The following excerpts are taken from  ”A recent exchange of correspondence between the APWU and the USPS OIG Inspector General. Some highlights of the correspondence addresses, “issues confronting employees, the Union and the Postal Service in the transition of workplace investigations from the Postal Inspection Service to the USPS Office of Inspector General.”

Pay close attention to the OIG’s view on Miranda Rights and APWU’s emphasis on Weingarten Rights.   

David Williams, OIG: We would like to address some of the concerns raised in your article in the November/December 2005 issue of The American Postal Worker Magazine, “What’s Behind Changes in Internal Investigations?” ….. as you note in the magazine article, the OIG is voluntarily adhering to pertinent collective bargaining agreement provisions, and allows employees who are interviewed to have representatives with them during the interviews. However, the article overlooks some nuances of the law and provides some advice that may unintentionally cause an employee to violate Postal Service policy:

Greg Bell, APWU: You made reference that my “article overlooks some nuances of law and provides some advice that may unintentionally cause an employee to violate Postal Service policy” and stated that “Postal Service employees are required to ‘cooperate in any postal investigation, including Office of Inspector general investigations’ according to the Postal Service Employee and Labor Relations Manual (ELM), Section 665.3.” However, there is no violation of any Postal Service policy orregulation, including Section 665.3 of the ELM, if an employee who is being subject to an interrogation by law enforcement agents ofthe Postal Service chooses to remain silent pending consultation with a Union representative and/lor legal counsel. Moreover, there is no such violation if an employee chooses not to sign any forms or statements during an interrogation. I have been unable to find any authority to the contrary.

OIG: The Right to Remain Silent
I am concerned that the article incorrectly states that APWU members have an unequivoca! right to remain silent during an interview by the Office of the Inspector General by virtue of Miranda v. Arizona. The article suggests that OIG agents must provide Miranda warnings to all employees prior to their interview, and that the employee may always refuse to answer questions absent a grant of immunity. This is incorrect.

 Although Miranda rights apply to civil investigations which may result in criminal prosecutions, they are limited to custodial interrogations While custody is subjective, an OIG agent will always make clear at the beginning of an interview whether the interviewee is under arrest (in custody) or is free to go.

Postal Service employees are required to “cooperate in any postal investigation, including Office of Inspector General investigations” according to the Postal Service Employee and Labor Relations Manual (ELM), Section 665.3. While noting an employee’s right to remain silent in criminal cases, the General Counsel reminded officers that once “use immunity” has been provided to an employee, typically through the use of a Kalkines warning, he or she no longer enjoys the right to remain silent. An employee may be disciplined for refusal to cooperate or for providing false statements if he or she does submit to questioning.

APWU: Regarding your comments concerning the applicability of Miranda rights. Your assumption 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” may be a factor in any misunderstanding about my guidance to employees.

Since the OIG has undertaken investigating internal crimes, local reports from across the country suggest that your agents rarely give such an explicit explanation at the outset of an interview. To the contrary, I have received reports that, in some cases, Union representatives who have sought clarity on these points during an employee’s investigatory interview have been treated with hostility and even expelled from the interview by your agents. Therefore, it may not be as clear as you suggest whether an employee is being subjected to a custodial interrogation. In fact, I am concerned that your reference 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 your 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 related to the above-referenced reports. As you know, 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 employee has the right to request union representation before or at any time during the interview.

OIG: Advice of Rights Forms
The article questioned OIG use of new advice of rights forms. The forms were designed to be consistent with the guidance provided in Garrity and Kalkines. The Department of Justice has recommended the use of these types of advice of rights forms in order to ensure that employees are fully informed of their rights. The OIG has long used similar forms.The Assistant Attorney General has encouraged OIGs to utilize the forms to ensure employees are advised of their rights; to safeguard Department of Justice interests in the cases; and to achieve uniformity. We use these forms to accomplish these goals.

APWU: In regard to what OIG refers to as “new advice of rights forms,” the APWU has several concerns with these forms and intends to pursue our concerns further. Ultimately, however, I must reiterate that postal employees always have the option to remain silent, and the option not to sign any forms or statements. 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 ofbeing disciplined. Any discipline would, of course, be subject to the grievance procedure pursuant to the collective bargaining agreement.

Although, the Postal Service may have changed the face ofthe law enforcement agency conducting investigations ofcertain internal criminal matters, the rights of employees and the American Postal Workers Union during investigatory interviews has not changed.

**links added by PostalReporter.com

Click here for complete copy of APWU-OIG Exchange