Minnesota Employment Law Report - Observations on labor and employment law from FLFV

On May 7, 2013, the U.S. Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) held that the new rule from the National Labor Relations Board (the “Board”) requiring employers to post a notice regarding employee rights under the National Labor Relations Act (“NLRA” or the “Act”) is invalid because it violates employers’ free speech rights. National Ass’n of Mfrs. v. NLRB, No. 12-5068 (D.C. Cir. May 7, 2013).

The D.C. Circuit’s decision does not directly address the requirement under Executive Order 13496 that covered federal contractors post a different (albeit similar) notice informing employees of the right to unionize and to engage in certain protected activities under the NLRA. While the decision suggests that requiring this posting could also violate employers' free speech rights, because the decision did not directly address the Executive Order, federal contractors should not remove the notice that they are required to post.

The Board’s Posting Rule

As we previously reported, in August 2011, the Board published a rule requiring nearly all private-sector employers to conspicuously post a notice entitled, “Notification of Employee Rights under the National Labor Relations Act.”

With regard to enforcement of the posting requirement, the Board’s posting rule set forth three consequences for an employer’s failure to post the mandated notice: (1) it may constitute an independent unfair labor practice; (2) it may be grounds for tolling the 6-month statute of limitations; and (3) the Board may consider it to be evidence of unlawful motive in a case in which motive is an issue.

D.C. Circuit Strikes Down Posting Rule

After finding that the Board had sufficient members to issue the posting rule (because the Board still had at least three lawfully appointed members at the time it promulgated the posting rule), the Court analyzed whether requiring employers to post the Employee Rights Notice violates employers’ free speech rights under the Act.

Section 8(c) of the Act protects an employer’s First Amendment right to engage in non-coercive speech about unionization and expresses a congressional intent to encourage debate on labor-related issues. Specifically, Section 8(c) provides, in relevant part:

The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic or visual form, shall not constitute or be evidence of any unfair labor practice under any of the provisions of this [Act], if such expression contains no threat of reprisal or force or promise of benefit.

Drawing from First Amendment case law, the court concluded that while Section 8(c) “precludes the Board from finding non-coercive employer speech to be an unfair labor practice, or evidence of an unfair labor practice, the Board’s rule does both.” That is, the Board’s rule mandates that the failure to post the Employee Rights Poster constitutes an unfair labor practice, and can also be evidence of anti-union animus to support another unfair labor practice. Thus, both of these enforcement mechanisms violated the plain language of Section 8(c) by requiring the employer to disseminate the Board’s Notice in order to avoid one or more unfair labor practice charges.

As to the tolling of the 6-month statute of limitations, the court held that Congress could not have foreseen the type of alleged equitable tolling the Board would attempt to enact into law in 2011, and thus could not have intended that equitable tolling be incorporated into the Act. As a result, the Board’s equitable tolling theory violated the Act.

Because the court concluded that the Board would not have adopted the posting rule absent any basis for enforcement, the court invalidated the posting rule as a whole.

Bottom Line

For now, employers are not required to post this notice (the Supreme Court could ultimately overrule the D.C. Circuit’s decision). As noted above, however, federal contractors are advised to continue to post the notice required by Executive Order 13496 until further notice. We will be closely following this issue. Stay tuned for further developments.

In a move with extremely significant implications, the U.S. Court of Appeals for the D.C. Circuit held that President Obama’s three recess appointments to the National Labor Relations Board in January of 2012 were unconstitutional. Because the three recess appointments were invalid, the Board was legitimately comprised of only two members (an insufficient number) when it issued its decision and order in the underlying case. (As we previously reported, the U.S. Supreme Court held in New Process Steel, LP v. NLRB, 130 S. Ct. 2635 (2010), that the Board must have at least three members (i.e., “quorum”) to issue decisions and orders, as well as rulemaking.) Accordingly, the D.C. Circuit in Noel Canning v. NLRB, Case No. 12-1115 (D.C. Cir. Jan. 25, 2012), vacated the Board’s unfair labor practice determination.

Generally, the President is supposed to nominate Board members, and the Senate is supposed to confirm, before they can be appointed. However, it has been recognized that when the Senate is in recess, the President may temporarily appoint a Board member without Senate approval. On January 4, 2012, President Obama, attempting to appoint Board members without Senate approval, recess appointed three individuals as Board members – Sharon Block, Richard Griffin, and Terence Flynn. If valid, this action would have properly taken the Board up to a full complement of five members (albeit only for a limited period of time).

