement.

G. The Office and the Union shall attempt to agree in writing upon the precise issue(s) to

be decided, and shall submit a joint statement to that effect in advance of any

arbitration proceedings. If the parties are unable to concur, each party shall specify

the issue in writing with copies to each other and to the Arbitrator. The moving party

shall include with its statement of issues the redress it expects from the arbitration.

H. The arbitration proceeding shall be held on premises provided by the Office.

I. The Arbitrator shall be requested to render a decision to the Office and the Union no

later than forty-five (45) days after the conclusion of the hearing or the Arbitrator’s

receipt of post-hearing briefs, if they are submitted. The hearing will only be

conducted if the parties are unable to stipulate as to the facts of the case.

J. The prevailing party shall be entitled to all relief or remedies provided for under the

law.

K. Either party may file exceptions to the Arbitrator’s award with the Federal Labor

Relations Authority under the regulations prescribed by the Authority.

L. Each party shall pay the expenses of its own witnesses, its own travel expenses and

for any transcript or other record of the proceedings desired by the party.

M. The Union and the Office shall share equally in the cost of arbitration.

Section 15

Absence of either party from the Office on approved leave for eight (8) consecutive hours

or continuous eight (8) hour increment shall constitute an automatic extension of the time

limit set forth herein for an equal period of time for the party who is absent. For the

purpose of this Section, when the Union is the Grievant, the President of the Union is the

party whose approved leave may extend the time limits. Automatic extension under this

Section will be limited to fourteen (14) days.

Section 16

The Union and the Office agree it is mutually desireable to handle disputes amicably and

in a fair and expeditious manner. To this end, this Article may be re-opened by either

party, but not later than one year from the effective date of this agreement, to discuss an

Alternate Dispute Resolution (ADR) procedure as an alternate resolution for grievances

and EEO complaints. If one party requests the inclusion of ULP procedures in the

discussion it will be included if both parties agree. If neither party re-opens within one

year, then the re-opener option, as it pertains to this section, expires.

Contents

Article 12

Promotion and Reassignment

Section 1

All vacancies described in this article shall be filled on the basis of merit, fitness and

qualifications and without regard to race, color, religion, national origin, personal

favoritism, age, marital status, sex, physical handicap, political or employee

organizational affiliation, except as may be authorized or required by law. The Office

will select individuals for promotion and reassignment to positions in the bargaining unit

in accordance with applicable laws and regulations so as to develop employee

confidence.

Section 2

It is the right of the Office to promote and reassign employees consistent with the

appropriate laws, regulations, policies and practices and the provisions of this Agreement.

Section 3

Sections 3-5 cover the following competitive actions or bargaining unit employees to

classified bargaining unit positions:

A. Competitive promotions;

B. A temporary promotion over 90 days. All prior service at the higher grade level

during the preceding 12 months including details to higher grade positions or

temporary promotions must be counted as part of the 90 days.

A temporary promotion may only be made permanent without further competition if

the fact that it might lead to a permanent position was originally made known to all

potential candidates and the temporary promotion results from a competitive process;

C. Reassignments to positions with known promotion potential to higher than the

employee’s current position.

Section 4

A. The Office will send a vacancy announcement via electronic mail to each bargaining

unit member to cover all vacancies that must be filled in accordance with the

procedures of this Article. The announcement will be sent via electronic mail within

a minimum of ten (10) days prior to the closing date.

When announcements are issued they will contain:

1. Announcement number;

2. Opening and closing date;

3. Position title, series and grade;

4. Organization location and duty station;

5. Known promotion potential/career ladder status where appropriate;

6. Principal duties;

7. Minimum qualifications required;

8. Evaluations methods;

9. Statement of equal employment opportunity;

10. Selective placement factors, if any; and

11. Number of positions to be filled.

C. Applicants must meet all qualification requirements by the closing date of the

vacancy announcement.

D. Ranking factors must be job related and will not be tailored to fit the qualifications of

a particular individual.

E. Notice of all vacancy announcements subsequently cancelled will be sent to each

bargaining unit member, via electronic mail.

F. The Office shall individually notify all candidates as to whether they were selected or

not. In addition, the Office will notify all applicants who have applied for a position

which was announced and open but subsequently withdrawn.

G. If there are more than 8 candidates subject to panel evaluation, all eligible candidates

will be evaluated and ranked in a fair and objective fashion.

H. In order to provide a fair ranking of more than eight candidates subject to panel

evaluation an evaluation panel will be utilized. The panel will be constituted in the

following manner:

A panel for a particular position will consist of at least three members, selected by the

Office of Personnel, one of whom shall be from an office or unit other than the one in

which the vacancy is located. At least one of these members must be familiar with the

work where the vacancy is located. When advice and guidance on the interpretation of

qualifications is considered essential, the selecting official may advise the panel but has

no vote. Such advice should normally be provided before the panel receives the names

and applications of the candidates.

I. Within thirty days after the vacancy announcement has closed, the panel shall

evaluate and rank the candidates as “Qualified” and “Best Qualified.” All eligible

candidates will be evaluated on the basis of valid job-related criteria which measure

the knowledge, skills, abilities and personal characteristics essential to successful

performance in the position to be filled. The panel shall maintain a record of what

points are credited to each candidate. Upon the filing of a grievance or formal

complaint regarding the selection, records of the panel shall be available to the Union

and the grievant in accordance with applicable law and regulation. These records

shall be retained for two (2) years or until any grievance or formal complaint

regarding the selection is finally resolved, whichever, is longer.

J. Apart from documented cases of leave abuse, an employee’s accumulation or balance

of annual or sick leave may be considered by the ranking panel or ranking official,

selecting official or supervisor as a basis for selection for promotion.

K. When all eligible candidates have been evaluated and ranked, the Office will

promptly issue form CD-262, “Merit Assignment Program Certificate,” listing the

names of the best qualified candidates in alphabetical order, to be considered by the

selecting official.

1. A Certificate will usually include the names of three to five best-qualified

candidates for the vacancy to be filled. Additional candidates maybe certified

where meaningful distinctions cannot be made. Ten the maximum number of

best qualified candidates that may be referred to the selecting official, except

as stated in subsection 3, but the number of candidates may be increased to the

extent necessary to include all of the candidates available from other

appropriate sources as “other appropriate sources” is used in 5 USC 7106

(a)(2)C(ii).

2. In cases where meaningful distinctions of qualifications cannot be made

through the application of quality ranking factors and an excessive number of

candidates are considered equally qualified, up to 10 candidates may be listed

on a certificate based on seniority with the Office.

3. When there is more than one vacancy to be filled from a certificate, one

additional candidate may be added to the certificate for each additional

vacancy. In the event additional vacancy(is) occur within one month after an

announcement has closed, the old announcement maybe used to fill the vacant

position.

4. After all eligible candidates subject to panel evaluation are ranked, PTO

employees will be considered for vacancies under the procedures of this

article before any other candidates are considered.

5. Once non-PTO employees are considered, PTO employees will be

simultaneously considered.

6. When a PTO employee is passed over for selection in favor of a non-PTO

applicant, the former will be given a written explanation of all the reasons for

non-selection.

7. A Merit Assignment Program Certificate is valid for (30) calendar days from

the date of the issuance. The certificates may be extended for 30 additional

days upon a valid request by the selecting official.

8. Interviews, with the selecting official are optional. If one member of the best-

qualified group is interviewed, all must be interviewed.

9. If the candidate selected is a unit employee, he/she shall be promoted at the

beginning of the next pay period following completion of all necessary

approvals and processing requirements. Under unusual circumstances, (e.g.

permit arrangements to be made for the completion of essential assignments),

this time period for promotions may be extended.

L. When requested by a competing bargaining unit applicant, the Office shall furnish the

following information after the action has been completed:

1. The name(s) of the individual(s) selected;

2. Whether the applicant was found to be qualified;

3. Whether the applicant was referred to the selecting official;

4. Any other relevant and necessary information which is permitted by law, which the

applicant may require to prosecute a grievance or other challenge; and

5. In what area, if any, a bargaining unit employee may improve his or her qualifications

to enhance chances for future selection. (This information normally will be furnished

by means of a counseling discussion with either a representative of the Office of

Personnel or a knowledgeable supervisor.)

M. Upon request at completion of the selection process, a copy of the completed ranking

and selection report shall be made available to the Union. The ranking and selection

report will contain, at a minimum the following;

1. Announcement;

2. Date of Report;

3. Number of vacancies;

4. Sanitized summary of the panel scores;

The series, grade of the employee referred, if the candidates were within the

bargaining unit;

6. If candidates were not bargaining unit employees, this will be so designated;

7. Selection action (i.e. clear indication of which candidates were selected);

8. Date of selection action; and

9. Date eligible for promotion.

N. Grievances arising out of the application of the promotion plan shall be processed

under the negotiated grievance procedure. It is understood that non-selection for

promotion from a group of properly ranked and certified candidates is not grievable.

O. Due consideration will be given to requests for voluntary downgrades.

Section 5

No member of the unit shall be placed in a disadvantageous position with regard to

promotions by virtue of officially initiated service on a detail or work project.

Section 6

A. This section covers temporary promotion actions to bargaining unit positions of 90

days or less.

B. When an employee in the bargaining unit is temporarily assigned to another position

in the bargaining unit classified at a higher level for more than thirty (30) days, a

temporary promotion will be made under applicable rules and regulations.

Section 7

A. This section covers career ladder promotions to positions through the GS -13 level.

Employees in identified career ladder positions working below the GS-13 level will

be eligible for promotion provided that the employees meet the requirements of the

position including satisfactory demonstration of ability to perform at the next higher

grade and have a current Fully Successful performance rating, and there are sufficient

funds and higher level work to be performed.

The effective date will be the beginning of the first pay period after all applicable

regulations and approval requirements are met. Employees who meet the requirements

for promotion and who are not promoted after meeting all applicable regulations and

approval requirements and in accordance with the Back Pay Act, 5 USC 5596, 5 USC

550 subpart H, and relevant Computer General decisions, shall be entitled to back pay

from the first pay period after meeting such regulations and approval requirements.

Bargaining unit employees who are not promoted after completion of the minimum time

in grade shall have the right to request and receive a written statement from their

supervisor after face-to-face discussion between them. The supervisor's statement shall

list the reasons for withholding the promotion and explain how the employee's

performance can be improved to qualify for promotion.

Section 8

Approved leave, whether sick leave or annual leave or leave without pay shall not be

used as a basis for determining ability to perform the job under the terms of this article

unless the leave in of such duration that the employee has not adequately progressed in

job knowledge or performance or unless there have been frequent instances of sick leave

or tardiness which, though approved, have been the subject of counseling between the

employee and supervisor. Five Hundred twenty-two (522) hours of leave in one year

shall be considered prima facie

proof of inadequate progress in job knowledge or

performance for purposes of promotion.

Section 9

The Office shall consult semi-annually with the Union upon request regarding

professional staffing goals and hiring plans.

Section 10

The Office hereby expresses willingness to consider promptly written requests made to

designated Office officials for transfers or reassignments from all members of the unit.

Requests for reassignment within one’s series and grade will be honored subject to the

needs of the Office. If a request is denied, it must be denied in writing. Thereafter,

management will consider the denied request to be ongoing and will approve the request

as soon as practicable, subject to the needs of the Office. In any event, the Office will

provide the status of an ongoing request to an employee once every six months or earlier

upon employee request. Nothing derogatory shall be connoted in any request for transfer

or reassignment and the individual so requesting shall be free from discrimination or

reprisal therefore.

Section 11

Request for personnel action will be processed promptly.

Section 12

The Office agrees that the promotion of an employee shall not be delayed only because

the employee’s supervisor has been newly appointed to that position and is unfamiliar

with the employee’s work.

Section 13

When it is necessary to reassign employees due to staffing imbalance, the Office will

first ask for volunteers from among the qualified employees at the affected office. If

there are too many volunteers, the employees with the oldest PTO service computation

date shall be given first consideration for the reassignment, absent operational needs. If

there are too few volunteers, employees with the most recent PTO service computation

date will be given first consideration for the reassignment, absent operational needs.

Contents

Article 13

Performance Appraisal

Section 1

Employee performance evaluations will be conducted pursuant to the General Workforce

Performance Appraisal Systems (GWPAS), attached as Appendix ___. GWPAS is

attached for reference. In the event of a conflict between GWPAS and the terms of this

Article, the terms of this Article shall prevail.

A. There will be appraisals for details after 90 days

B. There will be a 45 day notice of a change in plans and a 15 day comment period.

C. The Union will be notified of a change in plans before employees are notified.

D. If the Office intends to change performance plans after performance plans for the

rating year are in effect and the change is a temporary modification of the plan for one

month or less, and is caused by an extraordinary business emergency, then the change

may be implemented after a fifteen (15) day notice period. In such cases the impact and

implementation bargaining, if requested, shall begin during the notice period.

E. The Union will be the exclusive employee representative to consult with the Office in

the development of the performance plans. Individual employees will retain the right to

dispute the application of the plan to their individual circumstances. This does not

prejudice the Union's right to represent employees in grievances concerning performance

appraisal.

F. If a rating official and an employee disagree over the application of any performance

plan items, the rating official and the employee should attempt to resolve the

disagreement through discussion. If discussion fails to resolve the dispute, either party

may ask for a review of the dispute by the approving official. If the dispute remains

unresolved, the approving official shall make the final decision regarding the content of

the plan.

G. Normally, employees will get their plan at the beginning of the rating period.

H. In the event that application of this rating system leads to an unfair or unreasonable

overall performance rating, the rating official shall have the ability to assign a

performance rating that is fair and reasonable under the circumstances.

I. All appraisals of performance will be made in a fair, reasonable and accurate

manner, based upon the employee's performance during the appraisal period, using

verifiable data.

J. All ratings must also be based on adequate observation and knowledge by the

rating official of all factors affecting the employee's performance. If the rating official

feels that he/she is not able to properly evaluate an employee's performance because of

lack of opportunity to observe performance, the rating official may request an extension

of the due date of an official rating for a period up to but not to exceed three (3) months.

Adverse comments relating to an unsatisfactory rating made by the supervisor must be

supported by appropriate and actual examples.

K. Management has determined that it will continue to apply supplemental standards.

Section 2

A. An employee paid at less than step 10 of the grade of his or her position, shall

earn advancement in pay to the next higher step of that grade upon meeting the following

three requirements established by law:

1. The employee's performance of the duties and responsibilities of his or her

assigned position, must be at an acceptable level of competence.

2. The employee must have completed the required waiting period for

advancement to the next higher step of the grade of his or her position.

3. The employee must not have received an equivalent increase during the

waiting period.

B. At least ninety (90) days prior to the date that an employee is eligible to receive a

within-grade increase, the employee's supervisor will notify the employee as to his or her

performance. If the Office, through administrative oversight, fails to give this warning

notice 90 calendar days in advance of the within grade increase due date, the within grade

determination shall still occur on time and the Office shall still provide a 90 calendar day

improvement period. If after the improvement period, the employee improves to an

acceptable level of competence, the within grade increase may be granted at the

beginning of the next pay period.

C. If the supervisor believes that the employee's work is not at an acceptable level of

competence, the 90 day notice must outline all the reasons for the supervisor's belief,

along with citations to relevant examples of poor performance.

D. If the final decision is to deny the increase, this must be stated in writing along

with the reasons relied upon in making the final decision. The employee's right to appeal

and the procedures for such will be outlined in the letter.

E. At any time after the increase has been denied, the employee has the right to the

increase, when the Office determines that he/she has demonstrated sustained performance

at the acceptable level of competence.

Section 3 : Action Based on Unacceptable Performance

A. If an employee’s performance is at an unacceptable level, a reduction in grade or

removal may be initiated. The procedures set forth in 5 USC Chapter 43 and

GWPAS or 5 USC Chapter 75 may be followed, if appropriate, at the election of the

office.

B. If the rating official believes that the employee could benefit from participation in

the Office Employee Assistance Program, the rating official shall fully consider the

program's provisions prior to taking action against the employee. However, employee

participation in this program is strictly voluntary.

C. An employee can request any other action to assist the employee in raising his/her

performance level from his/her supervisor, Employee Relations, Office of Civil Rights, or

other appropriate management official.

D. If the employee's performance continues to be unacceptable, formal personnel

action, in the form of reduction in grade or removal may be initiated. If this action is

undertaken, the procedure set forth in 5 CFR 432 will be followed, if legally appropriate.

E. The actions covered by this section are reductions in grade and removals for

unacceptable performance taken under 5 USC Chapter 43. All provisions of the Civil

Service Due Process Amendments (Public Law 101-376), attached as Appendix D, apply,

except as modified below.

1. A non-preference eligible (non-veteran) employee who has completed two years

of current continuous employment in the same or similar positions against whom an

action based on unacceptable performance has been taken may appeal the decision to the

Merit Systems Protection Board, or with the consent of the Union, to arbitration under the

terms of this agreement, but not both.

2. A preference eligible (veteran) employee who has completed one year of current

continuous employment in the same or similar positions, and against whom an action

based on unacceptable performance has been taken may appeal the decision to the Merit

Systems Protection Board, or with the consent of the Union, to arbitration under the terms

of this agreement, but not both.

F. Prior to proposing any action under 5 USC Chapter 43, the Office will provide a

performance improvement period in accordance with Article 13, Section 3. If during the

performance improvement period (PIP), the employee has demonstrated definite

improvement, but not quite enough to meet the marginal level of performance, then

management may extend the PIP for a reasonable time or propose a reduction in grade or

removal as appropriate.

G. A meeting between an employee and his/her supervisor and/or other officials of

the Office during which the principal topic of discussion is an action or potential action

for unacceptable performance (i.e., a reduction-in-grade or removal for unacceptable

performance) will entitle the employee involved to be accompanied by a Union

representative during such meeting. If such a request is made, the supervisor or other line

management official will honor the request. If after the proposal notice has been

delivered and the employee has designated the Union as his/her representative, the

employee shall have the right to have the Union represented at any discussion between

the Office and an employee. The Union reserves its rights under Article 9, Section 4 and

statute.

H. An employee whose reduction in grade or removal is proposed under this article

shall be provided with at least thirty (30) days advance written notice of the proposed

action that identifies:

1. the specific instances of unacceptable performance by the employee on which the

proposed action is based;

2. the critical element(s) and standards of the employee's position involved in each

instance of unacceptable performance.

3. the employee's right to reasonable time to answer the agency's notice of proposed

action orally and/or in writing. Reasonable time shall normally be considered to be 14

calendar days from receipt of the proposal. Reasonable extensions of time will be

granted if requested and for good cause shown;

4. the employee's right to representation by the Union, an attorney or other

representative of his/her own choosing.

I. The employee will be provided copies of all documents, which contain evidence,

relied upon by the Office in proposing the action. If any portion of an investigative

report is to be used as evidence, that portion will be included, i.e., the employee will be

presented with a proposal and supporting evidence that is identical to that transmitted to

the deciding official. Nothing in this section is to be construed as a waiver of the

employee's or the Union's right to request additional information under other

authorization, such as the Freedom of Information Act, the Privacy Act, or the Civil

Service Reform Act.

J. The employee shall have the right to be represented by the Union or by an

attorney or other representative of his/her own choosing in connection with the oral

and/or written reply.

The Office shall prepare a summary of any oral reply. Copies of the summary

shall be provided to the employee and his/her designated representative for review and

correction before any decision is made concerning the proposed action.

L. A proposed action may be based on instances of unacceptable performance which

occur within a 1-year period ending on the date of the proposed action. The employee

shall receive a written decision specifying the reasons for the action taken and addressing

employee allegations of pertinent factual discrepancies. The decision will have the

concurrence of an official at a higher level in the organization than the one who proposed

the action. Copies of the decision will be served on the employee and the designated

representative. The decision shall not be effective before the end of the 30 calendar day

period.

M. Whenever management has decided to effect a reduction in grade or removal, the

employee will be offered an opportunity to resign before the written decision is issued.

N. If because of performance improvement by the employee during the notice period,

the employee is not reduced in grade or removed, and the employee's performance

continues to be acceptable for 1 year from the date of the advanced written notice

provided for in Section 3H of this article, any entry or other notation of the unacceptable

performance shall be removed from any Office record relating to the employee.

O. The Office shall provide a sanitized copy of all performance based proposals and

decision letters to the Union simultaneous to their issuance to employees. Sanitized

decision letters are not required when the Union has been served under Section 3L above.

Section 4

All scores given to employees other than fully successful, will be supported by written

narrative justifications citing specific examples.

Section 5

Arbitrators will be free to change an employee’s appraisal score in accordance with

existing case law.

Contents

Article 14

Physical Facilities

Section 1

The Office and the Union agree that a healthful environment is desirable. Therefore, the

Office and employees will observe all applicable rules and regulations relating to safety

and health in the work place.

Section 2

A. The goal of the Office shall be to provide a private, wall enclosed (full ceiling height)

Office to all employees. Toward that end, the Office agrees to provide the following

or to make a good faith effort to secure space so as to provide the following:

1. a private office of at least 120 square feet to all GS-13 employees or above

employees except that employees who work at home or who work part-time

may be required to double or share office space;

2. a work area of at least 65 square feet per person for all employees doubled in

offices. When doubling is necessary, it shall be done by seniority among

employees on each floor. Except that where two employees within the same

Law Office request to share an office, their request will be honored, if practicable.

B. Should existing space prove inadequate to satisfy subparagraphs A1 and 2 above,

the Office agrees to give good faith consideration to the reallocation of existing space

and to the acquisition of additional space.

C. The Office agrees to consult in good faith with the Union about any problems with

respect to achieving subparagraphs A1 and 2. Further, the Office will keep the Union

apprised of its efforts to gain additional space. The Office will bargain in good faith

to the extent required by law with the Union with regard to any move to additional or

new space.

D. When doubling is necessary, it shall be structured as follows:

1. it shall be done by seniority among employees on each floor, except that part-time

and Trademark Work at Home (TWAH)employees will be doubled before full-

time employees working at the office;

2. before two full-time employees are doubled on a floor, the Office will double one

full-time employee with one part-time or TWAH employee or have them share an

office, when practicable;

3. where two employees within the same law office request to be doubled in an

office, their request will be honored, if practicable;

4. employees occupying interior offices will not be required to double in an office

unless and until all exterior offices have two attorneys doubled in the space; more

senior attorney with exterior offices on that floor will be given the option of either

doubling in an exterior office or taking an interior office alone;

5. employees shall be given two weeks notice that they are to be doubled. However,

if 2 weeks notice is not practicable, then employees will be notified as soon as

feasible. Employees will be notified as soon as practicable of the names of other

employees who are to be doubled;

6. the Office may provide telephone headsets to doubled employees, upon their

request, and if the Office determines that the costs are reasonable;

7. the Office shall collect and share with the Union within forty-five (45) days after

the relevant period, data comparing the performance of employees who are

doubled against employees who are not doubled as soon as ten (10) employees are

doubled (e.g. five (5) doubled offices), excluding part-time or TWAH employees;

production data will be collected quarterly and quality, phone percentage and

docket management data will be collected semi-annually; the Office shall collect

data by grade-level and will share sanitized reports and progress reviews with the

Union; the Office shall consult quarterly with the Union concerning these

activities, upon Union request; nothing herein prevents the Union from collecting

its own data as it sees fit;

8. the President and Vice-President of NTEU, Chapter 245 will not be doubled-up in

their offices.

E. The Office shall allow for intra-law office moves to occur as follows:

1. employees may voluntarily move to an available office once per quarter, except

that moves between window offices may not be made more than once every six

(6) months; moving from an interior office to an exterior window office shall not

be counted as a move;

For example:

If an employee is hired on Jan.1, the employee may move from interior to exterior

window office on Apr 1 and may move to another window office on Jul 1.

2. the Office shall generally schedule set quarterly moving dates; however, if the

Office decides to schedule moves prior to the normal quarterly date, any

employee who would be eligible to move on the accelerated date; in all cases, the

Office shall notify employees in advance of upcoming move dates;

3. employees may not “bump” other employees out of their offices except if a

vacancy occurs in a window office between regular move dates and a newer

employee is placed is such office temporarily;

4. an employee who voluntarily transfers into a law office loses his or her seniority

for choosing an office for their initial office placement only; they subsequently

regain their seniority, and the initial office placement is not considered a

voluntary move for the purpose of subsection E1 above.

F. Management will provide a secured work space.

G. Management will provide a Health Unit in the North Tower building which will offer

services available to bargaining unit members, including screening and education

programs, comparable to those offered at the Health Unit in Crystal Plaza Three.

H. This Section shall be applicable except when doing so would preclude the Office’s

implementation of the applicable Government-wide space utilization regulations.

Section 3

The Office agrees to continue to furnish the work areas in a manner appropriate to the

legal profession. The Office agrees to provide adequate storage space for the

performance of job responsibilities. The Union agrees that employees will maintain and

decorate their work areas in a manner appropriate to the legal profession and consistent

with the lease and GSA regulations.

Section 4

Smoking is prohibited by bargaining unit members in all buildings occupied by

bargaining unit members.

Section 5

The Office agrees to allow access to the Trademark Law Library during non-operational

hours.

Section 6

The Office and the Union agree that clean, well maintained areas in which members of

the unit work are desirable. In this regard, the Office agrees to make reasonable efforts to

enforce the lease requirements regarding the painting and cleaning of such areas.

Section 7

The Office shall have an annual health and safety inspection in each building that is

occupied with bargaining unit employees. Such inspections shall be conducted by an

Office designated official who shall be accompanied by a designated representative of the

Union. Where this designated Union representative is an employee, the representative

shall be on official time.

Section 8

When an employee becomes ill or is injured in the performance of his/her duty, the

employee will be promptly referred to the Health Unit. Agency designated personnel will

provide initial necessary OWCP claim forms. Employees must contact agency

designated personnel to secure information concerning necessary claim forms and

guidance on other filing requirements. Employees are responsible for providing timely

and complete claim forms, and keeping agency designated personnel apprised of their

status and estimated time for return to work.

Section 9

An employee will be permitted to review documents relating to his/her claim for

compensation which the Office of Workers' Compensation Programs has authorized the

Personnel Office to make available. The employee may be accompanied by his/her

designated representative if so desired.

Section 10

Normally, no professional will be assigned or reassigned to office space until such time

as the office space is substantially ready for occupation except that the installation of

phones may not be completed in the new offices at the time of the move.

Section 11

A. The Office agrees that inadequate ventilation, heating, cooling, and lighting in

areas of the office in which members of the unit work, contribute to inefficiency and

further agrees to seek and request installation of adequate facilities to provide such

ventilation, heating, cooling and lighting where it does not exist. In the event of failure

of the air conditioning system, heating or lighting facilities, the Office agrees that those

employees present may be excused from duty with no loss of leave or salary, except that

the Office may relocate employees if alternative work stations are available. (Failure of

the air conditioning system will be defined as any continuous period greater than four

hours in which the employee's office temperature is greater than 87 degrees F. Failure of

the heating facilities will be defined as any continuous four hour period in which the

employee's office temperature is below 60 degrees F).

