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ARTICLE 24: PERFORMANCE APPRAISAL

 

 
Section A. General

 
1. Both Parties agree that the Agency will strive for excellence in Agency performance in order to fulfill its commitment to providing the highest quality public service.

 
2. The purpose of the performance management system is to involve employees in a communication process in order to improve individual and organizational performance, program effectiveness, and accountability by focusing on results, quality of service, and customer satisfaction, and by aligning standards and elements with organizational goals and strategic plans.

 
3. The performance management system encompasses the following:

 
a. Continuous communication between employees and their supervisors when planning, evaluating, appraising and recognizing performance;

 
b. Transparency and fairness;

 
c. Employee development; and

 
d. Recognition of team contributions.

 
4. Performance appraisal is a continuous process. It is an integral part of a sound employee/supervisor relationship involving communication between employee and supervisor concerning requirements or job expectations, performance necessary to achieve them, and progress in terms of meeting stated objectives. Communication shall include on-going feedback between customers, employees, and supervisors about the level and quality of performance. Performance appraisal is a joint process designed to increase constructive communication between the supervisor and the employee, and to improve the employee's performance.

 
5. Performance work plans including elements and standards shall be based on the requirements of the position described in the current position description (See Article 9, Position descriptions, Section 1, paragraph 1.).

 
Section B. Definitions

 
1. Appraisal - the act or process of reviewing and evaluating the performance of an employee against the performance work plan.

 
2. Appraisal period - The period of time during which an employee's performance will be reviewed and a rating of record will be prepared. The appraisal period for all employees is April 1 through March 31 of the following year.

 
3. Critical performance element - a component of an employee's position that is of such importance that unacceptable performance on the element would result in a determination that the employee's overall performance is at the unacceptable level.

 
4. Opportunity to Improve (OTI) - a written notice informing an employee of performance deficiencies and of the action(s) to be taken by the employee to improve performance during a specified period of time.

 
5. Performance Standard - the written expression of the performance, threshold(s), requirement(s), or expectation(s) that must be met to be appraised at a particular level of performance. A performance standard may include, but is not limited to, expressions of quality, quantity, cost-efficiency, timeliness and manner of performance.

 
6. Performance work plan - the written document that identifies the critical performance elements and standards against which the employee will be rated.

 
7. Progress review - a joint discussion between the rating official and the employee regarding the employee's progress toward achieving the performance standards. This review is not a rating. The content of the progress review is not grievable.

 
8. Rating Official - an employee's first line supervisor or other person designated with responsibility for establishing performance work plans, conducting progress reviews, and issuing final ratings of record.

 
9. Rating of record - the final summary rating normally issued at the end of the appraisal period which becomes a part of the employee's performance file maintained in the SPO.

 
Section C. Performance Work Plans/Standards

 
1. Pursuant to 5 U.S.C. 4302, performance work plans/standards must, to the maximum extent feasible, permit the accurate evaluation of job performance on the basis of objective criteria related to the position in question.

 
2. In developing performance work plans, supervisors will encourage the input of employees who occupy such positions before implementing such performance work plans. Employees shall be provided a minimum of five (5) workdays to submit comments.

 
3. Performance work plans shall be established and communicated to the employee in writing no later than thirty (30) calendar days after the beginning of the appraisal period, or within thirty (30) days of appointment, reassignment, promotion, or detail for more than the minimum appraisal period. The employee and rating official shall sign and date the performance work plan indicating that it has been discussed and the employee has had the opportunity to obtain a clear understanding of the expected performance.

 
4. A performance work plan must contain performance elements and standards as determined by management and prescribed by the agency's performance management system.

 
5. Performance standards:

 
a. Are expressed measures (quantity, quality, timeliness, etc.) that the supervisor expects to be achieved for each performance element.

 
b. Shall be defined for all performance elements at the fully successful or equivalent level.

 
c. Will be written in a common format.

 
d. Must be performance-related, not conduct-related, nor personality-related.

 
e. Shall be stated at the level of performance expected for the grade held by the employee, and shall be based on factors within the control of the employee.

 
6. An employee may request that standards or elements be reconsidered in light of comments or if the duties of the position have significantly changed.

 
7. The substance of elements and performance standards cannot be grieved.

 
Section D. Progress Reviews

 
1. Rating officials are responsible for initiating communication with the employee about actual performance and ensuring progress reviews are held. It is the employee's responsibility to seek that feedback or initiate the review if one is not scheduled by the supervisor.

 
2. Progress reviews provide the opportunity to identify and resolve problems in the employee's performance.

 
3. A progress review must be scheduled by the supervisor or employee and conducted whenever the employee reaches the approximate midpoint between the date the employee's performance work plan was issued and the end of the appraisal period unless the length of this period is less than ninety (90) days. Additional progress reviews are encouraged.

 
4. Progress reviews will summarize the employee's performance in each element of the performance work plan. Corrective actions may be identified, as appropriate.

 
5. The employee and the rating official will initial and date the appropriate blocks to indicate the discussions were held. A copy of any written comments will be provided to the employee.

