Preempting a Rail Strike

Terry H. Schwadron

Dec. 2, 2022

In the end, our government just decided that protecting a continuing economy was more important that pursuing other values — apparently an easy call.

Approaching the holiday weeks, the usually partisan-torn Congress decided to step into private union-management negotiations and use a 1926 law to impose a settlement to forestall a railroad strike as soon as next week. President Joe Biden, who helped bring a compromise about, will sign it.

And while making noises, efforts towards also upholding the right to a handful of sick days by 100,000 workers employed by railroads now reporting record profits got pushed overboard.

You may agree or not with the results, but what drew my attention was the rare entry of the federal government into employee negotiations in private industry. And once inside the question, there was political confusion about what exactly the goals were supposed to be — from a variety of viewpoints.

By all accounts, a strike could prompt unwanted shortages of needed goods, fouling transportation and factory production — and contributing to more high prices. Consumer rail services would be affected as well as the delivery of food and farm products, manufacturing supplies and delivery of holiday purchases. A freight rail strike could cost the U.S. economy $1 billion in its first week, according to an analysis from the Anderson Economic Group.

The situation is complicated because eight of 12 affected employee unions have signed on to a negotiated labor settlement, with four holding out for more concessions on additional sick time. Naturally, if one union opposed the overall contract and strikes, the others will support a strike. The negotiation for some but not all the additional time off came as the results of intervention of the Biden administration with railroads and unions after an arbitration panel outlined a settlement over the summer.

Because of the Railway Labor Act of 1926, Congress can impose a contract on both parties or extend a negotiation “cooling-off period” to keep the railroads running and avert disruptions to interstate commerce. And so, Biden, who likes to be seen as a staunch union backer, asked Congress to act, reaching out to congressional leaders on both sides of the aisle with an uneasy request for emergency legislation to preemptively halt a strike.

The Votes

The House managed to hide most of its usual political partisanship, passing a bill 290–137 to impose the rail contract settlement and to pass a separate measure to force the extra sick days — which passed only with three Republican votes.

The Senate showed unusual alliances — with Bernie Sanders (I-Vt.) and Rand Paul (R-Ky.) on the same side — dissent before voting 80–15 to do the same, but only after rejecting a bid to include the extra sick days that workers had sought and a Republican attempt simply to delay the question for 60 days.

For Speaker Nancy Pelosi and Senate Minority Leader Chuck Schumer, the decision to impose a contract through legislation came at the risk of losing union political support. For Republican leaders, it was a matter of seeking anything more than arbitration had decided already.

The arbitrated settlement added only one day off a year rather than seven for engineers and conductors to tend to medical appointments if scheduled at least 30 days in advance. The railroads also promised not to penalize workers who are hospitalized and to negotiate further after the contract is approved about improving regular scheduling of days off.

For Biden, it was a situation in which paid sick leave was being held hostage to the state of the national economy.

Whatever else one might say about it, the Congress imposed a decision that favors business over negotiations but saddled the railroads with the cost of sick day replacements.

On some level, what was really at issue was whether we are still capable of doing anything in the name of addressing public responsibility and whether we acknowledge what government is there to achieve.

Turning to Congress

Like me, you probably think private employment contracts belong to the realm of union-management negotiations., not government debate. And so, there are a ton of questions here.

If unions and management agree ahead of time to accept arbitrated settlements, why is this an issue? If it is a government issue, is the question a fair contract for workers or steadiness for the nation’s businesses and consumers?

In the case of railways, however, it turns out that the nearly 100-year-old-law at issue now came about exactly as the result of concern about what would amount to a national shutdown. But by that logic why only railroads, why not planes and pilots or air crews, or truckers or social media companies and banks or Amazon and Walmart? Even when Ronald Reagan dealt harshly with air controllers, they were federal employees, not private companies and workers.

We’re taking this action nationally as a matter of historic oddity, right?

Biden has believed that government intervention in employment talks normally is to be eschewed. In 1992, he was among only six senators to vote against legislation that ended another strike by rail workers. In this extended negotiation, Biden had consistently argued that settlement was up to the parties.

This week, Biden asked for congressional action, saying, “a rail shutdown would devastate our economy. