Article 4 | Protections Against Prohibited Personnel Practices
Preamble
The parties mutually recognize that personnel management should be implemented consistent with the
following merit system principles:
1. Recruitment should be from qualified individuals from appropriate sources in an endeavor to achieve a work force from all segments of society. Selection and advancement should be determined solely on the basis of relative ability, knowledge, and skills after fair and open competition which assures that all receive equal opportunity.
2. All employees and applicants for employment should receive fair and equitable treatment in all aspects of personnel management without regard to political affiliation, race, color, religion, national origin, sex, marital status, age, or handicapping condition, and with proper regard for their privacy and constitutional rights.
3. Equal pay should be provided for work of equal value, with appropriate consideration of both national and local rates paid by employers in the private sector. Appropriate incentives and recognition should be provided for excellence in performance.
4. All employees should maintain high standards of integrity, conduct and concern for the public interest.
5. The Federal work force should be used efficiently and effectively.
6. Employees should be retained on the basis of the adequacy of their performance. Inadequate performance should be corrected. Employees should be separated who cannot or will not improve their performance to meet required standards.
7. Employees should be provided effective education and training in cases in which such education and training would result in better organizational and individual performance.
8. Employees should be:
(a) protected against arbitrary action, personal favoritism, or coercion for partisan political purposes; and
(b) prohibited from using their official authority or influence for the purpose of interfering with or affecting the result of an election or a nomination for election.
9. Employees should be protected against reprisal for the lawful disclosure of information which the employees reasonably believe evidences:
(a) a violation of any law, rule, or regulation; or
(b) mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.
Section 1
A. For the purpose of this article, prohibited personnel practice means any action described in Section 2 below.
B. For the purpose of this article, “personnel action” means:
1. an appointment;
2. a promotion;
3. an action under chapter 75 of the Civil Service Reform Act of 1978 or other disciplinary or corrective action;
4. a detail, transfer, or reassignment;
5. a reinstatement;
6. a restoration;
7. a reemployment;
8. a performance evaluation under chapter 43 of the Civil Service Reform Act of 1978;
9. 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;
10. a decision to order psychiatric testing or examination; and
11. any other significant change in duties, responsibilities or working conditions.
Section 2
The Employer shall not:
A. Discriminate for or against any employee or applicant for employment:
1. on the basis of race, color, religion, sex, or national origin, as prohibited under Section 717 of the Civil Rights Act of 1964;
2. on the basis of age, as prohibited under Sections 12 and 15 of the Age Discrimination in Employment Act of 1967;
3. on the basis of sex, as prohibited under Section 6(d) of the Fair Labor Standards Act of 1938;
4. on the basis of handicapping condition, as prohibited under Section 501 of the Rehabilitation Act of 1973;
5. on the basis of marital status or political affiliation, 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 or applicant for employment as 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 or applicant for employment (including defining the scope or manner of competition or the requirements 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 Title 5 of the United States Code) of such employee if such position is in the agency in which such employee is serving as a public official (as defined in Title 5 of the United States Code) or over which such employee exercises jurisdiction or control as such an official.
H. Take or fail to take, or threaten to take or fail to take, a personnel action with respect to any employee or applicant for employment as a reprisal for:
1. a 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 and 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. a disclosure to the Special Counsel 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 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.
I. Take or fail to take, or threaten to take or fail to take, any personnel action against any employee or applicant for employment as a reprisal for:
1. the exercise of any appeal, complaint or grievance right granted by any law, rule, or regulation;
2. testifying for or otherwise lawfully assisting any individual in the exercise of any right referred to in subsection I1 above;
3. cooperating with or disclosing information to the Inspector General of an agency, or Special Counsel, in accordance with applicable provisions of law; or
4. refusing to obey an order that would require the individual to violate a law.
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 subsection 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, of the District of Columbia, or of the United States.
K. 1. knowingly take, recommend, or approve any personnel action if the taking of such action would violate a veterans’ preference requirement; or
2. knowingly fail to take, recommend, or approve any personnel action if the failure to take such action would violate a veterans’ preference requirement.
L. 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 the Civil Service Reform Act of 1978.
Section 3
An employee aggrieved under Section 2 above may raise the matter under a statutory procedure or under the employee grievance procedure outlined in Article 41 of this Agreement, but not both.
Section 4
In reviewing grievances on the provisions of this article, arbitrators will apply the same standards of evidence and burden of proof as those applied by the Merit Systems Protection Board.