 
Section E. Ratings of Record

 
1. Supervisors will prepare a narrative overall assessment of the employee's capabilities, as indicated by his/her performance during the appraisal period, of not more than one page. Likewise, employees are strongly encouraged to submit a statement of accomplishments of not more than one page. Both the supervisory assessment and the employee statement of accomplishments, if completed, will be included with the appraisal package.

 
2. All employees must be issued a rating of record annually. Employees who have not served under established elements and standards for at least ninety (90) calendar days during the appraisal period must have the timeframe extended to meet this requirement. Once the minimum appraisal period has been completed, a rating of record must be issued.

 
a. Employees who serve under established elements and standards for less than thirty (30) calendar days during the appraisal period (due to a movement, i.e., reassignment, promotion, within the Agency) will receive a rating of record based on their previous position.

 
b. Employees who serve under established elements and standards for less than thirty (30) calendar days during the appraisal period (i.e., new hire to the agency) will not receive a rating of record until the end of the following appraisal period.

 
3. Performance discussions and feedback comments should be prepared at the time of each position and/or supervisory change provided the employee has served under a performance work plan for at least ninety (90) calendar days. This feedback must be provided to the gaining or permanent supervisor to be considered at the time the final rating of record is issued.

 
a. Details and Temporary Promotions - At the conclusion of a detail or temporary promotion, the rating official to whom the employee was detailed will document the employee's accomplishments and forward the information to the employee's permanent supervisor.

 
b. Supervisory Change - Each individual who supervised the employee for ninety (90) calendar days or more during the appraisal period should discuss the performance with the employee, prepare feedback comments, and forward them to the current supervisor.

 
c. Position and Supervisory Change - When an employee who has occupied a position for at least ninety (90) calendar days leaves that position, the supervisor should prepare feedback comments on the employee's performance and forward them to the new supervisor.

 
d. Position Change Without a Supervisory Change - When an employee changes positions, but retains the same supervisor, the supervisor should prepare written comments on the employee's performance. This information must be considered in the employee's rating of record.

 
4. Annual ratings will be documented in a common format.

 
5. Official time spent performing Union representational functions will not be considered when evaluating an employee's performance.

 
6. The supervisor will schedule a meeting with the employee for the purpose of discussing the annual rating.

 
7. When a performance rating is presented to an employee, the discussion will include the basis for the rating. The employee will be asked to sign the original rating form. The employee's signature indicates receipt of the rating; it does not represent agreement with the rating. If the employee refuses to sign the rating of record, the rating official should note this in the appropriate block and indicate the date the rating was issued.

 
8. Ratings of record may be grieved.

 

 
ARTICLE 25: WITHIN-GRADE INCREASES (WGI)

 

 
A. Employees shall be granted WGI's when the current level of performance and most recent rating of record are "Fully Successful" or its equivalent. The WGI will be effective the first pay period following completion of the required waiting period.

 
B. When a supervisor concludes that an employee's work is not at the "Fully Successful" or its equivalent level, the supervisor will notify the employee in writing, as soon as possible but at least fifteen (15) calendar days in advance of the scheduled effective date, that the WGI will be denied. The notification will state the element(s) and standard(s) where the employee has failed to perform at the "Fully Successful" or its equivalent level, including examples of performance that did not meet expectations, and information as to what areas of competencies need to be improved to bring the performance to the "Fully Successful" or its equivalent level. The notice will also advise the employee of his/her reconsideration rights. A denial of a WGI after a mid-year progress review, which did not identify areas needing improvement, should stipulate how performance declined in the second-half of the performance cycle.

 
C. An employee may request reconsideration of a negative level of competence determination by filing, not more than fifteen (15) calendar days after the scheduled effective date of the WGI, a written response setting forth the reasons the Agency should reconsider the determination. Requests for reconsideration shall be filed with the employee's second level supervisor.

 
D. Neither the substantive nor procedural aspects of WGI denials may be grieved until a reconsideration decision is due or issued, whichever is earlier. A reconsideration decision is due twenty (20) calendar days from the date of the second level supervisor's receipt of the employee's written request.

 
E. Upon a review that finds an employee to have been eligible for a WGI, the WGI will be made retroactive with pay to the original effective date.

 

 
ARTICLE 26: UNACCEPTABLE PERFORMANCE

 

 
Section A. Scope and Definitions

 
1. For purposes of this Article, acceptable performance is equivalent to the "Fully Successful" or its equivalent level of performance.

 
2. An action based on unacceptable performance is defined as the reassignment, reduction in grade or removal of an employee whose performance is unacceptable in one or more critical elements of the employee's position.

 
3. This section applies only to employees who have completed their probationary or trial period. It does not apply to employees serving on a temporary appointment.

 
4. A reassignment related to unacceptable performance will follow the procedures in Article 19 (Reassignments), Section D.

 
Section B. Procedural Requirements

 
1. Because performance evaluation is a continuous process, the following procedures, consistent with 5 C.F.R. 432, shall be followed at any time during the year when a supervisor concludes that a bargaining unit employee's performance on any critical element is unacceptable and would be rated at the "Unacceptable" level.