B. Each office will contain adequate controlled lighting, ventilation with proper dust

filtration system, and heating, cooling and electrical outlets.

Section 12

Upon receiving new equipment which may impact on the work environment, the Office

will make available to the Union, upon request, any data received from the manufacturer

that shows environmental effects on both employees and the work area..

Section 13

A Safety and Health Committee is established for the purpose of advising the Office

concerning work-related safety and health matters. Two members will be appointed by

the Union and two members will be appointed by management. The committee will meet

quarterly and at such other times it determines necessary.

Contents

Article 15

Overtime

Section 1

The Office may authorize paid overtime when it deems there is a specific need for

overtime. After deciding that paid overtime is to be authorized, the Office shall announce

to the employees the type of work to be performed and the criteria and the specific

qualifications for the overtime.

Section 2

Employees who intentionally falsify overtime records may be denied future opportunities

to work overtime and may be subject to disciplinary action.

Section 3

Complaints or disagreements concerning overtime shall be processed in accordance with

the negotiated grievance procedure.

Section 4

Within the above criteria, all qualified employees will be given equal opportunity

to participate in authorized overtime.

Section 5

The Office has determined that it will schedule overtime as far in advance as possible and

notify employees promptly.

Contents

Article 16

Union Representation and

Official Time

Section 1

Union representatives shall be authorized a reasonable amount of official time not to

exceed the amount calculated in section 2, with a maximum rollover of 250 hours per

year, effective as of the effective date of this agreement, to conduct the following

activities:

A. to prepare, investigate, and represent employees in grievances, discrimination

complaints, and to counsel employees;

B. to prepare for consultations and/or meetings with the Office. However, in the

interest of encouraging open and honest communication between the Union and the

Office, and in the interest of avoiding conflicts, informal, mutually agreed upon meetings

between Union representatives and designated Trademark management officials are

excluded from this Section. For these informal meetings, the Office shall authorize non-

official, actual time for both the meeting and for the preparation for the meeting, if

appropriate. The appropriateness of the amount of preparation time will be determined

by the Office and will be pre-approved upon request;

C. review of and response to memoranda, letters, and requests from the Office, as well

as proposed new instructions, manuals, notices, etc., which affect personnel policies,

practices or working conditions, except,

as provided in Section 2A;

D. to attend hearings or meetings in the capacity of an observer where an employee has

elected to pursue a grievance without Union representation;

E. consideration of all matters concerning the interpretation and/or application of this

Agreement and/or the CSRA; and

F. attendance by one (1) representative, as a member of the public, at Trademark

Advisory Committee

G. Use of official time will be measured on a fiscal year basis, and, for FY 1993, will be

pro rated from the effective date of the Agreement.

Section 2

The maximum amount of time authorized in Section 1 shall be calculated as follows:

1500 hours + 1.5 times the number of bargaining unit employees.

The amount will be calculated at the start of the fiscal year (October 1). An adjustment

will be made semi-annually on March 30, using the above formula. The average between

the October 1 calculation and the March 30 calculation will be the actual number of bank

hours for that fiscal year.

Section 3

Union representatives shall be authorized actual time for Office initiated meetings.

Section 4

All employees in the unit shall be granted one (1) hour of official time per year to attend

Union meetings to discuss working conditions and/or other problems but not internal

affairs.

Section 5

Time spent conducting internal Union affairs such as solicitation of dues or members

shall not be conducted on official time.

Section 6

Management shall authorize a total of 144 hours of official time per year to the 4

Union

officers or the designees for the purpose of attending Union sponsored training, providing

the training is of concern to the employee in his/her capacity as a Union representative.

Section 7

During the first month of the contract, the Union may hold a one hour meeting on non-

bank official time at which all employees may attend to discuss the terms of the contract.

Section 8

A. The Union President or his/her designee will approve all time charged to Union

activities by initialing the employee's bi-weekly work sheet. The approval will be given

to each employee, who will submit the work sheet in accordance with established

procedures.

B. The Office will provide to the Union quarterly accounting of official time used by

union representatives, broken down into bank and non-bank official time.

Section 9

It is agreed and understood that when Union representatives intend to conduct official

union business, they will notify their supervisor by leaving a note on their desk indicating

where they are and approximately how long they will be gone. If the presence of the

representative would cause substantial disruption at that time, the supervisor may

authorize an alternate time.

Section 10

A grievant shall be granted a reasonable amount of official time up to 6 hours for

preparation of the grievance and/or to prepare for arbitration.

Section 11

The grievant, the Union representative and all relevant employee witnesses shall be on

official time for the presentation of any grievance matter or at any arbitration hearing.

Section 12

Employees will be granted actual official time for any adverse action hearings or

management investigations in which they are involved which may lead to disciplinary

action being taken against them.

Contents

Article 17

Union Facilities

Section 1

The Union shall be granted use of Office designated bulletin boards for notifications and

communications unless such use is prohibited by applicable laws, rules or regulations or

space is not available.

Section 2

The Union agrees that no libelous material directed toward any management official will

be posted on bulletin boards. All material posted on the bulletin boards shall have the

prior approval of the Union President.

Section 3

The Office will provide meeting space, when available, to the Union upon reasonable

advance request. If not available, or if business exigencies require the use of the space

already promised to the Union, the Office agrees to offer space at other reasonable times.

Section 4

The Office will provide the Union with a personal computer and printer of the same

general type and capability as currently used by bargaining unit members, for us in

fulfilling its representational duties. The Office will provide the Union locked storage

space of approximately 50 square feet.

Section 5

The Office agrees to allow the Union officers, Executive Committee and designated

Union representatives the use of a designated photocopy machine to make copies of

material directly related to their representational duties when the photocopier is not being

used for normal business. The Union will be given a designated code to be entered into

the photocopy machine whenever it used by the Union. Use of the photocopy machine

does not extend to any material relating to the Union's internal affairs. If the copy

machine designated for the Union's use is not available for an extended period of time,

the Union will be permitted to use an alternative machine as designated by the Office.

Section 6

Union representatives, in connection with matters covered by this agreement, may use

one designated facsimile machine for the transmittal of written materials. Use of the

facsimile machine is limited and does not extend to any matter relating to the Union's

internal affairs. Further, transmissions from the facsimile machine are limited to the

Washington D.C. area. The Union will be given a designated code to be entered into the

facsimile machine whenever it is used by the Union. If the facsimile machine designated

for the Union's use is not available for an extended period of time, the Union will be

permitted to use an alternate machine as designated by the Office.

Contents

Article 18

Leave

Section 1: Sick Leave

A. Requests for and approval of sick leave shall be made as far in advance as

practicable and shall be made directly to the employee's immediate supervisor or

supervisor's designee(s) in the absence of the supervisor.

B. When it is necessary to request emergency sick leave, i.e., the need is not known in

advance, the request to the supervisor or designee is to be made by the employee by 9:30

a.m., the first day of absence. Unless prior approval is obtained for absences of several

days duration, sick leave must be requested by 9:30 a.m. each succeeding morning the

employee is absent.

C. Sick leave requests shall be granted for purposes approved by law and

government-wide regulations.

D. All requests for sick leave are to be made in writing, using a Standard Form 71,

Request for Leave.

E. Sick leave must be used when unit employees go to the Health Unit for one hour

or longer.

F. A person shall be placed on sick leave restriction only if there is evidence of sick

leave abuse and the restriction is justified in writing. The mere amount of leave used for

illness does not constitute abuse.

G. Where the Office has reasonable ground to believe that an employee has abused

sick leave, a written warning may be issued informing the employee that if the described

abuse continues, sick leave restriction may be imposed. If subsequently imposed, another

written notice will be provided explaining that, for a stated period, but not to exceed 6

months, request for approval of sick leave must be accompanied by a medical certificate.

At the end of the stated period, the Office shall review the employee's situation and shall

give the employee notice of recession or renewal of the restriction due to continued

abuse.

H. Requests for advanced sick leave will normally be granted in accordance with

governing regulations when all of the following conditions are met:

1. the employee is eligible to earn sick leave;

2. the employee's request does not exceed 240 hours, or for temporary employees

only the amount to be earned during the period of temporary employment if appropriate;

3. there is no reason to believe the employee will not return to work after having

used the leave, and the employee has sufficient funds in his or her retirement account or

any other source of monies owed to the employee by the Government to reimburse the

Employer for the advance, should the employee not return to work;

4. the employee has provided acceptable medical documentation of the need for

advanced sick leave; and

5. the employee is not subject to leave restriction.

I. 1. Employees shall not be required to furnish a medical certificate to

substantiate requests for approval of sick leave unless:

(a) the leave exceeds 5 consecutive work days; or

(b) the employee has been placed on leave restriction.

2. However, the supervisor has the discretion to require medical certificates

for sick leave of 4 or 5 consecutive days if he/she has reason to believe the employee is

abusing the use of sick leave.

J. An acceptable medical certificate is a written statement signed by a registered

practicing physician or appropriate medical practitioner certifying to the

incapacitation, examination treatment, or the period of disability of an employee

while he/she was undergoing professional treatment.

Section 2: Annual Leave

A. Employees are entitled to take annual leave subject to the operating needs of the

Office.

B. Requests for and approval of annual leave shall be made as far in advance as

practicable and shall be made directly to the employee's immediate supervisor or

supervisor's designees(s) in the absence of the supervisor.

C. Employees, may be given advanced annual leave when:

1. they are eligible to earn annual leave;

2. they have served more than ninety (90) days in their current appointment; and

3. their request does not exceed the amount of annual leave they would earn during

the remainder of the year.

D. When it is necessary to request emergency annual leave, i.e., the need is not known

in advance, the request to the supervisor or designee is to be made by the employee by

9:30 a.m., the first day of absence.

E. All requests for annual leave are to be made in writing, using a Standard Form 71,

Request for Leave.

Section 3: Maternity/Paternity Leave

A. In accordance with Government Wide Regulations, a female employee may be

absent on leave for maternity purposes. The length of such absence shall be determined

by the employee, her physician and her supervisor. She may use sick leave, annual leave,

or leave without pay to the extent that she has available annual and sick leave, provided

however, that requests for advanced sick leave shall be treated by the Office the same as

any other available annual leave time. Any absence in excess of available annual,

or sick

leave time will be recorded and treated as leave without pay.

B. The female employee, her physician and her supervisor, shall decide when the

absence will begin. On the employee's request and upon furnishing a medical certificate,

absence will be charged to sick leave to the extent available. The employee should make

known her intent to request leave for maternity reasons indicating the type of leave,

approximate dates and anticipated duration, at least 30 calendar days in advance to allow

the Office to prepare for any staffing adjustments which may be necessary.

C. No arbitrary date requiring a pregnant employee to cease work or to prevent her

from returning to work after childbirth will be established. Normally these decisions will

be made by the employee upon consultation with her physician. The Office may request

the affected employee to provide medical certification to support her decision

D. A male employee who has provided the Office with 30 calendar days advance

written notice may, absent an overriding need in his unit, be absent on annual leave or

leave without pay up to (14) days for purposes of aiding, assisting or caring for the

mother of his child or minor children while the mother is incapacitated for maternity

reasons. This period of leave shall not be more than 30 days prior to the expected

delivery date. A male employee may also request additional annual leave or leave

without pay. Said request shall be considered under the same standards as any other

requests for annual leave or leave without pay.

E. When a pregnant employee, after consultation with her physician, requests a

temporary modification for her job duties, or a temporary assignment to other available

work for which she is qualified, the Office shall make a reasonable, good faith effort to

accommodate her request. The employee must present an acceptable medical certificate

which supports her request.

Section 4: Compensatory Time

A. This section is for the purpose of setting forth the rules under which attorneys

may work compensatory time in lieu of payment for overtime for purposes other than

religious compensatory time and/or maternity/paternity policy on compensatory time.

B. Compensatory time will be available for employees whether or not paid overtime

is available to those in their employment position.

C. The requirements and standards for customer service and the returning of phone

calls are the same whether or not an employee earns/uses compensatory time.

D. Since compensatory time is an alternative form of compensation to paid overtime, overtime

policies in effect at any given time apply to compensatory time.

E. An employee must be at least fully successful to be eligible to earn compensatory

time.

F. An employee must complete at least 6 months of employment to be eligible to

earn compensatory time.

G. There will be two categories of compensatory time: regular and special.

1) Regular compensatory time: The following rules apply to regular

compensatory time:

(a) An employee may use up to 80 hours consecutively

(b) An employee may use up to 80 hours in a quarter (i.e. 320 hours in a

fiscal year). There is no carryover limit during the fiscal year.

compensatory time, including all types, except religious compensatory

time and special compensatory time, as discussed below, from one fiscal

year to the next.

(d) The effect of the foregoing is that no more than 400 hours can be earned

during a fiscal year (assumes the maximum 320 hours are used, an

additional 80 hours are earned, and no hours were carried over from the

prior fiscal year). The 400 hours does not include those hours earned in

the maternity/paternity, religious and special compensatory time

programs.

2) Special compensatory time. Special compensatory time is compensatory time

which can be used on for maternity/paternity, FMLA, and adoption. The

following rules apply to special compensatory time.

(a) An employee may carry over up to 320 hours from one fiscal year to the

next.

(b) An employee may use up to 320 hours in any 12 month period.

3) There is no conversion of hours between regular compensatory hours and

special compensatory hours.

H. The compensatory time program covers full-time and part-time employees in the

bargaining unit. Compensatory time may be carried in accordance with the regulations

governing the earning of overtime. Part-time employees may earn compensatory time

only for hours of work in excess of scheduled 8, 9, 10 hours a day, or 40 hours in a week.

Further, a part-time employee cannot carry forward more than a pro-rata share of 80

hours of compensatory time and a pro-rata share 320 hours of special compensatory time,

from one fiscal year to the next. Religious compensatory time is excluded from carry

over limitations. Part-time employees will be limited to earning a pro-rata share of 400

hours of regular compensatory time and a pro-rata share of 640 hours special

compensatory time per fiscal year, excluding those hours earned under the maternity-

paternity policy and the religious compensatory time regulation. The pro-rata share will

be determined by dividing the number of part-time employee's regularly scheduled hours

of work by forty hours.

I. The use of compensatory time will follow the same guidelines as annual leave in that

the use of compensatory time must be approved in advance except when the government

is on unscheduled leave.

J. The Office shall consider requests to earn compensatory time and may grant such

requests in accordance with law and regulation.

K. Compensatory time off will be deducted from a bargaining unit member’s production

time for the bi-weekly period in which the time off was taken. The compensatory time

worked will be added to the member’s production time for the bi-weekly period in which

the time was worked. Compensatory time must be earned in advance of being used.

L. The same pay cap limitations that apply to paid overtime apply also to compensatory

time. Compensatory time by regulation cannot be earned for the hours when holiday

premium pay is authorized. This program authorizes compensatory time as an alternate

to regular overtime, but does not authorize compensatory time as an alternate to holiday

premium pay. That is, an employee working compensatory time on a holiday, must do so

either before or after the holiday premium pay hours.

M. Compensatory time may not be earned on a day when the employee is incapacitated

because of sickness, or uses leave for the entire day.

N. An employee may not earn compensatory time on any normal business day until the

employee has completed his/her normal work schedule. An employee may earn

compensatory time on his/her alternate day off.

Section 5: Credit Hours

A. This section is for the purpose of setting forth the rules under which attorneys may

work credit hours in lieu of payment for overtime for purposes other than religious

compensatory time and/or maternity/paternity policy on compensatory time.

B. Credit hours are available to all full time employees, who are limited or barred from

earning compensatory time due to the overtime pay cap, subject to the conditions below.

Employees covered under this section would be all those who cannot work 32 hours of

overtime in a pay period because of pay cap regulations.

C. Credit hours are available to all part-time employees but see section L below for

further limitations unique to part-time employees.

D. To be eligible to work credit hours, a full time employee must be on a flexible five

day – eight hour per day work week, a Flexible 5/4-9, or a Flexible 4-10 hour schedule.

The law only provides for credit hours for those on flexible schedules (5 U.S.C. §§ 6121,

6122).

E. An employee may elect a Flexible 5/4-9 or Flexible 4-10 schedule wherein there will

be no core hours on one or two of the workdays in the pay period and wherein a full time

employee must work a basic work requirement of 80 hours in the biweekly pay period.

An employee electing the Flexible 5/4-9 or 4-10 schedule will only earn 8 hours holiday

pay on a holiday. This is set by statute (5 U.S.C. §§ 6124). An employee electing the

Flexible 5/4-9 schedule will work eight hours on the last scheduled workday of the pay

period.

F. Electing or switching work schedules:

1) An employee may elect to change to a Flexible 5/4-9 or Flexible 4-10 s

schedule option within one month after the effective date of this agreement.

The schedule change will take effect the first full pay period after the election.

2) After the one month time frame in paragraph F(1) above has passed, an

employee will be permitted to request to switch to a Flexible 5/4-9 or Flexible

4-10 schedule option only during the last two weeks of the months of

February, May, August, and November. Upon supervisory approval of the

request, the employee will begin participating in the selected schedule option

beginning the first full pay period in the next quarter of the fiscal year.

3) An employee may switch to the five day – eight hour per day work week at

any time by giving the supervisor two weeks advance notification.

4) When circumstances arise which are both unusual and extenuating, an

individual employee upon written request may, after obtaining appropriate

supervisory approval, be permitted to amend his or her choice of an

unscheduled work day to another day in the same pay period, provided that

such amendment will not prevent the unit to which the employee is assigned

from providing its normal service to the public, the Office, or other agencies

of the Government

G. Electing Unscheduled Days Off

1) An employee, electing the Flexible 5/4-9 option, may elect a Monday,

Wednesday or Friday as the unscheduled work day.

2) An employee. Electing the Flexible 4-10 schedule option, may elect to have

Mondays, Wednesdays, or Fridays as the unscheduled work days in a pay

period. The same day in each week must be elected as the unscheduled work

day.

H. Holidays On Unscheduled Work Days

1) When a holiday falls on a Monday unscheduled work day, the employee will

be granted Friday as the holiday. When a holiday falls on a Wednesday

unscheduled work day, the employee will be granted Tuesday as the holiday.

2) When a holiday falls on a Friday unscheduled work day, the employee will be

granted Thursday as the holiday.

I. Holidays on Scheduled Work Days

When a holiday falls on a scheduled 9 or 10 hour work day for employees on the Flexible

5/4-9 or Flexible 4-10 schedules, as required by the statute (5 U.S.C. §§ 6124), the

employee will only earn 8 hours holiday pay. Such employee will either have to take

appropriate leave for the 9

and 10

hour of the employee may adjust his/her work

schedule for that pay period only to work the additional hour(s). Such additional hour(s)

must be completed during the regular or credit tour of duty hours that pay period (see

paragraph J below). Any additional hour(s) worked under this situation will not be

considered for purposes of the yearly cap.

J. Tour of Duty

1) Credit hours cannot be earned on scheduled work days until the end of the

workday.

2) Employees on the Flexible 5/4-9 or 4-10 schedules can earn credit hours on an

unscheduled workday.

3) Credit hours may be worked on a holiday for work in excess of the basic work

requirement of 8 hours on a holiday. Since, under the law, holiday pay is

limited to eight hours for those on a flexible schedule, a maximum of four (4)

credit hours may be earned on any holiday, after the 8 hours of holiday pay is

earned.

K. Credit Hour Limitations

1) Limitations on credit hours earned and used are subject to the same provisions

as apply to compensatory time and special compensatory time as set forth in

Section 4 above.

2) Credit hours must be earned before they are used except as provided for in

paragraph I above.

3) The performance eligibility standards for working credit hours will be the

same as for compensatory time

4) The number of credit hours carried forward may not exceed 24. The limit of

24 credit hours carryover is set by statute. (5 U.S.C. 6126a)

L. Credit Hours for Part-time employees

Part-time employees can earn credit hours as follows:

1) Part-time employees yearly allotment of credit hours is prorated the same as for

compensatory time.

2) For carry-over purposes, a part-time employee may carry over credit hours

from one biweekly pay period to a subsequent biweekly pay period, an

amount equal to one-fourth of his/her biweekly work requirement. This is set

by statute (5 U.S.C. § 6126(a)). For example, a part-time employee whose

tour of duty is 60 hours in a pay period may not carry over more than 15 credit

hours.

3) Part-time employees may earn credit hours after their scheduled work day

until 8:00 p.m. or from 6:30 a.m. - 8:00 p.m. on their Monday - Friday

unscheduled work days. A part-time employee’s unscheduled Monday to

Friday work days are part of the part-time employee’s tour of duty for the

purpose of earning credit hours. Part-time employees may not earn credit

hours on the weekends or on holidays.

M. Credit Hours Rules - - Miscellaneous

The rules applying to the accrual and use of credit hours are the otherwise the same for

compensatory time as set forth in Section 4 above unless this Credit Hour section states

to the contrary; these rules include:

1) The use of credit hours will follow the same guidelines as annual leave in that

the use of these hours must be approved in advance except when the

Government is on unscheduled leave.

2) Credit hours may ordinarily not be earned on a day when the employee is

incapacitated because of illness or uses leave for the entire day.

3) All credit hours must be used before starting a compressed schedule or before

starting a fixed five day-eight hour per day work week.

Section 6: Leave for Religious Observances

A) Consistent with the needs of the Office and in accordance with relevant law and

regulations, an employee will be advanced compensatory time when his/her personal

religious beliefs require abstention from work for certain period of the workday or

work week.

B) An employee must eliminate an advanced religious leave balance within three months

or such an employee shall not be authorized to work any non-religious compensatory

time, overtime or credit hours, until the advanced leave balance is worked off.

Section 7: Leave for Bereavement

In accordance with this Agreement and applicable regulations, and subject to workload

consideration and staffing needs, an employee will be granted any combination of annual,

sick, LWOP, or religious compensatory leave for up to five workdays where there has

been a death in the employee’s immediate family. The definition of the immediate

family shall include the following: Mother, Father, Stepmother, Stepfather, Mother-in-

law, Father-in-law, Spouse, Brother, Sister, Brother-in-law, Sister-in-law, Child,

Grandparents, and Grandparent-in-law.

Section 8: Miscellaneous

A. Leave records are of a personal nature and will not be publicized by the Office in

any way. However, supervisors, managers and other officials with a need to know may be

advised as to the contents of these records.

B. Infrequent tardiness of less than 1 hour may be excused by the supervisor if the

reasons given are acceptable. An employee will not be denied any promotion or

award due to such excused tardiness. If the decision is to charge the tardiness to

leave or as absence without leave (AWOL), the employee shall not work the

additional period covered by the leave charge and shall be required to leave the

work area and report to work at the end of the period covered by the leave charge.

Supervisors shall apply these rules in a consistent manner to encourage good

working conditions for both the Office and the employees.

C. Any employee who is a member of the National Guard or other reserve unit of the

Armed Forces may accrue up to a maximum of 15 days military leave for the

fiscal year. The employee may carry over up to 15 days military leave into the

next fiscal year.

D. When it is necessary to close the Office because of inclement weather or an

emergency situation (e.g., heavy snow, severe icing conditions, flood, earthquake,

hurricane, major fire, bomb threats, or massive power failures), employees, except

for essential employees or employees in leave status, will be granted

administrative leave.

Contents

Article 19

Career Development Details

Section 1

The Office shall designate certain recurring details as "career development details."

Career development details are temporary assignments of at least 90 days to a different

position, with the primary purpose of providing training directly related to development

of an employee's career as an Attorney Advisor. It will also provide employees an

opportunity to develop their skills and interests, and to improve efficiency in

administrative and technical fields so that a reservoir of developed employees will be in

existence for possible selection to higher level vacancies.

Section 2

A. The Office and the Union encourage highly qualified individuals to participate in

career development details. Three weeks advance notification of a career development

detail shall be made by means of an announcement to all unit employees.

B. The Office may announce multiple details simultaneously and establish a roster of

eligibles from the response to that announcement. All details must commence within 12

months of the announcement of the original detail. Announcements shall include the

location of the detail(s), the duration, the nature of the work, the required application

procedures, the minimum qualifications and requirements of an applicant and the

selection criteria.

Section 3

A. Selection preference shall be given to those qualified applicants who have the

least amount of service on career development details. Preference shall be given first to

those persons who have never served on detail. A career development detail which

terminated more than 4 years prior to the announcement of a new detail will be ignored in

assigning selection preference.

B. Before selection, the skill and ability of the employee and the specific needs of

the Office will be considered. When applicable the office shall consider the following

selection factors: previous relevant experience, writing samples, and the most recent

summary rating; and shall select from among the top five rated applicants. Ties in

applicant qualifications shall be broken by Office seniority. The Office may expand this

list of the five applicants by one applicant for each additional detail, in the event of

multiple details.

Section 4

Upon request, the Office shall provide the Union with the name of the applicant or

applicants selected to fill the detail(s).

Section 5

When requested by a competing applicant, the Office shall furnish the following

information after the action has been completed:

A. The name of the individual(s) selected;

B. Whether the applicant was found to be qualified; and

C. Whether the applicant was referred to the selecting official.

Section 6

The Office may assign employees to work projects which do not fall within the definition

of career development details. These work projects will normally be announced one

week in advance and selections will be made in a fair, equitable and impartial manner.

Section 7

The Office may assign employees to work projects of 90 days or more, doing work which

is normally described as a career development detail, without regard to other sections of

this article, when time constraints or workload requirements exist so as to make alternate

assignments to details necessary to carry out the agency mission. These work projects

will normally be announced one week in advance and selections will be made in a fair,

equitable, and impartial manner. The Office shall consider, when applicable, the

following selection factors: previous relevant experience, writing samples, and most

recent summary rating.

Contents

Article 20

Reproduction and Distribution

Section 1

The Office will arrange to make the text of this Agreement available electronically,

accessible through the unit members’ personal computers and designated by an icon on

the appropriate menu of the Office’s computer network.

Section 2

The Office shall furnish the Union (25) hard copies of the contract.

Contents

Article 21

Duration

Section 1

This Agreement shall be approved by the head of the agency within 30 days after it is

executed by the parties. It shall be effective on the date it is approved by the head of the

agency or, absent approval or disapproval, on the 31st day after execution. It shall

remain in full force and effect for three (3) years after the effective date. Thereafter, the

Agreement shall be automatically renewed annually unless either party gives written

notice of intent to terminate to the other.

Such notice of intent to terminate shall be given not sooner than 180 days before the

termination date and not less than 120 days before the termination date. Once such notice

is given, the moving party must submit its proposal(s) to the other party not less than 120

calendar days before the termination date. The party receiving the proposals may submit

counterproposals and/or proposals to the other party during the next 45 day period. The

parties shall begin negotiations no later than 30 days prior to the termination date. This

Agreement will remain in effect for four months after expiration to permit conclusion of

negotiations.

