Issue Briefs

Following are sections from recent OPM guidance strongly discouraging agencies from committing to using tables of penalties or progressive discipline on grounds that such practices limit management’s ability to impose up to the maximum penalty for a given situation.

Progressive Discipline

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The adoption of a progressive discipline approach constitutes an agency’s exclusive choice to impose the least serious disciplinary or adverse action applicable to correct the issue or misconduct, with penalties imposed at an escalating level for subsequent offenses. Agency policy should not require or permit supervisors and deciding officials to use progressive discipline as a default rule or benchmark when determining the appropriate penalty. Rather, each employee’s work performance and disciplinary history is unique, and disciplinary action should be tailored to the specific facts and circumstances of each individual employee’s situation. As an example of assessing the appropriate penalty, suspension should not be a substitute for removal for circumstances in which removal would be appropriate.

Progressive discipline is not defined in statute or regulation. Rather, its provenance is in the private sector, where processes are generally less bound by statutory procedures and decisional law interpreting such procedures. In the Federal sector, statutes, regulations, and decisional law interpreting statutes and regulations govern. The Douglas factors, see 5 M.S.P.R. 280 (1981), provide an adequate and useful template for arriving at reasonable penalty determinations. The supervisor should also weigh any relevant aggravating and mitigating factors that may be relevant, such as the nature and severity of the offense, the employee’s disciplinary record and years of service, the employee’s potential for rehabilitation, and applicable agency penalty guidelines. When taking disciplinary action, agencies have discretion to take into account an employee’s disciplinary record and past work record, including all past misconduct, not only similar past misconduct.

With regard to collective bargaining on the topic of progressive discipline, Federal Labor Relations Authority (FLRA) precedent has consistently and, in our view, correctly ruled that proposals that require the adoption of progressive discipline restricting management’s decision as to the appropriate disciplinary penalty to impose under the circumstances of each case are nonnegotiable because they directly interfere with management’s statutory right to discipline and limit an agency’s right to choose disciplinary penalties.7 Agency negotiators are encouraged to consult with legal counsel and labor relations concerning questions relating to negotiability of any union proposals received in collective bargaining.

 

Tables of Penalties

No Requirement for a Table of Penalties

A table of penalties is a non-exhaustive list of common infractions along with a suggested range of penalties for each infraction.

As noted above, a table of penalties is not required by statute, OPM regulations, or case law. Indeed, as discussed earlier, not all adverse actions are disciplinary or punitive in nature. Furloughs are one example of this. Where tables of penalties exist, they are established at an agency’s exclusive discretion. Any table of penalties that is in use should establish at the outset that it is mere guidance and not an exclusive or exhaustive source of such guidance. Indeed, an agency has sufficient flexibility to address misconduct appropriately without a table of penalties and to determine the appropriate penalty for each instance of misconduct. Specifically, supervisors should rely on the Douglas factors to propose and effectuate appropriate penalties for employee misconduct. Without purporting to be exhaustive, the MSPB has articulated that the 12 Douglas factors set forth those factors which are generally recognized as relevant to selection of an appropriate penalty.

FLRA case law has established that proposals that would require incorporation of a table of penalties into a CBA or require management to use a table of penalties, thereby restricting the range of penalties prescribed for specific offenses and require penalties within a certain range, are nonnegotiable.8 Such proposals unduly restrict management’s statutory right to suspend, remove or otherwise discipline, and management’s exercise of discretion in determining appropriate corrective action to address employee misconduct.9 Agency negotiators are encouraged to consult with legal counsel and labor relations offices concerning questions relating to negotiability of any union proposals received in collective bargaining.

Agency Discretion in Managing Its Workforce

Both the Court of Appeals for the Federal Circuit and the MSPB have held that the Board’s role in determining reasonableness of penalties must accord proper deference to the agency’s primary discretion in managing its workforce. An agency must have sufficient flexibility to consider mitigating and aggravating factors when considering discipline for misconduct. Given these considerations, the disadvantages of instituting a table of penalties are manifold. One risk of having an agency table of penalties is that the manager may apply it inflexibly so as to impair consideration of other factors relevant to the individual case. If such a table is utilized, notwithstanding our cautions, a table of penalties should be used only as a guide as it may not effectively address all situations. In fact, it is unlikely that a table of penalties can be comprehensive given the scope of misconduct that can possibly occur.

A table of penalties does not and should not replace supervisory judgment nor should supervisors rely on this tool instead of using their best judgment, given the totality of the circumstances. It is vital that supervisors use independent judgment, take appropriate steps in gathering facts, and conduct a thorough analysis to decide the appropriate penalty. There is no substitute for management judgment. Mere “surface” consistency should be avoided, and tables of penalties should not be applied so inflexibly as to impair consideration of other factors relevant to the individual case. In light of MSPB precedent, relying on the 12 Douglas factors gives an agency the best chance of successfully defending its penalty if the agency’s decision is formally challenged.

 

A Table of Penalties is An Additional Condition When Defending Agency Actions

A table of penalties may create additional obstacles to an agency’s ability to defend actions taken to address misconduct. Although the MSPB has never held that an agency is required to have a table of penalties,10 if an agency does adopt a table of penalties, the agency must consider it when determining a penalty for misconduct, because consistency with an agency’s table of penalties (if there is one) is one of the Douglas factors. 5 M.S.P.R. at 330-331 (factor (7)). Therefore, the MSPB, in a number of cases, has placed a burden on the agency to justify why it exceeded its penalty guidelines in a particular case. See, e.g., Basquez v. Dep’t of the Air Force, 48 M.S.P.R. 215, 219 (1991); Williams v. Dep’t of the Air Force, 32 M.S.P.R. 347, 349-50 (1987); Stead v. Dep’t of Army, 27 M.S.P.R. 630, 634 (1985); Harris v. Department of the Navy, 15 M.S.P.R. 464 (1983). The MSPB has also relied on an agency’s range of penalties for a particular offense to determine the “maximum” reasonable penalty that may be imposed for that offense. See, e.g., Doherty v. Dep’t of Transportation, 11 M.S.P.B. 526 (1982). On the other hand, the Board has, in other instances, reminded the agency that its table of penalties is merely a guideline when the MSPB mitigates a penalty imposed by the agency that is within the range provided in the table of the penalties. See, e.g., Carson v. Veterans Administration, 29 M.S.P.R. 631, 634 (1986); Jensen v. Dep’t of Agriculture, U.S. Forest Service, 18 M.S.P.R. 555 (1984); Schultz v. Dep’t of Navy, 8 M.S.P.B. 249 (1981); McNeill v. Veterans Administration, 7 M.S.P.B. 369 (1981)). Thus, an unintended consequence of maintaining a table of penalties is that it may be given undue weight, i.e., relied upon by the MSPB to define what is reasonable, and invoked to undermine the agency’s flexibility and judgment in specific cases. Even efforts to draft an exhaustive table of penalties in order to preserve agency flexibility in this environment could still never contemplate every conceivable situation.