In this case, however, the D.C. Circuit invalidated the recess appointments on two separate grounds. First, the court reviewed the text and history of the Recess Appointment Clause to the Constitution and held that a recess appointment must be made during “intersession recesses” of the Senate. The Board appointments were not made during an intersession recess because they were made on January 4, 2012, which was one day after the Senate began a new session.

Second, the court concluded that the Constitution permits the President to make a recess appointment only when the vacancy arises during the recess. Two of vacancies arose on dates when the Senate was in session, so those vacancies did not qualify for a recess appointment. The final vacancy, which was open on January 3, 2012, was similarly invalid because “the Senate did not take an intersession recess . . . .” Instead, the Senate held “pro forma” sessions every three days from December 20, 2011 through January 22, 2012.

Bottom Line

The Board has, since January of 2012, issued numerous important decisions (some of which purported to change well-established law), and the Board has also engaged in significant rulemaking. Unless the D.C. Circuit reverses itself – or the Supreme Court overturns the D.C. Circuit’s decision – all of the Board’s recent and controversial actions are in jeopardy. Undeterred, Board Chairman Mark Gaston Pearce has announced that the Board will continue issuing decisions and orders notwithstanding the D.C. Circuit’s decision.

Now that we are well into January of 2013, the President has no ability at the present time to recess appoint anyone as a Board member, and given the position of the White House that the appointments were constitutional, it seems unlikely that the President will nominate a package of Board members for Senate approval. In the meantime – while this issue continues to be reviewed by the Courts – the Board and its decisions and orders are in limbo.

Attorney Grant T. Collins also contributed to this report.

On September 28, 2012, the National Labor Relations Board (“NLRB” or "Board") unanimously upheld the firing of a BMW salesman for posting work-related photos and comments on his Facebook page. At the same time, however, they also ruled (in a split 2-1 decision) that the dealership violated federal labor law by maintaining an overbroad policy on employee courtesy.  Karl Knauz Motors, Inc., Case 13–CA–046452 (NLRB 2012).

Firing Employees Over Facebook Posts Is Risky Business

The National Labor Relations Act (“NLRA”) protects the activities of two or more employees (both union and non-union) who are discussing or trying to improve their terms and conditions of employment — even if the activity takes place on Facebook. What’s more, even a single individual’s actions might be protected if those actions are undertaken on behalf of a group of employees.

The first issue was the salesman’s Facebook post of photos of the refreshments offered at the dealership’s recent sales event, which the salesman found unsuitable. He included comments such as “No, that’s not champagne or wine, it’s 8 oz. water” and “[t]he small 8 oz bags of chips, and the $2.00 cookie plate from Sam’s Club…were such a nice touch.”

The second Facebook post included photos of an accident at the adjacent Land Rover dealership owned by the same employer. A customer’s 13-year-old son had been allowed to sit behind the wheel where he apparently hit the gas, ran over his parent’s foot, and drove into a pond. The salesman also included the sarcastic commentary: “OOPS.”

As to the food-related post, the Board concluded that it may have been protected by the NLRA because it spoke on behalf of co-workers concerned about how their image affected sales and commissions. Nevertheless, the Board declined to rule definitively on this issue because the Board determined that it was the posting on the Land Rover post that ultimately caused the salesman’s discharge. In that regard, the Board ruled that the Land Rover post was not protected because it was not concerted and it did not relate to the salesman’s terms and conditions of employment. Instead, they concluded:

“It was posted solely by [the salesman], apparently as a lark, without any discussion with any other employee of the [dealership], and had no connection to any of the employees’ terms and conditions of employment. It is so obviously unprotected that it is unnecessary to discuss whether the mocking tone of the posting further affects the nature of the posting.”

Split Panel Strikes Down Employer’s “Courtesy” Policy as Overbroad

In this same case, the Board ruled that the dealership violated the law by maintaining an overbroad policy on employee courtesy that read:

“Courtesy is the responsibility of every employee. Everyone is expected to be courteous, polite and friendly to our customers, vendors and suppliers, as well as to their fellow employees. No one should be disrespectful or use profanity or any other language which injures the image or reputation of the Dealership.”

