EMPLOYER DETERRENCE OR DISCOURAGEMENT – Defenses

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An employer may attempt to establish a business necessity defense based on an alleged need to correct a union’s inaccurate communication. (See, e.g., Alliance Marc & Eva Stern Math & Science High School et al. (2021) PERB Decision No. 2795, pp. 52-75; Regents of the University of California (2021) PERB Decision No. 2756-H, p. 9.) The University did not claim that Teamsters’ communication was inaccurate such that it necessitated a corrective response from the University. Thus, the fact that the University sent its communication in response to Teamsters’ earlier communication does not establish a business necessity defense. (p. 25.)