A recent Advice Memorandum from the NLRB’s Office of the General Counsel suggests that a worker’s right to Union representation during an investigatory interview attaches to a search conducted in conjunction with such an interview only if the worker knows about the search.

In this case, Southwestern Bell Telephone Company interviewed an employee as part of an investigation into marijuana found under the employee’s chair. During the interview and in exercise of her Weingarten rights, the employee requested and was granted the presence of a Union representative. After the interview and unbeknownst to the employee, the company searched the company vehicle used by the employee. The search revealed pornography for which the employee was later disciplined. The General Counsel concluded the company’s execution of the search without the Union rep did not violate the employee’s Weingarten rights because the search did not qualify as a continuation of the investigatory interview.

The Board previously has held that merely implicit questions can qualify as an investigatory interview or continuation thereof if the employer is seeking information that could form the basis for discipline. For example, a request that an employee submit to a sobriety test has been held to be an investigatory interview, as has a physical search of an employee’s cell phone during an interview. For the General Counsel, those examples are distinguished from the present case because in those examples, the employee knew about the test or search. By contrast, the Southwestern Bell worker was not present for the search, was not asked to aid the search, and was not even aware the search was taking place. The company did not ask the worker any questions, even implicitly. So, according to the General Counsel, the search was not a continuation of the investigatory interview and the worker had no need for a Union rep’s assistance.

The takeaway: If the company had asked the employee to submit to a search of the vehicle, the company would have had to allow Union representation during the search. But because the company searched first and asked questions later, Weingarten did not apply and the company was free to proceed at will.