INTERROGATION BY THE OFFICE OF INSPECTOR GENERAL OR POSTAL INSPECTION SERVICE INSTRUCTORS: Patricia ‘Pat’ Williams, Assistant Director Clerk Division Shirley

INTERROGATION BYTHE OFFICE OF INSPECTOR GENERAL

ORPOSTAL INSPECTION SERVICE

INSTRUCTORS: Patricia ‘Pat’ Williams, Assistant Director Clerk Division

Shirley Jean Taylor, National Business Agent, Clerk DivisionPatricia ‘Pat’ Davis-Weeks, National Business Agent, Clerk Division

Terry Martinez, National Business Agent, Maintenance Division

SYNOPSIS OF ARBITRATION AWARDS BASED ON

INSPECTORS INVESTIGATIVE MEMORANDUMS

• Removal for making threatening remarks to co-workers

• Removal for Improper Conduct Based on Seeking Sick Leave on the same days while incarcerated

• Discharge for hiding money under papers in cash drawer

• Removal for misrepresentation of facts to obtain OWCP benefits

• Removal for failing to disclose employment information on a CA-17 form

• Removal for misappropriation of funds• Removal for Embezzlement• Discharge for misrepresenting injury • Discharge for not accounting for postal funds

Purpose of Postal Inspection Service

• The mission of the Postal Inspection Service is clear- “To enforce applicable laws and regulations as they relate to the U.S. Mail, Postal Service accountable items, Postal Funds and conduct of Postal employees”.

Employee and Labor RelationsManual Part 666.6

• The Contract requires Postal Employees to cooperate in all Postal Investigations, including those administered by Postal Inspectors and/or OIG.

• This provision falls under Article 19 of the Collective Bargaining Agreement.

TYPES OF OIG INVESTIGATIONS

• Employee witness to incident of misconduct

• Investigation leading to discipline or possible criminal charges

• Investigation leading to possible criminal charges

SHOP STEWARD’S RESPONSIBILITY

• Advise and actively assist the employee• Attempt to clarify the facts• Assist the employee in articulating an explanation• Take notes of questions and answers• Ask questions or seek clarification to prepare a record

in the event of unforeseen discipline of the employee• If believe employee may be subject of criminal

investigation, advise employee to remain silent and not sign any statements/forms until seeking counsel.

DO NOT SIGN

“WARNING AND WAIVER OF RIGHTS”

PS FORM 1067

Rights Before Postal InspectorsCard

Use the employees statement card to

remember what you should say when

questioned by Postal Inspectors / OIG

Transition of Work From the Postal Inspection Service (PIS) to the Office of the Inspector General

(OIG)

• The United States Postal Service (OIG) was created by Congress in September 1996 by amending the Inspector General Act of 1978 and the Postal Reorganization Act of 1970. The Inspector General Act provides that the OIG may conduct audits and investigations in the Postal Service as it considers appropriate.

• Investigations of bargaining unit employees fall within the OIG’s statutory responsibility to conduct audits and investigations pertaining to the Postal Service and are within the OIG’s discretion to conduct.

• 9/9/04 PMG Potter notifies Officers of the USPS that the PIS and OIG will focus efforts on areas that Congress intended and the transfer of duties will take 1 to 2 years

• 2/7/05 The Chief Postal Inspector and the Inspector General advise Officers and Executives of the USPS of each organization’s new responsibilities.

Special Agents in Charge Special Agents in Charge of the OIG will investigateof the OIG will investigate::

Allegations of employee embezzlementAllegations of employee embezzlement

• Record falsification by employeesRecord falsification by employees

• Workers’ compensation fraud by Workers’ compensation fraud by employeesemployees

• Contract fraudContract fraud

• On-duty employee narcotics violationsOn-duty employee narcotics violations

• Miscellaneous employee misconductMiscellaneous employee misconduct

- Application falsification- Application falsification

- Theft of property or services- Theft of property or services

- Non-postal crimes, etc.- Non-postal crimes, etc.

Special Agents in Charge Special Agents in Charge of the OIG will investigateof the OIG will investigate::

The PIS will investigate:The PIS will investigate:

Mail theftMail theft

INVESTIGATION OF OIGLEGAL PERSPECTIVE

Who was contacted by OIG?

• Did the contact relate to the person’s actions as an employee or as a union officer?

• Was the person at work or away from work at time of contact?

• Were there postal employee and/or manager contacts, but not union official contacts?

Was anyone else involved in the OIG contact with the employee and/or union

officer?

• Postal Manager?

• Postal Police?

• Other federal investigators? ( DOL) ( FBI)

• What was the subject of contact?

• What was being investigated?

What gave rise to the investigation?

• Did the OIG begin the inquiry on its own?

• Did someone file a complaint with OIG?

• Was the complainant a union member?

• Was the complainant a union officer?

Did the complaint involve, or was the investigation about, an internal union matter?

• An election?

• Expenditure of union funds?

• Conduct of union meeting?

• Constitution or bylaws change?

If the answer to #5 is yes- (Did the complaint involve, or was the

investigation about an internal union matter?)

• How did OIG become aware of the issue?

Is the subject of the inquiry the union’s handling of a grievance?

• Decision to file a grievance?

• Decision to arbitrate?

• Position taken in grievance procedure or arbitration?

If answer to #7 is yes, (Is the subject of the inquiry the union’s

handling of a grievance?)


• Is the subject of the inquiry the settlement of a grievance?

If the answer to # 9 is yes,(Is the subject of the inquiry the

settlement of a grievance?)


If the answer to #9 is yes,

• Is the inquiry about distribution of a lump sum settlement?

• Is the inquiry about management’s decision to settle?

Have any other union officers been contacted by the OIG?

• If so, who?

• Is there an ongoing or related criminal or administrative investigation?

Where did the contact take place?

• Postal Facility?

• Union Office?

• Person’s home?

• Phone?

What was time of day, work status, at time of contact?

• Work hours at Postal Facility?

• Non-work hours at Postal Facility?

• Non-work hours (away from Postal facility)

Was anyone else present at time of contact?

• Who?

If person objected to OIG inquiry what was OIG reaction?

• Stop?

• Direct person to answer?

• Try to persuade person to answer?

3/22/05 Vice Pres. Labor Relations Vegliante to APWU President Burrus explains that certain types of work place misconduct will be transitioned from the PIS to the OIG to investigate.

This transition will not restrict, eliminate, or otherwise adversely affect any rights, privileges, or benefits of either employees or the Union.

OIG is issuing “tickets” in some parts of the country to our employees.

We are aware of two instances from the Central Region.

OIG ISSUING TICKETS

• OIG issued a $125 ticket to the union steward for allegedly lying at the hearing.

• The Federal Magistrate Judge, the U.S. Attorney dismissed the charges.

FIRST INCIDENT

Please also note that because the case is dismissed ‘without’ prejudice’, in theory the OIG could still, at a later point, make a case for prosecution. However, the U.S. Attorney believes based on his review of the case, that is very unlikely.

Also at Palatine, the OIG gave an employee a $50 ticket for selling bootleg DVDs and CDs.

NOTE: The local wanted to grieve the ticket under Article 28.

SECOND INCIDENT

APWU’S POSITION

• Become aware

• The union should

intervene to represent

our employees

• Be aware of the legalities

of certain situations.

• Greg Bell and our legal department is investigating the legalities.

• It is a new concept.

• Employees must be made aware that what they did in the past can no longer continue.

NATIONAL APWU’S POSITION

Following are answers to some of the Following are answers to some of the questions APWU posed to the USPS questions APWU posed to the USPS regarding the transition of work from the regarding the transition of work from the Postal Inspection Service (PIS) to the office Postal Inspection Service (PIS) to the office of the Inspector General (OIG)of the Inspector General (OIG)

A8.A8. Will OIG comply with the Will OIG comply with the requirements of Article 17.3 as it relates requirements of Article 17.3 as it relates to an employee request for a steward or to an employee request for a steward or Union representative during the course Union representative during the course of an interrogation?of an interrogation?

