Abstract

A difficulty inherent in cases under the National Labor Relations Act (NLRA), as in other areas of employment law, is in determining why the employer acted. Perhaps an even harder question, and one too frequently overlooked, is what form of evidence the National Labor Relations Board (NLRB or Board) and any reviewing court properly may consider in determining motive. More specifically, can the Board take into account an employer's vigorous opposition to the union in deciding whether or not a particular action was motivated by antiunion animus? Although common sense suggests yes, several courts of appeals have said no, relying on section 8(c) of the NLRA and on the First Amendment. This Article explores the extent to which protected employer speech under the NLRA may be used to establish unlawful motivation. It does so in the context of a particular category of unfair labor practice cases—those involving the allegedly discriminatory discipline or discharge of union adherents. This category of cases is not only the most common and critical one under the Act, but it also presents questions of employer motive that are not unique to the NLRA.