Inspection Report No. OIG-INS-21-03-01
Consistency in Serving Suspensions

UNITED STATES GOVERNMENT
National Labor Relations Board
Office of Inspector General

Memorandum

October 8, 2002

To: Gloria Joseph,
Director of Administration

Richard Siegel,
Associate General Counsel, Operations-Management

From: Jane E. Altenhofen
Inspector General

Subject: Inspection Report No. OIG-INS-21-03-01: Consistency in Serving Suspensions

We initiated this inspection to ascertain the manner in which suspensions were served and identify pattern differences. We found the Human Resources Branch did not have an adverse action file for all suspended employees with all necessary records; some personnel actions were missing; two employees were given suspensions with no loss of pay contrary to Federal law; and some suspensions were incorrectly recorded in the payroll system.

SCOPE

The Human Resources Branch identified 17 individuals who served suspensions between October 1, 2000, and February 20, 2002. The Division of Operations-Management, after searching its files, identified three additional names. We used the total of 20 individuals, who received final notice of 24 suspensions, as our universe. Some of the suspensions were modified by subsequent settlement agreements; these changes are reflected as appropriate.

We reviewed the adverse action files and Official Personnel Files (OPFs) maintained by the Human Resources Branch. We looked for the notice of proposed suspension and the notice of decision in the adverse action files. We looked for the applicable SF-52, Request for Personnel Actions and SF-50, Personnel Actions in the OPFs. We reviewed files maintained by the Division of Operations-Management for individuals suspended in the Regional Offices. Using the notice of decision and personnel actions, we determined on what days the suspensions were served. We also reviewed applicable laws, regulations, and contract provisions.

We conducted this review between January and September 2002. The review was conducted in accordance with the Quality Standards for Inspections issued by the President's Council on Integrity and Efficiency.

BACKGROUND

"Suspension" is defined by statute as the placing of an employee, for disciplinary reason, in a temporary status without duties and pay. 5 U.S.C. 7501(2). The process suspending an employee includes issuing a notice of proposed suspension, providing the employee the opportunity to respond in writing and/or orally, allowing the employee to be represented by an attorney or other representative, and issuing a final decision. 5 U.S.C. 7501(b) and 7513(b). A personnel action must be prepared for each suspension and the return to duty. See, Payroll/Personnel Processing Manual, chapter 21, section 4. The employee has various appeal rights based on the length of the suspension. 5 U.S.C. 7513(d).

All but one of the 20 suspended employees were located in the Divisions of Administration and Operations-Management. The 7 employees in the Division of Administration were in 2 Branches. The 12 employees in Operations-Management were at Headquarters and 11 Regional Offices. The positions included field attorney, labor management relations examiner, office manager, secretary, editor, printing officer, and telecommunications specialist.

RECORD KEEPING

The Agency is required by law and regulation to maintain certain records on suspensions. 5 U.S.C. 7503(c) and 7513(e). These records are the notice of proposed suspension, the answer of the employee when written, a summary thereof when made orally, the notice of decision and reasons therefor, and any order effecting a covered action, together with any supporting material. The Human Resources Branch in the Division of Administration maintained adverse action files to contain these documents for Headquarters and field employees.

Of the 20 employees in our universe, the Human Resources Branch did not have an adverse action file for 5 employees, who were all located in Regional Offices. One file had only one document in it - the notice of final decision.

The Division of Operations-Management had copies of documents in litigation files maintained by the Special Counsels. A Special Counsel stated that copies of some documents, such as the final decisions signed by the Deputy Assistant General Counsel, were sent to the Human Resources Branch but this practice was inadvertently discontinued when a new person was hired for a support position.

The Human Resources Branch is the appropriate location for these documents. For Privacy Act purposes, the adverse action files are covered by the government-wide system OPM/GOVT-3: Records of Adverse Actions, Performance Based Reduction in Grade and Removal Actions, and Termination of Probationers. The system notice states that the files will be located in personnel or designated offices in which the actions were processed. The Agency has not designated the Special Counsel or Regional Offices as a system location.

A central repository is also a better business practice. The Agency is required to furnish the specified documents to the Merit Systems Protection Board upon its request and to the employee affected upon the employee's request. To have the documents in one location would make retrieval much easier.

The Deputy Associate General Counsel instructed the Special Counsels several months ago to ensure that draft notices were sent to the Human Resources Branch. She also instructed the Special Counsels and Regional Directors to ensure final copies are sent to the Human Resources Branch. The Director of Administration stated that the Division of Operations-Management is now forwarding proposed and final adverse action decisions to the Chief of the Labor and Employee Relations Section. The Agency's official suspension files are now maintained in the Human Resources Section.

PERSONNEL ACTIONS

As discussed in the prior section, a personnel action must be prepared for each suspension and the return to duty. We found personnel actions were missing for some suspensions or the return to duty. Personnel actions, when processed, were generally initiated in a timely fashion; however, due to the length of time needed for processing, most personnel actions were not approved until after the suspension was being served.

Personnel actions (SF-50) for the suspension and return to duty were not in the OPFs for 12 of the 24 suspensions. Another two suspensions had SF-50s for the suspension but not the return to duty. One suspension had the appropriate personnel actions for 10 days, but not for 20 days that were identified as a "paper" suspension, meaning there would be no loss of pay. The missing personnel actions were for 10 employees, 7 in Regional Offices and 3 in Headquarters offices.