 
2. There must be a discussion between the supervisor and the bargaining unit employee for the purpose of:

 
a. Advising the employee of specific shortcomings between observed performance in the performance element(s) under scrutiny and the performance standard(s) associated with that particular element(s);

 
b. Providing the employee with a full opportunity to explain the observed deficiencies; and,

 
c. Advising the employee of opportunities to attend counseling and training.

 
3. After the discussion, the supervisor should determine what action is best suited to the particular circumstances. Unacceptable performance may lead to reassignment, reduction in grade or removal.

 
4. Opportunity to Improve (OTI):

 
a. Prior to initiating an action to involuntarily reassign, remove or downgrade an employee, the employee must be given a written notice of unacceptable performance in one or more critical elements and an OTI period of at least ninety (90) calendar days to bring performance to the acceptable level.

 
b. This notice will include:

 
(1) Specific information as to how the supervisor will assist the employee in that effort;

 
(2) Specific information as to what the employee must do to bring performance to an acceptable level during that period; and,

 
(3) A statement that every effort will be made to re-evaluate the employee's performance regularly, preferably on a bi-weekly basis, but at least monthly.

 
c. During the ninety (90) calendar day OTI period, the employee will be given the opportunity to work on those portions of the job that are unacceptable, but not to the exclusion of other work assignments. The supervisor will ensure that the employee receives adequate work time in order to improve the performance in the area(s) that has been declared unacceptable.
d. Normally within fourteen (14) calendar days after the end of the OTI period, the supervisor will notify the employee in writing whether the employee's performance has reached an acceptable level or whether the performance remains unacceptable.

 
e. If the determination is that the employee's performance remains unacceptable, the Agency may reassign, remove or demote the employee upon written notice. If the bargaining unit employee has been given a reasonable opportunity to demonstrate acceptable performance on one or more critical elements during an OTI period and performance continues to be rated as unacceptable, the employee is not entitled to a second OTI within the rating year.

 
5. Notice of Proposed Adverse Action: An employee whose reduction in grade or removal is proposed is entitled to (30) calendar day's advance written notice, which informs the employee:

 
a. Of the nature of the proposed action:

 
b. Of the critical element(s) of the employee's position involved in each instance of unacceptable performance;

 
c. Of the specific instance(s) which demonstrate(s) unacceptable performance by the employee on which the proposed action is based;

 
d. The time to reply and to whom;

 
e. The right to be represented by the Union or other representative; and,

 
f. The right to make an oral and/or written reply and to receive a written decision with appeal rights stated.

 
6. Employee Response

 
a. The employee will be given the opportunity to respond orally and/or in writing prior to a decision. Any request for an oral reply must be submitted within seven (7) calendar days. Written replies must be submitted and oral replies made within fifteen (15) calendar days of receipt of the notice of proposed action.

 
b. If the employee elects to make an oral reply, the Agency may make a written report of the oral reply and will provide a copy to the employee.

 
7. Decision Letter

 
a. The deciding official will be an official occupying a higher position (if one exists) than the official proposing the action.

 
b. The deciding official shall prepare a decision letter, which shall include all of the following:

 
(1) A determination of the final action;

 
(2) Findings with response to each instance of unacceptable performance listed in the letter proposing the action;

 
(3) Findings with response to each dispute, if any, raised by the employee's reply;

 
(4) The effective date of the action. The effective date must be no earlier than thirty (30) calendar days after the date on which the employee received the proposed notice of adverse action;

 
(5) Written concurrence of the action by an official occupying a higher position (if one exists) than the official proposing the action;

 
(6) Notice to the employee that he or she has the option to appeal the action to the Merit Systems Protection Board (MSPB) or through the negotiated grievance procedure, but not both; and,

 
(7) Notice to the employee that he or she will be deemed to have exercised his/her option to raise the matter under one procedure or the other at the time the employee timely files a written grievance or files a notice of appeal under the applicable MSPB procedure.

 
c. If the employee is the subject of an action based on unacceptable performance related to a disability, and the employee is eligible and files for disability retirement, and the Agency recommends approval, the Agency may delay the action to allow a determination to be made concerning the disability retirement.

 
8. Time Extensions: Except for the advance notice period in section B 5, any of the time limits set forth in this Article may be extended or waived by mutual agreement of the parties.

 

 
ARTICLE 27: eMPLOYEE aWARDS AND rECOGNITION

 

 
This article will be published at a later date as an FAS Personnel Management (PM) Notice. Current procedures will remain in place until new guidance is issued.

 

 
ARTICLE 28: PROHIBITED PERSONNEL PRACTICES

 

 
Section A. Purpose

 
1. For the purpose of this Article, and in accordance with the Civil Service Reform Act of 1978 (5 U.S.C. Section 2302), prohibited personnel practice means any action described in Section B 1 below.

