EMPLOYER DETERRENCE OR DISCOURAGEMENT – Defenses

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A variety of contextual factors may be relevant in assessing an employer’s asserted business justification for conduct which otherwise deters or discourages employee free choice, and will depend on the evidence and circumstances of each particular case. For example, truthfulness, whether an employer is responding to a misleading union communication, and employer motive, as well as the mode, frequency, and/or timing of a communication, may all be relevant considerations. (pp. 36-37.)