The Board ruled that banning “disrespectful” conduct and language that might injure the “image or reputation” of the employer could reasonably be construed by employees “as encompassing Section 7 activity, such as employees' protected statements — whether to coworkers, supervisors, managers, or third parties who deal with the Respondent — that object to their working conditions and seek the support of others in improving them.” The Board concluded “[N]othing in [the dealership’s] rule, or anywhere else in the employee handbook, that would reasonably suggest to employees that employee communications protected by Section 7 of the Act are excluded from the rule's broad breach.”

Bottom Line

The new guidance provides additional insight into the NLRB’s treatment of social media under the NLRA, as well as the consequences of drafting and circulating policies that are too broad, thereby unlawfully prohibiting protected concerted activity.

As we reported earlier, on April 13, 2012, a federal judge in South Carolina ruled that the National Labor Relations Board (“the Board”) had no authority to require private-sector employers to post an Employee Rights Notice, disagreeing with another federal judge in the District of Columbia, who held on March 2 that the Board could require the posting.

Earlier today, the D.C. Circuit granted the National Association of Manufacturer’s emergency motion for an injunction pending appeal because of the split of opinion between the district courts. Nat’l Assoc. of Mfrs. v. NLRB, No. 12-5068 (D.C. Cir. April 17, 2012).  The Circuit reasoned: “The uncertainty about enforcement counsels further in favor of temporarily preserving the status quo while this court resolves all of the issues on the merits.” The Circuit will handle this appeal in an “expedited” manner, and the court will hear oral arguments in September.

This afternoon the Board issued a press release, which stated: “In view of the D.C. Circuit's order, and in light of the strong interest in the uniform implementation and administration of agency rules, regional offices will not implement the rule pending the resolution of the issues before the court.”

Bottom Line

While the injunction remains in force, employers do not need to post this notice.  We will be closely following this issue and stay tuned for further developments.

On Friday, March 2, 2012, a federal judge in Washington, D.C. upheld the National Labor Relations Board requirement that nearly all employers must post a notice of employee rights under the National Labor Relations Act.   After two self-imposed delays, the judge’s decision paves the way for the requirement to go into effect on April 30, 2012.

The judge did strike down two pieces of the NLRB’s enforcement scheme, but the judge took care to limit the practical effect of that determination.

Posting Requirement

The court first upheld the NLRB's posting requirement.  The court found the Board had not overstepped its congressional authority by mandating the notice and that the notice-posting requirement did not violate employers’ First Amendment rights.

Enforcement of the Posting Requirement

The NLRB’s new rule set forth three consequences for an employer’s failure to post the mandated notice: (1) it may constitute an independent unfair labor practice; (2) it may be grounds for tolling the 6-month statute of limitations; and (3) the Board may consider it to be evidence of unlawful motive in a case in which motive is an issue.

The court struck down two of the three enforcement mechanisms, noting that the Board exceeded its authority from Congress when it labeled the failure to post an unfair labor practice and that such failure could toll the 6-month statute of limitations.  The court did not strike down the union animus provision of the rule. According to the court, “unlike the unfair labor practice and tolling provisions, the animus provision neither creates an unfair presumption nor relieves the Board of making a case by case determination.”

Limited Help to Employers

Despite specifically striking down the tolling provision and the unfair labor practice provision, the court was careful to limit the practical effect of its ruling. Specifically, the court held only that the Board cannot make “a blanket advance determination” that the failure to post will always constitute an unfair labor practice or toll the statute of limitations. Thus, according to the court, “the Board could still find failure to post to be evidence of an unfair labor or justification for equitable tolling in individual cases.”

Bottom Line

Because the court upheld the posting requirement, employers should assume they will be required to comply with the posting rule and should post the notice on or before April 30, 2012. The NLRB has published its Employee Rights Poster on its website (a printer-friendly version is available here).

Given the limited practical effect of the court’s ruling as to the NLRB’s enforcement of the rule, employers should carefully consider the risks that could come from failing to post the notice.

Stay tuned for further developments.

The National Labor Relations Act calls for the National Labor Relations Board (the quasi-judicial body that decides cases, and that also has certain rulemaking authority) to consist of five members, but the Board does have the power and authority to issue decisions at times when it has only three members.