 
2. For the purpose of this Article with respect to an employee in, or applicant for, a covered position in the agency, personnel action means:

 
a. An appointment;

 
b. A promotion;

 
c. An action under the Civil Service Reform Act of 1978 (5 U.S.C. Chapter 75) or other disciplinary or corrective action;

 
d. A detail, transfer, or reassignment;

 
e. A reinstatement;

 
f. A restoration;

 
g. Reemployment;

 
h. A performance evaluation under Chapter 43 of the Civil Service Reform Act of 1978 (5 U.S.C. Chapter 43);

 
i. A decision concerning pay, benefits, or awards; or concerning education or training if the education or training may reasonably be expected to lead to an appointment, promotion, performance evaluation, or other action described in this subsection; and

 
j. Any other significant change in duties or responsibilities which is inconsistent with the employee's salary or grade level.

 
Section B. Practices

 
1. Any employee who has authority to take, direct others to take, recommend, or approve any personnel action, shall not, with respect to such authority:

 
a. Discriminate for or against any employee for employment:
(1). On the basis of race, color, religion, sex, or national origin, as prohibited under Title 7, Section 703 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-16);

 
(2). On the basis of age as prohibited under Section 12 and 15 of the Age Discrimination in Employment Act of 1967 (29 U.S.C. 631, 633a);

 
(3). On the basis of sex, as prohibited under Section 6(d) of the Fair Labor Standards Act of 1938 (29 U.S.C. 206[d]);

 
(4). On the basis of handicapping condition, as prohibited under Section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791); or

 
(5). On the basis of marital status or political affiliations, as prohibited under any law, rule, or regulation.

 
b. Solicit or consider any recommendation or statement, oral or written, with respect to any individual who requests or is under consideration for any personnel action unless such recommendation or statement is based on the personal knowledge or records of the person furnishing it and consists of:

 
(1). An evaluation of the work performance, ability, aptitude, or general qualifications of such individual; or

 
(2). An evaluation of the character, loyalty, or suitability of such individual.

 
c. Coerce the political activity of any person (including the providing of any political contribution or service) or take any action against any employee as a reprisal for the refusal of any person to engage in such political activity;

 
d. Deceive or willfully obstruct any person with respect to such person's right to compete for employment;

 
e. Influence any person to withdraw from competition for any position for the purpose of improving or injuring the prospects of any other person for employment;

 
f. Grant any preference or advantage not authorized by law, rule, or regulation to any employee (including defining the scope or manner of competition or the requirement for any position) for the purpose of improving or injuring the prospects of any particular person for employment;

 
g. Appoint, employ, promote, advance, or advocate for appointment, employment, promotion, or advancement, in or to a civilian position any individual who is a relative (as defined in 5 U.S.C. 2302, Section 3110[a][3]) of such employee if such position is in the Agency in which such employee is serving as a public official (as defined in 5 U.S.C. 2302, Section 3110[a][2]) or over which such employee exercises jurisdiction or control as such an official;

 
h. Take or fail to take a personnel action with respect to any employee or applicant for employment as reprisal for:

 
(1). Disclosure of information by an employee or applicant which the employee or applicant reasonably believes evidences:

 
(a) A violation of any law, rule, or regulation, or

 
(b) Gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety, if such disclosure is not specifically prohibited by law, if such information is not specifically required by Executive Order to be kept secret in the interest of national defense or the conduct of foreign affairs; or

 
(2) Any disclosure to the Special Counsel for the Merit Systems Protection Board, or to the Inspector General of an agency or another employee designated by the head of the agency to receive such disclosures, of information which the employee or applicant reasonably believes evidences:

 
(a) A violation of any law, rule or regulations, or

 
(b) Gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety;

 
i. Take or fail to take any personnel action against any employee or applicant for employment as reprisal for the exercise of any appeal right granted by any law, rule, or regulation;

 
j. Discriminate for or against any employee or applicant for employment on the basis of conduct which does not adversely affect the performance of the employee or applicant or the performance of others; except that nothing in this paragraph shall prohibit an agency, from taking into account in determining suitability or fitness, any conviction of the employee or applicant for any crime under the laws of any state, the District of Columbia, or the United States; or

 
k. Take or fail to take any other personnel action if the taking of or failure to take such action violates any law, rule, or regulation implementing, or directly concerning, the merit system principles contained in 5 U.S.C. 2301.

 
2. While it is recognized that threats are not specifically covered as a prohibited personnel practice under 5 U.S.C. 2302, the agency will not tolerate such practices.

 
Section C. Withholding of Information: Nothing in Section B above shall be construed to authorize the withholding of information from Congress or the taking of any personnel action against an employee who discloses information to Congress.

 
Section D. Equal Employment Opportunity: Nothing in Section B shall be construed to extinguish or lessen any effort to achieve equal employment opportunity through affirmative action or any right or remedy available to any employee in the civil service under:

 
1. Title 7, Section 703 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-16), prohibiting discrimination on the basis of race, color, religion, sex, or national origin;

 
2. Section 12 and 15 of the Age Discrimination in Employment Act of 1967 (29 U.S.C. 631-633a), prohibiting discrimination on the basis of age;

 
3. Section 6(d) of the Fair Labor Standards Act of 1938 (29 U.S.C. 206[d]), prohibiting discrimination on the basis of sex;

 
4. Section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791), prohibiting discrimination on the basis of handicapping condition; or

 
5. The provisions of any law, rule, or regulation prohibiting discrimination on the basis of marital status or political affiliation.

