Interviewing Postal Inspectors, Obtaining Their ... - NALC Branch 908

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NALC Arbitration Advocate Page 2 Volume 2, Issue 2 May 1998 156#. 052'%6145 TTT (continued from page 1) commonly in discipline cases—they are no different from any other manager. This bears repeating: Postal inspectors have no special status in the grievance procedure or arbitration. Rather they are, for all intents and purposes, the same as other postal supervisors and managers. For advocates and other union representatives, this means that postal inspectors may be interviewed prior to arbitration, and in fact at any time during the processing of the grievance. Postal inspectors have no special rights to avoid interviews with investigating union representatives even though they often attempt to resist questioning until they are called to testify at arbitration. Moreover, management may not use the investigative memorandum as a shield against further inquiry into the detailed facts of the investigation. The investigative memorandum is a hearsay statement—an out-of-hearing statement that certain material facts are true. The union has the right to examine the facts underlying hearsay statements, or to insist that such statements either be excluded from the hearing or be given very little weight. Like any hearsay statement, an investigative memorandum is inherently unreliable as evidence unless it is corroborated by other, reliable evidence. Typically a postal inspector testifies at an arbitration hearing to provide the corroboration for the investigative memorandum. However, this testimony comes very late in the grievance process and affords union advocates no opportunity to prepare before the hearing. NALC representatives at earlier stages of the grievance procedure also have the right to examine the facts that stand behind the investigative memorandum. So postal inspectors must be made available for interviews, and must answer all potentially relevant questions put to them by shop stewards, advocates and other union representatives. NALC representatives also have the right to examine the notes made by postal inspectors during the course of their investigations. For instance, the representative may ask a postal inspector for all notes made in an investigation, including notes of interviews with witnesses. Furthermore, inspectors must reveal the names of people with whom they spoke and what those people said even if this information has not been recorded in the IM or in notes. Any of these original sources may provide information which is helpful to a grievant although it was excluded from or “filtered” by the investigative memorandum . Many union representatives, especially shops stewards, may be surprised to learn that they have the right to interview postal inspectors. However, this right is well established in regional arbitration precedent and in grievance settlements at the national level. '..g 56#$.+5*'& 7.'5 In a 1987 case decided by regional Arbitrator Joseph F. Gentile, a letter carrier was discharged for 156#. +052'%6145 *#8' 01 52'%+#. 56#675 +0 6*' )4+'8#0%' 241%'g &74'T *'; #4' 6*' 5#/' #5 #0; 16*'4 2156#. /#0#)'4 14 572'48+514T allegedly removing marked quarters from test letters. Two postal inspectors had prepared the test mailing. NALC representatives attempted to interview the postal inspectors but were refused at each step of the grievance procedure. A second grievance filed to protest that refusal. During the discussion of the second grievance, the postmaster claimed that he had no jurisdiction over postal inspectors, and the Step 3 answer stated that Inspection Service investigative techniques “are not subject to automatic disclosure.” The two grievances were combined for hearing. Arbitrator Gentile agreed to hear the procedural issue first. The union argued that the Postal Service violated several sections of the National Agreement when it refused to make the postal inspectors available for the interview: ♦ Article 15, Section 2, Step 2(d) requires the employer to “make a full and detailed statement of facts and contractual provisions relied upon.” ♦ Article 17, Section 3 states, “The . . . Union representative properly certified in accordance with Section 2 above may request and shall obtain access through the appropriate supervisor to review the documents, files and otherrecords necessary for processing a grievance or determining if a grievance exists and shall have the right to interview the aggrieved employee(s), supervisor and wit- (Continued on page 3)
NALC Arbitration Advocate Page 3 Volume 2, Issue 2 May 1998 Gentile turned aside NALC's argument that its defense of the grievant had been so prejudiced by management's violation that the entire removal should be set aside. The arbitrator instead ordered USPS to make the inspectors available for interviews prior to a hearnesses during working hours. Such request shall not be unreasonably denied .” ♦ Article 31, Section 3 requires the Postal Service to supply the union with “all relevant information necessary for collective bargaining or the enforcement, administration or interpretation of this Agreement, including information necessary to determine whether to file or to continue the processing of a grievance under this Agreement. Arbitrator Gentile ruled that the Postal Service's refusal to make the inspectors available for an interview had violated the National Agreement. The arbitrator examined the circumstances surrounding the removal, noting that one inspector had stated in the investigative memorandum that he had recovered the two quarters during an interview with the grievant. Levak ruled that the inspector “was clearly a percipient witness to the discovery of the two coins,” and “a critical witness to the controlled mailing which triggered the interview.” The arbitrator found that the postal inspectors possessed essential information in the case, justifying NALC's request for interviews: Absent the testimony of the two Postal Inspectors, the Service has no case. As argued by the NALC, this testimony is both material and pivotal to the processing of the grievance and to the ultimate outcome. #0#)'/'06 %#0016 5#; 5+/2.;X \' 4'.+'& 10 6*' +0g 8'56+)#6+8' /'/1g 4#0&7/T[ *' 70+10 *#5 # 4+)*6 61 +06'48+'9 6*' +08'56+)#6145T Arbitrator Gentile also cited a national-level settlement—M-00225, March 10, 1981—which stated as follows: 1. The Postal Service agrees that the steward who is processing and investigating a grievance shall not be unreasonably denied the opportunity to interview Postal Inspectors on appropriate occasions, e.g., with respect to any events actually observed by said inspectors and upon which it a disciplinary action was based. 2. The Postal Service and the NALC disagree as to whether in other circumstances such as those in the above-captioned case, the stewards it should be given the opportunity to interview the involved Inspector. 3. The parties agree that the above-captioned grievance will be withdrawn and that the disciplinary action taken against the employee in whose behalf of the stewards had requested in the interview will also be withdrawn. Additionally, the employee in question will be granted $25.00 assessed for the lost parcel. These withdrawals are non-precedential. ing on the merits. He also granted a union request that the Postal Service pay back pay to the grievant from the date of the removal through the date of the hearing. Soon after the Gentile case regional Arbitrator Thomas F. Levak also ordered management to make a postal inspector available for a union interview. C-10115, October 28, 1997. His analysis bears reproduction here: First, the Arbitrator agrees with the analysis and conclusions of Arbitrator Gentile. The Service's failure to accord the Grievant the right to interview the two Postal Inspectors prior to the Steps 2 meeting constituted violations of the National Agreement articles 15.2, Steps 2(d), 17.3 and 31.2 [now 31.3—Ed.]. Postal Inspectors constitute witnesses within the meaning of article 17.3 whenever oral or written statements of a Postal Inspector are relied upon by management, in whole or in part, in reaching a disciplinary decision. Since, in criminally-related cases, the Service ordinarily is entitled to utilize Postal Inspectors as their investigative agency, and is not obligated under due process considerations to conduct a separate, independent investigation, it necessarily follows that the Union is entitled to interviewed those investigated agents during the grievance process. Absent such a right, the Union would be left with nothing but a written investigative memorandum itself and a managerial disclaimer that, “I just relied on the investigative memorandum.” It goes without saying that an (Continued on page 4)
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Interviewing Postal Inspectors, Obtaining Their ... - NALC Branch 908

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