Can you question your employees about their union activities or support?

The interrogation of employees about their union activities, sympathies or knowledge of union affairs may not be unlawful in and of itself. However, in many instances such questioning may become unlawful. For questioning to be considered unlawful, either the words themselves, or the context in which they are used, must suggest an element of coercion or interference.

The questioning of employees intrudes into their right to keep such matters private and tends to put employees who are sympathetic to unionization in fear that a refusal to answer, or an honest answer, could cause the employer to retaliate against the employee. Also, employees' dependence on their jobs tends to make them unwilling to risk incurring their employer's disfavor.

Factors in determining unlawful interrogation. The National Labor Relations Board, and the courts, agree on the following five-factor test as a starting point in determining whether unlawful interrogation has occurred:

• Background. Is there a history of employer hostility and discrimination?

• Nature of the information sought. Did the interrogator appear to be seeking information on which to base taking action against individual employees?

• Identity of the questioner. How high in rank was the questioner in the company hierarchy?

• Place and method of interrogation. Was the employee called from work to the boss's office? Was there an atmosphere of unnatural formality?

• Truthfulness of the reply given by the employee.

Determining whether the questioning of an employee has violated the act does not require strict evaluation of each factor. The test is flexible. The factors simply serve as a starting point for assessing the totality of the circumstances.