 
Section E. Prohibited Personnel Practice: An employee affected by a prohibited personnel practice may raise the matter under a statutory procedure or the negotiated grievance procedure (Article 41, Grievance Procedures), but not both, unless permitted by law.

 

 
ARTICLE 29: DISCIPLINARY AND ADVERSE ACTIONS

 

 
Section A. Definitions

 
1. A suspension is defined as the placing of an employee, for disciplinary reasons, in a temporary status without duties and pay.

 
2. A disciplinary action is defined as a letter of official reprimand or a suspension of fourteen (14) calendar days or less.

 
3. A reprimand is defined as a written document describing the inappropriate conduct or other deficiency (e.g., failure to obtain prior approval for outside employment) giving rise to the reprimand, and provides official notice that a failure to correct the inappropriate conduct or deficiency, or future misconduct, may result in more severe action.

 
4. An adverse action is defined as a suspension of more than fourteen (14) calendar days, involuntary reduction in grade or pay, or removal.

 
Section B. General Provisions

 
1. No bargaining unit employee will be disciplined and/or subject to adverse actions except for such cause as will promote the efficiency of the Service. The Employer agrees that any disciplinary and/or adverse action taken will be appropriate to the specific offense and in accordance with applicable law, rules and government-wide regulations. In those instances where immediate action is not taken, supervisors shall discuss with their employees unacceptable behavioral actions which reflect negatively upon the Service and which could, if continued, constitute grounds for disciplinary and/or adverse actions. In establishing penalties for employee discipline, the employer will apply agency regulations, including the USDA penalty guide.

 
2. Unless otherwise stated within this Article, disciplinary/adverse actions will be administered as timely as possible.

 
3. In any disciplinary action or adverse action, the employee will be furnished with a copy of the material relied upon by the Employer to take the action at the time of the notice of the proposal of such action.

 
4. Employees may grieve those items in Section A in accordance with the terms of Article 41, Grievance Procedures, of this contract.

 
5. Copies: See Article 30 - Notices to Employees, for information on copies to be provided.

 
Section C. Reprimand: Reprimands shall be maintained in the employee's Official Personnel Folder (OPF) for a period up to two (2) years, depending on the severity of the offense. This time period will be stated in the letter of reprimand. The period of retention may subsequently be reduced when the employee's supervisor determines that circumstances warrant a shorter period. Such determination may be made in response to an employee's request to remove the reprimand from the employee's OPF. Such reprimands which have been overturned as a result of grievance or other authority shall be immediately removed from the OPF.

 
Section D. Suspensions of 14 Days or Less

 
1. Cause:

 
a. The Employer may suspend an employee for fourteen (14) calendar days or less for such cause as will promote the efficiency of the service, including discourteous conduct to the public confirmed by the immediate supervisor's report or any other discourteous conduct.

 
b. To clarify the alleged misconduct(s) and, if necessary, help correct employee behavior, the supervisor will discuss the pattern of conduct in a timely fashion with the employee, consistent with Section B1 and Article 2, Employee Rights, Section E.

 
c. The Employer may not suspend an employee on the basis of any reason prohibited by 5 U.S.C. 2302 (prohibited personnel practices).

 
2. Procedures: When the Employer proposes to suspend an employee for fourteen (14) calendar days or less, the following procedures will apply:

 
a. A notice of proposed suspension of fourteen (14) calendar days or less will be provided to the employee at least fourteen (14) calendar days prior to the effective date of the action. The proposed notice will inform the employee of:

 
(1) The proposed action;

 
(2). The specific reason(s) for the proposed action;

 
(3). The opportunity to review the evidence that is relied upon to support the charges;

 
(4). The time to reply and to whom to furnish affidavits and other documentary evidence in support of the reply;

 
(5). The right to be represented by the Union;

 
(6). The right to make an oral and/or written reply within seven (7) calendar days from the receipt of the proposed action.

 
b. The Employer will issue a final decision after receipt of the written and/or oral reply, or the termination of the fourteen (14) calendar day notice period. This letter will state which reason(s) and specification(s) are sustained and will address factual disputes, if any, raised in the employee's reply by stating the reasons why each factual dispute was rejected.

 
Section E. Suspensions of More Than 14 Days, Reductions in Grade, and Removals

 
1. Notice of Proposed Adverse Action: Unless otherwise provided by law (e.g. the crime provision of 5 U. S. C. 7513 (b)), an employee who receives a proposal for an adverse action is entitled to at least thirty (30) calendar days advance written notice which informs the employee of:

 
a. The proposed action;

 
b. The specific reason(s) for the proposed action;

 
c. The opportunity to review the evidence that is relied upon to support the charges;

 
d. The time to reply and to whom to furnish affidavits and other documentary evidence in support of the reply;

 
e. The right to be represented by the Union; and

 
f. The right to make an oral and/or written reply within fourteen (14) calendar days from the receipt of the proposed action.