• If an employee requests a steward or Union If an employee requests a steward or Union representative to be present during the course representative to be present during the course of an interrogation by the Inspection Service, of an interrogation by the Inspection Service, such request will be granted. All polygraph tests such request will be granted. All polygraph tests will continue to be on a voluntary basis.will continue to be on a voluntary basis.

A9.A9. Will OIG comply with the MOU Will OIG comply with the MOU entitled, “Role of Inspection Service entitled, “Role of Inspection Service in Labor Relations Matters?”in Labor Relations Matters?”

• Postal Inspection Service policy does not Postal Inspection Service policy does not condone disrespect by Inspectors in dealing condone disrespect by Inspectors in dealing with any individual. It has an obligation to with any individual. It has an obligation to comply fully with the letter and spirit of the comply fully with the letter and spirit of the National Agreement between the parties and National Agreement between the parties and will not interfere in the dispute resolution will not interfere in the dispute resolution process as it relates to Articles 15 and 16.process as it relates to Articles 15 and 16.

• The parties further acknowledge the necessity The parties further acknowledge the necessity of an independent review of the facts by of an independent review of the facts by management prior to the issuance of management prior to the issuance of disciplinary action, emergency procedures, disciplinary action, emergency procedures, indefinite suspensions, enforced leave or indefinite suspensions, enforced leave or administrative actions. administrative actions.

A10. Generally speaking, the OIG will comply A10. Generally speaking, the OIG will comply with those decisions, settlements, and with those decisions, settlements, and memoranda of understanding that were memoranda of understanding that were reached through the grievance/arbitration reached through the grievance/arbitration process, National Labor Relations Board, or process, National Labor Relations Board, or judicial process that apply to the Inspection judicial process that apply to the Inspection Service. Service.

• A11. OIG investigators (Special Agents) will comply A11. OIG investigators (Special Agents) will comply with with WeingartenWeingarten rights in the same manner as Postal rights in the same manner as Postal Inspectors.Inspectors.

• A12. Special Agents will not issue or concur in A12. Special Agents will not issue or concur in disciplinary action outlined in Article 16 of the National disciplinary action outlined in Article 16 of the National Agreement.Agreement.

• A13. Special Agents will not recommend and/or A13. Special Agents will not recommend and/or mandate the issuance of discipline to bargaining unit mandate the issuance of discipline to bargaining unit employees.employees.

• A17. Special Agents do not have authority to grant A17. Special Agents do not have authority to grant immunity from criminal prosecution. The Justice immunity from criminal prosecution. The Justice Department or an office of the United States Attorney Department or an office of the United States Attorney has the authority to grant immunity from criminal has the authority to grant immunity from criminal prosecution. prosecution.

• Provision of the form, “Administrative Warning: Duty to Provision of the form, “Administrative Warning: Duty to Cooperate,” means that the OIG has obtained a Cooperate,” means that the OIG has obtained a waiver of prosecution from the Justice Department or waiver of prosecution from the Justice Department or United States Attorney Office. United States Attorney Office.

• A20.A20. An employee may invoke their right to An employee may invoke their right to counsel in a custodial interrogation. counsel in a custodial interrogation.

• A21.A21. When applicable, the Special Agent will When applicable, the Special Agent will advise the employee of his/her advise the employee of his/her MirandaMiranda rights. rights.

If an employee is not in custody, and is free to If an employee is not in custody, and is free to leave, the OIG does not provide leave, the OIG does not provide MirandaMiranda rights. rights.

• A23. The Special Agent will provide A23. The Special Agent will provide MirandaMiranda rights when interrogating employees in rights when interrogating employees in custodial situations; and either custodial situations; and either KalkineKalkine or or GarrityGarrity warnings in non-custodial interrogations. warnings in non-custodial interrogations.

• A25. The OlG’s report of investigation is similar A25. The OlG’s report of investigation is similar in substance to the Inspection Service’s in substance to the Inspection Service’s investigative memorandum. investigative memorandum.

• Upon request, the Union will be provided Upon request, the Union will be provided information consistent with Article 17, Section 3 information consistent with Article 17, Section 3 and Article 31.and Article 31.

• A26. The APWU may have the right to interview A26. The APWU may have the right to interview Special Agents consistent with the provisions of Special Agents consistent with the provisions of Article 17 and 31, depending on the Article 17 and 31, depending on the circumstances.circumstances.

17.3 The steward, chief steward or other Union representative properly certified in accordance with Section 2 above may request and shall obtain access through the appropriate supervisor to review the documents, files and other records necessary for processing a grievance or determining if a grievance exists and shall have the right to interview the aggrieved employee(s), supervisors and witnesses during working hours. Such requests shall not be Unreasonably denied.

31.3 The Employer will make available for inspection by the Union all

relevant information necessary for collective bargaining or the enforcement,

administration or interpretation of this Agreement, including information

necessary to determine whether to file or to continue the processing of a

grievance under this Agreement. Upon the request of the Union, the Employer

will furnish such information, provided, however, that the Employer may

require the Union to reimburse the USPS for any costs reasonably incurred in

obtaining the information.

Requests for information relating to purely local matters should be submitted

by the local Union representative to the installation head or his designee.

APPLICABLE COURT DECISIONS

• Weingarten Rights

• Miranda Rights

• Garrity Warnings

• Kalkines Warnings

WORKPLACE RIGHTS(GARRITY & KALKINES)

Workplace rights arise because in the public sector the government acts as both a law enforcement Agency and employer.

RELEVANT CONTRACTUAL PROTECTIONS

• Article 17, Section 3 which states in part that “[i]f an employee requests a steward or union representative to be present during the course of an interrogation by the inspection Service, such request will be granted. All polygraph tests will continue to be on a voluntary basis.”

• JCIM (Article 17) page 4 and Q&As page 6

• CBA Memorandum of Understanding page 327

MIRANDA RIGHTS

• These rights come from a Supreme Court These rights come from a Supreme Court decision (NLRB v. J. Weingarten Inc., 420 decision (NLRB v. J. Weingarten Inc., 420 US 251 (1975) involving a series of criminal US 251 (1975) involving a series of criminal cases. Known as the Weingarten rule.cases. Known as the Weingarten rule.

THREE OPTIONS OF EMPLOYER

• Grant the request and delay questioning until the union representative arrives;

• Deny the request and end the interview immediately;

• Give the employee a choice of (a) having the interview without representation or (b) ending the interview.

PRIVATE DISCUSSION WITH STEWARD

Employee has the right to a private discussion with the steward before the interview continues, and to have the steward present during the interview with an OIG agent or postal inspector.

See JCIM, page 5 (Article 17)

NLRB CHARGES AND GRIEVANCES FOR NONCOMPLIANCE

• Stewards Rights Violation

• Employee’s Rights Violation

• Each should be filed separately

CHARGES SHOULD ALLEGE

• Violations of Section 8(a)(1) of the National Labor Relations Act.

• Section 8 says: “It shall be an unfair labor practice for an employer …(1) to interfere with, restrain or coerce employees in the exercise of rights guaranteed in section

7 …”

LOCAL’S CHARGE

“Since on or about ______, and continuing to date, the Postal Service has interfered with, restrained and coerced employees in the exercise of their right to self-organization, form, join and assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purposes of collective bargaining, by interfering with shop steward [fill in name]’s right to represent and assist employees during investigatory or pre-disciplinary interviews.

INDIVIDUAL’S CHARGE

“Since on or about ________, and

continuing to date, the Postal Service has

interfered with, restrained and coerced

employees in the exercise of their right to

mutual aid and protection by failing to afford

[fill in name] the right to the assistance of

fellow employees during interviews which

may result in discipline.

GRIEVANCES

• In addition to NLRB charges, individual grievances should be filed on behalf of the employee whose Weingarten rights have been violated, and a separate class action grievance also should be filed by the union on behalf of the steward whose rights to participate in an investigatory interview were violated.

