Mike Morris, Director
The Employee’s Right to Remain Silent
Greg Bell, Director
(This article was first published in the May/June 2006 issue of The American Postal Worker magazine.)
In the Nov/Dec. 2005 issue of the American Postal Worker, I wrote about the transfer of responsibility for investigating certain types of postal employee misconduct. With the responsibility of conducting probes of some internal crimes being shifted from the Postal Inspection Service to the Office of Inspector General, I discussed the rights of employees and the union during such investigations.
In January, I received a letter from the Inspector General expressing “concern” that my article “may unintentionally cause an employee to violate Postal Service policy,” which requires employees to “cooperate in any postal investigation.” The Inspector General made reference to a 1973 court decision (Kalkines v. United States) that I discussed in my article, in which the court stated that an employee can be asked to “answer pertinent questions about the performance of an employee’s duties ... when the employee is duly advised of his options to answer under the immunity granted [from prosecution based upon that information] or remain silent and face dismissal.” The Kalkines ruling means that if a government employee is given “immunity,” the government (Postal Service) may discipline him or her for not answering the questions.
In my response to the Inspector General, I pointed out that, “Whether couched as a right or a choice, an employee can always decide whether to answer questions or not to answer questions. In regard to the Kalkines warning, for example, if an employee is actually provided ‘use immunity’ from prosecution, the employee nonetheless may choose not to answer questions and instead deal with the consequences of being disciplined. Any discipline would, of course, be subject to the grievance procedure pursuant to the collective bargaining agreement.”
The problem is that the APWU has received reports from locals that OIG agents are not properly applying the principles laid out in the Kalkines decision. The mere assertion by an OIG agent that an employee is being granted “immunity” is not the same as an actual grant of immunity from a prosecutor.
We are being told of circumstances, for example, where an Assistant U.S. Attorney has not granted any kind of immunity, but has offered only to decline prosecution at that time. Such declination is hardly a sufficient protection of a postal employee’s Fifth Amendment rights.
Questions regarding possible criminal prosecution, custodial vs. non-custodial interrogations, and immunity, are legitimate questions that may best be addressed by legal counsel.
As I pointed out to the Inspector General, “there is no violation of any Postal Service policy or regulation if an employee who is being subject to an interrogation by law enforcement agents of the Postal Service chooses to remain silent pending consultation with a union representative and/or legal counsel.” Moreover, “there is no such violation if an employee chooses not to sign any forms or statements during an interrogation.”
Representation During Interrogation
I also expressed a concern that references by the Inspector General to OIG “voluntarily adhering to pertinent collective bargaining agreement provisions” and “allow[ing] employees who are interviewed to have representatives with them during the interviews” may lead field OIG agents to incorrectly believe that they have an option, as opposed to an obligation, to grant an employee’s request that a union representative be present during the course of an interrogation.
Such misconceptions may be a factor in complaints we have received from the field. Because of these complaints, I reminded the Inspector General that a 1975 United States Supreme Court decision (NLRB v. Weingarten) provides that a union-represented employee has the right to assistance from a union steward when facing an investigatory interview.
The “Weingarten Rights” also give the employee the right to request union representation before or at any time during the interview. Moreover, the requirement to provide an employee a steward or union representative during an interrogation upon an employee’s request is also provided for in the APWU Collective Bargaining Agreement.
As such, the requirement applies equally to the Inspection Service and to OIG agents of the Postal Service.
Make It Clear
The Inspector General’s letter stated that OIG agents “will always make clear at the beginning of an interview whether the interviewee is under arrest (in custody) or is free to go.” However, since the OIG has undertaken the investigation of internal crimes, reports from locals across the country suggest that their agents rarely give such an explicit explanation at the outset of an interview.
To the contrary, we have received reports that, in some cases, union representatives who have sought clarity on these points during an investigatory interview have been treated with hostility and even expelled from the interviews. Therefore, we conclude that it is anything but “clear” as to whether an employee is being subjected to a custodial interrogation.
Although the Postal Service may have changed the face of the law enforcement agency conducting investigations of internal criminal matters, the rights of employees and the American Postal Workers Union during investigatory interviews has not changed. In carrying out our responsibility in investigatory interviews, union representatives may attempt to clarify facts, including the purpose of an interview or of information that is being provided during the interview, and to assist an employee in articulating a response or explanation.
In situations where a steward or other union representative believes that an employee may be the subject of a criminal investigation and/or there are legal issues that need to be addressed, a steward or union representative may appropriately advise the employee to remain silent and to decline to sign any statements or fill out any forms until after the employee has spoken with legal counsel.
What to Do
The column that prompted the OIG letter was intended to explain the rights, choices, and consequences faced by employees and to help them make informed decisions during an investigation by the Postal Inspection Service/Office of Inspector General.
Remember: Even if you are not guilty of wrongdoing, you should not allow yourself to be interviewed by a Postal Inspector or OIG agent without an APWU representative being present. These law enforcement officers are investigating criminal matters, and you should remain silent until you have consulted with your union representative or an attorney, regardless of what an agent may tell you.
We believe the interest of all can be served and protected if investigatory interviews are approached in good faith. This means recognizing the rights and responsibilities of all parties – employees, union officials, and law enforcement agents representing the Postal Service.