 
2. Normally, the Employer will issue a final decision within fourteen (14) calendar days after receipt of the written and/or oral reply, or after the time limit for reply has expired if there are mitigating circumstances. Mitigating circumstances and an approximate time frame for response will be communicated to the Union and the employee. The final decision letter will state which reasons and specifications are sustained and will address factual disputes raised in the employee's reply.

 
3. If discipline is imposed, the decision letter will inform the employee of his/her option to appeal the action to the Merit Systems Protection Board (MSPB) or grieve through the negotiated grievance procedure, but not both, and will inform the employee that he/she will be deemed to have exercised his/her option to raise the matter under one procedure or the other at the time the employee timely files a written grievance or files a notice of appeal under the applicable MSPB procedure.

 
4. Action by the Deciding Official

 
a. After carefully considering the proposed letter, evidence of record, and the employee's response, if any, including any mitigating factors, the deciding official shall decide whether:

 
(1). To institute the proposed action; or

 
(2). To propose alternative discipline (if not a decision to remove); and/or

 
(3). To institute a lesser action; or

 
(4). To withdraw the proposed action.

 
b. If the decision is not to remove the employee, the Employer may defer the effective date of the action(s) for up to fourteen (14) calendar days at the request of the employee.

 
c. The deciding official must be a higher-ranking official than the official proposing the action if one exists in FAS.

 
Section F. Time Limit Extensions: Any of the time limits set forth in this Article may be extended by mutual agreement of the parties.

 

 
ARTICLE 30: NOTICES TO EMPLOYEES

 

 
When the Employer presents written notice to an employee concerning a personnel action in which the employee has appeal rights in accordance with applicable law, rule, regulation, and this agreement, the Employer will provide the employee with an original and one copy of the notice. The copy shall include the following statement: "This copy may, at your option, be furnished to AFSCME Local 3976."

 

 
ARTICLE 31: WAIVER OF OVERPAYMENT

 

 
Section A. Processing Requests

 
1. When an employee receives an overpayment of pay and allowances, he/she may request a waiver of overpayment in accordance with applicable law, rule, and regulation.

 
2. The Employer will process all requests for waiver of overpayment as expeditiously as practicable.

 
3. To the extent possible, if an employee has applied for a waiver of overpayment, no overpayment will be collected until the employee's application for waiver of overpayment has been decided.

 
4. If a requested overpayment is denied, the employee will be notified of the reason(s) for the denial in writing.

 
Section B. Repayment

 
1. When an employee is not granted a waiver of overpayment, the employee will be permitted to make repayment in accordance with applicable law, rule, and regulation.

 
2. If an employee terminates employment with the Employer prior to the liquidation of any overpayment described in this Article, the Employer retains the right to satisfy any outstanding balance from any funds due to the employee.

 

 
ARTICLE 32: RETIREMENT COUNSELING AND RESIGNATION

 

 
Section A. Retirement Counseling

 
1. An employee may have a reasonable amount of time without charge to leave to visit Agency retirement counselors.

 
2. Employees within five (5) years of retirement eligibility may be granted up to five (5) days of administrative leave to attend Agency-sponsored retirement programs. The grant of up to five (5) days of administrative leave to attend retirement counseling may be used only once by an employee.

 
3. The Employer agrees to make available an annual training program on retirement issues which any interested employee within five (5) years of retirement eligibility may attend. In the absence of such a program, employees within five (5) years of retirement eligibility may be afforded the opportunity to attend other similar OPM-sponsored training or events.

 
4. Normally, employees will be provided a statement setting forth their estimated annuity from the National Finance Center each year. Employee's eligible to retire and anticipating retirement may have their annual estimate updated by an Agency retirement counselor upon request.

 
5. The Employer agrees to make a good faith effort to ensure information/seminars are provided for all bargaining unit employees whenever significant changes to retirement legislation or regulations occur.

 
Section B. Resignation: An employee may withdraw a resignation at any time prior to its effective date provided:

 
1. The withdrawal is communicated in writing (e-mail acceptable) to the Employer; and

 
2. The Employer has not made a commitment to any specific person to fill the position.

 

 
ARTICLE 33: OUTSIDE EMPLOYMENT

 
Section A. Introduction: Employees may engage in outside employment during non-duty hours that do not involve conduct prohibited by statute or Federal Regulation.

 
Section B. Prior Approval

 
1. In accordance with 5 C.F.R. 2635.803, USDA has determined that all USDA employees who file either a Public Financial Disclosure Report (SF-278) or a Confidential Financial Disclosure Report (OGE 450) or an alternative form of reporting approved by the Office of Government Ethics, must seek approval before engaging in any outside employment. Financial disclosure report filers occupy high level positions or otherwise hold positions that have a direct and substantial effect on the interests on non-Federal entities. Accordingly, prior approval of these employees' outside employment is warranted.

 
2. All employees required to file OGE 450 shall obtain prior approval for outside employment. All requests for such outside employment must be in writing (e-mail acceptable) and submitted not less than ten (10) work days in advance of the proposed start work date. The Agency ethics officer in the Servicing Personnel Office (SPO) is designated as the official to receive such requests and will approve the request or notify the employee that approval is delayed with reasons prior to the proposed start date.