NLRB PILOT PROGRAM

• February 28, 2008, the Postal Service and the National Labor Relations Board entered into a settlement agreement concerning cases that involved Postal Service Weingarten violations pending in the Contempt Litigation and Compliance Section of the NLRB, before the Board, and before or recently enforced by an appellate court.

SETTLEMENT AGREEMENT

• Established a pilot program to address pending and future Weingarten Violations.

UNDER THE AGREEMENT MANAGEMENT CAN

• Avoid an NLRB cease and desist order or contempt proceeding by correcting its mistake by conducting a new interview with a union representative

• Make reference to the actions taken under the settlement agreement as a defense in the grievance procedure or other proceedings

• Retain information it obtains through the unlawful interrogation (the investigatory interview conducted in violation of Weingarten for use in criminal matters)

APWU’s POSITION

• APWU intends to challenge the program if an when the NLRB attempts to obtain approval from the appeals court of a consent order embodying the new agreement.

• Copies of unfair labor practice charges related to Weingarten violations that have been filed after the NLRB/USPS settlement establishing the pilot program went into effect should be forwarded to the Industrial Relations Department.

MIRANDA RIGHTS

Excerpts from criminal cases that were Excerpts from criminal cases that were

reversed by the court due to the defendant reversed by the court due to the defendant

not being apprised of his/her rights.not being apprised of his/her rights.

1) A defendant was arrested and during interrogation signed a typed written confession which also said he was aware of his legal rights in regard to any statement he makes which may be used against him.

• He was convicted of kidnapping and rape based on the confession.

• The Supreme Court of the US reversed that ruling holding that the confession was inadmissible because he was not apprised of his right to counsel and his privilege against self incrimination.

2) A defendant made an oral confession to police and later that day signed a confession for the District Attorney.

• He was convicted of robbery.

• The Supreme Court reversed that ruling holding that the confession was inadmissible because he was not apprised of his right to counsel and his privilege against self incrimination.

3) Defendant was arrested in Kansas City for robberies committed there, interrogated by police for sometime, and then turned over to the FBI who continued questioning him until they obtained two signed confessions for two robberies in California.

• Based on his confessions he was convicted of felon robbery in the State of California.

• The Supreme Court reversed that ruling holding that the confession was inadmissible because he did not knowingly and intelligently waive his right to remain silent, and his right to consult with counsel prior to the confessions.

4) Defendant was held and subjected to 9 separate interrogations over a 5 day period until he made a confession. Through 8 of the confessions he denied the offenses.

• He was convicted of kidnapping to commit robbery, rape and murder.

• His conviction was reversed on appeal by the Supreme Court of California finding that the confession was inadmissible as he was not advised of his right to remain silent or of his right to counsel.

The Supreme Court of the US affirmed the lower court findings

MIRANDA established an individual has the right:

1) to remain silent2) to know anything said can be used as evidence against you in court3) to council prior to and during questioning or at anytime (hired or appointed)4) to understand these are your rights

GARRITY RIGHTS

This constitutional privilege is intended to ensure that a person isn’t required or coerced to disclose any information that he/she reasonably believes may beused (or lead to other evidence that may be used) against him/her in a criminal prosecution.

GARRITY RIGHTS cont.

GARRITY established an individual has the right:

• To not be threatened by the employer with discharge in order to secure incriminating evidence against them, to be used in arrest and prosecution.

Scenario

• New Jersey state police officers were suspected of and interrogated for fixing traffic tickets.

• During the investigation they were told that anything they say could be used against them in criminal proceedings, and that they had the right to refuse to answer if the disclosure would tend to incriminate them. (Miranda)


• But if they refused to answer they would be subject to removal for failure to cooperate in an administrative investigation.

• Based on their statements made in these interrogations they were convicted.


The Supreme Court held that the statements had

had been made under duress because the

defendants had to choose between self

incrimination or job forfeiture.

The State can not threaten to discharge

employee (s) in order to secure incriminating

evidence against them.


Garrity establishes public sector employees have additional rights (governmental employees, including Postal Employees have additional rights as the employer is both law enforcement agency and employer)

KALKINES RIGHTSKALKINES RIGHTS

KALKINES established an individual has the right:

• To know if information being solicited during an interrogation will be used against them in criminal prosecution and then can rely on their Miranda rights.

• If given immunity from prosecution the employee has a duty to cooperate with the investigation even though it could cost him/her their job.

KALKINES RIGHTSKALKINES RIGHTS

KALKINES warning ordinarily states:“… You are going to be asked a number of specific questions concerning the performance of your official duties as an employee of the United States Postal Service. You have a duty to reply to these questions and agency disciplinary proceedings resulting in your Discharge, may be initiated as a result of your answers. However, neither your answers nor any information or evidence which is gained by reason of such statements can be used against you in criminal proceedings. You are subject to discipline up to and including dismissal if you refuse to answer or fail to

respond truthfully and fully to any questions..

STEWARD’S STEWARD’S RESPONSIBILITYRESPONSIBILITY

• Advise employee of the consequences of giving a statement or not answering questions

• Make sure employee is made aware that any discipline is subject to challenge in the grievance / arbitration procedure.

• Make employee aware that false answers could subject them to discipline for providing false statements during an investigation. (However, the postal service has to prove the statements are false and were made intentionally in a false manner by the employee).


• Should take the opportunity to interview postal inspectors or OIG agents

• Attempt to obtain notes that an inspector or OIG agent relied upon in preparing an investigative memorandum

• Remember the right to interview a postal inspector or OIG agent has been upheld in a 1981 NALC Step 4 Settlement with the Postal Service (USPS #N8-N-0024)

• Utilize arbitration awards which reinforce and clarify this right.


• Stewards may interrupt the interrogation in order to speak with the employee

• Stewards may advise the employee in front of the inspectors or agents or alone in private of the employee’s consequences of giving a statement or not answering questions.

SCENARIOSCENARIO

• An employee was being interrogated by the Bureau of Custom for suspicion of taking bribes from importers in return for favorable treatment in customs entry.

• During the investigation the employee refused to answer questions based on his Fifth Amendment rights against self incrimination.

KALKINES RIGHTSKALKINES RIGHTS cont.

• He was discharged for not cooperating in an employer investigation.

• The US Court of Claims held that the employer did not make it sufficiently clear that the employee would be immune from prosecution if he made a statement. Without such a guarantee against prosecution the employee has the right against self incrimination.

WEINGARTEN’S RIGHTSWEINGARTEN’S RIGHTS

Weingarten Rights are applicable only during investigatory interviews when a supervisor questions the employee to defend his/her conduct.

STEWARDS HAVE THE ABILITY• To serve as a witness

• Object to questions

• Help an employee

• Advise an employee • Warn an employee

• Discourage an employee

• Raise extenuating factors

WEINGARTEN RIGHTSWEINGARTEN RIGHTSScenarioScenario

• An employee was suspected of theft of food and was subjected to interrogation

• The employee requested Union representation and was refused.

• The Union filed an Unfair Labor Practice with the NLRB

WEINGARTEN RIGHTSWEINGARTEN RIGHTS cont.

• The Supreme Court upheld the NLRB’s position that:

1) They have a right to Union Representation

2) Employee must request Union

Representation


3) The employer then has 3 options:

a) Discontinue the interview and act on the evidence already in hand.

b) Advise employee that the employer will not proceed unless the employee is willing to be interviewed without a representative.

c) Provide the employee with a Union representative.

On May 24, 1982 the Chief Postal Inspector replied to a letter from then Vice President Burrus which stated:

“Please be assured that it is not Inspection Service policy that union representatives may only participate as passive observers.


They acknowledged that the representative’s role or purpose is to safeguard the interests of the employee, as well as, the entire bargaining unit.

The role of passive observer may serve neither

purpose.

A representative may properly attempt to clarify facts, suggest other sources or information, and generally assist the employee in articulating an explanation.”



• The parties agreed in Step 4 settlements that Weingarten is both a statutory right, as well as, a contractual right.