Contents

Article 22

Professionalism

Section 1

The Office recognizes that attendance at certain conferences, seminars and meetings

outside the Office is both desirable and in the best interest of the mission of the Office.

Therefore the Office shall annually post electronically a list of such outside conferences,

seminars and meetings at which attendance was approved in the previous calendar year.

Section 2

A. The Office will announce opportunities to attend conferences, seminars or

meetings to employees whose job performance may be enhanced by attendance.

Selection for attendance among eligible employees shall normally be made on a

rotational basis except when the benefits derived by the Office would outweigh

this consideration.

B. Employees may also ask to attend conferences, seminars and meetings which tend

to improve their performance in the work they now perform or could reasonably

be expected to perform in the future.

C. Upon approval of a request made under Section 2B, the Office will announce any

additional opportunities to attend the same conference, seminar or meeting in accordance

with Section 2A.

Section 3

A. The Office may grant up to forty (40) hours per year of training time for

employees to attend functions that directly enhance their ability to perform their

current duties.

B. Upon approval, any time in excess of forty (40) hours per year shall be

compensatory time when an employee attends functions other than those described in

Section 3A.

Section 4

It is agreed and understood that the Office may restrict the amounts of time approved for

training under Sections 2 and 3 above because of limited funds or conflicts with

operational needs.

Section 5

A. The Office shall annually post electronically a list of outside courses which have

been approved for reimbursement within the last calendar year.

B. Upon request, employees may be reimbursed for tuition fees for CLE courses

which are job related and for which funds are available.

C. The Office will process completed forms provided by employees who are seeking

accreditation for training sponsored by the Office.

Section 6

The Office recognizes that the reading of technical and legal publications is

necessary to keep professionals abreast of recent developments related to their work

assignments. The Office will within resources available continue to supply professionals

with articles, magazines and books dealing with pertinent subject matter.

Section 7

Due consideration will be given to requests for non-production time for unusual

circumstances regarding applicant initiated interviews.

Contents

Article 23

Part-time Employment

Section 1

The Office and the Union recognize the principles of Public Law 95-437, which provides

for the expansion of part-time employment opportunities in the Federal service. This

article is for the purpose of setting forth the rules under which attorneys may work on a

part-time basis.

Section 2

Any attorney desiring to work part-time should submit a request for part-time status to

the Director or designee. Whenever feasible, requests should be made in writing thirty

(30) days in advance of the date upon which the attorney wishes the part-time status to

begin. The Agency will respond to the request in writing within fourteen days of receipt.

If a request is denied, the reason for the denial will be given. The Union shall be

simultaneously served with a copy of all responses.

Section 3

An attorney may request to work between 16 to 32 hours per week. The attorney should

indicate the number of hours per week requested and set forth a schedule of hours to be

worked consisting of an equal or varied number of hours per day and including when the

hours will be worked on the specified days. Part-time employees must be regularly

scheduled to work at least eight hours between 8:30 a.m. and 5:00 p.m. and sixteen hours

between 6:30 a.m. and 8:00 p.m., Monday through Friday, each week.

Section 4

The attorney should state whether he/she desires part-time status on a temporary or a

permanent basis.

A. Requests for temporary part-time status must be for a maximum of six months.

The request should indicate the general reason for the request, e.g. family responsibilities,

education, retirement transition, handicap, etc. All requests to work part-time on a

temporary basis will be given serious consideration and will be honored where consistent

with operational needs. Temporary part-time status will be granted only once in a two

year period. Temporary part-time status for attorneys will not be basis for change in

employee’s work location. Attorneys selecting to work on a temporary part-time basis

may set their own schedule so long as it is not inconsistent with any other provisions of

this article. A temporary part time employee may not convert to a permanent part time

basis under this provision unless a request is made to do so within the first 3 months.

Requests to have permanent status within the first 3 months will be handled in the same

manner as other requests to work on permanent part time basis.

B. Requests for permanent part-time status will be granted subject to the attorney

accepting a work schedule and law office which will permit Office space to be efficiently

used. Permanent part-time attorneys may be required to share office space. A joint labor

management working group will be established. It will consist of no fewer than two

union representatives and one management representative. The working group will be

responsible for formulating recommendations for matching permanent part-time attorneys

so that Office space is efficiently utilized. When the number of part time employees is

odd, the working group may allow one employee to be unmatched (i.e. not share office

space with another part time employee).

Section 5

Rules regarding permanent part-time attorney placement and determination of schedules

are as follows.

A. The working group will consider the following primary criteria, in order, in

making recommendations for matching employees:

1. First come, first served basis

2. Seniority

The working group will also consider the following additional secondary criteria,

in no particular order, in making recommendations for matching employees: Maintaining

current manager; maintaining current classes of goods to be examined; maintain present

office; choice of schedule; personal needs; burden on management.

B. The working group may engage in dialogue with part-time employee applicant

and others in formulating their recommendations.

C. No full time person will be doubled or displaced from their Law Office to

accommodate a part-time employee.

D. A full time employee may be required, as a last resort, to move to another office,

including an interior office, within the same Law Office to accommodate a part time employee.

E. If there is more than one vacancy in the Law Offices in the South Tower, the full-

time employee who will be required to move will be determined by reverse seniority

among those Law Offices where there is a vacancy.

F. If only one vacancy, movement is still determined by reverse seniority in that one

Law Office.

G. Reverse seniority for (E.) and (F.) above means “a junior employee sitting in a

windowed office which may be doubled.

H. An employee cannot begin permanent or temporary part time (except FMLA)

during their first year of employment.

I. A request for returning to work on a full-time schedule will be honored to the

extent that there is a vacancy. There are no additional criteria for returning to a full-time

schedule.

J. The Office has determined that if an employee moves in order to participate in the

part-time program, the part-time employee is in the Law Office to which moved and the

move is considered to be voluntary.

K. There will be at least two waiting lists

1. A list of employees who want to go back to the Law Office from which

they were moved.

2. A list of desired schedules

L. The working group will recommend schedules that the employees can agree to,

taking into account employee preferences where feasible, but if the employees cannot

come to an agreement, management will set the schedules for the employees.

M. The working group may recommend pairing up unmatched part-time employees

to lessen need to double full time employees. The only time there would be expected to

be more than one unmatched part-time employee would be when there is a part time

employee attrition.

Section 6

A. Employees working on a part-time basis at the time this article becomes

effective may choose between:

1. Reversion to full-time status

2. Participation in the new part-time program under the rules of this article, be

given priority on a first come first-served basis and be guaranteed at least one of the following at the

employee’s choice:

a. Choice of schedule

b. Current floor and maintain current manager

B. Effort will be made to satisfy both (a) and (b) above, and to have the attorney

remain in their current Law Office, subject to the other criteria of this article. It is

recognized that not all employees in this group may necessarily be accommodated.

Contents

Article 24

Child Care

The Office and the Union agree that adequate childcare facilities for the children of all

employees are very desirable. To that end, while recognizing the difficulties involved in

establishing and maintaining such facilities, the parties agree to encourage, within

resources available, the establishment and maintenance of such facilities.

CONTENTS

Article 25

Outside Employment

Section 1

Employees shall not engage in any outside employment or similar type of outside

activity, with or without compensation, which:

A. Interferes with efficient performance of their official duties;

B. might reasonably result in a conflict of interest, the appearance thereof, or

apparent conflict of interest, with official duties and responsibilities; or

C. violates any applicable law, rule, or regulation.

Section 2

A. Prior to engaging in outside employment, an employee must request Office

approval in writing under the following circumstances:

1. for the private practice of law; or

2. for other outside employment which gives rise to a question of compatibility

under Section 1 of this article.

B. When the circumstances for which approval was originally granted change, the

employee must submit a written statement informing the Office of the change in

circumstances and requesting another approval of the outside employment or private

practice of law.

Section 3

A. Requests for approval of the private practice of law shall include the following:

1. a brief description of the employee's official title and nature of work;

2. a statement whether the employee holds himself/herself out to the public as a

practitioner of law by maintaining a publicly listed place of business or a mail or

answering service for such purposes, or by affiliating himself/herself with others engaged

in private practice of law;

3. a statement whether he/she has regular part-time employment as an attorney for

any business or other organization; and

4. a description of the nature and extent of the private practice or legal work to be

performed.

B. Requests for approval of any outside employment must contain sufficient details

of the nature and extent of the outside employment for an informed decision to be made.

C. The Office will issue a written decision to the employee within ten (10) work days

after receipt of the request.

Section 4

Failure to request approval for outside employment or the private practice of law in

accordance with the provisions of this article may subject the employee to disciplinary action.

Section 5

Employees are reminded of the prohibitions against engaging in the outside employment

or the private practice of law during office hours or using government premises or

equipment.

Contents

Article 26

Work Schedules

Flexitime Work Schedules

Section 1 Time Accountability

A. The two daily signatures constitute certification that the employee arrived no

later than and left no earlier than the time indicated.

Section 2 Criteria for Restriction or Denial of Flexitime

A. Consistent with the provisions set forth below, all employees shall be authorized

the free use of flexitime each day during the course of the flexitime program.

B. Restrictions or denials on the use of flexitime by employees shall be based on one

of the following:

1. operational considerations, related to the work situation only (not related to job

performance);

2. abuse of flexitime, meaning misconduct of a serious nature during the flexible

bands that would be alleviated by the presence of a supervisor;

3. participation during the hours required in a formal training program;

4. requirement for close supervision for the initial training required to understand

and perform the duties of the position; or

5. the requirement for close supervision for employees with serious deficiencies in

the performance of their primary tasks over a period of at least one quarter to the extent

that the level of their performance would constitute grounds for an unsatisfactory

performance rating. The intent here is that employees operating at this level would have

the attention, to the extent practical, of their regular or acting supervisors during times

that would not be available if the employee were participating in the flexitime program.

C. Justification for restricting or denying flexitime must be neither punitive in nature

nor otherwise related to conduct or job performance except as discussed in Section 2B of

this article.

D. All disapprovals or restrictions shall be in writing, and they shall clearly describe

the basis used to justify the decision to deny or restrict participation in the flexitime

program. Copies of the justification shall be furnished to each employee affected at least

two weeks prior to the time when the denial or restriction is to take effect unless the

denial or restriction is caused by an emergency situation, affects a new employee, or

when the nature of an office's work is such that the need for the presence, for short

periods of time, of one or more employees cannot be anticipated, in which case the

employee or employees will be given prior oral notice and justification.

E. Justification for restriction or denials shall be reviewed at the request of the

employee upon a change in conditions. The appropriate supervisory official shall review

the request and issue a written decision thereon within three (3) working days. A

favorable decision shall entitle the employee to begin participation in flexitime the

following work day.

F. Those members who are not authorized or who elect not to work flexitime or

restricted flexitime shall work their normal tours of duty.

Section 3 Operational, Flexible And Core Hours

A. Operational, flexible, and core hours from Monday through Friday will be;

Operational Hours 6:30 a.m. -- 8:00 p.m.

Morning Flexible Band 6:30 a.m. -- 9:30 a.m.

Afternoon Flexible Band 3:00 p.m. -- 8:00 p.m.

Core Hours 9:30 a.m. -- 3:00 p.m.

Appendix E-2 graphically illustrates the operational hours, public hours, flexible bands,

and core hours. All employees must be present during core hours unless they are in an

approved leave status.

B. Employees on flexitime may report at any time during the morning flexible band.

From the time of reporting, they must remain at work for 8 1/2 hours in order to be

credited with 8 hours of work and to cover their 1/2 hour for lunch.

C. With proper justification and in conformance with Section 2, some employees'

participation in the flexitime program will be restricted. Instead of being able to report

at any time during the morning flexible band, employees whose participation has been

restricted may be required to report no earlier than a specified time during the morning

flexible band.

Alternative Work Schedules

Section 4: Alternative Work Schedule Options And Scheduling Requirements

A. Four Day Week (4/10 Plan) - Under the four day week schedule, an employee

will work four days each week, ten hours daily, thus satisfying the requirement for forty

hours per week.

B. 5-4/9 Plan - This plan permits an employee to have one "extra" day off each pay

period. To satisfy the 80 hour per pay period work requirement, the employee will work

8-nine hours days and 1-eight hour day. To simplify implementation and Time and

Attendance record keeping for the 5-4/9 Plan, employees will be required to work the

eight hour day on the last scheduled work day of each pay period. Therefore, the eight

hour work day will always be the last Friday of the pay period unless the last Friday is a

scheduled non-work day in which case the last Thursday will be an eight hour day.

C. Each employee will arrange his or her work schedule with the supervisor in

advance for a period of one quarter of the fiscal year, identifying the day of the week

which will be the employee's non-work day in the case of the 4/10 plan and the day of the

bi-week which will be the non-work day in the case of the 5-4/9 plan. Employees are

required to elect a single day which will be the non-work day for the entire quarter.

Subject to supervisory approval, the employee may select any day as a non-work day,

except for Tuesday and Thursday, which, during all work weeks, will be considered

"core" work days. However, when a holiday falls on an employee's scheduled non-work

day, Tuesdays or Thursdays may be used "in lieu of" holidays if required by the chart in

Section 5B.

D. All full-time unit employees will be required to elect, by use of the "Statement of

Election" of Appendix E-3, one of the three options listed below:

1. Non-Participation (five day-8 hours per day week);

2. Four Day-10 Hour Day Alternate Work Week; or

3. 5-4/9 Alternate Work Week.

If either option (2) or (3) is selected, an election must also be made of a specific work

schedule.

E. Employee participation in the Alternative Work Week Program is subject to

supervisory approval. Restriction or denial of the program to employees is set forth in

Section 6.

F. Employees who elect to participate in the Alternative Work Schedule program

may withdraw from the program at any time, by giving the supervisor two weeks'

advance notification. Employees who withdraw from the Alternate Work Schedule

program will revert to a five day, eight hour per day work week. After withdrawal,

employees will be permitted to rejoin the program only in accordance with Section 4I

below.

G. New employees may begin participation in the Alternative Work Schedule

program at the beginning of any pay period, subject to supervisory approval.

H. Employees transferring from one organization to another will be required to

obtain approval from the new supervisor of their previous election or make a new

election at the time of transfer. Upon supervisory approval, the employee can begin

participation in the Alternative Work Schedule Program at the beginning of the next pay

period. It is recognized that it is possible that the new position may be such that the

employee must be denied the opportunity to participate or have his or her participation

restricted.

I. Employees who wish to join the program, change options, or who wish to change

their non-work day selection will be permitted to submit such a request only during the

last two weeks of the months of February, May, August and November. Upon

supervisory approval of the request the employee will begin participation in the

compressed work schedule program or effect the desired change at the beginning of the

first full pay period in the following quarter of the fiscal year.

J. Only full-time employees will be eligible for participation in the Alternative

Work Week program.

K. An employee participating in a Alternative Work Schedule program and in a

travel status or on Office business outside the Crystal City area will revert back to a non-

participating status for the period involved unless an alternative arrangement can be

agreed upon between the employee and appropriate supervisory authority, which

alternative arrangement does not increase the cost of the travel, training or other Office

business to the Office or violate any rule, regulation or statute.

When an employee is on Office business away from the Office but in the Crystal

City area and the duration of the business is less than the duration of the employee's

normally scheduled work day, the employee must report to the Office and work for a

period of time equal to the difference less reasonable travel time from the place of the

other Office business to the Office.

L. An employee's elected schedule will remain in effect until the participant

withdraws under Section 4F., or until the opportunity to change the program occurs as set

forth in Section 4I.

When circumstances arise which are both unusual and extenuating an individual

employee upon written request may, after obtaining appropriate supervisory approval, be

permitted to amend his or her choice of a non-work day to another day in the same bi-

week, provided that such amendment will not prevent the unit to which the employee is

assigned from providing its normal service to the public, the Office and other agencies of

the Government. Under no circumstances will such an amendment be permitted in two

consecutive pay periods.

Section 5 Leave And Overtime

A. General leave - When an employee is absent from the job other than for a holiday,

he or she will be charged with leave equal in hours to the scheduled length of the work

day. Employees working a four day week will, therefore, be charged with 10 hours of

leave (Annual, Sick, LWOP, AWOL, Administrative, etc.) whenever absent during a

regularly scheduled work day. Employees working under the 5-4/9 Plan will be charged

with nine or eight hours, depending upon the employee's schedule.

B. Holiday Leave - A full time employee who is relieved or prevented from working

on a day designated as a holiday is entitled to pay with respect to that day for the number

of work hours scheduled. The following rules apply when a holiday falls on a scheduled

non-work day:

"When the holiday falls on the employee's first or second consecutive scheduled non-

work day, the preceding work day shall be designated as the day off in lieu of holiday in

accordance with the following chart."

"When the holiday falls on the third consecutive scheduled non-work day, the next work

day shall be designated as the day off in lieu of the holiday in accordance with the

following chart."

Employees' Non-Work Days Holiday falls on Holiday or Day Off in Lieu of

Day Off

Fri, Sat, Sun. Friday Thursday

Sat, Sun, Mon. Monday Tuesday

Sat, Sun, Wed. Wednesday Tuesday

C. Overtime Work - Authorized work performed outside an employee's alternative

work schedule; i.e., in excess of 10 hours, 9 hours or 8 hours, depending upon the

schedule; or in excess of 80 hours per pay period, or on any non-work day is overtime

work. Employees are entitled to overtime compensation or compensatory leave as

appropriate for overtime work in accordance with applicable provisions of law.

Section 6: Criteria For Restrictions Or Denial Of Alternative Work Schedule

A. Restrictions or denials on the use of Alternate Work Schedules by employees

shall be based on one of the following:

1. operational considerations, related to the work situation only (non-related to job

performance);

2. abuse of a alternate work schedule, meaning misconduct of a serious nature

during the scheduled work days that would be alleviated by the presence of a supervisor;

3. supervisors may temporarily suspend employee participation in the Alternate

Work Schedule Program for formal training;

4. requirement for close supervision for the initial training required to understand

and perform the duties of the position;

5. the requirement for close supervision for employees with serious deficiencies in

the performance of their primary tasks over a period of at least one quarter to the extent

that the level of their performance would constitute grounds for an unsatisfactory

performance rating. The intent here is that employees operating at this level would have

the attention, to the extent practical, of their regular or acting supervisors during times

that would not be available if the employee were participating in the Alternative Work

Schedule program.

B. Justification for restricting or denying a alternate work schedule must be neither

punitive in nature nor otherwise related to conduct or job performance except as

discussed in Section 6A, of this article.

C. All disapprovals or restrictions shall be in writing, and they shall clearly describe

the basis used to justify the decision to deny or restrict participation in the Alternate

Work Schedule program. Copies of the justification shall be furnished to each employee

affected at least two weeks prior to the time when the denial or restriction is to take effect

unless the denial or restriction is caused by an emergency situation, affects a new

employee, or when the nature of an office's work is such that the need for the presence,

for short periods of time, of one or more employees cannot be anticipated, in which case

the employee or employees will be given prior oral notice and justification. In such

emergency cases, supervisors may reschedule day(s) off.

D. Justifications for restrictions or denials shall be reviewed at the request of the

employee upon a change in conditions. Any changes will be effected as described in

Section 4I.

E. Those employees who are not authorized or who elect not to work a Alternative

work schedule shall work their normal tours of duty, but may participate in the Flexitime

Program, in accordance with the terms of that program.

Section 7 Operational, Flexible, Core Hours And Core Days

A. Operational, flexible, core hours, core days and public hours from Monday

through Friday will be:

Operational Hours 6:30 a.m. -- 8:00 p.m.

Morning Flexible Band 6:30 a.m. -- 9:30 a.m.

Afternoon Flexible Band 3:00 p.m. -- 8:00 p.m.

Core Hours 9:30 a.m. -- 3:00 p.m.

Core Days Tuesday and Thursday

Public Hours 8:30 a.m. -- 5:00 p.m.

B. Employees on a alternative work schedule may report at any time during the

morning flexible band consistent with being able to work the approved 8, 9 or 10 hour

day within operational hours. From the time of reporting, they must remain at work for 8

1/2, 9 1/2 or 10 1/2 hours in order to be credited with the respective hours of work and to

cover a 1/2 hour period for lunch.

Section 8 Time Accountability

A. The two daily signatures constitute certifications that the employee arrived no

later than and left no earlier than the times indicated.

B. All full time Office employees must complete and turn in to their supervisors the

statement of election shown as Appendix E-3.

Contents

Article 27

Receipt of Pay

Section 1 Emergency Salary Payments

When an employee's regular salary check or direct deposit is not issued due to

administrative error or delay in processing or is issued in an amount that is less than 90%

of regular net pay due, the employee shall be authorized to receive an emergency

payment in cash from the imprest fund in an amount equal to the employee's net salary or

$500, whichever is less, normally within one (1) day following notification to the Office

of the error. The employee may request that the $500 limit be waived in accordance with

I TFM 4-3040.20. Any such request will be promptly forwarded to the Department of

Commerce.

Section 2 Replacement of Salary Checks

If an employee's salary check was issued, but is not received or is lost, stolen or

mutilated, the Office will follow applicable Treasury Department regulations and NFC

procedures for recertification of a replacement check.

Section 3

Processing errors will be corrected as soon as practicable after notification.

Section 4 Electronic Funds Transfer

A. Employees’ participation in the Direct Deposit Electronic Funds Transfer

program will be mandatory as of January 1, 1999, due to changes in the regulations per

P.L. 104-134.

B. Salary payments of employees electing to participate in the program will be

deposited in a financial institution chosen by the employee in accordance with established

procedures.

C. Until January 1, 1999, salary payments of employees electing not to participate in

the program will be mailed to their mailing address, as listed in the records of the

Personnel Office. The parties recognize that the Office has no control over deliveries by

the U.S. Postal Service.

Contents

Article 28

Automation

Section 1

A. The Office will furnish the Union with information regarding the development

and implementation of new automated equipment.

B. The Office will provide the Union with data indicating average search times on

the automated search system on a monthly basis.

C. The Office shall provide the Union with the results of system evaluations

performed by the Office to determine whether functional requirements are being met.

Section 2

The Office will provide employees with a work environment that is based upon

reasonable standards of health, safety and ergonomics.

Section 3

The Office will inspect each machine in use on a regular basis and will maintain all

equipment in proper repair.

Section 4

Whenever downtime is expected to or actually exceeds four (4) hours in duration, the

Office will notify all affected employees as far in advance as practicable concerning the

situation, indicating how long downtime is expected to continue.

Section 5

Training may be provided by the Office when the Office determines that such training is

required. Requests for additional training made by the Union or individual employees

will be given due consideration.

Section 6

Nothing in this article shall preclude the parties' obligations under Article 33 of

this Agreement.

Contents

Article 29

Equal Employment Opportunity

Section 1

The Office and the Union agree to fully support the concept of Equal Employment

Opportunity, the Federal Equal Employment Opportunity Program and the terms of this

article.

Section 2

The Office shall not discriminate against any employee on the bases of race, color,

religion, age, national origin, sex, sexual orientation, or handicap condition

Section 3

The Office shall provide the Union with a copy of the current Office Affirmative Action

Plan (AAP) and a copy of the Equal Employment Opportunity (EEO) complaint

procedure.

Section 4

The Office shall annually provide the Union with the following information regarding

unit members:

A. work force composition by race, sex, and grade level; and

B. numbers and types of discrimination complaints filed.

Section 5

The Office will continue its EEO counselor system which provides counseling to any

aggrieved person who believes that he/she has been discriminated against because of

race, color, religion, sex, national origin, age or handicap condition. The EEO counselor

system is not available to an aggrieved person who believes that he/she has been

discriminated against for other reasons.

Section 6

In an attempt to resolve discrimination charges as early as possible, EEO counseling will

be provided to an aggrieved employee on an informal basis, before a formal EEO

complaint is filed.

Section 7

The name, current telephone number, and current work site location of each EEO

Counselor will be posted electronically.

Contents

Article 30

Reduction-In-Force

Section 1

The Office affirms its desire to avoid Reduction-In-Force (RIF) actions by utilizing

attrition and/or other means that will not interfere with the accomplishment of the

Office's mission.

Section 2

The Office agrees to notify the Union as soon as possible after a determination has been

made to undergo a RIF. The information to be furnished to the Union would include the

competitive level initially affected, the number of employees involved, the proposed

effective date, and the reasons for the action.

Section 3

Upon notification, the parties will promptly meet and conduct impact and implementation

bargaining on the proposed RIF in accordance with the procedures in Article 33 unless

otherwise mutually agreed. Article 33, Section 2A, shall not be applicable to bargaining

over RIF's.

Contents

Article 31

Performance Based Awards

Section 1

There is no entitlement to a performance award or other type of incentive award. All

awards are subject to budgetary limitations and are paid at the discretion of the Office.

The award plan will be in effect for the latter half of FY 01 and for all of FY 02 and

years forward.

Section 2

The following are criteria for eligibility after a determination is made to provide

performance awards:

A. No award shall be given under this article unless the Trademark Examining Attorney

is fully successful in all critical elements of the performance appraisal plan.

B. The employee must be employed by the Office on the last day of the performance

appraisal cycle or productivity award cycle as applicable.

C. Approved overtime and compensatory time hours will be applied towards

examination hours for the purpose of determining eligibility for awards.

Section 3: Productivity Awards

A. Any Trademark Examining Attorney receiving a rating of "5" in the Critical Element

of Production and at least a rating of "3" in every other Critical Element, or any

Trademark Examining Attorney working at the outstanding level of performance in

Production as of mid-year and at least working at the fully successful level of

performance in every other critical element as of mid-year, will be recommended for

an award amount based on the productivity awards scale in Appendix X.

B. Two productivity awards may be paid each year; after the first six months of the

fiscal year and at the end of the fiscal year.

C. Any Trademark Examining Attorney who receives a rating of "4" in the Critical

Element of Production and at least a rating of "3" in every other Critical Element

shall be recommended for an award if he/she attains a 105% - 109% quantity of

production. Any Trademark Examining Attorney who is working at the

Commendable level of performance in production and who is working at the fully

successful level of performance or better in every other critical element as of mid year

shall be recommended for an award if he/she attains a 105% - 109% quantity of

production. If the examining attorney examines over 625 examining hours in the six

month award period, the recommendation will be for one half the amount shown on

the productivity awards scale in Appendix X. If the Trademark Examining Attorney

examines between 300 and 625 hours during the six month award period, the

examining attorney will be recommended for ½% of salary prorated as follows:

Number of Hours

on Primary Duties

x Award: ½% of salary = Reduced Award

625

A Trademark examining attorney must examine at least 300 hours during the six-

month award period to be eligible for an award under this paragraph.

D. No employee receiving an outstanding in production who examines at least 300

examining hours during a six-month award period will be recommended for an award

lower than he/she would have been recommended for had the employee been merely

commendable in production.

Section 4: Quality Awards

A. Any Trademark Examining Attorney who receives an average of "5" on the two

Critical Elements of Quality and at least a rating of "3" on every other Critical Element

shall be recommended for an award of 3% of salary.