 
3. Employees not required to file OGE 450 are encouraged but not required to request prior approval for outside employment. Even though prior approval is not required, outside employment of all employees must comply with all applicable laws and regulations.

 
Section C. Employer Consideration and Approval

 
1. The Agency agrees not to disapprove requests for outside employment or activity without giving employees the opportunity to explain the requested employment or activity, and, if necessary, to answer questions the Agency has concerning the propriety of the requested employment or activity. The Agency ethics officer may require this to be done orally, in writing, or both depending on the case.

 
2. The Agency agrees that all requests for outside employment or activities shall be considered using the criteria established in 5 C.F.R. 2635, by the Office of Government Ethics, and the USDA Standards of Conduct and negotiated written notices and Personnel Manuals (PM) provided by the Agency and in effect at the time the request is submitted.

 
3. The Agency agrees to provide to affected employees a written explanation for denials of requests for outside employment or activity.

 
4. Information developed or received in evaluating these requests will be held in confidence by all Agency employees.

 

 
ARTICLE 34: EMPLOYEE ASSISTANCE PROGRAM (EAP)

 

 
Section A. Objective: The Employer and the Union support the objective of assisting employees whose job performance is adversely affected by problems including, but not limited to, alcoholism, drug abuse, duress, financial or legal concerns, marriage or family concerns, or other personal problems. Given this common objective, the Employer agrees to continue to support the Departmental Employee Assistance Program (EAP).

 
Section B. Union Cooperation: The Union agrees to cooperate fully with the Employer in an attempt to rehabilitate affected employees who accept assistance made available under the provisions of the EAP.

 
Section C. Confidentiality: Employee participation in the EAP will be strictly confidential. The Employer may request an employee to sign release forms. However, this does not obligate the employee to do so.

 
Section D. Annual Notification to Employees: The Employer will continue to issue an annual notice to employees explaining the EAP and the services it provides.

 
Section E. Program Participation

 
1. The parties recognize that the EAP is designed to deal with problems at an early stage when the situation may more likely be correctable. If an employee participates in the EAP, the responsible supervisory official will give consideration to this fact in determining any appropriate disciplinary and/or adverse action, if applicable.

 
2. The Employer will not take any action against an employee for seeking assistance through the EAP. Participation in the EAP will not prevent the Employer from proposing and taking conduct and performance-based actions.

 
3. EAP services will be made available to those employees who request and need them. The Employer agrees to assist employees by providing information and encouragement to use counseling services as needed. Should counseling appointments require absence from the workplace; employees will make the appropriate advance arrangements with their supervisors.

 
4. When the Employer determines that a conduct or performance problem exists which may be drug or alcohol related and refers the employee to EAP, the Employer may take appropriate disciplinary or adverse action, consistent with fairness and the obligation to provide reasonable accommodation.

 
Section F. Leave During Duty Hours: With supervisory approval, employees may be allowed up to one hour (or more as necessitated by travel time) of excused absence for each counseling session during the assessment/referral phase of rehabilitation. Thereafter, absences during duty hours for rehabilitation or treatment must be charged to the appropriate leave category in accordance with law and leave regulations. Supervisors have the right to verify the employee's attendance with an EAP counselor.

 
Section G. New Hire Orientation: Newly hired employees will receive appropriate EAP information and materials during orientation.

 

 
ARTICLE 35: HEALTH AND SAFETY

 

 
Section A. General

 
1. Consistent with applicable law, Executive Order 12196, Occupational, Safety, Health Administration requirements, as well as other applicable health and safety codes, the Agency will support the maintenance of safe and healthful working conditions for all employees. If an appropriate authority determines there is a significant health or safety problem and the Department does not take timely action on the problem, the Agency, to the extent of its authority, will provide an appropriate remedy to address the needs of employees. Both Parties will cooperate to that end and will encourage employees to work in a safe manner.

 
2. Pursuant to applicable law and regulation, no employee shall be subject to restraint, interference, coercion, discrimination, or reprisal for filing a report of an unsafe or unhealthful working condition, or other participation in Agency occupational safety and health program activities, or because of the exercise by such employee on their behalf or another's of any right afforded by Section 19 of the Occupational Safety and Health Act (29 U.S.C. Chapter 15, Section 668), Executive Order 12196, or 29 C.F.R. 1960. These rights include, among others, the right of an employee to decline to perform their assigned task because of a reasonable belief that, under the circumstances, the task poses an imminent risk of death or serious bodily harm coupled with a reasonable belief that there is insufficient time to seek effective redress through normal hazard reporting.

 
Section B. Agency Action

 
1. The Agency will work with all persons, entities, or organizations which own and/or control work space to which bargaining unit employees are assigned to ensure that healthy and safe working conditions are maintained and to ensure compliance with applicable laws, rules, and regulations, and this Agreement. The Agency will provide feedback to employees and the Union regarding the results of any action taken.

