A "Tale of Two Statutes" Redux: Anti-Union Employment Discharges Under the NLRA and RLA, With a Solution

Abstract

This is a redux article that revisits a subject that I examined twenty years ago in an essay in which I contrasted the epidemic of anti-union employee discharges under the National Labor Relations Act (NLRA) with the rarity of such discharges under the Railway Labor Act (RLA). I concluded that the extreme difference in that quantity of violations was due to the deterrent effect of the certain availability of federal court injunctions under the RLA and that similar results could be attained if Section 10(j) injunction proceedings were substantially expanded. Accordingly, I recommended that in almost all such discharge cases under the NLRA such an expansion be applied. Nevertheless, in the years that followed, despite a tiny increase in the number of Section 10(j) cases and a slightly more efficient process in the small number of 8(a)(3) cases, the epidemic continued—in fact even more heavily. Reliable deterrence was obviously missing. During that interim period, however, I discovered a trusted and long established legal procedure—to wit, the delegation of Section 10(j) authority from the Labor Board to its General Counsel—which this redux article now proposes for automatic application in most meritorious Section 8(a)(3) cases. Applying this automatic procedure, which can be accomplished without new legislation, would give that provision the deterrent effect that Congress intended in 1959 when it passed, without dissent, Section 10(m), a heretofore virtually unused and unknown statutory provision. Under this proposed procedure, anti-union discharges under the NLRA could become a thing of the past.