The Board, however, does not have the authority to issue decisions (or adopt new rules) with only two members. This was the conclusion that the Supreme Court reached in June of 2010 in New Process Steel, LP v. NLRB, 130 S. Ct. 2635 (2010).  The New Process Steel case was the culmination of a 27-month period from January of 2008 to March of 2010 during which the Board issued hundreds of decisions with only two members, and it created quite a fallout.  In any case, it is now settled that the Board cannot decide cases or engage in rulemaking any time that it is down to only two members.

Most recently, the Board has consisted of three members – Mark Pearce, Brian Hayes, and Craig Becker.  However, Craig Becker’s term expired at the end of the last session of the Senate, at approximately noon on January 3, 2012.  This reduced the number of Board members to two.

Members of the Board are nominated by the President, subject to the consent of the Senate. Thus, generally speaking, the President is supposed to nominate individuals to serve as Board members, and the Senate is supposed to confirm them before they can actually be appointed. There is, however, an important exception.  When the Senate is in recess, the President may temporarily appoint a Board member without Senate approval, and this is termed a recess appointment.  (Member Becker was, in fact, a recess appointment.)

On January 4, 2012, President Obama announced his intent to recess appoint three individuals as Board members – Sharon Block, Terence Flynn, and Richard Griffin.  These recess appointments would bring-up the number of Board members to five.

The President’s use of the recess appointment process in this case is not without controversy.  Republicans have accused the President of abusing recess appointments by placing controversial individuals into high-ranking positions without the approval of the Senate.  Accordingly, Republican lawmakers have attempted to block recess appointments at this time by holding pro forma sessions in an effort to avoid a recess of more than three days.   The Department of Justice under President Clinton previously opined that a recess has to last for more than three days to permit a valid recess appointment, although the Supreme Court has never ruled on the issue.  In this case, the Senate met on January 3 and is scheduled to reconvene on January 6 – a recess that is too short for making recess appointments, if this is indeed the requirement.

Apart from the three Board members, the President on January 4 appointed Richard Cordray to lead the Consumer Financial Protection Bureau. It remains to be seen whether more recess appointments will follow.  In any event, we anticipate that there will be legal challenges to the President’s authority to make recess appointments in these circumstances.

On a final note, by tradition, the Board (when at its full complement of five members) has consisted of three members from the President’s own party, and two members from the other major political party.  In this case, Mark Pearce (the current Chair), Sharon Block, and Richard Griffin are from the Democrat side, whereas Brian Hayes (the other current member) and Terence Flynn are from the Republican side.  Thus, this collection of five Board members would match the traditional balance.  However, with a majority of three members on the Democrat side, we expect that the Board would continue to issue decisions that many people view as unfavorable to the business community, and that it would also continue to push for controversial changes to the union election process.

Attorney Jessica M. Marsh contributed to this report.

Yesterday, the National Labor Relations Board (“NLRB”) announced that it has postponed the implementation of its new a rule which requires virtually all private employers to post notices about workers’ rights under the National Labor Relations Act.  Originally, employers were supposed to post the notice by November 14, 2011. Now, employers are not required to post the notice until January 31, 2012.

The NLRB cited compliance concerns as the reason for the delay.  Not surprisingly, some employers simply do not understand that the NLRB’s posting requirement applies to them, and the NLRB stated that it will use the extra time to provide “enhanced education and outreach to employers,” thereby ensuring “broad voluntary compliance.”

Absent from the NLRB’s press release was any mention of any of the pending legal challenges to the posting rule. In one such case, the National Federation of Independent Business (“NFIB”) asked a federal court in D.C. on September 28, 2011, to temporarily enjoin the NLRB from enforcing the posting rule. The court has yet to rule on the NFIB’s motion, but the NLRB’s decision to delay implementation of the posting rule certainly removes much of the urgency that prompted the NFIB's motion.

Bottom Line

Despite the delay in implementation, the legal challenges have not halted the status of the NLRB’s posting rule.  As a result, employers should assume they will be required to comply with the posting rule and post the notice on or before January 31, 2012.  The NLRB has published its Employee Rights Poster on its website (a printer-friendly version is available here).

Stay tuned for further developments.