B. No award shall be given under this section unless the Trademark Examining Attorney

has examined at least 600 hours during the rating year. If an Examining Attorney

examines more than 600 hours but less than 1250 hours in the rating year, the Examining

Attorney's award shall be computed as follows:

Number of Hours

on Primary Duties

x Award = Reduced Award

1250

C. Quality performance awards will be only be paid after the end of a full annual

performance appraisal cycle.

Section 5: Mentoring Award

A. Any Trademark Examining Attorney who receives an average of "5" in mentoring

and at least a rating of "3" on every other Critical Element shall be recommended for

an award of 1/4% of salary for every month an employee mentors another employee

without partial signatory authority and/or 1/10% salary for every month an employee

mentors another employee with partial signatory authority. The award amount is

calculated by multiplying the % of salary times the number of employees mentored.

B. Mentoring awards will be only be paid after the end of a full annual performance

appraisal cycle.

Section 6

A. All awards recommended under this program are subject to review and approval

in accordance with 5 CFR 451. Such approval shall not be withheld unless the decision

is based on criteria that are uniformly applied to all employees. Notices of disapproval

must be in writing and explain the reason(s) for the disapproval.

If, due to a shortage of funds for awards, employees do not receive the full award for

which they may be eligible, they will receive a pro rata share of the awards pool.

Section 7

Should the Office decide to change any portion of the performance appraisal plan which

could result in a modification of the awards set forth in this article, the parties agree to

reopen negotiations over the portion of the article affected by the change.

Section 8: Quality Step Increases

A. Criteria:

To qualify an employee must:

1. have a current summary rating of outstanding for the current appraisal cycle;

2. have occupied the same grade and type of position for at least six consecutive

months before the end of the appraisal cycle and be expected to continue at this high level

of performance in the same grade and type of position for at least 60 days after the

effective date of the increase;

3. not be in the top step of his or her pay range;

4. not have a promotion in progress or anticipated within 60 days after the effective

date of the increase; and

5. not have received a QSI within 52 consecutive calendar weeks preceding the

effective date of the increase.

B. If the employee satisfies the criteria outlined in A, the employee may receive the

QSI; however, if the Office decides to grant the employee the QSI, the employee will

have the option of electing between the QSI and the applicable cash award (SSP). The

election need not be made until the amount of the cash award has been determined.

Contents

Article 32

Dues Withholding

Section 1

This article is for the purpose of permitting eligible employees who are members of the

Union to pay dues through the authorization of voluntary allotments from their

compensations. Any employee officially assigned to the Office may authorize an

allotment of pay for the payment of his/her dues for such membership, provided:

A. the employee is included in the unit;

B. the employee is a member in good standing of the Union;

C. the employee has voluntarily completed Standard Form 1187, Request and

Authorization for Voluntary Allotment of Compensation for Payment of Employee

Organization Dues; and

D. the employee receives compensation sufficient to cover the total amount of the

allotment.

Section 2

The procedures and effective date of authorization shall be as follows:

A. The Union agrees to acquire existing authorization form SF-1187, distribute the

form to its members, ask its members to read the form and to receive completed forms

from members who request allotment. The Office agrees to direct employees who have

questions concerning the form to the Union.

B. The Union's national president or any Chapter 245 officer is designated to process

completed authorization forms by completing Section A thereof. Such Union official

will timely submit the completed authorization form to the Office of Personnel, Labor

Relations Branch, when the SF-1187 is submitted. When SF-1187 is submitted, the

Union will be promptly notified of any employee's ineligibility for dues deduction.

Incomplete forms will be returned to the Union.

C. The Office shall request issuance and mailing of remittance check(s) as follows,

unless notified in writing by the Union of a change in payee or address:

1. Payee: National Treasury Employees Union

2. Address: Administrative Comptroller

National Treasury Employees Union

901 E Street, N.W.

Suite 600

Washington, DC 20004

D. Upon receipt of a properly certified standard form 1187, the Office of Human

Resources will stamp the date it was received on the back of the form. The deduction

will normally begin with the next pay period after the properly completed authorization

form is received by the Labor Relations Division. Deductions based on authorization

forms received less than one week prior to the next pay period shall become effective the

next pay period if practicable. Otherwise such deductions shall begin with the second

pay period after receipt.

E. Allotted dues will be withheld each pay period. The amount to be withheld shall

be the amount of the regular bi-weekly dues of the member in accordance with 5 USC

7115 and NFC procedures. The Office will request that NFC provide to the Union

breakdowns of deductions if no additional charges or fees are necessitated by the

provision of such.

F. If the amount of regular dues is changed by the Union, the Office of Personnel,

Labor Relations Division, will be notified in writing by the Union. This notice will

certify that the dues structure of the organization has been changed in accordance with

the Constitution and By-laws of the Union, and will give the effective date of the change.

The notice must be forwarded to the Office of Personnel, Labor Relations Division, three

(3) pay periods before the effective date to allow time for the Office to arrange with NFC

to change the dues table. Only one such change in the dues table may be made in any

period of twelve (12) consecutive months.

Section 3

A. Employees who wish to revoke dues allotments must deliver a written request for

revocation of an allotment, SF-1188, Revocation of Voluntary Authorization of Allotment of

Compensation for Payment of Employee Organization Dues, to the Office

of Personnel, Labor Relations Division.

Revocations may only be effected by submission of a completed SF-1188 that has been

initialed or signed by the Chapter president or a designee. If the SF-1188 is not initialed

or signed, the Office will return it to the employee for resubmission.

C. However, as provided in 5 USC 7115(a), an initial allotment may not be revoked

for a period of one year. A revocation received on or before the first anniversary of the

date the employee authorized withholding will be effective the first pay period which

begins on or after the anniversary date. Thereafter, a revocation will be effective the first

pay period which begins on or after September 1st, if the revocation is received on or

before September 1st.

Section 4

The allotment will be terminated by the Office of Personnel, Labor Relations Division, at

the end of the pay period in which loss of eligibility occurs under any of the following

conditions:

A. when the Union is finally adjudicated as having lost its recognition;

B. when a unit employee dies, retires, is separated from the Office, or is promoted or

reassigned to a non-unit position; or

C. upon receipt of notice from the Union that the employee is no longer a member.

Section 5

The Union and the Office agree to the following procedures concerning revocations and

underpayments:

A. The Office will send a copy of any written revocation of allotment received by the

Office to the Union within 10 work days.

B. When the Union receives a remittance check which is less than that due to the

Union, the Union will notify the Office of Personnel, Labor Relations Branch. After such

notice, the appropriate adjustment shall be processed within two (2) pay periods.

Section 6

The Union and the Office agree to the following procedures concerning overpayments:

When the Union has notice of receipt of an overpayment, such notice gives rise to an

affirmative duty on the part of the Union to remit that amount by check to the Office.

Such repayment shall occur within two (2) pay periods of notice of overpayment.

Section 7

When an adjustment is made to an employee's salary to recoup dues withholding, the

employee will be given a written explanation of the adjustment. This explanation shall

notify the employee that he/she has a right to request a waiver of overpayment of $500 or

less in accordance with applicable laws, rules and regulations. Denials of such waiver

requests shall not be subject to arbitration.

Section 8

The Office will request that NFC send a copy of its magnetic dues withholding tapes to

NTEU on a bi-weekly basis. The Office will request that NFC add sufficient characters

for use by employees wishing to participate in NTEU-sponsored financial programs (e.g.,

IRA's).

Section 9

The Union shall pay no fees for these services except as stipulated otherwise.

Contents

Article 33

Impact and Implementation Bargaining

Section 1

Impact and Implementation bargaining shall be conducted within the terms of this article.

The Office and the Union shall follow the below listed procedures prior to implementing

any changes in conditions of employment, for which there is a bargaining obligation.

The Office shall make its proposal(s) in writing, include the reasons for the action and

copies of relevant statutes, regulations and other relevant supporting materials. In the

event of an emergency or overriding exigency, the Office reserves the right to make

changes in the conditions of employment without regard to the provisions of this article.

The provisions of this article will not apply to requests for or the conduct of joint labor

term negotiations.

Section 2

A. The Office shall notify the Union in writing of any changes in conditions of

employment, for which there is a bargaining obligation, on the following dates of each

year: February 15, May 15, August 15, and November 15. Changes regarding

performance appraisal may be proposed at any time.

B. Within one week thereafter, the parties shall meet to explain and clarify the

Office's proposal(s) and answer questions regarding the proposal(s).

C. The Union shall submit its counter proposal(s) within 2 weeks of the clarification

meeting in Section 2B above.

D. Negotiations shall commence as soon as practical (normally within one week).

Section 3

Unless the parties agree otherwise, the ground rules for Impact and Implementation

negotiations shall be as follows:

A. The Union shall have the right to the same number of representatives as the

Office, but not less than two representatives.

B. Negotiations shall take place Tuesday through Thursday during the hours of 9:30

a.m. to 4:00 p.m. For comprehensive changes involving performance appraisals,

signatory authority or automation, negotiations shall be extended to four (4) days a week.

Negotiations (including caucuses) of at least two hours are counted as one-half day and

negotiations (including caucuses) of at least four hours are counted as one full day for

purposes of constructive impasse.

C. The parties shall negotiate up to one (1) week or three (3) days if negotiating a

RIF, up to four (4) weeks or twelve (12) days if negotiating changes in working

conditions and four (4) weeks or sixteen (16) days if negotiating comprehensive changes

in working conditions involving performance appraisal, signatory authority or

automation. For every change in working conditions over three (3) the parties shall

negotiate one (1) additional week, not to exceed four (4) additional weeks. Constructive

impasse will be deemed to have occurred at the end of such time periods. However,

either party or both parties may declare an impasse prior to conclusion of the negotiation

periods specified in this section. The parties may also agree to extend negotiations.

D. If impasse occurs, either constructively or in fact, the parties shall request the

assistance of the Federal Mediation and Conciliation Service and shall meet with a

mediator within one week of reaching impasse.

E. If mediation fails to resolve the impasse between the parties, the parties will seek

the services of the Federal Services Impasses Panel and agree to follow the procedures of

the FSIP.

Section 4

Any negotiated agreements will take the form of a Memorandum of Understanding

(MOU). The Office shall reproduce all MOU's and distribute to all current employees

along with any Office memoranda that pertain to the MOU. Such documents shall be

distributed to all new employees along with copies of the basic Agreement in accordance

with Article 20, Reproduction and Distribution.

Section 5

Subjects covered by the collective bargaining Agreement shall not be the subject of

proposals under this article.

Section 6

Pursuant to 5 USC 7114(c) all agreements shall be subject to agency head review.

Section 7

In the event the Employer disapproves an executed impact and implementation

agreement reached between the parties, the Union shall have the option of renegotiating

such agreement.

Contents

Article 34

Trial Period Employees

Section 1

The Office agrees to advise trial period employees of their performance prior to the end

of the 11th month of the trial period. This will be accomplished by providing employees

a copy of Form CD-35 during the 11th month of the trial period.

Section 2

Trial period employees may choose, up to their termination date, voluntary resignation

Section 3

Nothing in this Agreement shall limit the Office's right to terminate trial period

employees prior to the end of the trial period.

Contents

Article 35

Disciplinary Actions

Section 1

A. The disciplinary actions covered by the article are written reprimands and

suspensions of 14 days or less. All disciplinary actions shall be carried out in a timely

manner and shall only be imposed for such cause as will promote the efficiency of the service.

B. Counseling or warnings, whether they are oral or written, are not

disciplinary actions and shall not be considered as an "offense" in the event of future

discipline or adverse action. Counseling or warnings, whether they are oral or written,

may be grieved in accordance with Article 11.

Section 2

* Disciplinary action shall fairly relate to the offense.

Section 3

The Office recognizes the concept of progressive discipline to correct behavior.

However, nothing in this section would preclude the Office from imposing the maximum

penalty for a first offense in appropriate cases.

In deciding what discipline is appropriate, the Office will give due consideration to the

relevance of mitigating and/or aggravating circumstances. The following factors, not

intended to be exhaustive or applied mechanically, outline the tolerable limits of

reasonableness which will be applied to the circumstances of each case.

A. The nature or seriousness of the offense and its relation to the employee's duties;

B. The employee's job level and type of employment, including supervisory or

fiduciary role, contacts with the public, and prominence of the position;

C. The employee's past disciplinary record;

D. The employee's past work record, including length of service, performance,

ability to relate to other employees, and dependability;

E. The effect of the offense on the employee's ability to perform at a satisfactory

level and its effect on the supervisor's confidence in the employee;

F. Consistency of the penalty with those imposed upon other employees for the same

or similar offenses;

G. The notoriety of the offense and its impact upon the reputation of the Office;

H. 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;

I. Potential for the employee's rehabilitation;

* Also see Appendix B

J. Mitigating circumstances surrounding the offense such as unusual job tensions,

personality problems, mental impairment, harassment, bad faith, malice or provocation

on the part of others;

K. The adequacy and effectiveness of alternative sanctions to deter such conduct in

the future by the employee or others.

Section 4

A. An employee whose suspension is proposed shall receive a written notice of

proposed action. Included with the proposal will be all the material relied upon to support

the reasons/charges in the proposal. In either a proposed suspension or a written

reprimand, the employee shall receive copies of all documents which contain evidence

relied upon to support the charges. If an investigation report or portion thereof is used as

evidence then the portion used as evidence shall be provided.

Nothing in this section is to be construed as a waiver of the employee's or the Union's

right to request additional information under other authorization, such as the Freedom of

Information Act, the Privacy Act, or the Civil Service Reform Act.

B. All proposed suspensions shall inform employees of their right under statute and

government-wide regulation to be represented by the Union or an attorney or other

representative of their own choosing in connection with oral and/or written replies.

Section 5

A. Any proposed suspension shall state the reasons for the proposal. The proposal

shall also provide the employee with reasonable time (normally 14 days) from receipt of

the proposal to answer the specification orally and/or in writing. The reply shall be

submitted by the end of the reply period. The reply period may be extended upon mutual

agreement of the parties upon written request by the employee and/or his/her designated

representative. Information requests that are not relevant to the stated offense will not

serve as a reason to extend the reply period. Normally, requests for information will be

limited to a period of three (3) years prior to the request.

B. The Office shall prepare a summary of any oral reply. Copies of the summary

shall be provided to the employee and his/her designated representative for review and

correction before any decision is made concerning the proposed disciplinary action.

C. The Office's final decision must address each charge in detail and support the

reasons for the decision. Pertinent factual discrepancies concerning the incident shall

also be addressed. Copies of the decision shall be served simultaneously on the employee

and his/her designated representative.

Section 6

Written reprimands and decisions on suspensions of 14 days or less are subject to the

grievance procedure (Step 1) or appropriate administrative challenges, but not both.

Section 7

The Office shall provide a sanitized copy of all disciplinary action proposals and decision

letters to the Union simultaneous to their issuance to employees. Sanitized copies of

decision letters are not required when the Union has been served under Section 5C above.

Section 8

Whenever the employee has designated the Union as his/her representative, the employee

shall have the right to have the Union present at any discussion regarding a disciplinary

action and to receive advance notice of the discussion.

Union reserves its right under Article 9, Section 4 and the statute.

Section 9

In cases where discipline is proposed for reasons of off-duty misconduct, the Office’s

written notification shall contain a statement of the nexus between the off-duty

misconduct and the efficiency of the service. If the deciding official decides to

substantively change the nexus statement in the proposal with adverse affect on the

employee, notice of such change will be provided with the summary of the oral reply.

Three work days will normally be provide for the employee and/or representative to

supplement the record on this subject.

Contents

Article 36

Adverse Actions

Section 1

The actions covered by this article are removals, suspensions for more than fourteen (14)

days, reductions in pay, and furloughs of thirty (30) days or less. All adverse actions

shall be carried out in a timely manner and shall only be imposed for such cause as will

promote the efficiency of the service.

Section 2

*Adverse actions shall fairly relate to the offense.

Section 3

The Office recognizes the concept of progressive discipline to correct behavior.

However, nothing in this section would preclude the Office from imposing the maximum

penalty, up to removal, for a first offense, in appropriate cases.

In deciding what discipline is appropriate, the Office will give due consideration to the

relevance of mitigating and/or aggravating circumstances. The following factors, not

intended to be exhaustive or applied mechanically, outline the tolerable limits of

reasonableness which will be applied to the circumstances of each case.

A. The nature or seriousness of the offense and its relation to the employee's duties;

B. The employee's job level and type of employment, including supervisory or

fiduciary role, contacts with the public, and prominence of the position;

C. The employee's past disciplinary record;

D. The employee's past work record, including length of service, performance,

ability to relate to other employees, and dependability;

E. The effect of the offense on the employee's ability to perform at a satisfactory

level and its effect on the supervisor's confidence in the employee;

F. Consistency of the penalty with those imposed upon other employees for the same

or similar offenses;

G. The notoriety of the offense and its impact upon the reputation of the Office;

H. 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;

* Also see Appendix B

100

I. Potential for the employee's rehabilitation;

J. Mitigating circumstances surrounding the offense such as unusual job tensions,

personality problems, mental impairment, harassment, bad faith, malice or provocation

on the part of others;

K. The adequacy and effectiveness of alternative sanctions to deter such conduct in

the future by the employee or others.

Section 4

A. An employee against whom adverse action is proposed shall receive a written

notice of proposed action. Included with the proposal will be all the material relied upon

to support the reasons/charges in the proposal. The employee shall receive copies of all

documents which contain evidence relied upon to support the charges. If an investigation

report or portion thereof is used as evidence then the portion used as evidence shall be

provided.

Nothing in this section is to be construed as a waiver of the employee's or the Union's

right to request additional information under other authorization, such as the Freedom of

Information Act, the Privacy Act, or the Civil Service Reform Act.

B. All proposed adverse actions shall inform employees of their right under statute

and government-wide regulation to be represented by the Union or an attorney or other

representative of their own choosing in connection with oral and/or written replies.

Section 5

A. Any proposed adverse action shall state the reasons for the proposal. The

employee shall be provided at least thirty (30) days advance written notice from receipt

of the proposal except when the Office has reason to believe an employee has committed

a crime for which a sentence of imprisonment may be imposed. The proposal shall also

provide the employee with reasonable time (normally 14 days except for the crime

provision) from receipt of the proposal to answer the specification orally and/or in

writing. The reply shall be submitted by the end of the reply period. The reply period

may be extended upon mutual agreement of the parties upon written request by the

employee and/or his/her designated representative. Information requests that are not

relevant to the stated offense will not serve as a reason to extend the reply period.

Normally, requests for information will be limited to a period of three (3) years prior to

the request.

B. The Office shall prepare a summary of any oral reply. Copies of the summary

shall be provided to the employee and his/her designated representative for review and

correction before any decision is made concerning the proposed adverse action.

101

C. The Office's final decision must address each charge in detail and support the

reasons for the decision. Pertinent factual discrepancies concerning the incident shall

also be addressed. Copies of the decision shall be served simultaneously on the employee

and his/her designated representative.

Section 6

A. A non-preference eligible (non-veteran) employee who has completed two years

of current continuous employment in the same or similar positions under other than a

temporary appointment limited to two years or less against whom an adverse action has

been taken may appeal the decision to the Merit System Protection Board, or with the

consent of the Union, to arbitration under the terms of the agreement, but not both.

B. A preference eligible (veteran) employee who has completed one year of current

continuous employment in the same or similar positions against whom an adverse action

has been taken may appeal the decision to the Merit Systems Protection Board, or with

the consent of the Union to arbitration under the terms of the agreement, but not both.

Section 7

The Office shall provide a sanitized copy of all adverse action proposals and decision

letters to the Union simultaneous to their issuance to employees. Sanitized copies of

decision letters are not required when the Union has been served under Section 5C above.

Section 8

Whenever the employee has designated the Union as his/her representative the employee

shall have the right to have the Union present at any discussion regarding an adverse

action and to receive advance notice of the discussion.

Section 9

In cases where discipline is proposed for reasons of off-duty misconduct, the Office's

written notification shall contain a statement of the nexus between the off-duty

misconduct and the efficiency of the service. If the deciding official decides to

substantively change the nexus statement in the proposal with adverse affect on the

employee, notice of such change will be provided with the summary of the oral reply.

Three work days will normally be provided for the employee and/or representative to

supplement the record or this subject.

102

Contents

Article 37

Partnership

The parties both desire a good Labor Management (L/M) relationship and recognize that

Partnership may be al effective means of establishing and furthering such a relationship.

To promote L/M partnership, the principles embodied in Executive Order (E.O.) 12871,

the parties have formed a L/M Partnership Council. Partnership recommendations

developed under the Council’s auspices may be submitted for acceptance by

management. Neither party waives its rights under any recommendation accepted by

management. In any event the parties by mutual agreement may meet in partnership to

discuss issues of mutual concern.

103

104

Contents

APPENDICES

Appendix A: MOU regarding the Agreement, agency head review, negotiability and appeals.

Appendix B:

Appendix B-1: List of provisions declared non-negotiable by Agency, if applicable.

Appendix B-2: MOU to revise provisions declared non-negotiable by Agency, if applicable.

Appendix B-3: Agency approval of MOU on revision of non-negotiable language, if applicable.

Appendix C:

GWPAS, attached for reference.

Appendix D:

Public Law 101-376(Civil Service Due Process Amendments) and legislative

history, attached for reference.

Appendix E:

Alternate Work Schedule Election Form.

Appendix F:

Awards scale, attached for reference.

Appendix G:

Appendix K of NTEU 243 Contract – Pilot Transit Subsidy.

Appendix H:

MOU regarding Pilot Transit Subsidy Program, Parking Fees, and Alternate Work

Schedules.

Appendix I:

MOU for transition

105

Appendices Contents

106

Appendices Contents

APPENDIX B

Article 35, Disciplinary Actions:

Section 2

The parties recognize the Agency’s discretion to determine an appropriate penalty in accordance with

Section 3 below. Unless inconsistent with established office policy, disciplinary actions shall generally

be progressive in nature and fairly relate to the offense.

Article 36, Adverse Actions:

Section 2

The parties recognize the Agency’s discretion to determine an appropriate penalty in accordance with

Section 3 below. Unless inconsistent with established office policy, adverse actions shall generally be

progressive in nature and fairly relate to the offense.

107

Appendices Contents

Appendix C

U.S. Department of Commerce

Performance Appraisal System

For the General Workforce

TABLE OF CONTENTS

Section

Page

Section 1. Legal Requirements and Authorities………………………………. 1

Section 2. Objectives………………………………………………………….. 1

Section 3. Coverage…………………………………………………………… 2

Section 4. Responsibilities……………………………………………………. 2

Section 5. Timetable for Performance Management

Activities…………………………………………………………. 6

Section 6. Performance Appraisal Process…………………………………… 7

Section 7. Relationship of Performance Appraisal

Of Other Personnel Actions……………………………………… 18

Section 8. Training and Information………………………………………….. 22

Section 9. Evaluation…………………………………………………………. 22

Section 10. Record Keeping…………………………………………………… 22

Section 11. Definitions………………………………………………………… 23

Appendix A

Appendix B

Appendix C

January 24, 1995

108

SECTION 1. LEGAL REQUIREMENTS AND AUTHORITIES

.01 This document implements the provisions of the following authorities:

a. The Civil Service Reform Act of 1978, P.L. 95-454, (5 U.S.C.

4301-4305); 5 CFR Part 430 Subpart B; and DAO 202-430.

b. Official Personnel Folder (5 U.S.C. 2951, 552, 4305, 4315,

1103, 1104, and 1302); 5 CFR, Part 293, Subpart C; and FPM

Chapter 293.

.02 The following citations are related to this plan:

a. Administrative Grievance System; 5 U.S.C. 1302, 3301, 3302,

And 7301; 5 CFR Part 771; and FPM Chapter 771.

b. Alcohol and Drug Abuse Regulations; 5 CFR Part 792 and FPM

Chapter 752.

c. Adverse Actions; 5 U.S.C. Chapter 75; 5 CFR Part 752; and FPM

Chapter 752.

d. Incentive Awards Programs; 5 U.S.C. Chapter 45; 5 CFR Part

451; and FPM Chapter 451

e. Pay Rates and Systems (General); Pay under the General

Schedule; 5 U.S.C. Chapter 53; 5 CFR Part 531; FPM Chapter 530;

FPM Chapter 531; 5 CFR Part 536; FPM Chapter 536; 5 CFR Part 550;

And FPM Chapter 550.

f. Grade Reductions or Removals Based on Unacceptable

Performance; 5 U.S.C. 4303 and 4305; and 5 CFR Part 432.

SECTION 2. OBJECTIVES

The Department’s General Workforce Performance Appraisal System

Serves as the basis for:

.01 Establishing critical elements and related performance

standards for each covered position which, to the maximum extent

feasible, permit the accurate evaluation of job performance on

the basis of objective criteria related to the position;

.02 Using performance plans to communicate Department goals and

objectives and to identify individual accountability for their

accomplishment;

.03 Using performance appraisal results as a basis for providing

information to employees on their performance and how it may be

improved; and for training, rewarding, reassigning, promoting,

reducing in grade, retaining, granting within-grade increases,

and removing employees; and

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.04 Evaluating and improving individual and organizational

accomplishments.

SECTION 3. COVERAGE

.01 The policies contained in this document apply to all

Department of Commerce employees except the following:

a. Employees in the Senior Executive Service;

b. Presidential employees;

c. Administrative law judges appointed under 5 U.S.C. 3105;

d. Positions filled by noncareer executive assignments under 5

CFR Part 305;

e. Positions for which employment is not reasonable expected to

Exceed 120 calendar days in a consecutive 12-month period;

f. Employees outside the United States who are paid in

Accordance with local native prevailing wage rates;

g. Employees covered by the Foreign Service Act of 1980;

h. Individuals occupying positions not in the competitive

Service excluded from coverage by the Office of Personnel

Management (OPM) under the provisions of 5 U.S.C. 4301 (2)(G); and

i. Expert and consultants

.02 An employee who is serving on a detail continues to occupy

the position from which detailed.

.03 General workforce employees whose service is temporarily

interrupted by service in any Federally-sponsored program (e.g.,

Intergovernmental Personnel Act) which calls for the employee’s

Return to the same or like position continues to be covered by

The General Workforce Performance Appraisal System while on the

Federally-sponsored assignment.

.04 Schedule C employees, as authorized by 5 CFR Part 213.3301,

are covered by this system except that they are not afforded the

rights required by 5 U.S.C. 4302 (b)(6) and 4303.

SECTION 4. RESPONSIBILITIES

.01 Heads of Operating Units or Departmental Offices

may elect

to use three- or five-level rating scales in accordance with

Sections 6.03a.4 and 5.

