Employee Rights and Employment Policy Journal

Drawing upon both extensive empirical data and legal analysis, the article documents, comparatively, the enforcement record concerning cases involving employment discrimination for union activity under the National Labor Relations Act and the Railway Labor Act. It contrasts the epidemic proportions of such violations under the NLRA with the almost total absence of similar conduct under the RLA. That stark difference is attributed primarily to the availability of non-cumbersome injunctive relief in federal district court under the RLA. The article criticizes the Labor Board for its failure to embrace traditional equitable criteria for injunctions in Section 10(j) cases, the criteria that federal courts have always applied in RLA cases and which the courts in a minority of the Circuits currently apply in 10(j) cases. It demonstrates that virtually all meritorious cases of discharge for union activity occurring at establishments where there is no collective bargaining contract meet the Congressional standard for issuance of 10(j) injunctions, and it concludes that if the Board were to file 10(j) petitions in all such cases, the same deterrence that currently prevails under the RLA could be achieved under the NLRA.