In an Advice Memorandum issued February 6, 2015 in Southwestern Bell Telephone Company, Case 14-CA-141000, the National Labor Relations Board Office of the General Counsel found that an employer did not violate Section 8(a)(1) by searching an employee’s company-owned vehicle without a union representative present despite the fact that the employee had requested, and been provided, a representative for a prior, related investigatory interview.

The employer’s investigation began when it found a small bag of marijuana underneath empty chairs where the employee and a co-worker had recently been sitting. The employer investigated the matter by individually interviewing the employee and her co-worker, and during the employee’s interview, she requested the presence of a union representative and the employer granted the request. After the initial interview, the employee went to lunch and the employer then searched the company vehicle used by the employee. The employer did not notify the employee or the union representative of its intent to search the vehicle, and none of them were present for the search. The employer found a CD case that contained CDs and pornographic DVDs, but no marijuana. After the search, the employer conducted a second interview with a union representative present. The employee admitted that the CD case belonged to her, but denied knowing it had pornographic DVDs in it. The employer then disciplined the employee.

Given this fact pattern, the issue was whether the search of the company vehicle was a continuation of the employer’s first investigatory interview during which the employee requested a union representative. As set forth in the memorandum, in NLRB v. Weingarten, 420 U.S. 251 (1975), the Supreme Court held 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. An employer is engaged in an investigatory interview for the purposes of Weingarten when the employer confronts an employee and asks her to answer questions related to a disciplinary investigation.

An employer’s questions qualify as an investigatory interview even when they are merely implicit. Thus, in System 99, [289 NLRB 723 (1988)] the Board held that an employer’s request that an employee submit to a sobriety test was an investigative interview under Weingarten. The ALJ, affirmed by the Board, reasoned that, by requesting that the employee take a sobriety test, the employer asked the implicit question: “Will you submit to a sobriety test?” Because this implicit question was related to a disciplinary investigation, the employee had a Weingarten right to consult with a union representative before deciding how to respond. The Board, however, has expressly declined to pass on the question of whether a drug test “standing alone,” which is arguably analogous to a search, constitutes an investigatory interview under Weingarten.

The Division of Advice concluded that the employer’s search was not in itself an investigatory interview, nor a continuation of the prior investigatory interview.

When the Employer searched the company vehicle, it did not engage in a confrontation with the Employee and did not ask the Employee any questions, even implicitly. Instead, the Employee was not present for the search, was not asked to aid in the search, and was not even aware the search was taking place. Because the Employer asked nothing of the Employee, the Employee had no need for a Union representative’s assistance.

While this Advice Memorandum is a ‘victory’ for employers, the Advice Memorandum certainly suggests that there can be factual scenarios where the search of a company-owned vehicle can constitute an investigatory interview thereby granting union employees Weingarten rights. Accordingly, employers should not automatically assume that Weingarten rights are never implicated in the search of a company-owned vehicle.