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.02 Appointing authorities must:

a. Ensure that their operating unit instructions on the General

Workforce Performance Appraisal System are consistent with

current laws, applicable Office of Personnel Management rules and

regulations, Departmental policies, and valid collective

bargaining agreements.

b. Provide managers and supervisors of covered employees with

adequate training, supplemented by periodic updates covering

their duties and responsibilities under the General Workforce

Performance Appraisal System.

c. Ensure that covered employees are informed of their rights

and responsibilities under the system;

d. Provide managers and supervisors with clear instructions on

procedures for identifying critical elements and related

performance standards within their respective organizations;

e. Communicate overall missions, objectives, goals, and long-

range plans and activities to all levels within the organization;

f. Assure the opportunity exists for employee participation in

the development of performance plans;

g. Maintain appropriate records and submit required data and

reports on the operation of the General Workforce Performance

appraisal System;

h. Ensure that performance appraisal results are used by

Managers and supervisors in making personnel decisions regarding

Training, rewarding, reassigning, promoting, reducing in grade,

Retaining, and removing employees;

i. Encourage the use of cash awards, honorary awards, and other

Official commendations, when appropriate, to reward and motivate

Covered employees;

j. Determine the effectiveness of the system by instituting a

Formal monitoring and evaluation program, and

k. Promptly initiative corrective actions in the performance

Appraisal program when such actions are warranted.

.03 Approving officials must:

a. Review critical (and non-critical) elements and standards in

Place in their organizations to ensure that they are integrated

Into the total management process and are consistent with overall

Organizational objectives;

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b. Review, sign and date performance plans when developed to

ensure equity and consistency within their organizations;

c. Resolve conflicts between rating officials and employees

Over the content of performance plans;

d. Review performance appraisals and proposed ratings to ensure

That evaluation criteria are objective and job-related, and that

Actual accomplishments support the rating;

e. Respond in writing within 10 working days to employee written

Comments on ratings;

f. Assign, sign, and date final performance ratings (including

Documenting and reasons for changing ratings); and

g. Approve/recommend performance-related personnel actions,

Including awards, when warrented.

04. Rating officials (supervisors) or general workforce

Employees must:

a. Inform employees of th eoverall mission, objective, goals,

Long-range plans, and activities of the work unit and parent

Organization and inform employees of their related duties and

Responsibilities;

b. Encourage employee participation in developing performance

Plans;

c. Provide employees with written performance plans which

Identify the critical (and non-critical) elements and performance

Standards related to their specific duties, responsibilities, and

Expected levels or performance;

d. Collect data to determine if performance standards are being

Met;

e. Conduct and document at lease one formal progress review

Around the midpoint of the appraisal period and additional

Reviews as necessary;

f. Modify performance plans as necessary;

g. Participate in the pre-appraisal discussion, if one is

Requested by the employee;

h. Complete performance appraisals which includes determining,

Documenting, and evaluating employees actual accomplishments,

i. Confer with approving officials about their organization’s

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performance and about the ratings they plan to assign their

employees, and get the approving official’s approval before

discussing those ratings with employees;

j. Determine preliminary ratings for employees, and discuss the

final appraisal with the employees;

k. Sign and date performance plans, performance appraisals, and

ratings; and

l. Recommend personnel actions (including awards) and/or

training based on the employee’s level of performance of work in

relation to the performance standards.

.05 General Workforce employees should:

a. Work with their supervisors in developing their performance

Plans;

b. Collect data to demonstrate that performance standards are

Being met;

c. Compare accomplishments with appropriate performance

Standards;

d. Participate in the mid-cycle progress review and request

Additional reviews, as necessary;

e. Participate in the performance appraisal process with the

Rating official (including scheduling a pre-appraisal meeting if

They wish);

f. Sign and date performance plans, performance appraisals an d

Ratings, to acknowledge receipt;

g. Prepare written comments when disputing a rating; and

h. Seek development opportunities to enhance performance.

.06 Human Resources Offices must:

a. Communicate the purpose and procedures of the General

Workforce Performance Appraisal system and its relationship to

The overall personnel management system to supervisors, general

Workforce employees, and appropriate exclusive bargaining

Representatives;

b. Provide instruction on how to identify critical (and

Non-critical) elements and establish performance standards;

c. Provide training and/or orientation on the operation of the

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System for employees who are responsible for, or subject to, the

System;

d. Coordinate and submit required reports on the operation of

The system; and

e. Participate in the development and implementation of a

Monitoring and evaluation program of the system.

SECTION 5. TIMETABLE OF PERFORMANCE MANAGEMENT ACTIVITIES.

.01 Employees covered by this system are normally appraised

annually under one of the following fixed appraisal periods:

October 1 – September 30 or June 1 – May 31. Appendix C of this

Document specifies operating unit/Departmental Office appraisal

Periods.

.02 The minimum performance appraisal period is 120 days.

.03 Performance plans for all covered employees must be

established and approved at the beginning of the appraisal

period, normally within 30 days of the beginning of the period.

.04 When an employee enters a covered position or changes

positions after the start of the appraisal period, a performance plan must be

established and approved within 30 days of the

effective date of the appointment to the new position.

.05 When an employee is detailed or temporarily promoted to a

covered position within the Department and is expected to serve

in the position for 120 days or more, he or she must have an

approved performance plan within 30 days of the beginning of the

detail or temporary promotion.

.06 Interim summary performance ratings are required when an

employee changes positions after serving in a covered position

for at least 120 days, or when an employee serves on a detail or temporary

promotion within the Department of at least 120 days

during the appraisal period. The interim rating must be

completed within 30 days of the change of position or end of the

detail or temporary promotion.

.07 Appraisals and annual ratings of record must be completed

within 30 days of the end of the annual appraisal period, except

that (1) employees who are unratable at the end of the appraisal

period because they have not served in a covered position for at

least 120 days of the appraisal period, must be rated after they

have served for the minimum period (120 days); (2) Schedule A

employees of the Bureau of Census must receive their ratings

within 60 days of the end of the appraisal period; and (3)

employees who on the last day of the appraisal period have begun

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But have not completed an opportunity period to improve

Performance to an acceptable level, as provided in 7.05c.3a, may

Have their ratings deferred until the completion of the

Opportunity period.

.08 Appointing authorities must complete the Department’s annual

performance plan completion report and forward it to the

Department by November 30 each year. Operating units with June 11

- May 31 appraisal periods must complete this report for

General workforce employees and forward it to the Department by

July 31 each year.

.09 Performance ratings of record for general workforce

employees are effective on the last day of the appraisal cycle

(September 30 and May 31) each year. For those employees who

enter into a covered position with less than 120 days remaining

in the appraisal period (see .07 above), the rating of record is

effective the first day of the first pay period after the

employee completes 120 days in the new position.

.10 When a rating official changes positions or leaves the

Department with less than 120 days remaining in the appraisal

Period, he/she must complete appraisals and ratings for his/her

Subordinate employees before the change of position or transfer

To another Department or agency. These ratings will serve as the

Employee’s rating of record for the appraisal period and the time

Remaining in the appraisal period will be included in the

Following appraisal period. Such ratings will be effective the

Date of the transfer of the supervisor.

SECTION 6. PERFORMANCE APPRAISAL PROCESS.

.01 Performance Planning

a. Approximately four weeks before the start of the appraisal

Period, rating officials (supervisors) and employees should

Begin developing written performance plans for the next appraisal

Period. The process should involve both the supervisor and

Employee. Performance plans must be recorded on Form CD-516,

“Classification and Performance Management Record.” Performance

plans must be completed and signed by the rating official,

approving official, and employee at the beginning of the

appraisal period, normally within 30 days. Performance plans

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Must include:

1. Critical (and non-critical) elements which reflect the

Employee’s major duties and responsibilities and which are

Consistent with current job assignments and with the level

Of duties described in the employee’s position description.

(Although the Department discourages inclusion of non-critical

elements in performance plans, occasionally a rating official

may need to include some. If included, non-critical elements

should represent no more than 15 percent of the total plan;

additionally, no single non-critical element may be weighted more

than 10 percent nor weigh more than any critical element in the

plan.) Organizational objectives should, when appropriate, be

included in performance plans by incorporating objectives, goals,

program plans, work plans, or by other similar means that account

for program results. Elements may be drawn from the number of

sources including: mission and functional statements, position

descriptions, management-by-objectives (MBO’s) and other planning

documents, operating budget justifications, and affirmative

action plans. An employee’s responsibility for accomplishing

part or all of an MBO must be included as a critical element or

a major activity of al critical element. If the element relates

to a Secretarial level objective, it must be designated on the

CD-516 as critical and checked as an MBO. Elements must include

Only those aspects of the work over which the employee has

Control. An objective, specifying the overall result each

Element is expected to accomplish, along with the major

Activities the employee must undertake to accomplish each

Element, must be communicated in writing in the employee’s

Performance plan. For any job designated as supervisory, duties

Such as recommending or making personnel decisions, developing

And appraising subordinates, fulfilling equal opportunity and

Affirmative action responsibilities, and other supervisory duties

Must be addressed as a critical element (or as major activities

Of a critical element). Additionally, supervisors who fail

To meet performance appraisal deadlines as specified in

This document must have their own appraisals so documented.

Developing generic critical (and non-critical) elements is

Strongly encouraged.

2. Weights must be assigned to each element on the basis of

The amount of time required to accomplish the element and/or its

Importance. The total of the weights must be 100%. Assigning

Weights to the major activities listed under an element is not

Permitted. Non-critical elements may be included in performance

Plans, but must be assigned very low weights and represent

No more than 15 percent of the total plan. In no case may

A non-critical element be assigned a higher weight than any

Critical element included in the performance plan.

3. Performance standards must be used to evaluate levels of

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Accomplishment for critical (and any non-critical) elements.

Standards should define performance in terms of results (what is

To be accomplished) and process (how it is to be accomplished).

(Note: The results may already be expressed under the major

activities listing. In such a case they do not need to be

repeated as standards since they are already specified for the

employee.) The generic performance standards (GPS) contained in

Appendices A and B, for use with five- or three-level rating

Scales, respectively, must be used to evaluate the performance of

All employees covered by this system. Supplemental standards, as

Needed,, should be developed for each critical ( and non-critical)

Element. Specific quantitative, timeliness, cost effectiveness,

And/or qualitative standards, if they apply to a particular

Critical element and if they will be used to evaluate an

Employee’s performance must be included as supplemental

Standards. (If these standards are specified in operational

Manuals or other documents made available to the employee, those

Documents may simply be referenced in the performance plan.)

Such standards need be written only at the Fully Successful level

And refer generically to different levels of quality, timeliness,

Quantity, and cost effectiveness.

b. If a rating official and covered employee disagree on

The contents of the performance plan, the rating official and

Employee should attempt to resolve the disagreement informally.

However, the approving official must make the final decision

Regarding the contents of the plan. The contents of performance

Plans may not be grieved.

c. When developing performance plans, the following factors

Should be considered:

1. Criticality/Relevance

. Have appropriate critical elements

Been identified? Are the elements derived from the overall

Mission of the work unit?

2. Comprehensiveness

. Does he plan cover all of the employee’s

Major duties and responsibilities?

3. Clarity

. Are critical elements and performance standards

Clearly and fully described?

4. Qualifications

. Can achievements be measured with the

Standards identified?

5. Consistency

. Are performance plans for similar positions

Comparable in all important aspects?

d. When an employee enters a covered position or moves from

One covered position to another after the start of the appraisal

117

Period, and when an employee serves on a detail of 120 days or

More, a performance plan must be established and approved for the

Employee, following the guidelines in .01a-c of this Section.

.02 Progress Reviews

a. At a minimum, rating officials must conduct a formal progress

Review with their employees at approximately the midpoint of the

Appraisal period. Covered employees may also request (or

Supervisors may schedule) additional progress reviews. The

Progress review must include discussion of :

1. The employee’s progress toward meeting the objectives of the

Elements included in his or her performance plan;

2. The identification of any performance deficiencies and

Recommendations on how to improve them by the rating official;

And

3. The need for changes in the plan based on changes in

responsibilities. A rating official must submit any recommended

changes in performance plans in writing to the approving official

and gain his/her approval of the changes. Those changes must

then be signed and dated by both officials and attached to the

plan. The employee must be given a copy of the changed plan.

b. There must be a record of the progress review. Both the

Supervisor and employee should date and initial the performance

plan to indicate the review took place.

c. Progress reviews should also be scheduled and conducted for

employees who enter covered positions after the start of the

appraisal period. There progress reviews should be completed

near the midpoint of the shortened appraisal period.

d. A progress review must also be initiated by the rating

official if an employee’s performance on one or more critical

elements falls below the Fully Successful level. In such a case

the rating official must discuss the instances of less than Fully

Successful performance and outline in writing what is required

by the employee to bring his or her performance up to the Fully

Successful level. If rating officials wish this review to serve

as the beginning of the formal opportunity period required by 5

U.S.C. 4302(b)(6), please see Section 7.05c.3.

.03 Appraisal

a. Every employee who occupies a covered position on the last

day of the appraisal cycle and who has been in a covered position

for at least 120 days during the appraisal cycle must receive an

Annual performance appraisal rating of record, in accordance with

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The following:

1. Rating officials must confer with the approving official

about their organization’s performance and gain approval of

(including the approving official’s signature on Form CD 516)

the ratings they recommend for their employees before discussing

those ratings with employees.

2. The rating official initiates the appraisal by providing

advance notice of the employee of the date and time for the

formal appraisal meeting.

3. The employee may schedule a pre-appraisal meeting with the

rating official to:

a. Present his or her assessment of results achieved against the

Standards set in the performance plan;

b. Inform the rating official of aspects of his or her work of

which the rating official may not be aware; and

c. Identify objectives he or she would like to include in the

Performance plan for the next period.

during this pre-appraisal meeting, the rating official may ask

questions to clarify his or her understanding of the employee’s

Performance.

4. Once the advance notice of the formal appraisal meeting has

been given, and after any pre-appraisal meeting, the rating

Official (after conferring with the approving official) prepares

and discusses with the employee a written performance rating.

This rating must be based on an assessment of the employee’s

Performance against the standards set at the beginning of the

period (or as modified and documented during the progress review)

in the performance plan and must include a written rating for

each individual performance element based on one of the following

scales:

(a) Five-level element rating scale:

Outstanding (Level 5) = 5 points

Commendable (Level 4) = 4 points

Fully Successful (Level 3) = 3 points

Marginal (Level 2) = 2 points

Unacceptable (Level 1) = 1 point.

(b) Three-level element rating scale:

Outstanding (Level 5) = 5 points

Meets or Exceeds Expectations (Level 3) = 3 points

Does Not Meet Expectations (Level 1) = 1 point.

119

Note: The level “Meets or Exceeds Expectations” is equivalent to

the level “Fully Successful” as stated in 5 CFR, Part 430. The

level “Does Not Meet Expectations” is equivalent to the level

“Unacceptable” and subject to the same provisions regarding

demotion or removal as stated in 5 U.S.C. Chapter 43.

5. To obtain the overall summary rating, each element rating

must be multiplied by the weight assigned to that element (e.g.,

Element #1 is weighted at 30% and receives a rating of Fully

Successful or a 3; 3 x 30% = 90 points). No fractional scores or

weights may be used. The points assigned the individual elements

are then totaled to determine an overall summary rating based on

The following scales:

(a) Five-level summary rating scale (used only with a five-level

Element rating scale):

Outstanding (Level 5) 460 – 500 points

Commendable (Level 4) 380 – 459 points

Fully Successful (Level 3) 290 – 379 points

Marginal (Level 2) 200 – 289 points*

Unacceptable (Level 1) below 200 points*

(b) Three-level summary rating scale (used only with a three-

Level element rating scale):

Outstanding (Level 5) 420 – 500 points

Meets or Exceeds

Expectations (Level 3) 270 – 419 points

Does Not Meet

Expectations (Level 1) below 270 points*

*If a covered employee receives a less-than-Fully Successful

critical element rating in his/her position of record or in

an interim rating that becomes a final rating of record (see

Sections 6.03a.8. and 6.03b.), the employee’s performance

Rating must be no higher than the lowest critical element rating

Received no matter what point total the employee earns.

6. Summary ratings of Fully Successful in which all individual

elements are rated Fully Successful require only a summary

notation that the employee’s performance meets expectations and

that the rating was discussed with the employee. Individual

Element justifications must be done for elements rated below

Fully Successful. If any elements are rated above Fully

Successful, a written summary justification is required.

However, for employees required by the Secretary’s Diversity

Policy Tenets (July 21, 1994) to have a diversity critical

Element, a rating above Fully Successful on that element must be

justified separately, apart from any summary justification.

120

Also, a rating official may elect to write justifications for

individual element ratings. Furthermore, if the employee

requests written justification of any individual element rating,

the rating official must provide such justification.

7. Interim ratings for service in other covered positions within

the Department during the appraisal period must be considered

in determining the employee’s final rating of record. Interim

ratings are developed during the rating cycle to document the

Performance of an employee who changes positions or who is

detailed during the year provided the employee has served in

the position or on the detail for at least 120 days. Unless

the employee has changed positions with less than 120 days

remaining in the appraisal cycle, the final rating of record is

determined using the procedures in (a) through (d) below. If the

employee has changed positions with less than 120 days remaining

in the appraisal period, and has ser4ved in another covered

position for which an interim rating was done, use the procedures

in Section 6.03b. to determine the employee’s final rating of

record.

a. The rating official for the employee’s position of record

Appraises the employee on the work done in the position of record

if the employee has served in that position for at least 120 days

of the appraisal period. (If the employee has not served in the

position of record for 120 days, see Section 6.03a.9 or 6.03b as

appropriate.)

b. Double the score assigned for the position of record.

c. Add the doubled score to any other interim rating scores

received during the appraisal period.

d. Divide the total score from c. above by the number of

positions occupied for 120 days or more during the appraisal

cycle plus 1, e.g., if the employee occupied two positions for

120 days or more of the appraisal cycle, the total score in c.

would be divided by three. This number becomes the final rating

score. (Scores with decimals should be rounded to the next

highest number).

Example 1:

Interim rating score: 360 x 1 = 360

Position of record rating score: 480 x 2 = 960

1,320

1,320 ÷ 3 = 440

The recommended rating would be 440.

121

Example 2:

Interim rating score: 390 x 1 = 390

Interim rating score: 375 x 1 = 375

Position of record rating score: 450 x 2 = 900

1,665

1,665 ÷ 4 = 417

The recommended rating would be 417.

In computing a final performance rating using this formula, the

rating assigned by the supervisor of the position or record (the

one that is to be doubled) must be checked carefully to make sure

that a non-critical element is not given more weight (because

of the doubling) than any critical element in the other interim

ratings. (OPM regulations prohibit giving more weight to

Non-critical elements than to critical elements in deriving final

Ratings.) If, because of the doubling, the non-critical element

score exceeds that of any of the critical element scores, the

point score of the non-critical element must be reduced to its

original total (before the doubling) and the summary point total

adjusted appropriately.

e. If an employee receives a rating of Fully Successful or

higher in his/her current position or record, then his/her final

summary performance rating cannot be less than Fully Successful

even if he/she received a less-than-Fully Successful interim

rating for work performed on other assignments during the cycle.

8. If an employee has served in a covered position for more

than the minimum appraisal period in another Federal agency,

that agency is required to provide an interim summary rating of

performance and forward it to the Department’s employing office

with the Employee’s Official Personnel Folder. If the employee

transfers to the Department of Commerce with less than 120 days

remaining in the appraisal period, the employee’s interim rating

(prepared when he/she transferred) will become his/her rating of

record for the appraisal period. The time remaining in the

appraisal period will be included in the next appraisal period.

Thus, in such cases, the effective date of the transfer to the

department will serve as the beginning date of the employee’s new

Appraisal period. If no interim rating can be obtained from the

employee’s old agency, the employee’s current rating of record

will be extended. If the employee transfers before the last 120

days of the appraisal cycle, the rating official must consider

the interim rating when determining the employee’s rating of

record at the end of the appraisal cycle.

If an employee has served on a detail to another Federal agency

122

for 120 days or more during the appraisal cycle, or an assignment

in a Federally-sponsored program such as an IPA or Executive

Exchange, the personnel office must make a reasonable effort to

obtain an interim summary rating from the other agency on the

employees performance on the detail or assignment. If the

interim rating is obtained, it must be considered in deriving the

employee’s rating of record at the end of the appraisal cycle.

If the employee has served for the entire rating cycle on detail

to another agency and an appraisal of performance cannot be

obtained despite reasonable efforts, the employee’s current

rating of record must be extended. If the employee has no

current rating of record, he or she must be considered unratable

and treated as though Fully Successful.

9. The employee should sign the rating to indicate that it has

been discussed. (If the employee refuses to sign, the rating

official should so not). A copy must be given to the employee.

If the employee disagrees with the rating, he or she may comment

in writing to the approving official within five working days of

receipt of the appraisal and rating. The approving official must

respond in writing to these comments within 10 working days. If

the approving official changes a rating at this point, he/she

must document the reasons for the change on Form CD-516A and

provide a copy to the employee. (This documentation may also

serve as his/her response to the employee’s comments.)

10. An employee may request a reconsideration of his/her rating

by an official in a position higher than the approving official.

Such reconsideration requests must be processed under the

appropriate negotiated grievance procedure, if applicable.

Otherwise they must be processed under the Department’s

Administrative grievance procedure.

11. Annual performance ratings of record must be approved by the

operating unit official who manages the performance awards budget

for the organization.

12. The summary rating given at the end of the annual appraisal

period, or at the end of the extended appraisal period, in cases

where the employee has not served in a covered position for at

least 120 days of the appraisal period becomes the employee’s

rating of record. (See Section 6.03c)

b. If a covered employee has not served in his/her position of

record for 120 days of the appraisal period, but has served in

one other covered position (either a permanent position or on

detail) for which an interim rating was prepared that interim

rating will become the employee’s rating of record for the

appraisal cycle. If the employee has two interim ratings for the

appraisal period, add the two interim scores together and divide

by two to obtain the average score. Translate the average score

123

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into the appropriate adjective rating. The time remaining in the appraisal period

will be included in the new appraisal period. Thus when an employee changes

positions in the last 119 days of

the appraisal period, the effective date of the change of

position also serves as the beginning date of the employee's new appraisal period.

c. Employees who are serving in covered positions on the last

day of the appraisal period, but who are unratable because they

have not served for at least 120 days during the appraisal period

in a covered position must be given an annual rating of record in

accordance with the provisions of paragraph .03a. above as soon

as they have served for the minimum period. An employee may be

unratable because of entry into a covered position within the

last 119 days of the appraisal period; time in a non-pay status;

long-term training; service on a Federally-sponsored program such

as an Intergovernmental Personnel Act or President's Executive

Exchange assignment for which appraisal information is not

available; the employee's supervisor leaving the agency where

no other higher level supervisor can reasonably appraise the

employee's performance; service on detail to another Federal

agency for which performance appraisal information is not

available; or approved absence creditable under 5 CFR 531.406.

d. The current ratings of record of employees who are unratable

on the last day of the appraisal period are extended if they

are not then working in a covered position which can provide

the basis for appraisal (e.g., they are continuing on long-term

training) and are not expected to return to such a position

within 120 days. If these employees have no ratings of record,

they are treated as though Fully Successful.

e. Interim Summary Ratings

1. When an employee who has served in a covered position for 120

days or more in the appraisal period changes to another covered

position within the Department, an interim rating must be

completed by the employee's former supervisor and signed by the

appropriate approving official. Interim ratings must also be

completed when an employee completes a detail or temporary

promotion within the Department of 120 days or more in a covered

position. In such cases the rating must be based on the elements

and standards established for the position the employee is

leaving. Copies of the interim rating must be given to the

employee, the gaining supervisor, and the servicing human

resources office of the gaining organization.

2. When an employee transfers from Commerce to another Federal

agency after serving in a covered position in Commerce for 120

days or more, the employee's supervisor and approving

official must complete and interim rating. The interim rating

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124

must be transferred with the employee's OPF to the gaining agency

or department for consideration in the employee's next rating of

record.

3. Interim ratings are not ratings of record for reduction in

force or other purposes, except where indicated in this document.

f. The following summary performance ratings and no other

ratings constitute ratings of record:

1. The annual performance appraisal rating provided for in .03a.

of this Section;

2. An improved rating given following an opportunity to

demonstrate acceptable performance as provided in 5 CFR

351.504(e)(1);

3. A rating given in connection with a within-grade increase

determination as to acceptable level of competence that is

inconsistent with the employee's current rating of record or when

for in paragraph 7.02 of this document;

of a within-grade increase determination as provided by 5 CFR

531.409(c); and

5. A rating given after the minimum appraisal period when an

h. As provided in Executive Order 5396, the performance

i. The Department does not prescribe a distribution of ratings

Department assures that only employees whose performance exceeds

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the employee does not have a rating of record as recent as the

completion of the latest performance appraisal cycle, as provide

4. A rating based on an appraisal period following the delay

employee is unratable at the end of the appraisal cycle, as

provided for in .03c. of this Section.

No other summary rating given to an employee of the Department

constitutes a rating of record.

g. When an employee is rated below the Fully Successful level,

the rating official must attempt to help the employee to improve

his/her performance. Assistance may include, but is not limited

to formal training, on-the-job training, counseling, and closer

supervision.

appraisal and resulting rating of a disabled veteran may not be

lowered because the veteran has been absent from work to seek

medical treatment.

and does not permit a distribution to be prescribed. The

normal expectations are rated at levels above Fully Successful by

the approving officials' review, by sampling of plans and ratings

125

by the servicing human resources office, by Departmental PME

reviews, and by other reviews as required by regulation.

SECTION 7. RELATIONSHIP OF PERFORMANCE APPRAISAL TO OTHER

PERSONNEL ACTIONS

promoting, reducing in grade, retaining and removing employees,

Performance appraisal results must be used as a basis for

making personnel decisions on training, rewarding, reassigning,

and granting within-grade increases.

.01 Awards

a. Performance awards, when granted, must be based on an

employee's performance rating of record for the appraisal period

for which the award is granted.

b. A quality step increase (QSI) may be granted only to an

employee who receives an Outstanding summary performance rating.

As provided by 5 U.S.C. 5336, a QSI may not be granted to an

employee who has received one within the preceding 52 calendar

weeks. QSI's should be made effective as soon as possible after

the annual performance appraisal is finally approved.

c. The Performance Awards component of the Department's

Performance Management Plan describes the procedures for

making award determinations and for funding awards, and the uses

of performance awards.

d. DAO 202-451, "Incentive Awards," and related Personnel

Bulletins provide detailed policy guidance for all types of

awards.

.02 Within-grade Increases

a. Federal Wage System

. An employee who is otherwise eligible

b. General Schedule

receives a within-grade increase if his or her performance is

satisfactory or above, as provided in 5 U.S.C. 5343; i.e., the

employee's most recent rating of record is Fully Successful or

above.

