Interviewing Postal Inspectors, Obtaining Their ... - NALC Branch 908
Interviewing Postal Inspectors, Obtaining Their ... - NALC Branch 908
Interviewing Postal Inspectors, Obtaining Their ... - NALC Branch 908
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<strong>NALC</strong> Arbitration Advocate Page 4<br />
Volume 2, Issue 2 May 1998<br />
investigative memorandum will<br />
never contain all of the observations<br />
and events discovered by<br />
the investigator, and that observations<br />
and events—and the<br />
manner in which such were observed<br />
or not observed—may<br />
be crucial to the Union's defense.<br />
The Union is entitled to<br />
question the <strong>Postal</strong> <strong>Inspectors</strong><br />
on all their observations and<br />
also on the manner in which<br />
their surveillance was conducted,<br />
in order to determine<br />
whether it can be considered reliable.<br />
Arbitrator Levak issued an interim<br />
award ordering USPS to<br />
make the inspector available for an<br />
<strong>NALC</strong> interview, retained jurisdiction<br />
and reconvened the case several<br />
weeks later for hearing on the<br />
merits of the removal. He also followed<br />
Arbitrator Gentile by awarding<br />
the grievant back pay from the<br />
date of his removal through the<br />
first hearing date.<br />
When the hearing reconvened<br />
Arbitrator Levak learned that USPS<br />
had flouted his award by refusing<br />
to make the inspector available for<br />
an interview and refusing to provide<br />
<strong>NALC</strong> with a copy of the inspector's<br />
notes. Management argued<br />
that it had relied solely on the<br />
investigative memorandum in issuing<br />
the removal, which it had provided<br />
to the union.<br />
The arbitrator dismissed the<br />
discipline and ordered the grievant<br />
reinstated with full back pay, without<br />
a hearing on the merits, because<br />
of the <strong>Postal</strong> Service's due process<br />
violations. Arbitrator Levak's reasoning<br />
lays out the core due process<br />
rights which management had<br />
violated:<br />
. . . The Arbitrator construes<br />
and interprets just cause to include<br />
the due process requirement<br />
that a removed grievant<br />
has the right, through the union,<br />
to effectively examine and cross<br />
examine her accuser; that notes<br />
taken by a service manager or<br />
by a <strong>Postal</strong> Inspector relative to<br />
removal are crucial to such an<br />
effective the examination; and,<br />
that the denial of those notes<br />
therefore denies a grievant her<br />
rights under Article 16.<br />
Second, when the Service utilizes<br />
<strong>Postal</strong> <strong>Inspectors</strong> to conduct<br />
an investigation in a removal<br />
case, it cannot be allowed<br />
to simply assert the defense<br />
that it relied only upon the<br />
formal investigative memorandum.<br />
The term “statement of<br />
facts relied upon,” as used in<br />
the National Agreement, cannot<br />
be construed so narrowly. A<br />
<strong>Postal</strong> Inspector, in a discipline<br />
case, acts as the agent of the<br />
Service, and the Union is entitled<br />
to examine and explore all<br />
the facts within the knowledge<br />
of the Inspector, not just those<br />
favorable to the Service. In<br />
short, a <strong>Postal</strong> Inspector is to<br />
be treated as any other witness,<br />
and the Service's position is<br />
therefore contrary to the National<br />
Agreement.<br />
Arbitrator Levak further noted<br />
that management was relying solely<br />
on the evidence supplied by the<br />
<strong>Postal</strong> <strong>Inspectors</strong> in the case, and<br />
had not conducted an independent<br />
investigation. If management had<br />
conducted its own, separate investigation,<br />
the arbitrator explained, he<br />
would have excluded the Inspection<br />
Service testimony and allowed<br />
management to try to prove its case<br />
through other evidence.<br />
The principles set forth by Arbitrator<br />
Levak were reaffirmed last<br />
year in case decided by regional Arbitrator<br />
George V. Eyraud.<br />
(C-16455, March 1, 1997). In that<br />
case a letter carrier was removed<br />
for allegedly engaging in inappro-<br />
priate conduct with a patron. The<br />
union was refused an interview<br />
with the postal inspector who interviewed<br />
the patron, and was told<br />
not to interview the complaining<br />
witness. Nor did management provide<br />
other documentation requested<br />
by the union in a grievance<br />
procedure.<br />
Arbitrator Eyraud cited Arbitrator<br />
Levak in ruling that, “the<br />
<strong>Postal</strong> <strong>Inspectors</strong> were witnesses<br />
under article 17.3 and should have<br />
submitted to interview.” He ruled<br />
that the various procedural defects<br />
in the case:<br />
... amount to a denial of due<br />
process to the Grievant and all<br />
are violative of the Labor Agreement.<br />
Any one of the above<br />
enumerated violations might be<br />
fatal to the Removal of Grievant<br />
here. Certainly, in their totality,<br />
they amount to a lack of due<br />
process and render the removal<br />
of Grievant to be invalid and<br />
due to be set aside.<br />
The arbitrator sustained the<br />
grievance, ordering the Grievant reinstated<br />
and made whole.<br />
#6+10#. '66.'/'06<br />
A recent national-level settlement<br />
has reaffirmed the postal service's<br />
obligation to release postal inspectors’<br />
notes and tapes to <strong>NALC</strong>.<br />
M-01308, Prearb, July 14, 1997. It<br />
states:<br />
The issue in this grievance<br />
is whether management violated<br />
the National Agreement by<br />
failing to turn over requested<br />
postal inspection service notes<br />
and videotapes during the investigation<br />
of a grievance.<br />
During our discussion, it<br />
was mutually agreed that the<br />
(Continued on page 5)