• The Step 4 reads, “The parties at this level agree that under the Weingarten rule, the Employer must provide a union representative to the employee during the course of its investigatory meeting where the employee requests such representation and the employee has a reasonable belief that discussions during the meeting might lead to discipline (against the employee).”


4/6/93 in a Judgment of the US Court of Appeals enforcing an order of the NLRB the USPS agreed that:

• WE WILL NOT refuse to permit union representatives to consult with employees prior to investigatory interviews conducted by Postal Inspectors which the employees reasonably believe will result in disciplinary action and WE WILL NOT refuse to permit employees to speak with union representatives prior to such interviews.


• WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employee in the exercise of their rights under Section 7 of the Act.

STEWARD’S PRIVILEGESTEWARD’S PRIVILEGE

• Steward is protected from inspector or OIG agent subjecting him/her to interrogation regarding information disclosed or communicated to him/her by an employee while the steward is acting in the capacity of a representative.

STEWARD’S PRIVILEGESTEWARD’S PRIVILEGE

• Isn’t equivalent to an “attorney-client” privilege.

• Steward’s privilege applies in the context of investigatory interviews by postal inspectors or OIG agents.

LOCAL AND/OR STEWARDS’ LOCAL AND/OR STEWARDS’ RESPONSIBILITYRESPONSIBILITY

• Inform both management officials and inspector or OIG agent that the Local is going to file an unfair labor practice charge against the USPS alleging violations of Section 8(a)1 if the inspector or OIG agent goes ahead with questioning.

LOCAL’S RESPONSIBILITY LOCAL’S RESPONSIBILITY

• The local should request injunctive relief under Section 10(j) of the National Labor Relations Act since the damage done by such a demand is irreparable because of the ongoing chilling effect that it has both on an employee’s willingness to consult stewards, and on the willingness of employees to serve as stewards.

LOCAL’S CHARGE LOCAL’S CHARGE

• On or about ______, the U.S. Postal Service interfered with, restrained and coerced employees in the exercise of their Section 7 rights by, among other things, demanding under threat of discipline that union officials submit to interrogations about their union activities. Injunctive relief under Section 10(j) is requested.

LOCAL’S SHOULD CITE LOCAL’S SHOULD CITE

• When contacted by the Board Agent, the local should cite Cook Paint and Varnish Co.

DEFENSES IN DISCIPLINE DEFENSES IN DISCIPLINE INVOLVING I.S. OR OIG INVOLVING I.S. OR OIG

• Postal Service improperly relied on an Inspection Service or OIG Investigative Memorandum (IM) without conducting its own investigation and that the Inspection Service or OIG improperly influenced management’s issuance of discipline by recommending a specific course of action.

DEFENSES IN DISCIPLINE DEFENSES IN DISCIPLINE INVOLVING I.S. OR OIG INVOLVING I.S. OR OIG

• Inspectors’ or OIG agents’ use of particularly deceptive or egregious interview techniques may be sufficient in certain cases to overturn an employee’s discipline.

• Utilize award decisions where there are arguments defending against a charge that an employee failed to cooperate in an inspection Service or OIG investigation

AMERICAN POSTAL WORKERS UNION MEMBERS

AND THE POSTAL INSPECTORS

SCENARIOS

SCENARIO 1

A window clerk is on duty at the window counter waiting on a line of customers. A person approaches from the work floor and identifies him/herself as a Postal Inspector and begins making some small talk.

The clerk immediately tells the Postal Inspector that he/she wants a Union Representative. The clerk answers no questions and responds with no comments to the Postal Inspector.

The Postal Inspector may insist this is not an investigation and that he/she is just being friendly. The clerk must neither accept nor believe that. Postal Inspectors often cover up their intentions with lies and half-truths.

WHAT TO DO?

If the Postal Inspector continues to persist: the clerk Ignore him/her and/or Get the manager and Tell the manager the Postal Inspector is disrupting and distracting the clerk from performing his/her duties carefully and exercising reasonable care.

SCENARIO 1

SCENARIO 2

A manager or Postmaster approaches an

employee on the workroom floor and orders the

employee to report to the office because

“someone wants to speak to him/her.”

The employee ask the manager/postmaster who

it is that they are to speak with.

If the answer is a Postal Inspector, then the Employee must immediately request Union Representation. If the manager or postmaster refuses to tell the employee, then the employee must requests a Union Representative. The employee should not refuse to follow the manager/postmaster instructions, but should make it clear he/she is requesting the Union Representative. The employee should attempt to have a craft employee witness the request.

WHAT TO DO?

If he/she finds the Postal Inspector waiting, immediately, the employee should request Union representation

Remain absolutely silent until one is provided.

SCENARIO 2

SCENARIO 3

Manager or Postmaster tells employee to

accompany him/her to the office. Once there, the

Postal Inspector is waiting.

WHAT TO DO

Same as Scenario II;

Employee must request Union Representation

Say nothing until it (representation) is provided

SCENARIO 3

SCENARIO 4

A customer comes to the window and says, “I found this

in the parking lot.” (coil, roll, sheet or book of stamps,

money order, loose stamps, etc.)

Clerk immediately takes the ‘found’ item to his/her

manager/postmaster. Because neither is in the office,

he/she calls the nearest management official for the

office.

Postal Inspectors have increased these set up scams to ‘test’ and ‘ensnare’ Postal Clerks. Clerks must never place the found item into their accountabilities even temporarily. If a supervisor or manager tells a clerk to keep it in his/her accountability on a temporary basis the clerk must insist on that instruction in writing and retain a record copy.

WHAT TO DO?

Managers, sometimes develop ‘bad memories’ about improper instructions given to employees. If possible, have another

employee witness: a) what is turned in and

b) where it is being held.

SCENARIO 4

SCENARIO 5

Manager/Postmaster gives a window clerk

excess stock that the requisition did not support

and corroborate.

The Postal Inspection Service is involved in the ‘extra

stock’ test scam.

WHAT TO DO?Clerk must immediately bring the manager/postmaster

‘error’ to Management’s attention.

If a manager/postmaster tells the clerk to keep the stock,

(a) Clerk must never retain that extra stock in his/her accountability, even on a temporary basis.

(b) Insist on that order in writing.

SCENARIO 5

SCENARIO 6

Postal Employee finds a mail article opened on

the workroom floor, with cash or other valuables

exposed/loose.

WHAT TO DO?

Immediately tell the manager/postmaster what

was found. If possible, avoid handling the article and

especially its contents.

SCENARIO 6

Postal Inspectors often ‘test’ employees’ integrity by leaving ‘set ups’ of money, jewelry, tapes, CD’s, etc., in opened conditions on the workroom floor.

SCENARIO 7

Postal Employee finds money/stamps on the floor

of the Post Office without a mail article.

WHAT TO DO?

Employee must immediately turn in whatever was

found. Employees must never pocket even a

penny or nickel or a 1 cent stamp found on the

workroom floor.

SCENARIO 6

Postal Inspectors do oversee ‘loose funds’ scams

to ensnare Postal Employees.

SCENARIO 8

Customer at the window picks up postage due

articles and insists he/she does not need a

receipt. Customer leaves before a receipt is

prepared and given.

?

WHAT TO DO?Clerk must ensure stamp and or meter strip is applied

for the amount of postage paid. Bring the customer’s refusal to management’s

attention. Run meter strips or apply stamps for postage due

transaction without exception.

SCENARIO 8

Postal Inspectors working with Postal Management have run hundreds of postage due scams whereby fictitious companies open Post Office boxes and begin receiving postage due mail.The Postal Inspectors hope to catch a clerk failing to apply postage to postage due receipts so Misappropriation of Postal due receipts so misappropriation of Postal funds can be alleged.

SCENARIO 9

Employee gets a phone call at home from a

Postal Inspector.

WHAT TO DO

Employee should tell the Postal Inspector that he/she will not speak to him or her over the phone.

The employee must hang up the phone.

The employee must immediately contact a Union Representative.

SCENARIO 9

SCENARIO 10

Employee receives a visit at home from Postal

Inspectors.