 
2. The Agency agrees:

 
a. To provide information concerning Federal Employee Health Benefits (FEHB) and Life Insurance Programs, pre-retirement planning, retirement benefits information, the USDA's TARGET center, and the Employee Assistance Program (EAP);

 
b. To make information available to employees on health benefits open season activities and maintain copies of offered health plans for review upon request;

 
c. To work with the building manager, the Department, General Services Administration (GSA) and private lessors, as applicable, to have safe electrical equipment, and adequate light and ventilation in all work areas;
d. To provide information available through the Department about ergonomic hazards and how to prevent ergonomic related injuries;

 
e. To grant periodic relief to employees using video display terminals (VDTs) for extended periods during the course of a day, by interspersing other work tasks requiring less visual concentration;

 
f. To provide, to the extent possible, safety devices, such as anti-glare screens and wrist props, which will promote greater safety and comfort for VDT operators;

 
g. To follow the Americans With Disabilities Act and GSA regulations in providing facilities appropriate and adequate to accommodate the needs of disabled employees;

 
h. To inform the Union of any decision to introduce new office equipment into the work place so that the Union may, thereafter, request bargaining concerning any appropriate arrangements required because of the new equipment;

 
i. To obtain and provide to the Union copies of applicable regulations;

 
j. To make available for review by the Union all safety reports generated by or available to the Agency that are required by law, regulation, and/or this Agreement; and

 
k. To assure the provision of safe, potable, drinking water to all unit employees within ready access of working areas. Ready access is defined as a distance no more than the location of the nearest gender appropriate restroom.

 
Section C. Union Action: The Union will encourage all bargaining unit employees to work safely with due consideration for the safety, health and comfort of all fellow employees. To avoid preventable unhealthy or unsafe working conditions, the Union will encourage respect and care by bargaining unit employees for the Agency's facilities and equipment and their own work environment.

 
Section D: Employee Reports of Unsafe or Unhealthy Working Conditions

 
1. Each bargaining unit employee is encouraged to report any unsafe or unhealthy working conditions to his or her immediate supervisor as soon as any such conditions come to his or her attention.

 
2. The Agency will:

 
a. Investigate the reported condition as soon as is practicable, and may refer the situation to

 
(1). The appropriate FSA or USDA office;

 
(2). GSA;

 
(3). The OSHA of the Department of Labor;

 
(4). The Public Health Service (PHS) Health Unit, or

 
(5). Other appropriate official(s) for further investigation.

 
b. To the extent possible, the Union will be given an opportunity to accompany any inspector who responds on such a complaint during the inspector's physical inspection of the workplace unless it would be hazardous to accompany the inspector. The Union representative will be granted official time for this purpose.

 
3. The Agency will ensure a timely response to an employee report of hazardous conditions. No employee will be unreasonably required to continue working in a situation determined to pose the threat of imminent danger or significant health hazard as determined by the appropriate authorities.

 
4. If an employee is assigned duties which he/she reasonably believes could possibly endanger his/her health or well-being, the employee will immediately notify his/her immediate or second-line supervisor of the situation.

 
a. If the supervisor cannot solve the problem and agrees with the employee, the supervisor will, under normal circumstances, delay the assignment and refer the matter through the proper channels for appropriate action, unless the delay would unduly interfere with the Agency's operation.

 
b. When the supervisor does not agree with the employee's concerns, the employee has the right to consult the Union and the right to file a report in accordance with the applicable agency or departmental regulations.

 
Section E. Occupational Injury or Illness: Employees who become injured or occupationally ill in the performance of duties shall report the injury or illness to their supervisor immediately. The supervisor will refer the employee to the Human Resources Division, the Health Unit, or other medical service as appropriate and as permitted by applicable law, rule or regulation. The supervisor shall also advise the employee to contact the Servicing Personnel Office (SPO) to obtain information on benefits under the Federal Employees' Compensation Act (5 U.S.C. 8101-8193). The Agency and employee shall cooperate in promptly processing all paperwork in connection with compensation claims.

 
Section F. Occupant Emergency Plan: Each building in which bargaining unit employees are stationed within the United States will have an Occupant Emergency Plan. The Agency will issue an annual reminder of the Occupant Emergency Program Plan.

 
Section G. First-Aid

 
1. The Agency will provide first-aid kits at Agency building locations for use when Health Unit facilities are not available.

 
2. The Agency may provide for training to interested employees for cardiopulmonary resuscitation (CPR) during duty or non-duty hours. If during duty hours, official time will be given to those approved in advance for participation.

 
Section H. Health Unit

 
1. The Agency currently participates in the Federal Employee Occupational Health program administered by the Public Health Service, U.S. Department of Health and Human Services. Both Parties will work cooperatively to ensure that the Department maintains a health unit at the site where the majority of Agency employees are located.

 
2. In the event an employee becomes incapacitated on the job, the Agency will notify Health Unit personnel who may call for emergency transportation if deemed appropriate.

 
Section I. Pre-Tax Health Insurance Deduction Benefit: The Agency will provide a pre-tax health insurance premium conversion plan for those employees participating in the FEHB program in accordance with applicable laws and Federal Regulations.

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