. An employee who is otherwise eligible

is at an acceptable level of competence. This means that an

the employee has continued to perform his or her responsibilities

receives a within-grade increase when hi or her performance

employee's most recent performance rating is at least Fully

Successful and that during the period of time since that rating

in a manner warranting an increase in basic pay. When an

acceptable level of competence determination is not consistent

with the employee's last performance rating of record or when

an employee does not have a rating of record as recent as

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126

the completion of the latest performance appraisal cycle (as

specified under 5 CFR 531.404), an additional and more

current performance rating must be prepared, which becomes the

rating of record for purposes of granting or dying the within-

grade increase only.

.03 Promotion Actions

a. Competitive Promotions

. Selecting officials must give due

weight to the performance appraisals of job applicants in making

selection decisions under the Merit Assignment Program.

b. Career Ladder Promotions

. To receive a career ladder

promotion, an employee's most recent performance rating of record

must be Fully Successful or higher.

.04 Probationary Periods

a. Initial Appointments

. Supervisors of probationary employees

serving initial appointments must determine if the probationers'

performance, conduct, and general traits of character warrant

retention in their positions beyond the probationary period.

Supervisors must evaluate probationers' performance with

reference to the critical elements and standards of their

positions.

b. Initial Appointments to Supervisory Positions

. Performance

requirements for probationary supervisors should be set according

to DAO 202-430, "Performance Appraisal," and documented on Form

CD-516, "Classification and Performance Management Record." An

evaluation of Fully Successful or higher on all critical elements

of the performance plan is required for retention in the

supervisory position beyond the probationary period. (See also

DAO 202-412, "Supervisory and Management Development.")

.05 Actions Based on Unacceptable Performance

a. An employee whose performance is unacceptable must be

reassigned, removed, or changed to a lower grade.

b. An action based on unacceptable performance may be taken at

any time, either during or at the end of the appraisal cycle,

provided the requirements of paragraph 7.05.c. are met.

DAO 202-432, "Reduction in Grade and Removal Based on

c. Except for the exclusions stated in Section 2 of

Unacceptable Performance," before an employee may be removed

or demoted for unacceptable performance under the provisions of

Title 5, Chapter 43, the employee is entitled to:

1. Be informed in writing of the critical element(s) on which

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127

his or her performance is deficient;

2. Be assisted to improve his or her performance to an

should be preceded by some informal, oral feedback to the

of these warnings and meet (at least in part) their obligation

to assist the employee to improve, by including the following in

their notices:

acceptable level; and

3. Be given the opportunity to demonstrate acceptable

performance; as follows:

a. An employee whose performance is unacceptable must be

notified in writing that his or her performance is unacceptable,

and that the opportunity to improve is being given. The written

notice must also inform the employee of the critical elements on

which performance is unacceptable and the performance standards

required for retention. (This may be done simply by reference to

the performance standards in the performance appraisal plan; or

by defining a more specific set of tasks to be completed during

the opportunity period, with specific standards of timeliness,

quantity, or quality, etc. Such standards must be consistent

with, i.e., not more stringent than the more generic standards

stated in the plan.) This formal notice recorded in writing

employee about his or her unacceptable performance. However, an

oral warning preceding the written one is not required by this

Plan.

b. When the employee is notified in writing of his or her

unacceptable performance, the clock starts on the reasonable time

granted to demonstrate acceptable performance, unless a later

date is specified in writing. Neither the law nor regulation

specifies what that period of time must be. It depends on

the nature of the job, the level of the position, and the

consequences of unacceptable performance. In any case, the

period of time allowed must be commensurate with the requirements

of the position. The notice need not specify an exact period

(for example, 60 days). However, it is a good practice to

specify a minimum period to display improvement; e.g., not less

than 30 days.

c. Although OPM regulations require only that the job element(s)

on which performance has been unacceptable and the performance

standards for retention in the job be identified at the outset

of the opportunity to improve, managers may increase the efficacy

(1) Specific examples, arranged by performance element, of past

incidents (within the last year) of unacceptable performance;

(2) Where relevant, a description of the negative consequences

of the performance deficiencies;

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128

(3) A suggestion of steps the employee may take which would be

expected to lead to improve performance, e.g., better work

organization, time management, more thorough proofreading, more

follow-up;

(4) A statement of the steps the agency intends to take (or

to offer) to assist the employee to improve, e.g., to sponsor

training, offer counseling or personal assistance, or monitor

work more closely; and

(5) An explicit statement of the possible consequence of failure

level in the organization than the one who prepared the action.

.06 Performance at the Marginal Level (Level 2)

to improve within a reasonable period of time, i.e., removal,

demotion, or reassignment.

d. Reduction in Grade or Removal Based on Unacceptable

Performance. If an employee's performance is unacceptable during

the opportunity period, the employee must be reassigned, reduced

in grade, or removed. Except for the exclusions stated in

Section 2 of DAO 202-432 an employee who is being reduced in

grade or removed under the provisions of Title 5, Chapter 43

is entitled to the following before being removed or reduced

in grade: (1) a 30-day advance written notice of the proposed

action identifying specific instances of unacceptable performance

and the critical elements on which performance is unacceptable;

(2) at least seven calendar days to respond to the notice orally

and/or in writing and to furnish affidavits in support of the

reply; (3) to be represented; and (4) to receive a written

decision specifying the reasons for the action taken. The

decision must have the concurrence of an official at a higher

a. Continued performance at the Marginal level by an employee

jeopardizes the attainment of organizational goals and must be

corrected.

b. An employee whose performance is Marginal must be notified in

writing that his/her performance is deficient. The employee and

his/her supervisor must develop a written plan within 30 days

detailing the actions each will take to attempt to bring the

employee's performance to the Fully Successful (or above) level.

The plan must include bimonthly (one every two months) progress

reviews that are fully documented as to the employee's progress.

The plan must be continued until the employee's performance

improves to Fully Successful (and is documented as such in a

formal progress review) or he/she is rated Unacceptable.

c. An employee whose performance is Marginal may be reassigned.

- 22 -

.07 Reduction in Force

129

a. For RIF purposes, ratings considered ratings of record are:

(1) the rating given at the end of the appraisal period (normally

on an annual basis); (2) the rating given at the end of an

extended appraisal period (extended because the employee did not

serve 120 days in his/her current position); (3) the improved

rating following an opportunity to demonstrate acceptable

performance as provided in 5 U.S.C. 4302(b)(6).

b. An employee must not be assigned a new rating of record for

the sole purpose of affecting his/her RIF retention standing.

SECTION 8. TRAINING AND INFORMATION

communicating the purposes and procedures of the General

.01 Servicing human resources offices are responsible for

Workforce Performance Appraisal System by establishing

appropriate training and orientation programs. These

programs must emphasize performance plan development,

supervisory/management responsibility for carrying out the

program, and the linkage between performance ratings and employee

recognition and other personnel decisions.

.02 Information on changes in the operation of the General

Workforce Performance Appraisal System is conveyed to Department

management and affected employees through Office of Human

Resources Management issuances and newsletters.

SECTION 9. EVALUATION OF THE SYSTEM

.01 The Office of Human Resources Management assesses the

effectiveness of the General Workforce Performance Appraisal

System in the Department of Commerce through its ongoing

Personnel Management Evaluation Program. Commerce organizations

are evaluated on their technical compliance with laws, Office of

Personnel Management regulations, and Department policy.

Evaluations focus on the adequacy of performance plans and

rating as well as on each organization's performance rating

distribution as related to its accomplishments as reflected in

the Department's Management by Objectives Program.

.02 Operating units and Departmental Offices are encouraged

to establish internal evaluation systems to assess how well the

General Workforce Performance Appraisal System is working in

their organizations.

SECTION 10. RECORD KEEPING

.01 Performance appraisal records and related documents will be

maintained in accordance with the provisions of this document,

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130

the Privacy Act, Freedom of Information Act, other legislative

and regulatory requirements, and negotiated agreements.

.02 Performance ratings of record and the performance plans on

which those ratings were based must be retained for four years.

.03 Performance records that are superseded, e.g., through an

administrative or judicial procedure, must be destroyed.

.04 Except were prohibited by law, automated records may be

retained longer than four years for purposes of statistical

analysis as long as the data are not used in any action affecting

the employee when the manual record has been or should have been destroyed.

.05 When an employee transfers from on operating unit into

another also within the Department, or to another Federal agency,

the following performance records must be transferred with the

employee's OPF: (1) performance ratings of record that are four

years old or less; (2) the plan on which the most recent rating

of record is bases; and (3) the interim rating prepared when the

employee changes positions.

.06 Disclosure of performance-related information must be made

only as permitted by the Privacy act.

SECTION 11. DEFINITIONS

Acceptable Performance

is performance that meets an employee's

performance standards at the level of performance above Level 1

(Unacceptable or equivalent), i.e., Level 2 in the critical

element at issue on a five-level rating scale, Level 3 on a

three-level scale.

Agency

is the Department of Commerce.

Appointing Authority

is a Secretarial Officer or the head of a

primary operating unit or an official so designated by the

Secretary of Commerce.

Appraisal

is the act of process of evaluating the performance of

an employee against the prescribed performance standard(s).

Appraisal Period

means the period of time established by the

Department's General Workforce Performance Appraisal System for

which an employee's performance will be reviewed.

Approving Official

is normally the supervisor who assigns,

controls, and is responsible for the work of the rating official,

usually the rating official's immediate supervisor. However,

operating units or Departmental offices may designate a higher

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131

level official in the management chain as the approving official

Critical Element

provided this designation does not conflict with any other

provision of this document. The approving official is

responsible for assigning the final performance rating.

is a component of an employee's position

consisting of one or more duties and responsibilities, which

contributes toward accomplishing organizational goals and

objectives and which is of such importance that unacceptable

performance on the element would result in unacceptable

performance in the position

Fully Successful

is Level 3 of an element rating scale and

reflects good, sound performance, i.e., the expected level of

performance.

Generic Performance Elements

are performance elements which apply

to a group of employees in an organization.

Generic Performance Standards

(GPS) are performance standards

which define work behaviors or activities which, if engaged in by

employees, lead to a certain level of quality in products or

services. The GPS are written so that they may apply universally

to large groups of employees.

Interim rating

is a summary rating developed during a rating

cycle to document the performance of an employee who is changing

positions (if the employee served in the position for 120 days or

more) or completing a detail or temporary promotion of 120 days

or more. The interim rating, except where stipulated in this

document, is not a rating of record but is factored into the

final summary assigned the employee at the end of the rating

cycle. The interim rating is completed on Form CD-516,

"Classification and Performance Management Record," by the losing

supervisor, signed by the losing approving official, and

forwarded to the gaining supervisor. A copy is also given to the employee. Form

CD-516C, "Final Performance Rating Using Interim

Ratings," should be used to assign the final summary rating when

interim ratings must be considered.

Major Activity

is a task, duty, or project which needs to be

accomplished in support of a critical element.

Non-critical Element

is a component of an employee's job which

does not meet the definition of a critical element, but is

Opportunity to Demonstrate Acceptable Performance

sufficiently important to warrant written appraisal.

is a reasonable

performance at the level above Level 1.

chance for the employee whose performance has been determined to

be at Level 1 in one or more critical elements to demonstrate

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132

Performance

is an employee's accomplishment of assigned work as

specified in the critical and non-critical elements of the

employee's position.

Performance Award

is a performance-based cash payment to an

employee based on the employee's rating of record. A performance

award does not increase base pay.

Performance Management

is the systematic process by which the

Department integrates performance, pay, and awards systems with

its basic management functions for the purpose of improving

individual and organizational effectiveness in accomplishment of

Department mission and goals.

Performance Plans

are documents that define the critical (and

non-critical) elements against which a covered employee's

performance will be appraised and establish performance standards

for those elements.

Performance Standards

are statements of the expectations or

Pre-appraisal Meeting

requirements established by management for a critical (or non-

critical) element at a particular rating level. A performance

standard may include, but is not limited to, factors such as

quality, quantity, timeliness, and manner of performance.

is a meeting with the rating official

scheduled at the option of the employee prior to the formal

can: (1) present an assessment of his or her own performance

objectives he or she would like to include in the next cycle's

performance plan.

Progress Review

appraisal meeting. At the pre-appraisal meeting the employee

during the appraisal period; (2) cover aspects of his or her work

of which the rating official may not be aware; and (3) identify

is a formal meeting between the rating official

and employee at which the employee's progress toward meeting the

objectives in his or her performance plan is discussed. The need

for any changes to the plan may also be discussed at this meeting

as well as any performance deficiencies the supervisor has noted

along with recommendations for improving them.

Rating

(also referred to as "summary rating") is the written

record of the appraisal of each critical and non-critical element

and the assignment of a summary rating level.

Rating Official

is the person responsible for informing the

covered employee of the critical elements of his/her position,

establishing performance standards for those elements, appraising

performance and assigning the recommended performance rating.

Normally, this is the employee's immediate supervisor.

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133

Rating of Record

is the summary rating, under 5 U.S.C. 4302,

specified for special circumstances.

Unacceptable

required at the time specified in the Department's General

Workforce Performance Appraisal System or at other times

is Level 1 of the rating scale. It reflects

unacceptable performance in accordance with 5 U.S.C. 4301(3).

134

FORM CD-516B LF US DEPARTMENT OF COMMERCE

(REV 1-94)

APPENDIX A

DAO 202-430 GENERIC PERFORMANCE STANDARDS

in the performance plan (Summary ratings are the employee's work is of such significance that get the job done well inmore than one way while

terms for the rater to assign a particular rating the employee's usfulness. ment are consistently above average. Work pro-

specific examples of accomplishments which adapts quickly to new priorities and changes in problem-solving skill and insight into work methods

Occasionally, when rating some elements, a In meeting element objectives, the employee established deadlines. He or she uses ontingency

within a critical element and at the marginal level The employee seeks additional work or special with co-workers, clients, as appropriate, and his ot-

the rating form citing specific accomplishments with routinely and with exceptional skill. Problems which surface aredealth with supervisory

the rating official. Such standards are included in prevent misunderstandings. Complicated or contro- fectiveness leading to improved understanding of

such standards within the context of the GPS and comes are achieved. sympathet consideration because they are well-

with others and handles difficult situations with The employee is a good leader. Establishes

The employee has performed so well that organ- ages independence and risk-taking among subordi- ment in dealing with subordinates considering

often ahead of established schedules and with The employee has shown a comprehensive under- duties while also handling any difficult special as-

complex ideas clearly in a wide range of difficult The effective planning of the employee has duels.

INSTRUCTIONS GENERAL WORK FORCE erating procedures, task assignments, or program

The generic performance standards (GPS) are This is a level of rare, high-quality performance. activities. The employee has developed or im-

the primary basis for assigning element ratings in The quality of quantity of the employee's work plemented workable and cost-effective approaches

the Department of Commerce. The GPS are to be substantially exceed fully successful standards and to meeting organizational goals.

applied to each critical (and non-critical) element rarely leaves room for improvement. The impact of The employee has demonstrated an ability to

assigned by using a point scale after each element organizational objectives were accomplished that handling difficult and unpredicted problems. The

has been rated). otherwise would not have been. The accuracy and employee produces a high quantity of work often

When evaluating an element the rater should thoroughness of the employee's work on this ahead of established schedules with less than nor-

1 Read carefully each performance standard level element are exceptionally reliable. Application of mal supervision.

beginning with the fully successful one (it is technical knowledge and skills goes beyond that The employee writes and speaks clearly on dif-

considered the base level standard) expected for the position. The employee signif- ficult subjects to a wide range of audiences.

2 Determine which level best describes the cantly improves the work processes and products

employee's performance on the element (Each for which he or she is responsible. Thoughful ad-

GENERAL WORK FORCE

and every criterion in the standards does not herence to procedures and formats as well as sug- This is a level of unusually good performance.

have to be met by the employee in absolute gestions for improvement in these areas increase The quantity and quality of work under this ele-

level. The sum of the employee's performance This person plans so that work follows the most ducts rarely require even minor revision. Thor-

of the element must in the rater's judgement, logical and practical sequence. Inefficient back- oughness and accuracy of work are reliable. The

meet the assigned level's criteria) tracking is avoided. He or she develops contin- knowledge and skill the employee applies to this

3 Provide in writing, on the appraisal form, gency plans to handle potential problems and element are clearly above average demonstrating

support the assigned rating level. procedures and programs without losing sight of and techniques. The employee follows required

Element ratings of fully successful do not the longer-term purposes of the work. These procedures and supervisory guidance so as to take

require full written documentation unless the strengths in planning and adaptability result in full advantage of existing systems for accomp-

employee requests it. To assign a fully successful early or timely completion of work under all but the lishing the organization's objectives.

element rating, the rating official need only most extraordinary circumstances. Exceptions The employee plans the work under this ele-

documents in writing that (1) the fully successful occur only when delays could not have been ment so as to proceed in an efficient, orderly

standards were met, and (2) that the rating was anticipated. The employee's planning skills result in sequence that rarely requires backtracking and

discussed in detail with the employee cost-savings to the government. consequently leads to completion of the work by

rating official may determine that an employee's handles interpersonal relationships with exceptional planning to anticipate and prevent problems and

performance on an element was not consistent. sill, anticipating and avoiding potential causes of delays. Exceptions occur when delays have auses

For example, the employee may have performed at conflict and actively promoting cooperation with outside the employee's work planning.

the commendable level on several major activities clients, co-workers and he or her supervisor. The employee works effectively on this element

on several others. In such a case, the rating official assignments related to this element at increasing her supervisory, creating a highly successful coop-

must consider the overall effect of the employee's levels of difficulty. The quality of such work is high erative effort. He or she seeks out additional work

work on the element and make a judgement as to and is done on time without disrupting regular or special assignments that enhance accomp-

the appropriate rating level she/she will assign. The work. Appropriate problems are brought to the lishment of this element and pursues them to suc-

rationale for the decision must be documented on supervisor's attention. Most problems are dealt cessful conclusion without discrupting regular work

which support the decision. The employee's oral and written expression are intervention to correct problems occurs rarel

Any additional standards that are included in exceptionally clear and effective. They improve The oral and written expression applied to this

the performance plan must also be considered by cooperation among participants in the work and element are noteworthy for their clarity and ef-

performance plans to supplement the GPS, no versial subjects are presented or explained effec- the work by other employees and clients of the

supplant them. Rating officials should consider tively to a variety of audiences so that desired out- organization. Work products are generally given

rate elements accordingly. presented.

SUPERVISORY*

OUTSTANDING The employee is a strong leader who works well SUPERVISORY*

SES

This is a level of rare high quality performance. dignity and effectiveness. The employee encour- sound working relationships and shows goodjudge-

zational goals have been achieved that would not nates, yet takes responsibility for their actions. their views. He/she provides opportunties for staff

have been otherwise. The employee's mastery of Open to the views of others. The employee to have a meaningful role in accomplishing organ-

technical skills and thorough understanding of the promotes cooperation among peers and subor- izational objectives and makes special efforts to

mission have been fundamental to the completion dinates while guiding, motivating, and stimulating improve each subordinate's performance.

of program objectives. positive responses. The employee's work perfor-

The employee has exerted a major positive in- mance demonstrates a strong commitment to fair

FULLY SUCCESSFUL

fluence on management practices, operating pro- treament, equal opportunity, and the affirmative

SES

cedures and program implementation which has action objectives of the organization. This is the level of good, sound performance.

contributed substantially to organizational growth The employee has contributed positively to organi-

and recognition. Preparing for the unexpected, the

COMMENDABLE zational goals. All critical element activities that

employee has planned and used alternative ways of

SES could be completed are. The employee effectively

reaching goals. Difficult assignments have been This is a level of unusually good performance. applies technical skills and organization knowledge

managed intelligently and effectively. The employee It has exceeded expectations in critical areas and to get the job done.

has produced an exceptional quantity of work, shows sustained support of organizational goals. The employee successfully carries out regular

little supervision. standing of the objectives of the job and the pro- signments. The employee plans and performswork

If writing or speaking, the employee presents cedures for meeting them. according to organizational priorities and sche-

communications situations. Desired results are at- improved the quality of management practices op-

tained.

The employee also works well as a team mem- personnel. When needed as input into another productivity or morale, or organizational effective-

ber, supporting the group's efforts and showing an work process the work may not be finished with ness. The marginal employee does not provide

ability to handle a variety of interpersonal situa- such quality. Quantity and timeliness that other strong leadership or take the appropriate initiative

135

tions. work can proceed as planned. to improve organizational effectiveness. For exam-

This is the level of good, sound performance. quantity does not represent what is expected of

lines. Priorities are duly considered in planning and -Failure to respond to client needs; and/or

so their form and content are acceptable and reg- There is much in the employee's performance often require major revision because they are in-

vision. acceptable work. These deficiencies cannot be products, or it produces technically inadequate

The employee speaks and writes clearly and overlooked since they create adverse conse- products or results. Lack of adherence to required

other personnel. When needed as input into to inadequate work products.

their skills effectively. diate serious consequences, over time, they are ation with clients, supervisor, and/or co-workers or

SES generally is finished within expected timeliness direction and therefore, cannot operate adequately

level which may result in removal from the position. achievement of the purposes of the communication Most of the following deficiencies are typically,

es for the organization or create burdens for other extended period of time affect adversely employee

The employee communicates clearly and effect- Although the work products are generally of ple he/she too often fails to make decisions or ful-

ively. useable quality , too often they require additional fill supervisory responsibilities in a timely manner

All employees at this level and above have fol- work by other personnel. The work products do not to provide sufficient direction to subordinates on

lowed a management system by which work is consistently and/or fully meet the organization's how to carry out program, to give clear assign-

planned, tasks are assigned, and deadlines are needs. Although mistakes may be without im- ments, and/or performance requirements, and/or to

met. mediate serious consequences, over time they are show an understanding of the goal's of the organi-

detrimental to the organization. zation or subordinates' roles in meeting those

GENERAL WORK FORCE A fair amount of work is accomplished, but the goals.

The quality and quantity of the employee's work Fully Successful employees. Output is not sus-

UNSATISFACTORY

under this element are those of a fully competent tained consistently and/or higher levels of output

SES

employee. The performance represents a level of usually result in a decrease in quality. The work This is the level of unacceptable performance.

accomplishment expected of the great majority of generally is finished within expected timeframes Work products do not meet the minimum require-

employees. The employee's work products fully but significant deadlines too often are not met. ments of the critical element.

meet the requirements of this element. Major revi- The employee's written and oral communi- Most of the following deficiencies are typically,

sions are rarely necessary, most work requires only cations usually consider the nature and complexity but not always characteristic of the employee's

minor revision. Tasks are completed in an accurate, of the subject and the intended audience. They work:

thorough, and timely way. The employee's tech- convey the central points of information important -Little or no contribution to organizational

ical skills and knowledge are applied effectively to to accomplishing the work. However, too often the goals;

specific job tasks in completing work assignments. communications are not focused, contain too much -Failure to meet work objectives;

He or she adheres to procedures and format re- or too little information, and/or are conveyed in a -Inattention to organizational priorities and ad-

quirements and follows necessary instructions from tone that hinders achievement of the purpose of the ministrative requirements;

supervisors. communications. The listener or reader must que- -Poor work habits resulting in missed dead-

The employee's work planning is realistic and stion the employee at times to secure complete lines, incomplete work products;

results in comp of work by established dead- information or avoid misunderstandings. -Strained work relationships;

performing assigned responsibilities. Work reflects

GENERAL WORK FORCE -Lack of response to supervisor's corrective ef-

a consideration of costs to the government, when This level of performance, while demonstrating forts.

possible. some positive contributions to the organization,

In accomplishing element objectives, the em- shows notable deficiencies. It is below the level

GENERAL WORK FORCE

ployee's interpersonal behavior toward supervisors, expected for the position, and requires corrective The quantity and quality of the employee's

co-workers, and user's promotes attainment of work action. The quality, quantity, or timeliness of the work under this element are not adequate for the

objectives and poses no significant problems. employee's work is less than Fully Successful, position. The employee's work products fall short of

The employee completes special assignments jeopardizing attainment of the element's objective. requirements of the element. They arrive late or

ular duties are not disrupted. The employee per- that is useful. However, problems with quality, complete or inaccurate in content. The employee

forms additional work as his/hr workload permits. quantity, or timeliness are too frequent or too fails to apply adequate technical knowledge to

Routine problems associated with completing as- serious to ignore. Performance is inconsistent and complete the work of this element. Either the

signments are resolved with a minimum of super- problems caused by deficiencies counterbalance knowledge applied cannot produce the needed

effectively. quences for the organization or create burdens for procedures, instructions, and formats contributes

SUPERVISORY* another work process, the work may not be Because the employee's work planning lacks lo-

The employee is a capable leader who works finished with such quality, quantity, and timeliness gic or realism, critical work remains incomplete or

successfully with others and listens to suggestions. that other work can proceed as planned. is unacceptably late. Lack of attention to priorities

The employee rewards good performance and Although the work products are generally of causes delays or inadequacies in essential work,

corrects poor performance through sound use of useable quality, too often they require additional the employee has concentrated on incidental mat-

performance appraisal systems, performance-based work by other personnel. The work products do not ters.

incentives, and when needed, adverse actions and consistently and/or fully meet the organization's The employee's behavior obstructs the suc-

slects and assigns employees in ways that use needs. Although mistakes may be without imme- cessful completion of the work by lack of cooper-

The employee's work performance shows a detrimental to the organization. by loss of credibility due to irresponsible speech or

commitment to fair treatment, equal opportunity, A fair amount of work is accomplished but the work activity.

and the affirmative action objectives of the organ- quantity does not represent what is expected of In dealing with special projects, the employee

ization. Fully Successful. Employee's Output is not sus- either sacrifices essential regular work or fails to

tained consistently, and/or higher levels of output complete the projects. The employee fails to adapt

MARGINAL usually result in a decrease of quality. The work to changes in priorities, procedures, or program

This level of performance, while demonstrating but significant deadlines too often are not met. in relation to changing requirements.

some positive contributions to the organization, The employee's written communication usually The oral and written expression the employee

shows notable deficiencies. It is below the level considers the nature and complexity of the subject uses in accomplishing the work of this element

expected for the position and requires corrective and the intended audience. It conveys the central lacks the necessary clarity for successful comple-

action. The quality, quantity, or timeliness of the points of information important to accomplishing tion of required tasks. Communication failures in-

employee's work is less than Fully Successful, the work. However, too often the communication is terfere with completion of work.

jeopardizing attainment of the element's objective. not focused, contains too much or too little infor-

The employee's work under this element is at a mation, and/or is conveyed in a tone that hinders

SUPERVISORY*

There is much in the employee's performance In communication to co-workers, the listener must but not always common characteristics of the em-

that is useful. However, problems with quality, question the employee at times to secure complete ployee's work:

quantity, or timeliness are too frequent or too information or avoid misunderstandings. -Inadequate guidance to subordinates;

serious to ignore. Performance is inconsistent and -Inattention to work progress; and

problems caused by deficiencies counterbalance

SUPERVISORY* -Failure to stimulate subordinates to meet

acceptable work. These deficiencies cannot be Inadequacies surface in performing supervisory goals.

overlooked since they create adverse consequenc- duties. Deficiencies in areas of supervision over an

* Supervisory standards must be applied to

SES and General Work Force supervisors.

