§ 2.1.14 DISCRIMINATION BECAUSE OF UNION ACTIVITIES (SECTION 8(A)(3)).

• Jurisdiction: Arizona

§ 2.1.14 Discrimination Because of Union Activities (Section 8(a)(3)). The NLRA does not prohibit all encouragement or discouragement of membership in labor organizations; rather, it prohibits that which is accomplished by discrimination. Conversely, discrimination in employment is not prohibited if it does not encourage or discourage membership in a labor organization. The principles applicable in cases involving discrimination to discourage union membership equally apply in cases involving discrimination to encourage such membership.⁷⁸ Therefore, to establish a violation of the prohibition against discrimination on the basis of union activities it is necessary to show all of the following: (1) discrimination in hiring, tenure of employment, or any other term or condition of employment; (2) a resulting encouragement or discouragement of union membership; and (3) unlawful intent.⁷⁹

The term "discrimination" refers to different treatment accorded employees solely on the basis of their union activities or union membership, or their lack of them, and without reference to whether they hold comparable or incomparable jobs. Differential or disparate treatment of employees is the main substance of the unfair labor practice.⁸⁰ Evidence that an employer's act encourages or discourages union membership or activities is needed to justify an unfair labor practice finding. Thus, if there is no reference to union membership or union activities, there can...