In N.L.R.B. v. McGahey, 233 F.2d 406 (5th Cir. 1956), this court described casual and moderate inquiries, even as to union preference, absent evidence indicating that the employee has reason to consider the inquiries a threat of reprisals, as not constituting an unfair labor practice in violation of § 8(a)(1).
In Thayer, the court first announced that if the activity causing dismissal was protected under § 7 of the Act then denial of reinstatement was unlawful. If the activity was unprotected under § 7, however, the legality of the denial was to be determined according to a balancing test.