Search OK Despite No Notice to Employee or Union Representative

LaborRelationsAfter finding a small bag of marijuana under an employee’s chair, the employer interviewed her in the presence of a union representative. Sw. Bell Tel. Co., NLRB Div. of Advice [released Feb. 20, 2015]. But when they broke for lunch, the employer searched the employee’s company vehicle without notice to the union or employee and discovered pornographic DVDs. The employer dropped pending discipline for suspected marijuana possession and instead issued a written warning for possession of pornographic materials. The union argued that the search violated the employee’s Weingarten rights, which provide a union-represented employee the right to request the presence of a union representative during an investigatory interview that the employee reasonably believes may result in discipline. NLRB v. J. Weingarten Inc. (1975).

The National Labor Relations Board (NLRB) Division of Advice (Division), a group within the NLRB that advises regional offices on unfair labor practices, determined that the employee’s Weingarten rights had not been violated. The search did not involve a confrontation with the employee or questions of any kind, according to the Division, and “asked nothing of the employee” that might require a union representative’s assistance.

This case is a welcome respite for employers, with whom some recent NLRB decisions have been unpopular.