A Garrity warning waives the government’s right to discipline an employee for remaining silent, but preserves its right to use any statement the employee voluntarily makes against him/her in a subsequent criminal criminal prosecution.
A Garrity warning typically contains the following (sample) information:
You have the right to remain silent if your answers may tend to incriminate you. Anything you say or do may be used as evidence in both an administrative proceeding, and any future criminal proceedings involving you. If you refuse to answer the questions posed to you on the grounds that the answers may tend to incriminate you, you cannot be discharged solely for remaining silent. However, your silence can be considered in an administrative proceeding for its evidentiary value that is warranted by the facts surrounding your case. This interview is strictly voluntary and you may leave at any time.
A Kalkines warning waives the government’s right to use voluntary statements in a criminal prosecution, but preserves its right to discipline an employee for refusing to cooperate in the investigation.
A Kalkines warning typically contains the following (sample) information:
You are going to be asked a number of specific questions concerning the performance of your official duties as an employee of the United States Postal Service. You have a duty to reply to these questions, and agency disciplinary proceedings resulting in your discharge, may be initiated as a result of your answers. However, neither your answers nor any information or evidence which is gained by reason of such statements can be used against you in criminal proceedings. You are subject to disciplinary actions up to and including dismissal if you refuse to answer or fail to respond truthfully and fully to any questions.
Notably absent in both warnings is information about an employee’s
Weingarten Rights. Despite all the warnings and
legal language, employees still have a right to union representation.
Employees need to remember that despite
assurances that any information will not be used against
them in a criminal proceeding; there are no assurances that
the information will not be used against them in
administrative or disciplinary proceedings.
Branch officers and stewards should not play the role of
criminal lawyer. If a letter carrier is directed to participate
in an OIG interview, and there is reason to believe that the
carrier may be subject to criminal prosecution, advise the
individual to consult an attorney immediately.
Stewards should also recognize the differences between a Miranda warning and an employee’s Weingarten rights. The Joint Contract Administration Manual (JCAM) (pages 17-6 through 17-7) provides an excellent overview of Weingarten rights. Weingarten rights, derived from the 1975 U.S. Supreme Court case, NLRB vs. J. Weingarten, Inc., provides that employees are entitled to assistance from their union representatives during any investigatory interview which the carrier reasonably believes may lead to discipline. An investigatory interview is usually defined as questioning by management to search for facts that will be used to determined an employee’s culpability or decide whether to impose discipline. But the key to deciding whether Weingarten rights are applicable– that is, whether the carrier has a right to union representation–is whether the employee has a reasonable belief that the interview may lead to disciplinary action to demand union representation. Note also that the steward cannot exercise Weingarten rights; only the employee can request Weingarten rights. Employees who request union representation have the right to a pre-interview conference with a steward before being interviewed by management. Stewards should also be aware of the language in Article 17, Section 3 of the National Agreement. The fifth paragraph of Article 17, Section 3 states, “If an employee requests a steward or Union representative to be present during the course of an interrogation by the Inspection Service, such request will be granted.” This sentence reinforces the employee’s Weingarten rights and clearly informs postal inspectors that stewards have the right to represent employees if requested. Stewards should understand that the inspectors are not obligated to inform carriers of their right to union representation; the carrier must request it and can insist that questioning not continue until a union representative is present. Finally, carriers cannot demand a specific representative and, in fact, neither Weingarten nor the contract guarantees that the representative be the steward. If a steward is unavailable, another union officer capable of providing effective representation can fill the bill.