EMPLOYER DETERRENCE OR DISCOURAGEMENT – Defenses

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When the employer asserts a business necessity defense, PERB will balance the employer’s asserted interests against the likelihood of influencing employee free choice. The stronger the likelihood to influence employee free choice, the greater is the employer’s burden to show its purpose was important and that it narrowly tailored its conduct or communication to attain that purpose while limiting influence on employee free choice to the extent possible. If the likelihood of influence outweighs the asserted business necessity, PERB will find a violation. Absent evidence sufficient to establish an affirmative defense, section 3550 leaves it to employees on each side of a unionization debate to marshal their arguments. Thus, in the critical debate over whether charter schools’ employees should authorize the union to become their exclusive representative, including but not limited to the question whether the union’s stance on charter schools makes it a poor fit for representing employees, the Board must consider whether the charter schools have established a business necessity showing that they cannot leave it to employees to be the ones to argue against unionization. (pp. 70-71.)