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

NALC Arbitration Advocate Page 4
Volume 2, Issue 2 May 1998
investigative memorandum will
never contain all of the observations
and events discovered by
the investigator, and that observations
and events—and the
manner in which such were observed
or not observed—may
be crucial to the Union's defense.
The Union is entitled to
question the Postal Inspectors
on all their observations and
also on the manner in which
their surveillance was conducted,
in order to determine
whether it can be considered reliable.
Arbitrator Levak issued an interim
award ordering USPS to
make the inspector available for an
NALC interview, retained jurisdiction
and reconvened the case several
weeks later for hearing on the
merits of the removal. He also followed
Arbitrator Gentile by awarding
the grievant back pay from the
date of his removal through the
first hearing date.
When the hearing reconvened
Arbitrator Levak learned that USPS
had flouted his award by refusing
to make the inspector available for
an interview and refusing to provide
NALC with a copy of the inspector's
notes. Management argued
that it had relied solely on the
investigative memorandum in issuing
the removal, which it had provided
to the union.
The arbitrator dismissed the
discipline and ordered the grievant
reinstated with full back pay, without
a hearing on the merits, because
of the Postal Service's due process
violations. Arbitrator Levak's reasoning
lays out the core due process
rights which management had
violated:
. . . The Arbitrator construes
and interprets just cause to include
the due process requirement
that a removed grievant
has the right, through the union,
to effectively examine and cross
examine her accuser; that notes
taken by a service manager or
by a Postal Inspector relative to
removal are crucial to such an
effective the examination; and,
that the denial of those notes
therefore denies a grievant her
rights under Article 16.
Second, when the Service utilizes
Postal Inspectors to conduct
an investigation in a removal
case, it cannot be allowed
to simply assert the defense
that it relied only upon the
formal investigative memorandum.
The term “statement of
facts relied upon,” as used in
the National Agreement, cannot
be construed so narrowly. A
Postal Inspector, in a discipline
case, acts as the agent of the
Service, and the Union is entitled
to examine and explore all
the facts within the knowledge
of the Inspector, not just those
favorable to the Service. In
short, a Postal Inspector is to
be treated as any other witness,
and the Service's position is
therefore contrary to the National
Agreement.
Arbitrator Levak further noted
that management was relying solely
on the evidence supplied by the
Postal Inspectors in the case, and
had not conducted an independent
investigation. If management had
conducted its own, separate investigation,
the arbitrator explained, he
would have excluded the Inspection
Service testimony and allowed
management to try to prove its case
through other evidence.
The principles set forth by Arbitrator
Levak were reaffirmed last
year in case decided by regional Arbitrator
George V. Eyraud.
(C-16455, March 1, 1997). In that
case a letter carrier was removed
for allegedly engaging in inappro-
priate conduct with a patron. The
union was refused an interview
with the postal inspector who interviewed
the patron, and was told
not to interview the complaining
witness. Nor did management provide
other documentation requested
by the union in a grievance
procedure.
Arbitrator Eyraud cited Arbitrator
Levak in ruling that, “the
Postal Inspectors were witnesses
under article 17.3 and should have
submitted to interview.” He ruled
that the various procedural defects
in the case:
... amount to a denial of due
process to the Grievant and all
are violative of the Labor Agreement.
Any one of the above
enumerated violations might be
fatal to the Removal of Grievant
here. Certainly, in their totality,
they amount to a lack of due
process and render the removal
of Grievant to be invalid and
due to be set aside.
The arbitrator sustained the
grievance, ordering the Grievant reinstated
and made whole.
#6+10#. '66.'/'06
A recent national-level settlement
has reaffirmed the postal service's
obligation to release postal inspectors’
notes and tapes to NALC.
M-01308, Prearb, July 14, 1997. It
states:
The issue in this grievance
is whether management violated
the National Agreement by
failing to turn over requested
postal inspection service notes
and videotapes during the investigation
of a grievance.
During our discussion, it
was mutually agreed that the
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