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(This article was first published in the Nov/Dec 2005 issue of The American Postal Worker magazine.)

What’s Behind Changes in Internal Investigations?

Greg Bell, Director
Industrial Relations

In March 2005, the Postal Service informed the APWU that the responsibility for investigating certain types of employee misconduct (internal crimes) was being shifted from the Postal Inspection Service to the Office of Inspector General.

According to an internal USPS Memorandum, as of Feb. 7, 2005, “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 [the] local Office of Inspector General (OIG) Special Agent in Charge, who will coordinate with the Inspection Service to determine appropriate investigative action.”

Although we were informed that this transition would not adversely affect the rights of employees or of the union, we have several concerns about this unilateral change.

In response to a series of APWU questions, the Postal Service said that OIG agents “will comply with Article 17.3 as it relates to an employee request for a steward or Union representative during the course of an interrogation.” In addition, we have been told that the OIG will comply with the Memorandum of Understanding between the parties entitled “Role of Inspection Service in Labor Relations Matters.”

Their responses to our questions do not satisfy all of our concerns, however. It has been the past practice, consistent with applicable regulations, collective bargaining agreements, and settlements, that Postal Inspection Service agents are the law enforcement officers who conduct interrogations of bargaining unit employees for internal crime investigations.

One of our concerns has to do with the relationship among the OIG, the Postal Inspection Service, the Postmaster General (PMG), and the Board of Governors: The Chief Postal Inspector reports directly to the Postmaster General, while the Inspector General reports directly to the Board of Governors, and is not under the PMG’s supervision. Our contractual relationship is with the PMG, not with the Board of Governors.

We are suspicious of the purpose of the change and wonder whether it is intended to manipulate and intimidate employees into answering questions during an interrogation. This is nothing new. However, this change of responsibility may represent a different approach. Your rights and entitlement to representation, however, have not changed.

In addition, we question the forms that OIG agents are asking employees to sign during interrogations. For example, the PS Form 1067(the Postal Inspection Warning and Waiver of Rights) is commonly referred to as the Miranda warning. However, OIG agents have been using their own forms, with no identifying PS form number, including two new forms: the Kalkines and Garrity warnings.

If You’re Called In

Even if you believe 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 internal criminal matters, and you should remain silent until you have consulted with your union rep or an attorney.

The first thing you want to know is whether you are a suspect. If you are, even if you are told that nothing you say can be used against you, you should inform them that you wish to contact an attorney. Under no circumstances should you sign any forms or make any statements until you have consulted with an attorney. That is your most basic right.

Weingarten Rights

A 1975 Supreme Court decision (NLRB v. J. Weingarten, Inc.) provides that a union-represented employee has the right to a steward when facing an investigatory interview. The important thing to remember about your “Weingarten Rights” is that management does not have to notify you of this right: The employee is responsible for being aware of the right to request representation.

Under the Weingarten decision, the employee can request union representation before or at any time during the interview. The employer then has three options: (1) Grant the request and delay questioning until the union representative arrives; (2) Deny the request and end the interview immediately; or (3) Give the employee a choice of ending the interview or continuing the interview without representation.

If the employer denies the request for representation, the employee can simply refuse to answer questions.

Miranda Rights

You have the right to remain silent. A historic Supreme Court ruling (Miranda v. Arizona, 1966) holds that not only must a law enforcement officer advise an individual of certain rights, the officer must be sure that these rights are understood.

Before being questioned by a postal inspector or OIG agent, you must be told: (1) you have the right to remain silent; (2) anything you say can be used against you in court; (3) you have the right to talk to a lawyer before being asked any questions, and to have a lawyer with you during questioning (and if you cannot afford a lawyer, one will be appointed); (4) even if you choose to answer questions without a lawyer present, you have the right to stop at any time.

Finally, the Miranda decision holds that you must be asked: “Do you understand the rights that have been read to you?”

Garrity Rights

The Fifth Amendment provides that no one in a criminal case can be forced to be a witness against him- or herself. Information obtained through coercion is not admissible in court. In addition to these basic Fifth Amendment rights, Postal Service employees have additional rights because of their “public sector” status. In the public sector, the government acts as both law enforcement agency and employer.

The Garrity Rights were developed through a series of Supreme Court rulings dating back nearly 40 years. In a 1967 ruling (Garrity v. New Jersey), several New Jersey police officers who were targeted in a ticket-fixing investigation were told to respond to questions or face discharge for insubordination.

To save their jobs, the officers complied and their statements were then used in criminal prosecutions against them. The highest court overturned the convictions, citing a violation of Fifth Amendment rights.

This case now stands for the principle that using the threat of discharge or other substantial economic penalty against public-sector employees is coercive – that any consequent disclosure is inadmissible in a criminal trial.

Kalkines Warning

The Garrity decision does not, however, mean that the government may never threaten an employee with discipline for refusing to give a statement about potentially criminal acts. In Gardner v. Broderick (1968), the U.S. Supreme Court noted that the government could discipline an employee if it does not force the employee to give up his Fifth Amendment rights, such as by giving the employee prosecutorial immunity (a guarantee that the information disclosed will not be used against the employee in a criminal prosecution).

In Kalkines v. United States (1973), the U.S. Court of Claims elaborated on the Supreme Court’s holdings, finding that an employee can be asked to “answer pertinent questions about the performance of an employee’s duties ... when that employee is duly advised of his options to answer under the immunity granted or remain silent and face dismissal.” In other words, if an employee is given immunity, but nonetheless decides not to answer questions, the government may discipline the employee for not answering the questions. In the Postal Service, any such discipline is, of course, subject to the grievance procedure.

The Kalkines ruling is an attempt to balance the Fifth Amendment’s right against self-incrimination with the Supreme Court’s holding that the government has the right to have its employees answer questions about the performance of their official duties. In getting this information from employees, according to Kalkines, the Fifth Amendment is not violated so long as the government also grants the employee immunity from prosecution based upon that information.

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