For 10 suspensions with approved SF-50s (one suspension was eliminated because the requisition was missing), the personnel actions were generally initiated in a timely fashion. The request for a personnel action was initiated within a week of the notice for five suspensions. For an additional four suspensions, the request was initiated on or before the dates were served. Due to the length of time needed to process the requests and the resulting SF-50, most personnel actions were not approved until after the employee began serving the suspension.

Processing a personnel action is an important step as it provides the permanent documentation of the disciplinary action. Further, the personnel actions were used to generate the reports on suspensions.

Management requested that we clarify the reason for any missing personnel actions. Most of the suspensions were on the computer-generated list provided by the Human Resources Branch, indicating that personnel actions must have been received by the Branch. In at least one suspension with no loss of pay management did not request a personnel action.

TEMPORARY STATUS WITHOUT PAY

By definition, a suspension is a temporary status without pay. The Merit Systems Protection Board ruled that a 15-day suspension without the loss of pay was not an adverse action within its jurisdiction. Labinski v. U.S. Postal Service, CH-0752-00-0754-I-1 (March 23, 2001). We found that two suspensions did not involve the loss of pay. Further, the Division of Administration was scheduling suspensions to avoid the loss of pay significantly more often than the Division of Operations-Management.

A 30-day suspension can be viewed as comparable to a month and a 14-day suspension to two weeks. If served consecutively, a portion of the suspension is on non-paid days such as weekends. Suspensions do not have to be served on consecutive days. The deciding official can establish a schedule that benefits the Agency and/or the employee; for example, serving one day a week would minimize the financial hardship on an employee. Another option would be to start a consecutive five-day suspension on a Thursday so that the weekend is included and lessen the days without pay.

Most employees served at least one day of a suspension in a paid status, thereby meeting the minimum requirement for loss of pay. The Regional Offices mostly scheduled suspensions to be served on consecutive days with the maximum number of paid workdays. The Division of Administration scheduled a greater portion of suspensions on non-paid days. In one instance, the unpaid days greatly exceeded the paid days when a 30-day suspension was served on 6 paid days, 4 non-paid days, and 20 "paper" days. The differences between offices are shown below:

  Number of Days Suspended
Office Total Paid Unpaid
ALJ   26   20 (77%)   6 (33%)
Administration 108   59 (55%) 49 (45%)
Operations-Management 180 159 (88%) 21 (12%)
Total 314 238 76

Two employees, both in Regional Offices, were given suspensions with no loss of pay. One served a one-day suspension on a Saturday and the other served a two-day suspension on a Saturday and Sunday; no personnel actions were processed. We found no authority for a suspension with no loss of pay; and neither the Human Resources Branch nor the Division of Operations-Management could provide written justification. We contacted other agencies, including the Office of Personnel Management and the Department of Justice, and could find no support for this practice. The General Accounting Office, which has different personnel authorities, has infrequently used a "paperless" suspension, i.e. a SF-50 was issued documenting a suspension, but money was not actually lost by the employee.

The Agency's assertion that management is granted considerable discretion under 5 U.S.C. 7106(a)(2)(A) to suspend an employee only on "nonpay" days is misplaced. That section describes management rights under chapter 71 of title 5 - Labor-Management Relations. The section states that "nothing in this chapter shall affect the authority of management official of any agency . . . in accordance with applicable laws . . . to suspend, remove, reduce in grade, or pay, or take other disciplinary action . . .." This statute does not provide management with any authority that is not already provided by other statutes. There is no other statute that allows a "suspension" to occur without the loss of pay. Therefore, if management purports to suspend an employee without the loss of pay, management is in effect taking no disciplinary/adverse action against the employee. We do not believe such action is generally considered as "alternative discipline."

Non-consecutive suspensions were scheduled for three employees at Headquarters and two in Regional Offices. An employee in Operations-Management served a 4-day suspension on May 9, May 25, September 13, and September 25, 2001. An employee in the Office of the Administrative Law Judges served a 5-day suspension one day a week. An employee in the Office of Administration served a 10-day suspension in two 5-day periods. A Regional Office employee served a 30-day suspension in four periods.

The needs of the Agency, office, and employee should be considered in scheduling suspensions. A personnel action must be prepared for each suspension and the return to duty. For a suspension served on consecutive days, this would involve four forms to effectuate two personnel actions. A suspension served on non-consecutive days increases the number of personnel actions exponentially and the resulting cost to the Government.

PAYROLL RECORDS

The Payroll/Personnel Processing Manual provides guidance for recording suspensions in the payroll system. The Manual states that employees are placed on suspension in an unpaid status by a personnel action, suspension is ordered for full days only, and a personnel action is required to return the employee to duty. Timekeepers are to enter the total hours of the suspension by using Transaction Code (TC) 73 - Suspension.

Sixteen of the 24 suspensions were recorded in the payroll system using the proper TC, with a few minor differences in the hours. Five suspensions were charged to Leave Without Pay (LWOP), three in the Division of Administration and two in Regional Offices. LWOP is approved time away from work without pay, a significantly different category than a suspension. A non-pay category was not entered for one suspension in the Division of Administration.

SUGGESTIONS

We suggest that the Director of Administration, in coordination with the Associate General Counsel of the Division of Operations-Management: