Employee Rights and Employment Policy Journal

A Commentary on Professor Morris's Comparison of Discrimination for Union Activity Under the NLRA and RLA, by Daniel M. Katz, Louise P. Zanar and Erica J. Dominitz, explores the issues and analyzes and supplements some of the arguments that Professor Charles J. Morris discussed and advanced in his recently published article, A Tale of Two Statutes: Discrimination for Union Activity Under the NLRA and RLA.  In that article, Professor Morris compared and contrasted the degree to which industrial employers voluntarily comply with the anti-discrimination provisions contained in the National Labor Relations Act (NLRA) with the degree to which railroad and airline employers voluntarily comply with the anti-discrimination provisions set forth in the Railway Labor Act (RLA).  He provided statistical data reflecting that NLRA employers historically have been far more likely than RLA employers to discharge employees for engaging in union organizing activities.  Professor Morris attributed this disparity in employer behavior to the divergent enforcement schemes contained in the respective labor statutes.  Under the RLA, which affords covered individuals a private right of action, an employee who allegedly has been fired for his or her self-organizing conduct may file a lawsuit in a federal district court seeking preliminary and permanent injunctive relief.  The NLRA, by contrast, vests the NLRB with exclusive authority to seek such injunctive relief on behalf of an aggrieved employees.  Professor Morris theorized that the NLRB should seek injunctive such relief in virtually all cases it deems meritorious. 

 Although this article does not agree with all of Professor Morris's assumptions and conclusions, it likewise asserts that more needs to be done to prevent NLRA employers from retaliating against their pro-union employees.  It discusses some technical obstacles that might require modification of Professor Morris's hypothesis but endorses his position that the NLRB should pursue more aggressively Section 10(j) relief for employer retaliatory discharges.  Our article also calls upon the President to implement an Executive Order to prohibit government contractors from engaging in discriminatory tactics designed to discourage membership in a labor organization. 

The final section of the article discusses the recent representation elections among the Passenger Services Employees at US Airways and American Airlines as a vehicle for discussing tactics RLA employers frequently employ to discourage union representation.  Contrasting some of the NMB's representation election procedures with those employed by the NLRB, we also call upon the NMB to revise some of its practices to prevent RLA employers from dominating the election process so that employees can vote for collective bargaining representatives free of coercion.