WHAT TO DO? Not let them in his/her residence Never speak to Postal Inspectors off the clock at home or

anywhere else Must tell the Postal Inspectors he/she will not speak to them or

see them off the clock, either at home or at any other location. Must immediately contact a Union Representative.

SCENARIO 10

Postal Inspectors have ample opportunity to talk with employees at the Post Office, on the clock, with Union Representation. When the employee answers the door and the Postal Inspectors identify themselves,

SCENARIO 11

Postal Inspectors tells an employee that he/she is

not entitled to a Union Representative because

he/she is not the subject of the investigation.

The Postal Inspectors explain that they must ask

some questions about employee _______.

WHAT TO DO

Not answer any questions or discuss anything with any Postal Inspector, unless, once requested, the Union Representative is provided and present.

If the employee is told he/she is not the subject of the

investigation and is not entitled to Union Representation:Employee must still insist on a Union Representative

and not answer questions or cooperate in any way

without the Union Representative.

SCENARIO 11

SCENARIO 12

Postal Inspectors refuse Union Representation to

an employee during an investigative interview.

WHAT TO DO

Stand fast and refuse to answer any questions, write any statements or respond in any way

Remain calm and silent.

SCENARIO 12

SCENARIO 13

Postal Inspector tells an employee if he/she does

get a Union Representative, the Inspection

Service will not be able to “help” the employee,

i.e., prevent a jail sentence, firing, etcetera.

WHAT TO DONever believe any Postal Inspector when such

“promises” or “assurances” are given Insist on Union Representation Remain silentDo not cooperate in any way without Union

representation. SCENARIO 13

Postal Inspectors are in the business to get convictions of Postal employees.

They are in the business to get resignations of Postal Employees and to obtain

evidence and confessions leading to firings of Postal Employees. They will

often use the false ploy of “promising” employees certain conditions or results if

the employees “cooperate”, ie., give sworn admissions to misconduct and/or

illegality. Such “promises” and “assurances” are summarily denied by Postal

Inspectors in court and at arbitration.

SCENARIO 14

Postal Inspector tells an employee that they have an audio or video tape of the employee in the act of some wrongdoing and that an admission will benefit the employee’s situation.

WHAT TO DO

Never accept any threat of an audio or video tape on the part of Postal Inspectors as factual.

SCENARIO 14

Postal Inspectors regularly use fabricated video or audio

tapes as threats to intimidate employees into

admissions.

SCENARIO 15

An employee is approached on the workroom

floor by a uniformed repair person, delivery

person, Postal Worker Civilian, that does not

work at the installation, making small talk and

asking questions.

WHAT TO DO?

Must ask the person to identify him/herself.

Not engage in any discussions with an unknown person on the workroom floor.

SCENARIO 15

Postal Inspectors often pose as citizens, Postal

Employees, visiting managers, delivery persons, etc., to

infiltrate the Post Office and gains the confidence of

workers.

SCENARIO 16

Postal Inspectors tells an employee there is no

Union Representative available and that

cooperation is required without delay.

WHAT TO DO?Must tell the Postal Inspectors he/she will

cooperate, but only with a Union Representative

present.

Must stand fast and assure the Postal Inspectors he/she will cooperate once the Union Representative becomes available. This is regardless of whether the availability occurs in hours, days or weeks.

SCENARIO 16

Often, Inspectors will attempt to coerce responses to

questions when they allege no Union representative can

be found.

RECAPRECAP

MIRANDAMIRANDA

• Involves Custodial interrogation

• Established the following:– Your right against self incrimination– Right to remain silent– Right to counsel– Right to understand these rights

GARRITYGARRITY

• Involves Non-Custodial interrogation

• Established that the employer cannot threaten to discharge employees in order to secure incriminating evidence against them to be used in arrest and prosecution.

KALKINESKALKINES


• Established that government/employer can grant the employee immunity from prosecution and demand that the employee respond to questioning and cooperate in their investigation.

KALKINESKALKINES

• Employee can be disciplined and/or discharged for not cooperating in the investigation.

• Employee can be disciplined and/or discharged for cooperating and answering questions properly but if the answers establish employee misconduct the employer can take action against the employee.

WEINGARTENWEINGARTEN


• Established that if an employee has a reasonably belief that discipline will be the outcome of the interview they have a right to Union Representation

• The employee must make the request for Union Representation

YOUR ROLE AS A SHOP STEWARD YOUR ROLE AS A SHOP STEWARD AND/OR UNION REPRESENTATIVE IN AND/OR UNION REPRESENTATIVE IN REGARD TO INVESTIGATIVE REGARD TO INVESTIGATIVE INTERVIEWS INVOLVING MIRANDA, INTERVIEWS INVOLVING MIRANDA, GARRITY, KALKINES AND/OR GARRITY, KALKINES AND/OR WEINGARTENWEINGARTEN

CRIMINAL ALLEGATIONS – (potential for arrest and prosecution) - Miranda and/or Garrity

CRIMINAL ALLEGATIONS CRIMINAL ALLEGATIONS (potential for arrest and prosecution) - Miranda and/or(potential for arrest and prosecution) - Miranda and/or Garrity

• If the employee requests Union representation in an interview/interrogation because they have a reasonable belief that not just discipline but also arrest and prosecution may be the outcome of the interview, a representative is required to be provided. (Weingarten and/or Miranda, as applicable)

CRIMINAL ALLEGATIONS CRIMINAL ALLEGATIONS (potential for arrest and prosecution) - Miranda and/or Garrity (potential for arrest and prosecution) - Miranda and/or Garrity

• Note: If questioning involves criminality then the employee must demand an attorney and the steward should advise accordingly and insist that the employee not say or sign anything without consulting an attorney.

CRIMINAL ALLEGATIONS CRIMINAL ALLEGATIONS (potential for arrest and prosecution) - Miranda and/or Garrity(potential for arrest and prosecution) - Miranda and/or Garrity

• Your role via Weingarten is to interview the employee to ascertain the subject of the interview and your representative role in the matter.

CRIMINAL ALLEGATIONSCRIMINAL ALLEGATIONS(potential for arrest and prosecution) - Miranda and/or Garrity(potential for arrest and prosecution) - Miranda and/or Garrity

• Ask the employer/investigator if the employee is being ordered to participate in the investigation or whether the interview is voluntary. If they say it’s voluntary, both you and the employee get up and leave.


• If it is involuntary you and the employee should insist that the employer inform the employee that any statements made will not be used against the employee in any subsequent criminal action. Demand that the employee be given his/her Miranda or Kalkines warnings. Get it in writing.


• If Miranda is given advise the employee to get an attorney. If Kalkines is given your job is to assist the employee in giving explanations, mitigating the alleged misconduct.


• Since in this example the issue involves criminality you must insist that the employee demand an attorney and insist that the employee not say or sign anything without consulting an attorney.


• Your role is over.

ADMINISTRATIVE ACTIONS - ADMINISTRATIVE ACTIONS - (potential for discipline or discharge) – (potential for discipline or discharge) – Kalkines and/or Weingarten Kalkines and/or Weingarten

ADMINISTRATIVE ACTIONS(potential for discipline or discharge)

Kalkines and/or Weingarten

• If an employee requests Union representation in an interview/interrogation because they have a reasonable belief that discipline will be the outcome of the interview, a representative is required to be provided.



• If criminality is involved but the government has granted the employee immunity from prosecution, the employee has a duty to cooperate.



• Your role via Weingarten is to interview the employee to ascertain the subject of the interview and your representative role in the matter.



• Then your role is to assist the employee in explaining what may look to be culpability on the part of the employee, is not, or is not to the degree that the employer alleges. You job is to mitigate, explain, help the employee articulate, get them out of trouble.



