Checklist-Factors indicating whether employee discharge violates the NLRA

Even if an employer has knowledge of an employee's union activity, the discharge of that employee does not violate the National Labor Relations Act unless the employee was discharged because of that activity. Unlawful motivation for a discharge may be indicated in any one of a number of ways. The National Labor Relations Board has considered the following circumstances, among others, in determining whether an employee's discharge was motivated by unlawful intent:

• violent antiunion background with history of interference, restraint and coercion;

• threats of disciplinary action or shutdowns if unionization develops;

• surveillance of unionizing activities prior to discharge;

• expressed satisfaction with work of employees later discharged;

• absence of any good cause for the discharge and presence of one of the foregoing factors;

• the entire background, including antiunion activity;

• percentage of union members or leaders among the employees affected;

• admissions;

• statement by the discharging supervisor tending to show his or her state of mind;

• answers to complaints that do not deny the discrimination;

• failure to explain a discharge at a hearing;

• failure to call as a witness the management representative having personal knowledge of the reason assigned;

• effect of discharge on unionization-whether or not the leading organizers and officials of the union have been eliminated;

• espionage directed toward identity of union members;

• extent to which the discharged employee engaged in union activity;

• relation in point of time to employer's action to employee's union affiliation or activity;

• disparate treatment of competing unions.