In a highly publicized election conducted by the National Labor Relations Board on Friday, June 17, the UFCW Union failed to win employee support at a Target store in Valley Stream New York.  Approximately 60% of employees at the store voted against union representation.  While the union has vowed to file objections to the election in an effort to gain a rerun of the vote, the chances for such action seem remote based on the reported grounds for the objections.

The election loss is a serious setback for the union in its effort to organize Target employees.  We recently reported on the union’s apparent shift of focus from Wal-Mart to Target in its quest to organize workers at a major retail chain.  Although the union has vowed to continue its efforts among Target employees, losing the election in Valley Stream has to be a serious disappointment.

Only time will tell if the UFCW can change the nature of labor relations in the retail industry by organizing workers at major retail chains.  At this point the only heavily unionized retail employers are in the supermarket industry.  That situation may change over time but for now the union pitch seems to be a little off-Target.

Back when the Employee Free Choice Act was under consideration, a common justification for the “card check” bill was that it would “level the playing field” for employees seeking to unionize their workplaces.  The argument held that current NLRB procedure for union elections was unfair to employees and allowed anti-union employers to avoid unionization through trickery and abuse.

Now that EFCA has been relegated to the deep-freeze, if not defeated forever, the cry for a level playing field has not diminished.  Now, instead of through Congressional action, labor supporters are looking to the NLRB to make organizing easier through changes in case law as well as rulemaking.  On the wish list for labor are shorter campaign periods, stronger penalties for employer unfair labor practices that stifle organizing, and changes in bargaining unit rules to allow for non-traditional bargaining units.  All these changes, it is argued, would help “level the playing field.”

A recent report form the Bureau of National Affairs analyzed recent NLRB election data, and the numbers do not seem to support the unlevel playing field argument.  Overall, the number of NLRB elections held in 2010 increased over 20% from 2009 levels, with 1,666 elections in 2010 versus 1,321 in 2009.  The union win rate decreased slightly in 2010, to 67.6% versus 68.7% the previous year.  2010 was the 14th year in a row that unions won more than half of the elections held.  In raw numbers, unions organized just over 70,000 workers in 2010, up from just over 50,000 in 2009.  The Service Employees International Union (SEIU), which organized the greatest number of new members with over 14,000, won over two thirds of the elections it participated.  The Laborers Union had the highest win rate at 84.4%.

Bottom Line

Based on the numbers, it is hard to see where the unlevel playing field lies.  Organized labor would certainly like to see an increase in the total number of union members and an increase in the percentage of union members in the workforce – that is their mission.  However, these statistics would indicate that the playing field is even and that the various parties to the game just need to keep on playing by the rules.

The National Labor Relations Act (“NLRA”) makes it unlawful for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7.”  Section 7 rights include, among other things, the right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection . . . .”  We always thought that if the National Labor Relations Board (“NLRB”) was asked to decide whether an employee had illegally been disciplined or fired for engaging in protected concerted activity, there actually had to be some sort of concerted activity.   Guess again!

On January 28, the NLRB ruled in Parexel Int’l, LLC, 356 NLRB No. 82 (2011), that an employer violated the law for terminating an employee as a “preemptive strike” to prevent the employee from discussing her concerns regarding wages with co-workers.  The employee, a licensed professional nurse, was told (untruthfully) by a South African co-worker that he got a raise because their manager was also South African.  The employee complained to her immediate supervisor that this was unfair.  The manager and Human Resources learned of this conversation grew concerned about the “rumor” that South Africans were receiving favorable treatment, and the employee was discharged.

At the hearing, the Administrative Law Judge (“ALJ”) decided in favor of the company, stating “I have not encountered any precedent for the proposition that I can find a violation on this basis without evidence that the alleged discriminate[e] had in fact engaged in concerted protected activity.”

On review, two of the three members of the NLRB disagreed: “If an employer acts to prevent concerted protected activity–to ‘nip it in the bud’–that action interferes with and restrains the exercise of Section 7 rights and is unlawful without more.”  In support of their decision, the Majority found it “critical” that “the employer’s intent [was] to suppress protected concerted activity.”  The NLRB ordered the employee be reinstated, with a make-whole remedy including backpay.

Bottom Line

Even if an employee has not actually engaged in protected and concerted activity, if the employee is disciplined or discharged to prevent such activity from taking place, a violation of the NLRA may be found.  Proceed with caution when dealing with employees under these circumstances.