You can:• Seek clarification on questions asked• Insure that the employee understands the

questions asked• Request a caucus to confer with the employee• Insure that management is ordering the

employee to respond to questions or provide a statement

• Take copious notes



You can’t:

• Interfere with management’s right to investigate the conduct

• You can’t answer on behalf of the employee

What an Individual Should Do When Questioned by the P.I.

orOIG

If questioned by a United States Postal Inspector about your conduct, even if you believe you are not guilty of any wrong doing, it is suggested you do the following:

What an Individual Should Do When Questioned by the OIG

1) Remain calm;

2) Correctly identify yourself, if requested to do so;

3) Do not physically resist an arrest or a search of your person or property;


4)Remain silent until you have consulted with your Union Representative or attorney, as appropriate. Remember. . . do not sign any type of form/document; whether said form or document has a PS (Postal Service) number located on the bottom left corner or not;


5) Read aloud to the Postal Inspector(s) or Office of Inspector General Agent(s) the statement written below.

This is not complete advise. Always consult with an attorney.


I request the presence of my Union Representative. If I am a suspect in a criminal matter, please so advise me. If so, I wish to contact my attorney.

(His/Her) name is _________________Telephone number ( ) ____________


If I am under arrest, I request you to advise me and to inform me of the reason or reasons. I will not resist arrest.


I do not consent to a search of my person or my property. However, I will not physically resist or obstruct such a search. If you have a search warrant, I request to see it at this time.


I will cooperate with you fully, but I do not waive any of my rights, including my right to remain silent. I will not sign any Postal Inspection Service or Office of Inspector General (OIG) form(s) identified as KALKINES and GARRITY warnings or make any written or oral statement unless my attorney and/or Union Representative are personally present and so advise me.


Employee and Labor Relations Manual Section 666.6 Cooperation in Investigations

Employees will cooperate in any postal investigation.

Postal Inspectors

QUESTION 1

When should I request a Union

Representative?

ANSWER 1

As soon as an individual identifies him/herself to

you as a Postal Inspector/ OIG, and advises you

he/she would like to ask you some questions.

This request should include incidents (for window

clerks) in which inspectors count your stamp

stock where you could become the subject of an

investigation.

QUESTION 2

Are inspectors required by contract language to

advise you that you are entitled to have a Union

Steward present during an interrogation?

ANSWER 2

No. They are not required to inform the

employee, nor will they inform the employee.

The responsibility rests with the employee to

know specifically what his/her rights are.

QUESTION 3

What are your rights during an interrogation by

the inspection service in which you could possibly

be the subject of a criminal investigation?

Note: This man does not represent any specific race and/or color

ANSWER 3The best possible advice to an employee during this type of situation is to remain silent. Advise the inspector that you intend to seek legal counsel. Then, when you have engaged the services of an attorney, you will cooperate with their investigation.

One rule to remember is that if enough evidence hasbeen gathered to establish criminal culpability, they will advise you of your rights under law and proceed with formal criminal arraignment. If, on the other hand, they continue the interrogation in general terms, they probably are still fishing for evidence.

QUESTION 4

What is PS 1067, US Postal Inspection Service

Warning and Waiver of Rights; and should I sign

this form if requested?

ANSWER 4

The PS 1067 is commonly referred to as the Miranda warning; essentially, it is an official warning before you are asked any questions and constitutes a waiver by the employee of his/her rights.

Under no circumstances should an employee sign this form until he/she has engaged legal counsel.

QUESTION 5

When is the Inspection Service required to give

an employee under interrogation a “Miranda”

Warning?

ANSWER 5

A Miranda warning must be given at the outset of any investigatory interview conducted by a law enforcement authority, such as the Inspection Service, where the answers may be used to establish a criminal conviction against the employee. If the employee is not provided with a Miranda Warning at this time, none of the information gained as a result of the interview may be admitted in a criminal proceeding against the employee. Some arbitrators have also held that evidence taken in violation of an employee’s Miranda rights cannot be used to establish Just Cause for discharge.

QUESTION 6

If a craft employee is temporarily assigned to

management position (e.g. Officer in Charge or

Acting Supervisor) is he/she covered by the

provisions of the National Agreement with respect

to Union Representation during an interrogation?

ANSWER 6

Yes. An employee on a temporary assignment to

a management position has all the rights

applicable to his/her regular position, not those

applicable to the temporary position.

QUESTION 7

What is an Investigative Memorandum?

ANSWER 7

After the completion of an investigation, criminal or otherwise, an Investigative Memorandum is furnished to local management. It serves as a formal record of the inspector’s findings. Also, it serves to present evidence in support of charges that may be issued by the Postmaster or other administrative official against an employee.

The Union has every right to request copies and review all material relied upon to support the reason for an advance notice from the Postmaster or other administrative official of a proposed suspension or discharge. All facts, including affidavits or other exhibits, must be made available.

QUESTION 8

Are there any situations in which an employee

should agree to a polygraph test?

ANSWER 8

In accordance with the National Agreement,

polygraph tests are voluntary. It is not a good

idea to volunteer for the polygraph examination

until the employee obtains the advice of legal

counsel.

NO!

QUESTION 9

What is the role of a Union Steward/Representative

During an Investigatory Interview?

ANSWER 9

This is perhaps one of the most important functions that a Union Steward/Representative is confronted with. (Refer to Addendum #3 and #4). The Union Steward/Rep should not remain a passive observer. Although the union steward/rep has every right to participate in an investigative interview, the facts of life are that the Inspection Service uses intimidating tactics in an attempt to reduce any input the union person might have.

The union has an obligation as the collective bargaining representative to take an active part on behalf of the employee being interviewed.

ANSWER 9 CONT’DOnce an employee has been read a Miranda Warning, the role of the Steward/Rep becomes limited. The rep should advise the employee to exercise his/her right to remain silent and to consult with an attorney.

Once the attorney arrives, the union representative’s role is limited to assisting the attorney in finding evidence establishing the employee’s innocence. Under no circumstance should a union representative offer advice to employees as to their rights under the criminal law.

QUESTION 10

Are all Postal Service employees required to

cooperate in postal investigations?

ANSWER 10

Yes. All Postal Service employees are required to cooperate in a Postal Service investigation. When an employee has been arrested for violation of criminal law, or when the investigation of a violation of criminal law has reached the accusatory state, (e.g. the investigation) the employee must be informed of his/her constitutional rights against self-incrimination. He/she is entitled to remain silent thereafter or to refuse to answer questions except in the presence of his/her attorney.

This warning is based upon the United States Supreme Court decision on Miranda vs. Arizona, 348US436. All law enforcement officers are required to give persons under investigation an explanation of their constitutional rights.

QUESTION 11

Do I have the right to a union representative

when I am being interrogated by supervisors,

rather than Postal Inspectors?

ANSWER 11

Yes, you have a legal right to steward

representation under the National Labor

Relations Act if you are the subject of the

interrogation and the questions could lead to

discipline against you. The right was established

by the Supreme Court in NLRB and Weingarten

420 US 251

QUESTION 12

When an employee requests union

representation, is he/she required to continue to

answer Inspection Service inquiries?

ANSWER 12

No. Once the employee requests union

representation, the interview must be terminated

until the steward or other representative arrives.

The employee may refuse to answer or to

otherwise cooperate with the investigation during

the period between the request for representation

and the appearance of the representative.

QUESTION 13

Can the union decline to represent non-members

in providing representation with the Inspection

Service?

ANSWER 13

No. The union cannot discriminate against non-

members in providing representation and

assistance in investigative interviews.

QUESTION 14

How do I know when questions by a supervisor

could lead to discipline?

ANSWER 14

Simply by asking. If you are not given complete

unequivocal assurances that the answers you

give to the supervisor’s questions will not lead to

discipline against you, you should request

steward representation and decline to answer any

question until the steward arrives.

QUESTION 15

Can an employee request the presence of a

union steward and an attorney during question?

ANSWER 15

Yes, the employee is not required to make an

election between having an attorney or a union

steward/representative present; he/she is

entitled to the presence of both

QUESTION 16

Should a union steward or representative in an

investigative interview witness a confession or

otherwise assist the Inspection Service in its

investigation?

