Last week, the National Labor Relations Board’s Division of Advice issued a Memorandum finding that an employer’s search of a company vehicle regularly driven by an employee did not trigger the employee’sWeingarten rights. In Weingarten, the Supreme Court ruled that employees in a unionized workplace may request the presence of a union representative at an investigatory interview that the employee reasonably believes may result in disciplinary action.
Southwestern Bell, the employer, found marijuana underneath chairs where an employee and a co-worker had been sitting. Southwestern Bell conducted an investigation and interviewed one of the employees. The employee requested and received union representation during the interview. After the interview, the employer searched the employee’s company-owned vehicle without the employee’s knowledge while the employee was at lunch. During this search, the employer did not find marijuana, but found pornographic DVDs, for which it disciplined the employee. The Union then filed an unfair labor practice charge with an NLRB Regional Office on the theory that the vehicle search was a continuation of the prior investigatory interview and, therefore, was subject to Weingartenprotection.
The Regional Office submitted the case to the Division of Advice. The Division found that Southwestern Bell’s vehicle search was not a continuation of the prior investigatory interview because: (1) the employer did not confront the employee during the search; (2) the employee was not present for the search; and (3) the employee did not know about the search. In short, the search was not an interview to which Weingarten rights would attach, and the Division instructed the Regional Office to dismiss the charge.
Although certainly a win for Southwestern Bell, employers must still be mindful of their obligations underWeingarten. Other vehicle searches may trigger Weingarten rights where, for example, the employee is present for the search and the employer questions the employee during the search.