“Can a disciplinary (suspension w/out pay of 14 calendar days or less) or adverse (suspension w/out pay of 15 calendar days or more, demotion, or removal) action be challenged for timeliness if the employee has been on administrative duty for two years awaiting the completion of a misconduct investigation and presentation of the actual charges.”
The Federal Services Labor Management Relations Statute (FSLMRS) at Title 5 USC 7106(a)(2)(A) reserves to management the right to suspend, remove, reduce in grade or pay, or take other disciplinary action against employees. This is perhaps one of an agency’s strongest authorities despite the inaccurate political banter we have been hearing lately.
We will give you one of our more common responses, it depends, but generally no though every action can be challenged through a variety of means. Unless explicitly contained in a Master Agreement (Union contract), if covered by one, there are no hard and fast rules concerning the timeliness of an Agency’s actions in proposing or effecting a disciplinary or adverse action. However, the more egregious the delay, the more likely a challenge to the action would be successful. For example, if an agency completes an investigation and two years later proposed an adverse action, the Agency will have a lot of explaining to do to the Administrative Law Judge.
As a general rule, as long as the Agency can demonstrate the investigation was incomplete and that it’s decision was based on the results of the investigation, it is largely immune from claims of timeliness. The Authority (FLRA) has generally held that untimely delivery of a written decision would not prevent imposition of disciplinary action as such a limitation would be analogous to a “Statute of Limitations” and thus interfere with management in exercising its right to discipline employees under Title 5 USC 7106(a)(2)(A).
It is important to note that in Merchant Marine Academy (39 FLRA 187, 201 (1991), the Authority held, proposals that would bar an underlying disciplinary action upon the expiration of specified time limits are nonnegotiable and that proposals establishing timeliness standards governing completion of the various stages of the disciplinary process, but not precluding management from imposing discipline, are negotiable as procedures under section 7106(b)(2) of the FSLMR Statute.
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