136

APPENDIX C

Operating Unit Appraisal Cycles

Following are the Appraisal cycles of Department of Commerce

operating units.

October 1 - September 30:

All operating units except Office of Inspector General.

June 1 - May 31:

Office of Inspector General.

November 1 - October 31:

NOAA Wage Marine Employees.

137

Appendices Contents

APPENDIX D

2 PAGE

1st DOCUMENT of Level 1 printed in FULL format.

UNITED STATES CODE SERVICE

ADVANCE LEGISLATIVE SERVICE

Public Law 101-376

101st Congress

[H.R. 3086]

States of America in Congress assembled.

SECTION 1. SHORT TITLE.

"(1) 'employee' means --

101 P.L. 376; 1990 H.R. 3086; 104 Stat. 461

SYNOPSIS:

An Act

To amend title 5, United States Code, to grant appeal rights to members of the

excepted service affected by adverse personnel action, and for other purposes.

AUG. 17, 1990 -- PUBLIC LAW 101-376

TEXT:

Be it enacted by the Senate and House of Representatives of the United

[*1]

This Act may be cited as the "Civil Service Due Process Amendments".

[*2]

SEC.2. EXCEPTED SERVICE APPEAL RIGHTS.

(a) IN GENERAL. -- Section 7511 of title 5, United States Code, is amended to read

as follows:

"@ 7511. Definitions; application

"(a) For the purpose of this subchapter --

"(A) an individual in the competitive service --

"(i) who is not serving a probationary or trail period under an initial

appointment; or

"(ii) who has completed 1 year of current continuous service under other than a

temporary appointment limited to 1 year or less;

"(B) a preference eligible in the excepted service who has completed 1 year of

current continuous service in the same or similar positions --

"(i) in an Executive agency; or

"(ii) in the United States Postal Service or Postal Rate Commission; and

"(C) an individual in the excepted service (other than a preference eligible) --

"(i) who is not servicing a probationary or trail period under an initial

appointment pending conversion to the competitive service; or

"(ii) who has completed 2 years of current continuous service in the same or

similar positions in an Executive agency under other than a temporary

3 PAGE

101 P.L. 376, *2; 1990 H.R. 3086;

104 Stat. 461

138

"(2) 'suspension' has the same meaning as set forth in section 7501(2) of this

title;

"(b) This subhcapter does not apply to an employee --

appointment limited to 2 years or less;

"(3) 'grade' means a level of classification under a position classification

system;

"(4) 'pay' means the rate of basic pay fixed by law or administrative action for

the position held by an employee; and

"(5) ' furlough' means the placing of an employee in a temporary status without

duties and pay because of lack of work or funds or other nondisciplinary reasons.

"(1) whose appointment is made by and with the advice and consent of the Senates

"(2) whose position has been determined to be of a confidential, policy-

determining, policy-making or policy-advocating character by --

"(A) the President for a position that the President has excepted from the

competitive service;

"(B) the Office of Personnel Management for a position that the Office has

excepted from the competitive service; or

"(C) the President or the head o fan agency for a position excepted from the

competitive service by statute;

"(3) whose appointment is made by the President;

"(4) who is receiving an annuity from the Civil Service Retirement and

Disability Fund, or the Foreign Service Retirement and Disability Fund, based on

the service of such employee;

"(5) who is described in section 8337(h)(1), relating to technicians in the

National Guard;

"(6) who is a member if the Foreign Service, as described in section 103 of the

Foreign Service Action of 1980;

"(7) whose position is with the Central Intelligence Agency, the General

Accounting Office, or the Veterans Health Services and Research Administration;

"(8) whose position is within the United States Postal Service, the Postal rate

Commission, the Panama Canal Commission, The Tennessee Valley Authority, the

Federal Bureau of Investigation, the National Security Agency, the, Defense

Intelligence Agency, or an intelligence activity of a military department covered

under section 1590 of title 10, unless subsection (a)(1)(B) of this section or

section 1005(a) of title 39 is the basis for this subchapter's applicability; or

"(9) who is described in section 5102(c)(11) of this title.

"(c) The Office may provide for the application of this subchapter to any position

or group of positions excepted from the competitive service by regulation of the

Office which is not otherwise covered by this subchapter.".

(b) ACTIONS BASED ON UNACCEPTABLE PERFORMANCE. --Section 4303(e) of title 5, United

States Code, is amended to read as follows:

"(e) Any employee who is --

"(1) a preference eligible;

"(2) in the competitive service; or

"(3) in the excepted service and covered by subchapter II of chapter 75,

and who has been reduced in grade or removed under this section is entitled to

4 PAGE

101 P.L. 376, *2; 1990 H.R. 3086;

104 Stat. 461

appeal the action to the Merit Systems Protection Board under section 7701.".

139

to any personnel action taking effect on or after the effective date of this Act.

[*3]

SEC. 3. ANNUITANT STATUS NOT A BAR TO APPEALING ONE'S REMOVAL.

Section 7701 of title 5, United States Code, is amended --

(1) by redesignating subsection (j) as subsection (k); and

(2) by inserting after subsection (i) the following:

"(j) In determining the appealability under this section of any case involving

removal from the service (other than the removal of a reemployed annuitant),

neither an individual's status under any retirement system established by or under

Federal statute nor any election made by such individual under any such system may

be taken into account.".

[*4]

SEC. 4. EFFECTIVE DATE.

This Act and the amendments made by this Act shall become effective on the date of

the enactment of this Act, and, except as provided in section 2(c), shall apply

with respect to any appeal or other proceeding brought on or after such date.

Speaker of the House of Representatives.

Vice President of the United States and President of the Senate.

140

8 PAGE

ITEM of Level 1 printed in FULL format.

Congressional Record – House

not spoken by a Member of the House on the floor.

SEC. 2. EXCEPTED SERVICE APPEAL RIGHTS.

Monday, November 6, 1989

101

Cong. 1

Sess.

135 Cong Rec H 8001

REFERENCE: Vol. 135 No. 154

TITLE: CIVIL SERVICE DUE PROCESS AMENDMENTS

SPEAKER: MR. GILMAN; Mrs. MORELLA; MRS. SCHROEDER; Mr. SIKORSKI

TEXT:

Text that appears in UPPER CASE identified statements or insertions which are

[*H8001] Mr. SIKORSKI. Mr. Speaker, I move to suspend the rule and pass

the bill ( H.R. 3086) to amend title 5, United States Code, to grant appeal rights

to members of the excepted service affected by adverse personnel actions, and for

other purposes, as amended.

The Clerk read as follows:

H.R. 3086

BE IT ENACTED BY THE SENATE AND HOUSE OF REPRESENTATIVES OF THE UNITED STATES OF

AMERICA IN CONGRESS ASSEMBLED,

SECTION 1. SHORT TITLE.

This Act may be cited as the “Civil Service Due Process Amendments”.

(a)In General. – Section 7511 of title 5, United States Code, is amended to read

as follows:

@ 7511. Definitions; application

"(a) For the purpose of this subchapter –

"(1) ‘employee’ means –

"(A) An individual in the competitive service –

"(i) who is not serving a probationary or trail period under an initial

appointment; or

"(ii) who has completed 1 year of current continuous service under other than a

temporary appointment limited to 1 year or less;

141

"(B) a preference eligible in the excepted service who has completed 1 year of

current continuous service in the same or similar positions --

9 PAGE

135 Cong Rec H 8001, *H8001

"(i) in an Executive agency; or

"(ii) in the United States Postal Service or the Postal Rate Commission; and

"(C) an individual in the expected service (other than a preference eligible)

who has completed 1 year of current continuous service in the same or similar

positions in an Executive agency under other than a temporary appointment limited

to 1 year or less;

"(2) 'suspension' has the same meaning as set forth in section 7501(2) of this

title;

"(3) 'grade' means a level of classification under a position classification

system;

"(4) 'pay' means the rate of basic pay fixed by law or administrative action for

the position held by an employee; and

"(4) who is receiving an annuity from the Civil Service Retirement and

Disability Fund, or the Foreign Service Retirement and Disability Fund, based on

the service of such employee;

"(5) 'furlough' means the placing of an employee in a temporary status without

duties and pay because of lack of work or funds or other nondisciplinary reasons.

"(b) This subchapter does not apply to an employee --

"(1) whose appointment is made by and with the advice and consent of the Senate;

"(2) whose position has been determined to be of a confidential, policy-

determining, policy-making or policy-advocating character by --

"(A) the President for a position that the President has excepted from the

competitive service;

"(B) the Office of Personnel Management for a position that the Office has

excepted from the competitive service; or

"(C) the President or the head of an agency for a position excepted from the

competitive service by statute;

[*H8002] "(3) whose appointment is made by the President;

"(5) who is described in section 8337(h)(1), relating to technicians in the

National Guard;

"(6) who is a member of the Foreign Service, as described in section 103 of the

Foreign Service Act of 1980;

"(7) whose position is within the Central Intelligence Agency, the General

Accounting Office, or the Veterans Health Services and Research Administration;

PAGE 10

135 Cong Rec H 8001, *H8002

142

"(8) whose position is within the United States Postal Service, the Postal Rate

Commission, the Tennessee Valley Authority, the Federal Bureau of Investigation, or

the National Security Agency, unless subsection (a)(1)(B) of this section or

section 1005(a) of title 39 is the basis for this subchapter's applicability; or

"(9) who is described in section 5102(c)(11) of this title.

"(c) The Office may provide for the application of this subchapter to any

position or group of positions excepted from the competitive service by regulation

of the Office which is not otherwise covered by this subchapter.".

Section 1204(e)(1) of title 5, United States Code, is amended by adding at the

end of the following:

135 Cong Rec H 8001, *H8002

(b) Actions Based on Unacceptable Performance. -- Section 4303(e) of title 5,

United States Code, is amended by striking "who is a preference eligible or is in

the competitive service and".

respect to any personnel action taking effect on or after the effective date of

this Act.

SEC. 3. ANNUITANT STATUS NOT A BAR TO APPEALING ONE'S REMOVAL.

Section 7701 of title 5, United States Code, is amended --

(1) by redesignating subsection (j) as subsection (k); and

(2) by inserting after subsection (i) the following:

"(j) In determiningg the appealability under this section of any case involving

a removal from the service (other than the removal of a reemployed annuitant),

neither an individual's status under any retirement system established by or under

Federal statute nor any election made by such individual under any such system may

be taken into account.".

SEC. 4. LOCATION OF MSPB HEARINGS.

"(c) Whenever it considers alternative places for conducting a hearing or other

proceeding brought by or on behalf of an employee, former employee, or applicant

for employment, the Board shall, to the extent practicable, select the place

closest to the location of the position held, formerly held, or sought by the

individual involved, unless the total administrative costs to the Government in

conducting such proceeding would be lesser elsewhere.".

SEC. 5. EFFECTIVE DATE.

This Act and the amendments made by this Act shall become effective on the date

of enactment of this Act, and, except as provided in section2(c), shall apply with

respect to any appeal or other proceeding brought on or after such date.

The SPEAKER pro tempore. Is a second demanded?

PAGE 11

Mrs. MORELLA. Mr. Speaker, I demand a second.

143

The SPEAKER pro tempore. Without objection, a second will be considered as

service employees who have completed 1 year of service in an executive agency, but

specifically excludes the following groups; First, Presidential appointees; second,

certain reemployed annuitants; third, National Guard technicians; fourth, members

ordered.

There was no objection.

The SPEAKER pro tempore. The gentleman from Minnesota (Mr. Sikorski) will be

recognized for 20 minutes, and the gentlewoman from Maryland (Mrs. Morella) will be

recognized for 20 minutes.

The Chair recognizes the gentleman from Minnesota (Mr. Sikorski).

GENERAL LEAVE

Mr. SIKORSKI. Mr. Speaker, I ask unanimous consent that all Members may have 5

legislative days to revise and extend their remarks on H.R. 3086, the bill

presently under consideration.

The SPEAKER pro tempore. Is there objection to the request of the gentleman from

Minnesota?

There was no objection.

Mr. SIKORSKI. Mr. Speaker, I yield myself such time as I may continue.

Mr. Speaker, H.R. 3086 extends administrative due process rights to certain

Federal employees in the excepted service. Who are these so-called excepted

service employees? Most Federal employees are "competitive service" hired only

after examination and ranking by the Office of Personnel Management. Others,

however, are "excepted" from the competitive service either because there is no

practical way to test peoople entering these positions or because certain

occupations already require a minimum proficiency as a prerequisite to licensing.

Examples of excepted service employees include attorneys, teachers, chaplains,

scientists, and other specialists. There are between a quarter and a half million

of the excepted service civil servants working for us.

The fact that an employee is not in the competitive services does not mean that

the employee did not go through extensive competition. Any attorney who has tried

to get a job at the Department of Justice will tell you hiring is extremely

competitive. And it certainly shouldn't mean that public employees should be fired

at whim and without recourse.

Nor can employees in excepted service positions be fired without notice. The

requirements of constitutional due process and numerous agency grievance procedures

usually require that excepted service employees be given notice and the opportunity

to defend themselves before removal.

The key difference between the protections available to competitive service

employees and veterans preference employees, on the one hand, and non-veterans,

excepted service employees, on the other, is the right to appeal an adverse action

to the Merit Systems Protection Board for independent review. H.R. 2086 eliminates

that difference.

PAGE 12

135 Cong Rec H 8001, *H8002

As amended, H.R. 3086 extends procedural protections to most excepted

144

of the Foreign Service; fifth, employees of the Central Intelligence Agency, The

General Accounting Office, and the Veterans Health Services and Research

Administration; sixth, employees, other than preference eligible, of the U.S.

Postal Service, the Postal Rate Commission; and seventh, the Tennessee Valley

Authority, the Federal Bureau of Investigations, and the National Security Agency.

What rights are we talking about? Specifically, the procedural protections

provided by this legislation are spelled out in chapters 43 and 75 of title 5,

United States Code. They are no big deal -- unless you're on of the employees

affected. In cases involving removal, suspension for more than 14 days, reductions

in grade or pay, or furlough for 30 days or less, the employee must be given 30

days advance written notice of the proposed action, an opportunity to respond in

writing, a written decision containing specific reasons for the adverse action or

the specific instances of unacceptable performance, and an appeal to the Merit

Systems Protection Board -- basic rights.

Why are we proposing this? Besides being the right and proper thing to do, last

year's Supreme Court decision in United States versus Fausto makes this legislation

all the more urgent. In that decision, the Supreme Court cutoff an alternative

method of judicial review for excepted service employees, saying that Congress, In

passing the Civil Service Reform Act of 1978, had intended to deprive excepted

service employees, other than those who were veterans preference eligible, of the

rights to challenge adverse actions. This bill explicitly provides those rights.

This bill simply provides that over a quarter million hard working Americans

working for the Federal Government as loyal employees will be assured basic due

process rights. They work right next to other civil servants, sometimes with the

same title, same pay, same grade, on the same project, in the same office but

without the same rights of notice and appeal if their boss comes down on them.

That's not fair and that's why similar measures passed the House under suspension

of the rules during both the 99th and 100th Congresses and I urge my colleagues to

once again support this measure.

I would also like to commend Representatives Schroeder, Dymally, Horton, and

Morella for their hard work on this legislation and a host of legislation affecting

the civil servants who work for the taxpayers of America.

[*H8003] U.S. Congress,

Congressional Budget Office,

Washington, DC., November 6, 1989.

Hon. William D. Ford,

Chairman, Committee on Post Office and Civil Service, U.S. House of

Representatives, Washington, D.C.

Dear Mr. Chairman: The Congressional Budget Office has reviewed H.R. 3086,

the Civil Service Due Process Amendments, as ordered reported by the House

Committee on Post Office and Civil Service, October 25, 1989. We estimate that

PAGE 13

135 Cong Rec H 8001, *H8003

implementation of this bill would cost about $2 million annually, beginning in

1991, assuming appropriation of the necessary sums.

According to information for the Office of Personnel Management, the bill would

increase by about 200,000 to 300,000 the number of Executive Branch employees

eligible to appeal adverse actions to the Merit Systems Protection Board (MSPB).

Under current law, most veterans' preference eligibles and employees in the

competitive service can appeals adverse actions to the MSPB, which handles an

145

average of 4,500 initial appeals and petitions for review annually. Assuming the

same proportion of excepted service employees would appeals to the MSPB as

competitive service employees, enactment of this bill would require the MSPB to

make an additional 500 to 900 decisions per year. The increased workload would

result in addition costs of about $1 million in 1991, the first full year of

implementation, gradually rising to about $1.1 million in 1994.

Extending appeal rights also would result in federal agencies having to ward

back pay to excepted service personnel who are successful in their appeals. Based

on experience with the appeals of Postal Service employees, we estimate that back

pay for employees affected by this bill is likely to be about $1 million per year.

Other costs associated with defending agencies' actions during MSPB appeals are not

expected to be significant.

No costs would be incurred by state or local governments as a result of

enactment of this bill.

If you wish further details on this estimate, we will be pleased to provide

them. The CBO staff contact is James Hearn, who can be reached at 226-2860.

Sincerely,

Robert D. Reischauer,

Director

Mr. Speaker, I reserve the balance of my time.

Mrs. MORELLA. Mr. Speaker, I yield myself such time as I may consume.

Mr. Speaker, I rise in support of H.R. 3086, a bill to amend title 5 of the

United States Code, to grant appeal rights to members of the excepted service

affected by adverse personnel actions, and for other purposes.

This is a bipartisan bill sponsored by members of the Post Office and Civil

Service Committee and passed unanimously by the committee. I want to thank the

sponsor of the bill and chairman of the Subcommittee on Civil Service, the

gentleman from Minnesota [Mr. Sikorski] for his active role in the swift passage of

the bill which will affect about 500,000 professional employees of the Federal

government.

Mr. Speaker, presently, those who are in the excepted service, that is, those

who are not in the competitive service -- such as attorneys, doctors, scientists,

teachers, chaplains -- are not given the right to appeal adverse personnel actions.

This bill would not be applicable to those enumerated in section 2 of the bill,

such as political appointees, foreign service, and intelligence agency personnel.

Appeal rights are given to those Federal employees in the competitive service. It

is my firm belief that every employee

PAGE 14

135 Cong Rec H 8001, *H8003

in the Federal Government should have the same protection.

Mr. Speaker, we are at a period when the Federal Government is finding it

difficult to attract promising, top-flight employees because the private sector is

able to compensate these men and woman at a much higher salary level. The very

minimum we should be able to offer attorneys, doctors, scientists, chaplains, and

others in the excepted service is a certain amount of fairness in appeal rights.

Due process is one of our inalienable rights. Attorneys throughout our country

plead due process even for the most heinous of criminals but our own attorneys in

Federal Government cannot avail themselves of this right when it involves adverse

action or assessment of their jobs.

146

I am pleased to have been one of the original cosponsors of this measure and I

recommend unanimous passage of H.R. 3086.

MR. GILMAN. MR. SPEAKER, I RISE IN SUPPORT OF H.R. 3086 AND I COMMEND THE

CHAIRMAN OF THE CIVIL SERVICE SUBCOMMITTEE, MR. SIKORSKI AND THE RANKING MINORITY

MEMBER MRS. MORELLA FOR CRAFTING THIS IMPORTANT LEGISLATION. I ALSO WANT TO THANK

THE CHAIRMAN OF THE FULL COMMITTEE, MR. FORD, FOR HELPING TO BRING THIS BILL TO THE

FLOOR.

WE PASSED THIS SAME MEASURE IN THE 99TH AND 100TH CONGRESS. EVERY YEAR WE GO

THROUGH THIS AND EVER YEAR IT MAKES AS MUCH SENSE AS IT DID THE YEAR BEFORE THE

EXTEND COVERAE TO EXCEPTED SERVICE EMPLOYEES. THIS RIGHT EXISTS FOR FEDERAL

EMPLOYEES IN THE COMPETITIVE SERVICE AND THERE IS NO REASON WHY EXCEPTED SERVICE

EMPLOYEES SHOULD BE EXCLUDED.

H.R. 3086 GRANTS APPEAL RIGHTS BASED ON ADVERSE ACTIONS AS WELL AS APPEAL AND

PROCEDURAL RIGHTS FOR EXCEPTED SERVICE EMPLOYEES BEFORE THE MERIT SYSTEMS

PROTECTION BOARD (MSPB) FOR ACTIONS BASED ON UNACCEPTABLE PERFORMANCE.

CURRENTLY, ONLY MEMBERS OF THE COMPETITIVE SERVICE AND PREFERENCE ELIGIBLE

EMPLOYEES IN THE EXCEPTED SERVICE HAVE APPEAL RIGHTS. HOWEVER, SUCH GROUPS AS

DOCTORS, TEACHERS, ATTORNEYS, CHAPLAINS, SCIENTISTS AND OTHERS DO NOT. H.R. 3086

CORRECTS THIS MISTAKE.

ACCORDINGLY, I URGE MY COLLEAGUES TO SUPPORT H.R. 3086.

MRS. SCHROEDER. MR. SPEADER, I WANT TO CONGRATULATE THE GENTLEMAN FROM MINNESOTA

(M. SIKORSKI) FOR HIS HARD WORK ON H.R. 3086, THE CIVIL SERVICE DUE PROCESS

AMENDMENTS. IN THE LAST 10 MONTHS NOT ONLY HAS HE GUIDED THIS BILL THROUGH

CONGRESS, BUT HE ALSO ENGINEERED THE PASSAGE OF THE WHISTLEBLOWER PROTECTION ACT,

THE HATCH ACT, AND MANY OTHER BILLS. SINCE BECOMING CHAIRMAN OF THE CIVIL SERVICE

SUBCOMMITTEE, HE HAS PRESIDED OVER MORE HEARINGS THAN JUDGE WAPNER.

I ALSO WANT TO COMMEND THE GENTLEMAN FROM CALIFORNIA [MR. DYMALLY]. HE IS THE

TRUE LEADER IN THE FIGHT TO GIVE EXCEPTED SERVICE EMPLOYEES THE RIGHT TO APPEAL

ADVERSE ACTIONS. WE ARE PASSING THIS BILL TODAY BECAUSE OF HIS COMMITMENT TO

FAIRNESS AND DUE PROCESS.

H.R. 3086 EXTENDS ADMINISTRATIVE NOTICE AND APPEAL RIGHTS TO EXCEPTED

SERVICE EMPLOYEES. EXCEPTED SERVICE EMPLOYEES WORK BESIDE COMPETITIVE SERVICE

EMPLOYEES BUT ARE DENIED DUE PROCESS RIGHTS BECAUSE THEY ARE HIRED THROUGH A

DIFFERENT PROCESS.

H.R. 3086 GIVES EXCEPTED SERVICE EMPLOYEES -- ATTORNEYS, TEACHERS, SCIENTISTS,

AND CHAPLAINS -- THE RIGHT TO APPEAL TO THE MERIT SYSTEMS PROTECTION BOARD (MSPB)

ADVERSE ACTIONS AND ADVERSE PERFORMANCE BASED APPRAISALS. THIS RIGHT IS ENJOYED BY

MEMBERS OF THE COMPETITIVE SERVICE AND PREFERENCE ELIGIBLE EMPLOYEES.

PAGE 15

135 Cong Rec H 8001, *H8003

EXCEPTED SERVICE EMPLOYEES WORK ALONG-SIDE COMPETITIVE SERVICE EMPLOYEES,

CONTRIBUTE TO THE SAME RETIREMENT SYSTEM, AND FACE THEY SAME INSECURITY WHEN THERE

IS A REDUCTION IN FORCE. BUT THEY HAVE NO RECOURSE OR DUE PROCESS RIGHTS WHEN

CHARGED WITH MISCONDUCT. IT IS TIME WE PROVIDE THEM WITH THIS NECESSARY PROTECTION.

I URGE MY COLLEAGUES TO SUPPORT H.R. 3086, THE CIVIL SERVICE DUE PROCESS AMENDMENTS

ACT OF 1989.

Mrs. MORELLA. Mr. Speaker, I yield back the balance of my time.

147

Mr. SIKORSKI. Mr. Speaker, I have no further requests for time, and I yield back

the balance of my time.

The SPEAKER pro tempore (Mr. Jontz). The question is on the motion offered by

the gentleman from Minnesota (Mr. Sikorski) that the House suspend the rules and

pass the bill, H.R. 3086, as amended.

The question was taken, and (two-thirds having voted in favor therof) the rules

were suspended, and the bill, as amended, was passed.

A motion to reconsider was laid on the table.

148

The PRESIDING OFFICER. The bill will be stated by title.

The assistant legislative clerk read as follows:

(a)In General. – Section 7511 of title 5, United States Code, is amended to read

as follows:

"(A) An individual in the competitive service –

2 PAGE

14TH ITEM of Level 1 printed in FULL format.

Congressional Record – Senate

Monday, July 10, 1990;

(Legislative day of Tuesday, July 10, 1990

101st Cong. 2nd Sess.

136 Cong Rec S 11134

REFERENCE: Vol. 136 No. 100

TITLE: CIVIL SERVICE DUE PROCESS AMENDMENTS

SPEAKER: Mr. BOREN; Mr. DOLE; MR. PRYOR

TEXT:

[*S11134] Mr. BOREN. Mr. President, I ask unanimous consent that the Senate

proceed to the immediate consideration of Calendar Order 547, H.R. 3086, the civil

service due process reform bill.

A bill (H.R. 3086) to amend title 5, United States Code, to grant appeal rights

to members of the excepted service affected by adverse personnel actions, and for

other purposes.

The PRESIDING OFFICER. Is there objection to the immediate consideration of the

bill?

There being no objection, the Senate proceeded to consider the bill which had

been reported from the Committee on Governmental Affairs with an amendment to

strike all after the enacting [*S11135] clause, and insert I lieu thereof the

following:

SECTION 1. SHORT TITLE.

This Act may be cited as the "Civil Service Due Process Amendments".

SEC. 2. EXCEPTED ERVICE APPEAL RIGHTS.

@ 7511. Definitions; application

"(a) For the purpose of this subchapter –

"(1) ‘employee’ means –

149

3 PAGE

"(B) a preference eligible in the excepted service who has completed 1 year of

current continuous service in the same or similar positions --

"(3) whose appointment is made by the President;

136 Cong Rec S 11134, *S11135

"(i) who is not serving a probationary or trail period under an initial

appointment; or

"(ii) who has completed 2 year of current continuous service under other than a

temporary appointment limited to 1 year or less;

"(i) in an Executive agency; or

"(ii) in the United States Postal Service or the Postal Rate Commission; and

"(C) an individual in the expected service (other than a preference eligible) --

"(i) who is not serving a probationary or trial period under an initial

appointment pending conversion to the competitive service; or

"(ii) who has completed 2 years of current continuous service in the same or

similar positions in an Executive agency under other than a temporary appointment

limited to 2 years or less;

"(2) 'suspension' has the same meaning as set forth in section 7501(2) of this

title;

"(3) 'grade' means a level of classification under a position classification

system;

"(4) 'pay' means the rate of basic pay fixed by law or administrative action for

the position held by an employee; and

"(5) 'furlough' means the placing of an employee in a temporary status without

duties and pay because of lack of work or funds or other nondisciplinary reasons.

