The scope of a union-represented employee’s right to have a union representative present during an investigatory interview is one of the more interesting areas of labor law. Even though most people who practice labor relations know the basics of the so-called Weingarten rights, the same types of questions continue to arise because there are an infinite variety of scenarios. These questions include: how long does one have to wait for the representative? Can the employee request a particular representative? Exactly how can the representative participate in the interview? Are employer actions as opposed to interviews part of the Weingarten analysis?
The NLRB recently released Southwestern Bell Telephone Company, 14-CA-141000, Advice Memorandum dated February 6, 2015, a memorandum issued by the Division of Advice, which addressed the last question. The issue addressed in the Advice Memorandum was whether an employer’s search of a company car during a pending investigation was something that triggered Weingarten rights. In that case, the employer found a small bag of marijuana underneath empty chairs where an employee had been sitting. The employer called the employee in to ask about the marijuana and the employee requested a union representative; the request was granted. The initial interview concluded and the employee went to lunch with her union representatives.
While the employee was at lunch the employer searched the company vehicle used by the employee. Inside the vehicle, the employer found a CD case that contained music CDs and pornographic DVDs but no evidence related to the marijuana was discovered. When the employee returned from lunch she was called into a second interview by the employer, which was again attended by the union representatives. The employer asked the employee about the CD case and she acknowledged that it was hers but denied knowledge of the pornographic DVDs.
The employer suspended the employee but ultimately returned her to work with no loss of pay. The employer then issued the employee a written reminder about the possession of the pornographic DVDs. The union challenged the discipline in a grievance but did not assert the search violated the employee’s Weingarten rights. The employee then filed a charge alleging that the employer violated her Weingarten rights asserting the search of the company vehicle constituted a “continuation” of the investigatory interview that started with the inquiry about the marijuana and did not conclude until the second interview after lunch.
The Division of Advice directed that the charge be dismissed. In its analysis of the case, Advice recited the basics of the law, noting that an “employer’s questions qualify as an investigatory interview even when they are merely implicit.” Thus, Advice noted that the NLRB has found Weingarten rights apply when an employer requests an employee to submit to a sobriety test. See System 99, 289 NLRB 723, 723, n. 2 (1988). Advice noted further that there was “no question” the employer’s interactions with the employee “before and after the vehicle search were investigatory interviews under Weingarten.”
As to the search of the vehicle itself, though, Advice concluded that it was neither an investigatory interview or a “continuation” of the investigatory interview. Advice noted the reasons for this conclusion:
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, and was not asked to aid 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.
This is a logical conclusion; after all, it was the company’s vehicle that was searched and the union did not assert the search was improper. Still, the case is instructive and Advice memoranda are always full of good case citation and thoughtful analysis. The case does highlight a fact about today’s labor relations climate: given the receptivity of the NLRB to extension of rights, the fact this charge was filed is not a surprise.