So, while in the performance of letter carrier duties, a letter carrier has been asked to step into the office to answer a few questions. What are one’s contractual rights in such an instance? We most certainly have rights if one of us is the subject of an investigatory interview. The nature of those rights depends on the subject of the interview and whether it could lead to discipline. In more serious instances, where the interview could lead to the issuance of criminal charges, we have additional and substantial legal rights. This paper will attempt to introduce the evolution and defense of those rights.
Weingarten Rights
In interviews where it can reasonably be inferred that the interview could lead to discipline, the rights of the employee are defined under the U.S. Supreme Court’s Weingarten decision,\1 wherein the employee is absolutely entitled to union representation -- provided that the employee asks to be represented. Management is under no obligation whatsoever to inform the employee of the right to have a steward present, but must immediately terminate the interview and provide the employee a steward or union officer if the employee has the presence of mind to request representation.
Representation requested under these circumstances is an assertion of Weingarten rights. Any employee in an investigative interview that could lead to discipline should most definitely have the advice and support available through competent union representation.
Non Disciplinary Interviews
A thorny issue in some instances is separating a non-grievable discussion from a pre-disciplinary interview. When an employee refuses to talk to a supervisor in an instance that would not reasonably lead to discipline, the refusal of the employee creates a situation that may lead to him or her being disciplined for insubordination. If a discussion begins and the employee detects that the questioning could support the issuance of discipline, that employee should remain in the conference area but stop answering questions, demand representation, and not proceed until a steward is furnished. Always agree to go where management says. Then assert your rights.
Miranda Rights
The rights of persons accused of serious misconduct that could reasonably lead to criminal charges are defined under the U.S. Supreme Court’s Miranda decision.\2 The Miranda decision obligates law enforcement officers to inform the accused person of his or her Fifth and Sixth Amendment rights against self-incrimination, to inform the accused of the right to legal counsel, and to furnish legal counsel to those without the means of supplying counsel for themselves.
Miranda rights are an example of prophylactic rights, in that they are designed to prevent abuse of other rights, in this case the constitutional protections of the accused. When the accused person declines to answer questions or refuses to continue the interview, such actions are assertions of Miranda rights. No less than seven Miranda cases have been heard by the U.S. Supreme Court since 1990, which indicates the ongoing controversy of balancing the rights of the accused with the mission of the state in effectively prosecuting those
accused of crime.
The Edwards decision\3 further defined the rights of the accused by defining that an interview in progress must stop at any point that the accused requests counsel. In its recent Thompson decision,\4 the court attempted to clarify the rights of persons accused and detained, but not formally arrested, and basically affirmed the existence of Miranda rights when an accused person is in a custodial setting and is being questioned, by ruling that such situations can merit habeus corpus (immediate) federal appeal. Miranda rights will continue to evolve as petitioners on both sides seek relief before the Supreme Count.
Postal Crime Situations
When USPS employees are accused of criminal conduct while in the performance of duty, the United States Postal Inspection Service is normally the law enforcement agency that investigates. If the criminal conduct is off premises, any law enforcement agency with jurisdiction may become involved, but local police agencies normally collaborate with the Inspection Service if they are aware that the accused is a postal employee, on duty, or sometimes even when arrested off duty.
When investigating possible criminal activity by a USPS employee the Inspection Service
utilizes PS Form 1067 to read Miranda rights to the accused. Form 1067 is entitled UNITED STATES POSTAL SERVICE/WARNING AND WAIVER OF RIGHTS. If the accused signs the waiver in the presence of two witnesses, the interrogation will commence.
Representation in Crime Situations
As a Clint Eastwood character once said, "A man’s got to know his limitations." Should a steward proceed after the employee has been read Miranda rights? If the employee bears a degree of guilt or the charges are at all serious, legal counsel is a wise choice. If the employee retains a lawyer, successfully blaming the union for the lawyer’s advice would be unlikely.
If you are in the interrogation room with an accused employee who does not want legal counsel, a possible method to plead before the inspectors is this: Simply assert that the burden of proof is not placed upon the accused, that specific charges will be answered at a future time in an appropriate forum, and that the accused will respectfully decline to be interviewed at this time. We have been there too many times with employees who claim their innocence going in and
end up talked right out of their jobs. Even if someone denies the charges when at the union hall or claims they were "set up" does not establish innocence. Verify their facts and trust your instincts.
The Best Advice
If anyone reading this article has knowledge of an employee who is engaging in unethical or criminal behavior — behavior of a kind that could not be comfortably explained to a manager or inspector — give that person this message at once: Stop! Now! Period!
Hopefully, you will seldom have to represent a letter carrier in a serious investigative interview. If you ever do find yourself in such a position, act on the fact that even an accused person still has rights.
1/ NLRB v. J. Weingarten, United States Supreme Court, 1975
2/ Miranda v. Arizona, United States Supreme Court, 1966
3/ Edwards v. Arizona, United States Supreme Court, 1981
4/ Thompson v. Keohane, United States Supreme Court, 1995
Disclaimer: The material in this article is not presumed or intended to reflect an official position of the
National Association of Letter Carriers or the Michigan State Association of Letter Carriers. This article contains opinion statements of the writer offered for basic informational purposes only. There is no substitute for consultation with or representation by a trained advocate. The writer cannot assume responsibility of any type for the use of this material by others.