"(b) This subchapter does not apply to an employee --

"(1) whose appointment is made by and with the advice and consent of the Senate;

"(2) whose position has been determined to be of a confidential, policy-

determining, policy-making or policy-advocating character by --

"(A) the President for a position that the President has excepted from the

competitive service;

"(B) the Office of Personnel Management for a position that the Office has

excepted from the competitive service; or

"(C) the President or the head of an agency for a position excepted from the

competitive service by statute;

150

4 PAGE

136 Cong Rec S 11134, *S11135

"(4) who is receiving an annuity from the Civil Service Retirement and

Disability Fund, or the Foreign Service Retirement and Disability Fund, based on

the service of such employee;

"(5) who is described in section 8337(h)(1), relating to technicians in the

National Guard;

"(6) who is a member of the Foreign Service, as described in section 103 of the

Foreign Service Act of 1980;

"(7) whose position is within the Central Intelligence Agency, the General

Accounting Office, or the Veterans Health Services and Research Administration;

"(8) whose position is within the United States Postal Service, the Postal Rate

Commission, the Tennessee Valley Authority, the Federal Bureau of Investigation, or

the National Security Agency, unless subsection (a)(1)(B) of this section or

section 1005(a) of title 39 is the basis for this subchapter's applicability; or

"(9) who is described in section 5102(c)(11) of this title.

"(c) The Office may provide for the application of this subchapter to any

position or group of positions excepted from the competitive service by regulation

of the Office which is not otherwise covered by this subchapter.".

(b) Actions Based on Unacceptable Performance. -- Section 4303(e) of title 5,

United States Code, is amended by striking "who is a preference eligible or is in

the competitive service and".

respect to any personnel action taking effect on or after the effective date of

this Act.

SEC. 3. ANNUITANT STATUS NOT A BAR TO APPEALING ONE'S REMOVAL.

Section 7701 of title 5, United States Code, is amended --

(1) by redesignating subsection (j) as subsection (k); and

(2) by inserting after subsection (i) the following:

"(j) In determiningg the appealability under this section of any case involving

a removal from the service (other than the removal of a reemployed annuitant),

neither an individual's status under any retirement system established by or under

Federal statute nor any election made by such individual under any such system may

be taken into account.".

SEC. 4. EFFECTIVE DATE.

This Act and the amendments made by this Act shall become effective on the date

of enactment of this Act, and, except as provided in section2(c),

shall apply with respect to any appeal or other proceeding brought on or after

151

5 PAGE

136 Cong Rec S 11134, *S11135

such date.

AMENDMENT NO. 2436

(Purpose: To specify employees who may appeal certain personnel actions to the

Merit Systems Protection Board.)

Mr. BOREN. Mr. President, on behalf of Senator Pryor, I send to the desk an

amendment to the committee substitute.

The PRESIDING OFFICER. The clerk will report.

The assistant legislative clerk read as follows:

The Senator from Oklahoma [Mr. BOREN], for Mr. Pryor, proposes and amendment

numbered 2436.

Mr. BOREN. Mr. President, I ask unanimous consent that reading of the amendment

be dispensed with.

The PRESIDING OFFICER. Without objection, it is so ordered

The amendment is as follows:

On page 10, strike out line 12 through 16 and insert in lieu thereof the

following:

(b) Actions Based on Unacceptable Performance. -- Section 4303(e) of title 5,

United States Code, is amended to read as follows:

"(e) Any employee who is --

"(1) a preference eligible:

"(2) in the competitive service; or

"(3) in the excepted service and covered by subchapter II of chapter 75,

and who has been reduced in grade or removed under this section is entitled to

appeal the action to the Merit Systems Protection Board under section 7701.".

Mr. PRYOR. Mr. President, The bill, as amended, amends section 7511 of title 5,

United States Code, to extend procedural protections to certain employees in the

excepted service who have completed 2 years of current continuous service in an

Executive agency. The bill covers such occupations as attorneys, physicians,

teachers, chaplains, and scientists.

The procedural protections are as follows: in cases involving removal,

suspension for more than 14 days, reduction in grade or pay, or furlough for 30

days or less, the employee must be given 30 days advance written notice of the

proposed action, an opportunity to respond in writing, a written decision

containing specific reasons for the adverse action or the specific instances of

unacceptable performance and an appeal to the Merit Systems Protection Board

(MSPB).

152

6 PAGE

136 Cong Rec S 11134, *S11135

The Office of Personnel Management originally opposed H.R. 3086. However, after

reviewing their position, OPM Proposed certain changes to the bill which would

eliminate its objections. OPM recommended that there should be a 2-year waiting

period before excepted service personnel would receive the procedural protections;

that excepted service personnel in probationary or trail positions should not be

eligible for the protection, and that the Panama Canal

[*S11136] The PRESIDING OFFICER. The question is on agreeing to the

amendment.

The amendment (No. 2436) was agreed to.

Mr. DOLE. I move to lay that motion on the table.

The motion to lay on the table was agreed to.

The PRESIDING OFFICER. If there be no further amendment to the proposed the

question is on agreeing to the committee amendment in the nature of a substitute,

as amended.

The PRESIDING OFFICER. The question is on the engrossment of the committee

amendment and third reading of the bill.

The amendment was ordered to be engrossed and the bill to be read a third time.

7 PAGE

Commission, the Defense Intelligence Agency and other intelligence officers and

employees of the military departments should be excluded from coverage from

H.R. 3086.

The subcommittee has agreed to accept these suggestions. The 2-year waiting

period excepted service personnel will ensure that the agency can fully judge an

employee's performance and yet vest these employees with important job protections.

The exclusion for probationary or trial positions is intended to address specific

job situations. Presidential management interns and veterans readjustment

appointees currently serve for a 2-year probationary period. Under H.R. 3086, for

the 2 years those employees spend as excepted service, they will not be eligible

for procedural protections. However, immediately upon their conversion to the

competitive service, the employee will be eligible for appeal rights without having

to wait another year. The probationary exclusion will cover situations such as

students in certain cooperative education program. These students can serve in the

excepted service for 4 years during their schooling. Again, if converted to the

competitive service, appeals rights will be immediately available.

Excluding employees in the Panama Canal Commission and the Defense Intelligence

Agency simply follow the pattern set out in the House-passed bill.

Mr. BOREN. Mr. President, I move to reconsider the vote.

The committee amendment, as amended, was agreed to.

The bill was read a third time.

The PRESIDING OFFICER. The bill having been read the third time, the question

is, Shall it Pass?

136 Cong Rec S 11134, *S11136

153

So the bill (H.R. 3086) was passed.

Mr. BOREN. Mr. President, I move to reconsider the vote.

Mr. DOLE. I move to lay that motion on the table.

The motion to lay on the table was agreed to.

154

Appendices Contents

155

Appendices Contents

PRODUCTIVITY AWARDS SCALE

APPENDIX F

GS-12

GS-14 GS-13

GS-11

Points per

1/2 year

award

Points per

1/2 year

award

1/2 year

award

Points per

1/2 year

Points per

1/2 year

award

1650 $10,000.00 1650 $10,000.00 1650 $10,000.00 1650 $10,000.00

1600 $9,000.00 1600 $9,000.00 1600 $9,000.00 1600 $9,000.00

1550 $8,000.00 1550 $8,000.00 1550 $8,000.00 1550 $8,000.00

1500 $7,000.00 1500 $7,000.00 1500 $7,000.00 1500 $7,000.00

1450 $6,000.00 1450 $6,000.00 1450 $6,000.00 1450 $6,000.00

1400 $5,000.00 1400 $5,000.00 1400 $5,000.00 1400 $5,000.00

1350 $4,000.00 1350 $4,000.00 1350 $4,000.00 1350 $4,000.00

1300 $3,500.00 1300 $3,000.00 1300 $3,000.00 1300 $3,000.00

1250 $3,000.00 1250 $2,500.00 1250 $2,500.00 1250 $2,500.00

1200 $2,500.00 1200 $2,000.00 1200 $2,000.00 1200 $2,000.00

1100 $2,000.00 1100 $1,500.00 1100 $1,500.00 1100 $1,500.00

1000 $1,500.00 1000 $1,000.00 1000 $1,000.00 1000 $1,000.00

900 $1,000.00 900 $750.00 900 $750.00 900 $750.00

800 $750.00 800 $500.00 800 $500.00 800 $500.00

700 $500.00 700 $400.00 700 $400.00 700 $400.00

600 $300.00$300.00 600 $300.00 600 600 $300.00

500 $200.00 500 $200.00 500 $200.00 500 $200.00

400 $100.00 400 $100.00 400 $100.00 400 $100.00

156

Appendices Contents

157

158

159

160

Appendices Contents

161

162

Appendices Contents

163

164

Contents

INDEX

SUBJECT ARTICLE SECTION PAGE

Address, providing home 8 4 16

Administrative leave due to weather

Or emergency 18 8(C) 61

Adverse Actions

- aggravating circumstances 36 3 100

Annual leave 18 2 54

- appeal 36 6 102 -

copy to union 36 7 102

- discussions with employee 36 8 102

- final decision 36 5(C) 102

- furloughs 36 1(A) 100

- mitigating circumstances 36 3 100

- notice to employee 36 4(A) 101

- off-duty misconduct 36 9 102

- oral reply 36 5(B) 101

- progressive discipline 36 3 100

- proposal, contents of 36 4(A) 101

- reductions in pay 36 1(A) 100

- relation to offense 36 2 100

- removals 36 1(A) 100

- reply by employee 36 5(A) 101

- right to representation 36 4(B) 101

- suspensions 36 1(A) 100

Agreement

- amendment to 2 3 5

- copies for union 20 2 64

- distribution of

- to bargaining unit members 20 1 64

- to the union 20 2 64

- duration of 21 1 65

- effect of past practice on 3 2 6

- effective date of 21 1 65

- PTO policy and 3 3 6

- Purpose 1 4

- renewal of 21 1 65

- reproduction of 20 1 64

- termination, procedures for 21 1 65

- to whom applies 2 2 5

165

- advances of leave 18 2(B) 54

- planned leave 18 2(B) 54

- SF – 71 18 2(E) 55

- unplanned leave 18 2(D) 55

- when granted 18 2(A) 54

Appearance of employee 8 6 16

Arbitration

- grievance 11 11(D) 26

- non-arbitrable matters 11 7 24

- procedures 11 14 27

Automated equipment 28 82

- downtime 28 4 82

Bargaining Unit

Building, see Physical Facilities

- impact and implementation bargaining 28 6 82

- inspection and maintenance 28 3 82

- new equipment 28 1(A) 82

- search time data 28 1(B) 82

- system evaluations 28 1(C ) 82

- training 28 5 82

- work environment 28 2 82

Automation, see Automated Equipment

Awards, see Performance Based Awards

- positions excluded 2 1 5

- recognition 2 1 5

Behavior of employee 8 6 16

Bereavement, leave for 18 7 60

Bulletin boards, union use of 17 1,2 51

Career development details 19 62

- administration of 19 2(A) 62

- announcement

- multiple details 19 2(B) 62

- substance 19 2(B) 62

- time frame 19 2(A) 62

- time until commencement of detail 19 2(B) 62

- definition and purpose 19 1 62

- notice to applicants 19 5 63

- notice to Union of selectees 19 4 63

- selection factors 19 3(B) 62

- selection preference 19 3(A) 62

- selection procedures 19 3(B) 62

- work projects 19 6,7 63

Child Care 24 71

Compensatory time 18 4 55

Complaints against employees 7 4(A),(B) 12

Compliments of employees 7 4(D) 13

Complying with

laws and regulations 8 1 16

166

policies 6 6 10

office hours 8 2 16

Alternate work schedules 26 1-8 74-80

- options 26 4 75

Computers, see Automated Equipment

Consultation with union, management 6 2 10

Core hours 26 3 75

Courses, seminars

- accreditation for Office sponsored

training 22 5(C) 67

- announcement of 22 2(A),(C) 66

- applicant initiated interviews 22 7 67

- compensatory time for 22 3(B) 66

- list of courses, distribution of 22 1,5(A) 66

- non-production time for 22 3(A) 66

- publications and technical material 22 6 67

- reimbursement for 22 5(A),(B) 67

- requests for 22 2(C ) 66

- restrictions on training time 22 4 66

- selection for 22 2(A) 66

- Union officers 16 7 49

Definitions 4 7

Desk audit 7 8(C ) 14

Details, see Career Development Details

Disciplinary actions

- administrative challenge 35 6 98

- aggravating circumstances 35 3 97

- copy to Union 35 7 99

- counseling 35 1(B) 97

- oral reply 35 5(B) 98

- discussions with employee 35 8 99

- falsifying records 8 8 16

- fifth amendment 7 12 15

- final decision 35 5(C ) 98

- grievance procedure 35 6 98

- mitigating circumstances 35 3 97

- notice to employee 35 4(A) 98

- off-duty misconduct 35 9 99

- progressive discipline 35 3 97

- proposal, contents of 35 4(A) 98

- refusal to answer inquiry 7 12 15

- relation to offense 35 2 97

- reply by employee 35 5(A) 98

- right to representation 35 4(B) 98

- suspensions 35 1(A) 97

- untruthful answer 8 9 17

- Weingarten meeting 7 7 13

- Written reprimands 35 1(A) 97

Dress of employee 8 6 16

167

Duration and Amendment 21 65

Dues withholding

- eligibility 32 1 90

- procedures 32 2 90

- revocation by employee 32 3 91

- termination by the Office 32 4 91

- procedures for revocation 32 5 92

- procedures in event of underpayment 32 5 92

- procedures in event of overpayment 32 6 92

- adjustments to salary 32 7 92

- waiver of overpayment 32 7 92

- magnetic dues withholding tapes 32 8 92

- NTEU financial programs 32 8 92

- fees for service 32 9 93

Employees

- behavior 8 6 16

- complying with laws and regulations 8 1 16

- complying with policies 6 6 10

- contact with the public 8 7 16

- dress 8 6 16

- employee assistance program 13 3(B) 39

- obligations 8 16

- rights 7 12

Employment, see Part-time, Outside

Equal employment opportunity

- affirmative action plan 29 3 83

- complaint procedure 29 3 83

- complaints, numbers and types of 29 4(B) 83

- counselor system 29 5 83

- distribution of EEO counselor lists 29 7 84

- informal EEO counseling 29 6 83

- posting of EEO counselor lists 29 7 84

- Federal EEO Program 29 1 83

- protected classes 29 2 83

- work force composition 29 4(A) 83

Extension of time in grievance 11 15 29

Facilities, see Physical Facilities, Union Facilities

Facsimile machine, union use of 17 6 51

Falsification of records

Office records 8 8 16

Flexitime 26 1-3 74-75

- core hours 26 3 75

Formal meetings 9 4,5 13

Fund raising drives 7 5 13

Grievance

- combining multiple grievances 11 8 24

- definition 11 3 22

- extension of time limits 11 15 29

168

- failure to meet requirements,

effects of 11 6 23

- multiple grievances, combining 11 8 24

- non-grievable matters 11 4 23

- declaration of 11 7 24

- non-grievance, informal discussion 11 9 24

- negotiated agreements and 11 2(A) 22

- termination 11 5 23

- agency head review 33 6 95

- start of negotiations 33 2(D) 94

- requesting 18 3(B) 55

- procedure 11 24

- who may use them 11 2(B) 22

- rights of parties and union 11 13 26

- representation 11 13 26

- self-representation 11 10 24

- steps in processing grievance 11 11 24

GWPAS, and performance appraisal 13 1 37

Impact and Implementation bargaining

- clarification meeting 33 2(B) 94

- collective bargaining agreement and 33 5 95

- disapproval of agreement 33 7 95

- distribution of MOU’s 33 4 95

- emergency 33 1 94

- groundrules 33 3 94

- joint labor team negotiations 33 1 94

- memoranda of understanding 33 4 95

- notice to Union 33 2(A) 94

- proposals for 33 1 94

- union counterproposal 33 2(C ) 94

Information

- access to 7 9 14

- personal, confidentiality 10 8 21

Investigation of employee 7 12 15

Laws, precedence of 3 6

Leave, see also specific type of leave 18 53-61

Leave

- abuse, refraining from 8 2 16

Letter of reprimand 18 8(A) 61

Management

- obligations 6 10

- rights 5 9

Maternity leave 18 3 55

- length of absence 18 3(A),(C) 55

- medical certificate for 18 3(B),(C) 55

- modification of job duties 18 3(E) 55

- sick leave and 18 3(A),(B) 55

- type of leave used 18 3(A) 55

169

Meeting space, union use of 17 3 51

Office space, see Physical Facilities

- approval 25 2(A) 72

- failure to request approval 25 4 73

- notification of 15 6 47

- when authorized 15 1 47

Military leave 18 8(C) 61

Negotiation with union 6 2 10

Newly hired attorney list 6 4 10

Off duty misconduct 7 11 15

Office hours, complying with 8 2 16

Official personnel folder 7 6 13

Oral admonishments

Orientation session 9 6 18

Outside Employment

- changed circumstances 25 2(B) 72

- government equipment (use of) 25 5 73

- prohibition criteria 25 1 72

- requests for approval 25 3 72

Overtime

- announcement of 15 1 47

- assignment of 15 4,5 47

- disciplinary action and 15 2,3 47

- falsification of records 15 2 47

- grievance procedure and 15 4 47

- scheduling of 15 6 47

- training for 15 4 47

Part-time employment 23 68

Past practices superceded 3 2 6

Paternity leave 18 3(D) 55

Paycheck, see Salary

Performance appraisal 13 37

- appeal

- from action to remove non-veteran 13 3(E)(2) 39

- from action to remove veteran 13 3(E)(1) 39

- to approving official 13 1(F) 37

- arbitrator may change score 13 5 41

- changing performance plan

- notification of change 13 1(B)-(D) 37

- temporary change 13 1(D) 37

- extraordinary business

emergency 13 1(D) 37

- Civil Service Due Process

Amendments

170

- Exceptions 13 3(E) 39

- criteria used in rating

- performance during appraisal period 13 1(I) 37

- observation of rating official 13 1(J) 38

- supplemental standards 13 1(K) 38

- disagreements over rating 13 1(F) 37

- distribution of PAP (timing) 13 1(G) 37

- employee assistance program (OEAP) 13 3(B) 39

- extension of due date of official rating 13 1(J) 38

- extraordinary business emergency 13 1(D) 37

- GWPAS and 13 1 37

- Narrative for all scores above FS 13 4 41

- Performance improvement period (PIP) 13 3(F) 39

- Reduction in grade or removal 13 3(D) 39

- Notice in writing of 13 3(H)(1-4) 40

- removal of record 13 3(N) 41

- representation for oral reply 13 3(J) 40

- resignation in lieu of removal 13 3(M) 41

- unacceptable performance 13 3 39

- copy of decision to union 13 3(O) 41

- contents of actions 13 3(L) 41

- evidence to support removal

or reduction in grade 13 3(I) 40

- meetings with employee/union 13 3(G) 39

- notice requirements 13 3(H)(1-4) 40

- oral replies (summary) 13 3(K) 40

- performance improvement period 13 3(F) 39

(PIP)

- period covered in action for removal 13 3(L) 41

- proposed action 13 3(H)(1-4) 40

- reduction in grade or removal 13 3(D) 39

- removal of record 13 3(N) 41

- union representations 13 3(J) 40

- unacceptable performance, notice of 13 3(A) 39

- transfers to different offices (perf) 13 3(C ) 39

- unfair rating 13 1(H) 37

- union role

- in developing perform. Plans 13 1(E) 37

- in meeting with employee 13 3(G) 39

- within grade increase

- criteria for earning 13 2(A) 38

- denial of 13 2(B)-(E) 38

- work details and 13 1(A) 37

Performance awards

- budgetary limitations 31 1 86

- change in PAP and 31 7 88

- discretion of Office 31 1 86

- duration 31 1 86

- eligibility for 31 2(A)(B)(C) 86

171

- incentive awards 31 1 86

- quality step increases 31 8 88

- shortage of funds 31 6 88

- when paid 31 3(B),4(C),5(B)86-88

Personal computer, union use of 17 4 51

Personnel folder, official 7 6 13

Photocopy machine, union use of 17 5 51

- painting and cleaning 14 6 44

Position descriptions, changes to 7 8 14

Physical Facilities

- administrative leave (excused) 14 12 45

- air conditioning 14 11(A) 45

- assignment of office space 14 10 45

- decorating and maintaining space 14 3 44

- govt-wide space utilization regs 14 2(H) 44

- health and safety committee 14 14 46

- health and safety inspections 14 7 44

- heating and cooling 14 11(A) 45

- illnesses and injuries 14 8 45

- injuries and illnesses 14 8 45

- library (access to) 14 5 44

- lighting, heating, cooling 14 11(A) 45

- maintaining and decorating space 14 3 44

- new equipment data 14 13 46

- office size 14 2(A) 42

- office space (assignment of) 14 10 45

- reallocation of existing space 14 2(B) 42

- rule and regulations 14 1 42

- safety inspections 14 7 44

- smoking rules 14 4 44

- space utilization regulations 14 2(C ) 42

- ventilation, heating and cooling 14 11(A) 45

- workers compensation claims 14 9 45

Policies given to employees 6 6 10

Preamble 1 4

Previous agreements superceded 3 2 6

Professionalism 22 66

Prohibited union actions 10 5 20

Promotion

- career ladder promotions 12 7 34

- competitive promotions 12 3(A) 30

- delays in promotions 12 12 35

- disadvantageous position 12 5 34

172

- duration of certificate 12 4(K)(7) 33

- excessive number 12 4(K)(2) 32

- grievances 12 4(N) 34

- information regarding selection 12 4(L) 33

- interview with selecting official 12 4(K)(8) 33

- leave 12 8 35

- “Merit Assign Program Cert” 12 4(K) 32

Public contact, employee behavior 8 7 16

Rating, see Performance Appraisal

- minimum requirements 12 4(C ) 31

- more than one vacancy 12 4(K)(3) 32

- non-tmo employee selection 12 4(K)(6) 33

- notice to applicants 12 4(E) 31

- number of candidates 12 4(K)(1) 32

- panel for ranking 12 4(G) 31

- personnel actions (requests for) 12 11 35

- posting and distribution 12 4(A) 30

- priority for TMO employees 12 4(K)(4) 32

- promotion 12 4(K)(9) 33

- “Qualified and “Best Qualified” 12 4(H) 31

- ranking factors 12 4(D) 31

- ranking of applicants 12 4(G) 31

- reassignment 12 3(C ) 30

- reassignments/staffing imbalance 12 13 36

- requests for transfers 12 10 35

- right of Office to 12 2 30

- selection criteria 12 1 30

- selection report for union 12 4(M) 33

- staffing goals and hiring plans 12 9 35

- substance of 12 4(B) 31

- temporary assignments 12 6(B) 34

- temporary promotions 12 3(B) 30

- temporary promotions 12 6(A) 34

- vacancy announcement

Questions – truthful answers to 8 9 17

Reassignment, see Promotion

Receipt of Pay 27 81

Reduction – in – force

- attrition, instead of RIF 30 1 85

- impact and implem. barg. 30 3 85

- Union notification of RIF 30 2 85

Regulations

- Depart. Of Commerce, precedence 3 1 6

- Govt wide, precedence 3 1 6

- Right to make 5 4 9

Religious observances, leave for 18 6 60

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Reorganizations

- consulting with union 6 3 10

Representation in grievance 11 13 26

Reproduction and Distribution 20 64

Resignation 7 10 14

- in lieu of removal 13 3(M) 41

- proposed discipl or adverse action 7 10(C ) 14

- withdrawing 7 10 14

Salary

- direct deposit

- electronic funds transfer

- emergency salary payments

- processing errors

- replacement salary checks

Seminars, see Courses

Smoking, see Physical facilities

Standards of conduct for Union 10 2 20

Tardiness, infrequent, see also Office hours 18 8 61

Telephone

- messages 8 3 16

- number of union president 6 7 11

- providing home number 8 4 16

Time used by Union

- adverse action hearing 16 12 48

- approval procedure 16 8(A),9 49

- arbitration hearing 16 2(H)(2) 48

- basic negotiations groundrules 16 2 48

- counseling of employees 16 1(A) 48

- denial of 16 9 49

- discrimination complaints 16 1(A) 48

- grievance

- preparation for 16 1(A),10 48-50

- grievant 16 10 50

- witnesses 16 11 50

- presentation of 16 1(D), 11 48-50

- observer at 16 1(D) 48

- impact and implementation

- impact and implementation barg. 16 2 48

- Interpretation of Agreement

- Interpretation of Agreement or CSRA 16 1(E) 48

- Investigation by management 16 12 50

- Meeting with Trademark

- Meeting with Trademark Advisory 16 1(F) 48

- Meetings with Office

174

- Office initiated 16 3 49

- Preparation for 16 1(B) 48

- Informal 16 1(B) 48

- meetings with unit members

- to discuss working conditions 16 4 49

- to discuss contract 16 7 49

- orientation 16 2(E) 48

- MSPB hearing 16 2(B) 48

- Notice for supervisor 16 9 49

- Official or “bank” time

- Amount 16 1 48

- Authorized uses of 16 1 48

- quarterly records 16 8(B) 49

- reasonable time

- when granted 16 2 48

- review of documents 16 1(C ) 48

- solicitation of dues or members 16 5 49

- timesheets and 16 8(A) 49

- training for Union officers 16 6 49

- unfair labor practices charge 16 2 48

Training, see Courses, Seminars

Transfers to different offices

- requests for transfers 12 10 35

- for improving performance 13 3(C ) 39

Trial period employees

- notice of performance 34 1 96

- right to terminate 34 3 96

- voluntary resignation 34 2 96

Unfair labor practice, advance notice 10 3 20

Union

- facilities 17 51

- bulletin boards 12 1,2 51

- facsimile machine 17 6 51

- meeting space 17 3 51

- personal computer 17 4 51

- photocopy machine 17 5 51

- printer 17 4 51

- obligations 10 20

- prohibited actions 10 20

- representative, right to 7 7 13

- rights 9 18

- standards of conduct 10 2 20

Union Representation and Official Time 16 48

Union time, see Time used by Union

Vacancy announcements, see Promotion

Weather, leave due to inclement 18 8(C ) 61

Weingarten meetings 7 7 13

175

Within grade increases

- criteria for earning 13 2(A) 38

- denial of 13 2(B)-(E) 38

Work projects, see Career Dev. Details

Work Schedules, see also Flextime

And Alternate work schedules 26 74

Work schedules and other barg. Units. 26 8 80

176