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Weingarten Not Implicated by Drug Search that Revealed Porn: NLRB General Counsel's Office
Practical Law Legal Update 9-601-4906 (Approx. 5 pages)
Weingarten Not Implicated by Drug Search that Revealed Porn: NLRB General Counsel's Office
by Practical Law Labor & Employment
| Published on 24 Feb 2015 • USA (National/Federal) |
The Office of the General Counsel of the National Labor Relations Board (NLRB) released an advice memorandum in Southwestern Bell Telephone Co. concluding that NLRB v. J. Weingarten, Inc. did not entitle a union-represented employee to have a union representative present for the employer's drug search of the company vehicle assigned to her. After an investigative interview about marijuana found near where the employee was sitting, for which a union representative was present, the employer searched the employee's assigned vehicle and did not find drugs, but found pornographic videos. The employer reprimanded the employee for bringing the videos to work and the union filed an unfair labor practice (ULP) charge alleging the search violated Weingarten and Section 8(a)(1) of the National Labor Relations Act (NLRA).
The Division of Advice at the NLRB's Office of the General Counsel released an advice memorandum dated February 6, 2015 in Southwestern Bell Telephone Company. The Division of Advice concluded that NLRB v. J. Weingarten, Inc. (420 U.S. 251 (1975)) did not entitle a unionized employee to have a union representative present when the employer searched for drugs in the company vehicle assigned to her. The Division of Advice found that the vehicle search was not an investigatory interview that would implicate employee's rights under Weingarten to have a union representative present. It instructed an NLRB regional office to dismiss the unfair labor practice (ULP) charge alleging the search violated Weingarten and Section 8(a)(1) of the NLRA.
Background
Under NLRB v. J. Weingarten, Inc.:
- When an employer conducts an investigatory interview of a unionized employee which the employee reasonably believes could lead to disciplinary action, the employee has a right to have a union representative present.
- The right to have a union representative present does not extend to announcements of predetermined discipline, only to fact-finding interviews.
In September, 2014, Southwestern Bell found a small bag of marijuana underneath a chair in which a technician, who was represented by a local union of the Communications Workers, had recently been sitting. The employer promptly investigated the matter, including by interviewing the employee. The employer granted the employee's request that a union representative be present during her investigative interview. Following the interview, without informing the employee or the union, the employer searched a company vehicle used by the employee. Neither the employee nor any union representative was present during the search. During the search, the employer did not find drugs but found pornographic DVDs in a music CD case.
After searching the vehicle, the employer interviewed the employee again with her union representative present. The employee admitted the music case was hers, but denied knowing the pornographic DVDs were in the case. Ultimately, the employer gave the employee a written reprimand for possessing pornographic materials at work. The employer also suspended the employee without pay based on suspicion that she had brought drugs to work, but returned her to work with full backpay due to a lack of evidence that she possessed the drugs.
The employee's union filed a grievance over the written discipline. The union also filed a ULP charge alleging the vehicle search without union representation violated Weingarten and Section 8(a)(1) of the NLRA. The regional office submitted that issue to the Division of Advice.
Outcome
The Division of Advice concluded that the employer's search of the employee's company vehicle did not violate Section 8(a)(1) because the search:
- Was not an investigatory interview that implicated Weingarten.
- Was not a continuation of the initial investigatory interview conducted by the employer following the discovery of drugs under the chair.
According to the Division of Advice, certain elements of an investigatory interview were not present in the search of the vehicle. Specifically:
- There was no confrontation between the employer and the employee in which the employer demanded that the employee answer questions related to a disciplinary investigation (New Jersey Bell Tel. Co., 300 N.L.R.B. 42, 49 (1990)). The employee was not present during the search, nor was the employee even aware that the search was taking place.
- The search did not involve asking any questions, whether express or implicit. The Division distinguished this case from System 99, where the NLRB found that an employer's request that an employee take a field sobriety test was an implicit question constituting an investigatory interview implicating Weingarten (a union representative could have counseled the employee about answering the request) (289 N.L.R.B. 723, 723 n.2 (1988)).
- The search was not a drug test. The NLRB has declined to decide whether a drug test standing alone, which the Division of Advice noted was arguably analogous to a search, constitutes an investigatory interview under Weingarten (see Safeway Stores, 303 N.L.R.B. 989, 989 (1991)).
- The vehicle search was not a continuation of an investigative interview, as was the search of an employee's cell phone turned-over to the employer at the employer's demand during an investigative interview (see Cingular Wireless, LLC, Case 16-CA-24795, Advice Mem. (Aug. 7, 2006)).
The Division concluded that the unilateral search of the company vehicle was not an instance where the employee would need, or benefit from having, a union representative present to assist the employee to relate accurately the incident being investigated or raise extenuating factors (Weingarten, 420 U.S. at 262-263).