An employer found a bag of marijuana beneath empty chairs where an employee and co-worker had recently sat. The employer investigated the situation, individually interviewing the employee and co-worker. During the investigation, the employee invoked her Weingarten rights and requested a union representative. The Company obliged. After the interview, the employee went to lunch and a manager went to search the company car used by the employee. The manager did not find any illegal drugs, but did find a pornographic DVD, which prompted another interview with the employee. The employee admitted it was her video, and she was disciplined.
The employee thought that searching her company-owned car was a continuation of the investigation for which she and her union representative were entitled to be present. She was wrong. According to the NLRB Division of Advice, “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.”
Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at firstname.lastname@example.org.