A unionized employer may search a company vehicle without affording the employee who uses the vehicle an opportunity to exercise his “Weingarten rights” to have a union representative present during the search, according to an Advice Memorandum from the Office of the General Counsel of the National Labor Relations Board (“NLRB”). Southwestern Bell Telephone Company, Case 14-CA-141000 (issued Feb. 6, 2015; released publicly Feb. 20, 2015).

Southwestern Bell discovered a small bag of marijuana beneath chairs in which an employee and her co-worker had been sitting in on company premises. Southwestern Bell interviewed the two employees about the marijuana that was discovered in the facility. At the employee’s request, and pursuant to the U.S. Supreme Court’s decision in NLRB v. Weingarten, 420 U.S. 251 (1975), the employee was permitted to have a union representative present during the interview. (Under Weingarten, a union employee may request the presence of a union representative at an investigatory interview that the employee reasonably believes may result in disciplinary action.) Following the interview, and while the employee and her union representative were at lunch, Southwestern Bell searched the employee’s company vehicle. Southwestern Bell did not inform the employee or the union of its intent to search the company vehicle. During the search, Southwestern Bell discovered a case containing CDs and pornographic DVDs, but did not find any drugs or drug paraphernalia.

Southwestern Bell then conducted a second interview of the employee, in the presence of the union representative. The employee admitted the CD case was hers, but denied knowledge of the pornographic DVDs. Southwestern Bell suspended the employee on suspicion of possessing marijuana on company premises, but later rescinded the suspension for lack of evidence. Upon the employee’s return to work following her suspension, Southwestern Bell issued her a “disciplinary written reminder” relating to the employee’s possession of pornographic DVDs.

The Division of Advice concluded that Southwestern Bell did not violate the National Labor Relations Act when it searched the company vehicle outside the presence of the employee and her union representative. In its Advice Memorandum, the General Counsel noted that while under Weingarten an employee is entitled to a union representative during an “investigatory interview,” Southwestern Bell’s “search of a company-owned vehicle was not in itself an investigatory interview, and was not a ‘continuation’ of the prior investigatory interview.” Thus, “[b]ecause [Southwestern Bell] asked nothing of the Employee, the Employee had no need for a Union representative’s assistance.”

The General Counsel’s Advice Memorandum permits searches of company vehicles outside the presence of the employee who uses the vehicle and the employee’s union representative. Where, however, the employer asks questions of an employee during the search of a company-owned vehicle such questioning may implicate an employee’s Weingarten rights. In order to avoid implicating an employee’s Weingarten rights, employers should separate their investigatory searches of company property from their investigatory questioning of employees.