Failure to Provide Garrity and Kalkines Warnings in Disciplinary Investigations
The arbitrator sustained our grievance, he found the Postal Service did not have just cause to place the Grievant in an Emergency Placement status or issue her the Notice of Proposed Removal or issue her the Letter of Decision implementing that Removal. He then reinstated the Grievant to her prior Postal employment and awarded the Grievant full restitution of any pay, benefits or status lost by her as a result of the contested Emergency Placement and Removal.
The grievant was issued an Emergency Suspension in which it was claimed that she was claiming sick leave while working for the Internal Revenue Service. Shortly thereafter she was issued a Notice of Proposed Removal and a Letter of Decision charging the grievant with “Improper Conduct”.
The Union maintained that the Service did not have just cause to issue the Grievant the Emergency Placement; in that, the Service did not establish the existence, at the time it made the contested Placement, of the requisite conditions for an Emergency Placement pursuant to Section 16.7 of the Agreement. The Union further maintained that the Service did not have just cause to issue the Grievant the contested, Removal; in that, the Service failed to establish that (a) the Grievant knowingly violated a clear, promulgated rule restricting her use of sick leave (b) the Service afforded the Grievant the procedural and substantive due process protections required by the just cause standard, the Agreement or the law during its investigation of the charge upon which the Removal was based.
The arbitrator ruled that when an employee in suspended under the provisions of Article 16 Section that an act of discipline is imposed and that discipline must be for just cause. He found the Service's obligation to meet the requirements of the just cause standard when issuing an Emergency Placement is modified only to the narrow extent necessary to effectuate the immediate action authorized by Section 16.7 of the Agreement. In so ruling he found just cause did not exist for the Emergency Suspension.
In regards to the Postal Service’s position that Section 513.312 of the ELM is clear he found the rules cited by the Postal Service as being violated were not clear. In this regard he stated:
The Arbitrator cannot agree with the Service's assertion that the restrictions of ELM Section 513.312 are so obvious and self evident as to be known to employees without benefit of specific notice of them. The prohibitive language itself recognizes that such activity is not malum per se, as it may be authorized by an appropriate authority.
The arbitrator also ruled the disciplinary action was fatally flawed as the Postal Service failed to provide the grievant with their rights as contained in the Garrity and Kalkines court decisions. In this regard he ruled:
The Service also charged-the Grievant with a violation of ELM Section 666.6, by reason of her failure to respond to her supervisor's questions during the pre-discipline interview of June 20, 2005. It is generally accepted that a proper investigation of the charges precipitating discipline includes the employer's prediscipline interview of the charged employee.' Such interviews have two very distinct components. The first component involves. the employer's obligation to present the charges and supporting evidence to the employee who is to be discipline. This component provides the employee with the opportunity to respond to, defend against and clarify the charges. It further provides the employee with the opportunity to contest, qualify or explain the evidentiary foundation of the charges and to provide the disciplining official with any evidence of mitigation of the charged offense. Finally, this component allows the employee to assess the incriminating implications, if any, of the interview. . . . . The second component of the pre-discipline interview, which may be part of the employer's more comprehensive administrative investigation, provides the employer with the opportunity to interrogate the employee in order to ascertain his/her knowledge of and involvement in the acts or omissions which are the basis of the discipline. Arbitrators and the courts have held that the employee has a contractual or legal obligation to co-operate with the employer's administrative investigation. This obligation includes the employee's duty to respond truthfully to the employer's relevant questions, even if such responses may lead to the discipline of the employee or to the filing of criminal charges against him/her.
The employer's right to inquire of the employee and the employee's corresponding obligation to respond are not absolute. If the employee has a reasonable personal belief that either component of the pre-discipline interview may expose him/her to discipline and requests Union representation during the interview, the employer is required to delay or suspend its questioning until such representation is provided.
In the event, the interview also involves the potential exposure of the employee to criminal charges, the public employer's right to inquire of its employee is further limited by. the employee's constitutional right against self incrimination. In such circumstances, the employer is legally required to notify the employee that (a) the interrogation may elicit responses which could expose him/her to criminal prosecution, (b) the employee has a constitutional right to remain silent (c)the employer intends to discharge the employee if he/she refuses to respond to the its inquiries and (d) the information involuntarily provided by the employee and the investigative fruits of that information may not be used in a criminal prosecution of the employee on related criminal charges.
The legal issues raised in such situations are many and complex. The "Use Immunity" granted to the employee by the courts in subsequent or concurrent criminal proceedings is not self executing. The evidentiary exclusion of this "Coerced Evidence" must be initiated by the employee\defendant in the criminal proceeding. It is premised upon the defendant's ability to establish that (a) the evidence was involuntarily disclosed in a situation of disciplinary coercion or (b) the employer failed to comply with the "Garrity Notification" requirements. The "Use Immunity" exclusion of such "Coerced- Evidence" may be further limited by reason of the propriety, scope, nature and relevancy - of employer's questions and the corresponding attributes of the employee's responses to those questions and the employee's proper preservation of his/her constitutional right or privilege.
The Court in Kalkines v. U.S. (570; 473 F2d 1391) determined that, in the absence of the employer's notification to the employee of the safeguards established by the Court in Garrity v. New Jersey (385 q.S. 493), a public employer may not discipline, discharge or remove an employee from his/her public employment based upon the charge that employee failed to cooperate in the employer's administrative investigation when that investigation may expose an employee to criminal prosecution." In the context of this legal labyrinth, the Court in Kalkines v. US further held that it would be reasonable for an employer to delay or suspend its interrogation of an employee when he/she requests - the presence of his/her attorney during the interview.
In consideration of the provisions of Articles 3 and 16 of the Agreement, the Arbitrator determines that when the Service disciplines an employee for a violation of ELM 666.6, the just cause standard requires the Service to establish that it provided the employee with the notification required by the Garrity and Kalkines decisions. In the opinion of the Arbitrator, the absence of such proof in this matter is fatal to the Service's claim that it had just cause to Remove the Grievant for a violation of ELM Section 666.6
Gary Kloepfer
Assistant Director [APWU]
Maintenance Division
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