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 Southwestern Bell suspended the employee on suspicion of possessing marijuana on company premises, but later rescinded the suspension for lack of evidence.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.

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Photo of Ian B. Bogaty Ian B. Bogaty

Ian B. Bogaty is a Principal in the Melville, Long Island Office.  Mr. Bogaty received his B.A. from Binghamton University in 2000, and his J.D. from Hofstra University – School of Law in 2003.  Mr. Bogaty received a Masters of Law in Labor and Employment Law from New York University in 2004.  He is admitted to practice in New York. He is admitted to practice in New York, and the United States District Courts for the Southern and Eastern Districts of New York.

Since joining Jackson Lewis in June 2004, Mr. Bogaty has practiced in traditional labor law areas such as collective bargaining, labor arbitration, contract administration and representation and unfair labor practice proceedings before the National Labor Relations Board.

Photo of Howard M. Bloom Howard M. Bloom

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues. He trains and advises executives, managers and supervisors on union awareness and positive employee relations, and assists employers in connection with union card-signing efforts, traditional union representation and corporate campaigns, and union decertification campaigns. He also represents clients at the National Labor Relations Board in connection with bargaining unit issues, objections and challenges, as well as unfair labor practice investigations and trials. Mr. Bloom also has been the spokesperson at countless first and successor contract collective bargaining negotiations, and regularly advises on collective bargaining agreement administration issues, including grievance/arbitration issues.

Mr. Bloom has appeared before the Massachusetts Supreme Judicial Court, the U.S. Court of Appeals for the District of Columbia, several U.S. District Courts, the National Labor Relations Board, the Massachusetts Labor Relations Commission, the Equal Employment Opportunity Commission and the Massachusetts Commission Against Discrimination.

Mr. Bloom speaks frequently to employer groups on a wide range of labor and employment law topics. He also has written extensively on labor and employment law for a variety of publications, including New England Business magazine, The Boston Globe and the Boston Business Journal. He also is editor of and a frequent contributor to the Jackson Lewis Labor & Collective Bargaining Blog.

While attending law school, he was the Executive Editor of The Advocate: the Suffolk University Law School Journal and President of the Student Bar Association.

Mr. Bloom is a diehard baseball fan. His first book, The Baseball Uncyclopedia: A Highly Opinionated Myth-Busting Guide to the Great American Game, was published in February 2006.

Photo of Philip B. Rosen Philip B. Rosen

Philip B. Rosen is a Principal in the New York City office of Jackson Lewis P.C. and a member of the Firm’s Management Committee. Mr. Rosen also leads the firm’s Labor Practice Group. He joined the Firm in 1979 and served as Managing Partner of the New York City office from 1989 to 2009.

Mr. Rosen lectures extensively, conducts management training, and advises clients with respect to legislative and regulatory initiatives, corporate strategies, business ethics, social media, reorganizations and reductions-in-force, purchase/sale transactions, sexual harassment and other workplace conduct rules, compliance with the Americans With Disabilities Act, wrongful discharge and other workplace litigation, corporate campaigns and union organizing matters, collective bargaining, arbitration and National Labor Relations Board proceedings. He has been quoted by the press on many labor matters, including the National Labor Relations Board’s recent initiatives on protected concerted activity and the proposed Notice Posting requirements.