Tony D. McKinnon Sr.
‘Wallet Card’ on Employee Rights Sows Confusion
Greg Bell, Director
(This article appeared in the January/February 2008 issue of The American Postal Worker magazine.)
The Postal Service recently distributed to supervisors and managers a wallet-sized reference card intended to advise them of the rights of employees under the Supreme Court’s “Weingarten” ruling. The landmark decision requires that employees be provided a union steward, if requested, in any management-conducted investigatory interview that the employee reasonably believes could lead to discipline (including interviews by Postal Inspector or OIG agents).
Since we believe the wording on the wallet card could lead to misunderstanding or confusion about an employee’s or union representative’s rights under Weingarten (NLRB vs. Weingarten, Inc. 420 U.S. 25,  ) we have raised several concerns about the card to postal management, but we have yet to receive satisfactory answers.
Now more than ever it is important that employees and union representatives understand their rights during investigatory interviews that could lead to discipline. Employees who rely on management for information regarding their rights could easily make mistakes during investigatory interviews that could cost them their jobs. Always exercise your right to have a union representative present during an investigatory interview.
The wallet card correctly instructs supervisors that employees have the right to be represented by a union steward during an investigatory interview if they make a request for representation. However, the card goes on to advise managers that if an employee requests a union steward:
“You must do one of three things: (1) you must provide a steward, or (2) you must end the interview, or (3) you must offer the employee the choice of continuing the interview without a steward, or of having no interview at all and therefore losing the benefit that the interview might have given to him or her.” [Italics added; underline in original]
The union is concerned that this language may improperly give supervisors and managers the impression that they have the right to deny an employee’s request for union representation to which the employee is entitled, or to decline to conduct a pre-disciplinary interview to which the employee is also entitled.
Under Weingarten , an employee is entitled to union representation, if requested, in any investigatory interview that they reasonably believe could result in discipline. The employee has a right to refuse to submit to such an interview if a union representative is not present if the employee believes the interview could result in disciplinary action.
On the other hand, under Weingarten , the employer has the option of not conducting an investigatory interview with the employee and is free to carry on an inquiry without interviewing the employee at all. However, if management’s investigation leads them to consider disciplinary action, they must conduct a pre-disciplinary interview before making the final decision to issue discipline.
Pre-Disciplinary Interview Rights
Unlike their option under Weingarten to forgo an investigatory interview if an employee insists on union representation, under the “just cause” provisions of the Collective Bargaining Agreement, management must conduct a pre-disciplinary interview when considering disciplinary action against APWU-represented employees.
The wallet card may give the false impression that employees could lose the benefit of a pre-disciplinary interview if they insist on their right to union representation. While management may forgo the “investigatory interview” if an employee insists on exercising his or her right to have a union representative present, the employee’s decision to insist on having a union representative present at the investigatory interview cannot under any circumstances cause the employee to lose the benefit of the pre-disciplinary interview that he or she is entitled to under the Collective Bargaining Agreement and the law.
The wallet card also states that “the steward is not allowed to disrupt the meeting or tell the employee not to answer a question.”
The union’s position has always been that APWU stewards are free to give advice during investigatory interviews, including the advice that an employee should not answer a question – depending on the fact-circumstance in the case, the conduct of the supervisor, and the type of conduct being investigated (disciplinary vs. criminal).
For example, information disclosed during an investigatory interview could lead to the filing of criminal charges against the employee. In such cases, it would be appropriate for the steward to advise the employee not to answer questions, or to remain silent, until he or she has consulted with an attorney. Furthermore, stewards taking part in investigatory interviews are entitled to clarify questions or facts, and to assist employees in articulating explanations. In doing so, a steward may have to interrupt in an attempt to protect the employee from unwittingly admitting to something that could trigger discipline.
Duty to Cooperate
Finally, the wallet card states that supervisors may advise employees,“You are subject to disciplinary action if you refuse to answer or fail to respond truthfully to any questions.”
While postal regulations stipulate that employees have a duty to cooperate with management investigations, an employee may not be required or coerced to disclose any information that the employee reasonably believes may be used in a criminal prosecution against him or her. Therefore, it would be inappropriate and unconstitutional to threaten an employee with disciplinary action for refusing to answer questions in such circumstances.
Management seems to believe that if they tell an employee that what they say will not be used against them in a criminal prosecution, then the employee is required to answer any and all questions. As the union has repeatedly attempted to make clear, a mere statement that the employee’s response will not be used in a criminal investigation is worthless, whether it is made by a supervisor, postal inspector, OIG agent, or postmaster.
Postal managers, postal inspectors, and OIG agents do not have authority to grant immunity from criminal prosecution . In regard to federal prosecution, only the Justice Department or a U.S. attorney has the authority to grant such immunity. And even if immunity from federal prosecution is properly granted, it does not preclude prosecution by another entity, such as a local or state government.
In such cases, it is advisable that employees decline to answer questions unless they have a written guaranty of immunity and they have talked to a lawyer. It is the union’s position that employees are entirely within their rights in declining to answer questions until they have had an opportunity to talk to a lawyer, and that union representatives are entirely within their rights in advising employees to do so. (For more information on the Weingarten wallet card, visit the Industrial Relations Department pages at www.apwu.org.)