Answer to Question 1
The controlling principles concerning employer motivation are as follows:
(a) If it can reasonably be concluded that the employer's discriminatory conduct was inherently destructive' of important employee rights, no proof of an antiunion motivation is needed and the Board can find an unfair labor practice even if the employer introduces evidence that the conduct was motivated by business considerations..
(b) If the adverse effect of the discriminatory conduct on employee rights is comparatively slight,' an antiunion motivation must be proved to sustain the charge if the employer has come forward with evidence of legitimate and substantial business justifications for the conduct..
Thus, in either situation, once it has been proved that the employer engaged in discriminatory con-duct which could have adversely affected employee rights to some extent, the burden is upon the employer to establish that there was motivation by legitimate objectives, since proof of motivation is most accessible to the employer.
Answer to Question 2
The issue of the case is whether, in the absence of proof of an antiunion motivation, an employer may be held to have violated Section 8(a)(3) of the NLRA when it refused to pay accrued vacation benefits to striking employees while announcing the intention to pay such to replacements and non-strikers who had been at work on a specified date during a strike.
Gestalt principles of form and perception
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