The election of a Republican-rich Congress probably brought the curtain down on the Employee Free Choice Act (“EFCA”), and its controversial elimination of the employer’s right to demand a secret-ballot election before a union can be certified as its employees’ bargaining representative. 

Nevertheless, the public in four states (Arizona, South Carolina, South Dakota and Utah), voted to amend their State Constitutions to preserve secret-ballot Union elections. 

• The amendments in South Carolina and Utah provide an absolute guarantee of a secret ballot election.


• The amendment in Arizona and South Dakota provide that a secret-ballot election is required whenever an election is permitted by state or federal law. 

The South Dakota and Utah amendments are already in effect; the other two will be soon.

Interestingly, on January 13, 2011, National Labor Relations Board ("NLRB") General Counsel Lafe Solomon wrote the Attorney Generals in the four states stating his belief that the constitutional amendments are preempted by the Supremacy Clause to the United States Constitution.  The Supremacy Clause essentially invalidates state legislation that conflicts with a federal law.  Because the National Labor Relations Act  ("NLRA") lets an employer choose to recognize a Union without an election, General Counsel Solomon wrote that the States’ amendments conflict with its federal law and are, therefore, preempted.  The General Counsel has been authorized to file federal lawsuits to enjoin application these new State laws.

Not to be outdone, on January 27, 2011, Congressional Republicans introduced the Secret Ballot Protection Act, which would amend the NLRA to make it an unfair labor practice for an employer to recognize, or for a union to cause an employer to recognize,  a union without a secret ballot election. 

Also on January 27, the Attorney Generals of the four states wrote a joint letter to General Counsel Solomon stating: "[W]e will defend these provisions of our State Constitutions if they are challenged, but we also firmly believe that lawsuits by the federal government to attack these provisions would be misguided. Such lawsuits not only would cost the taxpayers substantially, but would seek to undermine individual rights that the NLRA and our state and federal Constitutions protect [via the First and Fourteenth Amendments]."

In a final twist, on February 2, 2011, General Counsel Solomon wrote the states another letter stating that he shared their desire "to resolve this matter without unnecessary expenditure of taxpayer money" and that there "may . . . be a basis upon which this matter can be resolved without the necessity of costly litigation."

Bottom Line

The struggle over secret ballot is likely to continue at both the state and federal level for some time to come. As it stands now, however, the NLRB presumably will continue to insist that secret ballot elections are not required by the NLRA, and they may still decide to sue one or more states that seek to require them. 

Lacking the support of a filibuster-proof Senate, the National Labor Relations Board ("NLRB")  began its push to unilaterally implement portions of the Obama Administration's labor relations agenda.

On September 30, 2010, the NLRB's Acting General Counsel Lafe E. Solomon announced the NLRB's Section 10(j) Program, a program intended to streamline the handling of Section 10(j) injunctions during union organizing campaigns.  Section 10(j) authorizes the NLRB to seek a federal court injunction granting temporary relief (such as reinstatement of a union supporter who was unlawfully fired for his pro-union conduct) while unfair labor practice ("ULP") charges are being considered.

In Memorandum GC 10-07 to the NLRB's eighteen regional offices, Solomon said in traditional Midwestern vernacular that an unremedied firing “nips in the bud” employee efforts to organize themselves and intimidates other employees from exercising their statutory rights.  These firings violate Section 8(a)(3), but often take years to decide.

Solomon announced an optimal timeline for these "nip-in-the-bud cases."  For anyone familiar with ULP cases, the Solomon's target dates are incredibly ambitious--necessitating that the employer immediately contact a knowledgable labor lawyer upon receipt of a ULP charge.  In addition, Solomon's procedures require NLRB regional directors to consider seeking injunctive relief in “all meritorious 8(a)(3) nip-in-the-bud cases,” including those now pending before the agency.

Bottom Line

The new timeline and procedures may have a chilling effect on both union and non-union employers.  Specifically, a union employer facing organization of a new group of employees, or a non-union employer observing the seeds of a new campaign, may be fearful to address legitimate disciplinary concerns because the employee happens to be a union supporter.  This could embolden union supporters to engage in otherwise terminable conduct with the belief that they are immune from discipline.