ANSWER 16

NO. The representative’s duty is solely to the employee under investigation. While the representative should not participate in hiding or covering up relevant evidence, he/she also should not provide the Inspection Service help in establishing the employee’s guilt by witnessing confessions or eliciting incriminating responses from the employee

QUESTION 17

Are Postal Inspectors authorized to issue letters

of charges or recommend disciplinary action

against an employee?

ANSWER 17

NO. Inspectors are not authorized to issue

letters of charges or recommend disciplinary

action against an employee.

QUESTION 18

Is an employee required to make a written

statement when requested by the Postal

Inspection Service?

ANSWER 18

NO. It is the position of the union that there is not a Require- ment, legal or contractual, to submit a written statement to the Postal Inspection Service when they should make this request. Any statement written or recorded is voluntary. It should be of extreme importance for the employee to consult an attorney if this situation should arise.

Consult an attorney before giving a statement, written or oral, or before you sign a statement prepared by the Inspector/OIG. They will construct statements which look harmless but can be construed as the employee admitting to wrongdoing.

QUESTION 19

What is an observation gallery?

ANSWER 19

An observation gallery is used solely in

investigations involving criminality against the

Postal Service. Only Postal Inspectors are

permitted in the galleries. Galleries have been in

use for over one hundred years.

QUESTION 20

Does the Inspection Service have a responsibility

to provide postal personnel with a safe working

environment (personal safety)?

ANSWER 20

Yes, the Postal Inspection Service has a responsibility to

provide employees with a safe working environment.

Employment related assaults on employees including

both physical assaults (assault & battery) or non-

physical assaults (threats of physical violence) have an

adverse effect on the efficiency and morale of postal

employees.

QUESTION 21

When are financial discrepancies reported to the

Inspection Service?

ANSWER 21

Discrepancies of $100 or more in financial

responsibilities (shortage or overage) are

reported by Postmasters on form 571 to the

Inspector in Charge.

QUESTION 22

Does a former employee have an obligation to

repay an indebtedness to the Postal Service?

QUESTION 23

What does the term “set-off” mean?

ANSWER 23

If an employee is indebted to the Postal Service at the time of separation from the Postal Service and is unwilling to make full restitution, the Postal Service is authorized to collect all debts due under the provisions of established law.

Any funds due the former employee from unpaid salary, savings bond deductions and payments for accrued annual leave may be ‘set off’ without his/her written consent.

QUESTION 24

If the former employee has less than five years service, retirement

‘set-off’ can be affected without an application from him/her for refund of his/her retirement deductions.

If an employee has more than five years service, ‘set-off’ can be affect only when he/she makes formal application for refund (Form 2802).

If an employee elects optional retirement, he/she is entitled to an immediate annuity and his/her retirement record must be released to the postal data center. The annuity is subject to ‘set-off’, however, and the payment may be sent to the Postal Service until the indebtedness is liquidated.

QUESTION 25

Do Postal Inspectors become involved in vehicle

accidents and what rights does the employee

have if he/she should become involved in an

accident?

ANSWER 25

In serious vehicle accidents involving postal employees and vehicles, the Inspection Service becomes involved. Personal injuries incurred by a postal employee in the performance of his official duties are covered under the Federal Employee’s Compensation Act.

This protection is afforded employees whether they are operating a vehicle on official business or injured while performing a non-vehicle assignment. It is immaterial whether the employee is operating a government owned vehicle, a leased vehicle or personally owned vehicle.

QUESTION 26

Does the Postal Service protect an employee

against damage to his privately owned vehicle in

performance of his duty?

ANSWER 26

No. The Postal Service does not normally protect

an employee against damage to his personally

owned vehicle while operating it in the

performance of official duties. It is incumbent

upon the employee to provide collision insurance

if he/she so desires.

Questions & Answers Clarifying The Functions of the OIG

QUESTION 1

The February 7, 2005, memorandum makes

reference to the “Postmaster General’s

September 9, 2004 memorandum, which

announced that changes would be made in the

responsibility for investigating certain internal

crimes.” Is there an available copy of the memo?

ANSWER 1

Yes.

The Postmaster General’s September 9,

2004, memorandum is enclosed.

See LINK PG 11.

QUESTION 2

The February 7, 2005, memorandum also stated that ‘effective immediately, allegations of employee embezzlement, record falsification by employees, workers’ compensation fraud by postal employees, contract fraud, on-duty employee narcotics violations, and miscellaneous employee misconduct (application falsification, theft of property or services, non-postal crimes, etc.) will be referred to your local Office Of Inspector General (OIG) Special Agent in Charge, who will coordinate with the Inspection Service to determine appropriate investigative action?We have no record of receiving the required notification pursuant to Article 19 of this change. If the required Article 19 notification was provided, please provide.

ANSWER 2

The transition of certain types of investigatory assignments from the Inspection Service to the Office of Inspector General (OIG), as explained in the March 22, 2005, letter to Mr. Burrus, will not restrict, eliminate, or otherwise adversely affect any rights, privileges, or benefits of Postal Employees. This transition does not directly relate to wages, hours and working conditions. Therefore, it is the Postal Service’s position that Article 19 notification, as defined in the National Agreement was not required. The March 22, 2005, letter is enclosed. Attachment B.

See LINK PG 12.

QUESTION 3

It has been the parties’ historical past practice consistent with applicable regulations, collective bargaining agreements, settlements and memoranda that the law enforcement officers who conduct interrogations of bargaining unit employees regarding criminal matters are the Postal Inspection Service officers. Whereas, management is responsible for handling non-criminal matters in which an employee may be subject to discipline, including discharge. In addition, OIG has oversight responsibilities of activities of the Postal Inspection Service. Please identify the specific regulations that support the Postal Service’s decision to replace Inspection Service Officers with OIG Officers to investigate and/or interrogate bargaining unit employees.

ANSWER 3The United States Postal Service Office of Inspector General (OIG) was created by Congress in September 1996 by amending the Inspector General Act of 1978 and the Postal Reorganization Act of 1970. The Inspector General Act provides that the OIGMay conduct audits and investigations in the Postal Service as it considers appropriate. See 5 U.S.C. app. 3 8G(f). Investigations of bargaining unit employees fall within the OIG’s statuatory responsibility to conduct audits and investigations pertaining to the Postal Service and are within the OIG’s discretion to conduct.

QUESTION 4

The Chief Postal Inspector reports directly to and is under the general supervision of the Postmaster General. Does the Inspector General report to and work under the general supervision of the Postmaster General? Will the OIG also be subject to the same authority of the Postmaster General and the Postal Service’s Office of Labor Relations? If not, please explain why not?

ANSWER 4The Inspector General does not report to or work under the general supervision of the Postmaster General. The Inspector General Act ensures OIG independence by stating that the Inspector General “shall not report to, or be subject to supervision by, any other officer or employee” of the Postal Service.

QUESTION 5

Will this transition result in any changes related to how bargaining unit employees are treated, investigated or interrogated by the Postal Inspection Service regarding the above-referenced allegations? If so, please explain how and what impact or effect the transition will have on employees.

ANSWER 5The Inspector General Act of 1078, as amended, provides, “nothing in this Act shall restrict, eliminate, or otherwise adversely affect any of the rights, privileges, or benefits of either employees of the United States Postal Service, or labor organizations representing employees of the United States Postal Service.

QUESTION 6

Please explain the purpose and reasoning behind the changes relating to the transitioning of certain types of workplace investigations to OIG from the Inspection Service.

ANSWER 6The transitioning of certain types of investigations from the Inspection Service to the OIG fulfills the OIG’s responsibilities under the Inspector General Act.

QUESTION 7

Please describe whether the Inspection Service will have any role in investigation of the matters assigned to the OIG concerning bargaining unit employees and, if so, describe what that role will be.

Answer 7

The Inspection Service may have a role in investigations assigned to the OIG, on a case-by-case basis. A Postal Inspector’s role would be to refer allegations to the OIG and/or participate in the investigation with the OIG Special Agent.

