EMPLOYER DETERRENCE OR DISCOURAGEMENT – Defenses

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The charter schools claimed that the e-mails were necessary to “defend the existence of a legally-constituted charter school” by addressing “the potentially destabilizing influence of [the union]’s attacks” on charter schools. But the e-mails’ timing and content show the charter schools did not narrowly tailor the communications to protect their business from anti-charter political campaigns while influencing employee free choice as little as possible. The union’s purported long history of anti-charter conduct would have posed a potential threat to the charter schools well before the union began organizing the charter school employees. Yet the charter schools did not begin communicating with employees about this alleged threat until after the union began its organizing campaign. The timing of these communications suggests it was the union’s organizing campaign, not its alleged hostility to charter schools, that prompted the charter schools to send the e-mails at issue. (pp. 71-72.)