QUESTION 8

Article 17.3 of the APWU National Agreement states that if an employee requests a steward or Union representative to be present during the course of an interrogation by the Inspection Service, such request will be granted. Will OIG comply with this requirement of Article 17.3 during the course of an interrogation?

Answer 8

The OIG will comply with the requirements of Article 17.3 as it relates to an employee request for a steward or Union representative during the course of an interrogation.

QUESTION 9

The APWU has a Memorandum of Understanding with the Postal Service concerning the “Role of Inspection Service in Labor Relations Matters.” Will this MOU also apply to the OIG, the same as the Inspection Service? If it does not, in whole or in part, please explain which specific parts of the MOU do not apply and why?

Answer 9

The OIG will comply with the MOU entitled, “Role Of Inspection Service in Labor Relations Matters.”

QUESTION 10

Where there have been decisions, settlements, and memoranda of understanding reached through the grievance/arbitration process, the National Labor Relations Board, or the courts that apply to the Postal Inspection Service, will the OIG be obligated and bound to those decisions in the same way as the Postal Inspection Service?

Answer 10

Generally speaking, the OIG will comply with those decisions, settlements, and memoranda of understanding that were reached through the grievance/arbitration process, National Labor Relations Board, or judicial process that apply to the Inspection Service. However, without identifying a specific decision, settlement, or memorandum of understanding, a more definitive answer cannot be provided.

QUESTION 11

Will OIG investigators comply with employees’ Weingarten rights, the same as Postal Inspectors, allowing a union steward to consult with the employee before, and be present during, an OIG interview if requested by the employee?

Answer 11

OIG investigators (Special Agents) will comply with Weingarten rights in the same manner as Postal Inspectors.

QUESTION 12

Will OIG investigators issue or act as the concurring official in discipline issued by the Postal Service in accordance with Article 16 of the APWU National Agreement?

Answer 12

Special Agents will not issue or concur in disciplinary action outlined in Article 16 of the National Agreement.

QUESTION 13

Will the OIG recommend and/or mandate that disciplinary action be issued to a bargaining unit employee?

Answer 13

Special Agents will not recommend and/or mandate the issuance of discipline to bargaining unit employees.

QUESTION 14

The current official Postal Service form that bargaining unit employees are subject to and may be asked to review or sign during an interrogation is “PS Form 1067, July 1987- USPS Postal Inspection Service—Warning and Waiver of Rights.” However, it has been called to our attention that bargaining unit employees are being asked to review and/or sign unofficial forms during interrogation by OIG Inspectors. Please provide copies of any forms that bargaining unite employees may be asked to review or sign or both during the course of an investigation by the OIG. Among these forms, please provide the primary document authorizing or describing the use of these forms including what has been referred to as “IGM 410 and its attachments.”

Answer 14

On your CD are the investigatory forms the OIG uses during an interrogation. Attachments C,D and E.

Question 15

We have received from the field a copy of a form titled “Administrative Warning: Duty to Cooperate” (copy attached). Although this form may be included in your response to Question 14, we have no record of this form (which bargaining unit employees are currently being subject to) being authorized as an official Postal Service for, similar to PS Form 1067 which is used by the Postal Inspection Service. It is not clear whether the PS Form number is simply missing from the copy that we have and therefore it is requested that you provide the PS Form number and effective date. It is also requested that you also explain the genesis and intended use of this form.

Answer 15

An employee’s duty to cooperate during an official postal investigation is not new. See ELM 665.3 (formerly ELM 666.6) The OIG has the authority to use its own forms.

Question 16

What effect, if any, is there on the investigatory process or the disciplinary process if an employee refuses to sign the Administrative Warning: Duty to Cooperate or other similar official PS Forms the OIG might use? For example, there have been occasions depending on the fact circumstances where employees have exercised their right not to sign the Postal Inspection Service “Warning and Waiver of Rights” PS-Form 1067..

Answer 16

An employee’s refusal to sign the Administrative Warning: Duty to Cooperate does not necessarily trigger an adverse result. It would depend on the circumstances surrounding the refusal on a case by case basis and is determined by management.

Question 17

The “Administrative Warning: Duty to Cooperate” form indicates that neither an employee’s answer, nor any information or evidence which is gained by reason of your statements can be used against you in criminal proceedings. Do OIG investigators have authority to grant immunity from prosecution? If so, please describe the authority. If not, who is authorized to grant immunity from prosecution?

Answer 17

Special Agents do not have authority to grant immunity from criminal prosecution. The Justice Department or an office of the United States Attorney has the authority to grant immunity from criminal prosecution. Provision of the form, “Administrative Warning: Duty to Cooperate,” means that the OIG has obtained a waiver of prosecution from the Justice Department or United States Attorney Office.

Question 18

If OIG investigators do not grant immunity, how and from whom do they secure immunity from prosecution?

Answer 18

See response to paragraph 17.

Question 19

How is an employee who is being interviewed informed of the granting and scope of immunity from prosecution? For example, does OIG contact the appropriate authorizing official first, and get approval to grant immunity from prosecution before offering immunity from prosecution during the interrogation?

Answer 19

Special Agents obtain authorization to offer immunity from criminal prosecution prior to conveying that immunity to an employee.

Question 20

Will an employee be allowed legal representation prior to and/or during an OIG investigatory interview?

Answer 20

An employee may invoke their right to counsel in a custodial interrogation.

Question 21

Under Miranda v. Arizona 384 U.S. 436 (1966), before a law enforcement officer may question an individual regarding the possible commission of a crime, he/she must read to the employee his/her “Miranda Rights” and must also make sure that the individual understands these rights. It is not sufficient to simply inform employees that “neither their answers nor any information or evidence which is gained by reason of their statements can be used against them in criminal proceedings.” Such a statement does not relieve the OIG officers of their obligation to advise the employee of their full “Miranda Rights,” including the right to remain silent and the right to be represented by counsel. Why is it that the “Administrative Warning: Duty to Cooperate” form does not advise employees of their full “Miranda Rights,” including the right to be represented by counsel and the right to remain silent?

Answer 21

When applicable, the Special Agent will advise the employee of his/her Miranda Rights. If an employee is not in custody, and is free to leave, the OIG does not provide Miranda Rights.

Question 22

Can OIG investigators grant employees immunity from administrative disciplinary proceedings that could arise based on the substance of the employees’ responses? If so, how will that immunity be conveyed to employees?

Answer 22

It is a management responsibility to determine whether to issue discipline. Special Agents do not have the authority to grant employees immunity from adverse administrative actions.

Question 23

Will OIG investigators use other warnings and explanations of employees’ legal rights? If so, please specify the warnings or explanations given and their purpose.

Answer 23

The Special Agent will provide Miranda Rights when interrogating employees in custodial situations; and either Kalkine or Garrity warnings in non-custodial interrogations.

Question 24

Is there a general protocol and/or procedure for the OIG’s investigation of allegations? If so, please provide us with that protocol and/or procedure?

Answer 24

The OIG commences investigations after receiving allegations or otherwise discovering apparent wrongdoing. The OIG may produce a report at the end of the investigation.

Question 25

Describe the type and/or form number of internal reports generated by the OIG during an investigation. Also, will OIG comply with APWU’s right to be provided such information pursuant to Article 17, Section 3 and Article 31 of the National Agreement?

Answer 25

The OIG’s report of investigation is similar in substance to the inspection Service’s investigative memorandum. Upon request, the Union will be provided information consistent with Article 17, Section 3 and Article 31.

Question 26

The APWU presently has the right to interview Inspection Service officers regarding investigations that result in or relate to discipline of bargaining unit employees. Will OIG comply with APWU’s right to interview OIG Inspectors, the same as Postal Inspectors?

Answer 26

The APWU may have the right to interview Special Agents consistent with the provisions of Article 17 and 31, depending on the circumstances.

Documents

INTERROGATION BY THE OFFICE OF INSPECTOR GENERAL OR POSTAL INSPECTION SERVICE INSTRUCTORS: Patricia ‘Pat’ Williams, Assistant Director Clerk Division Shirley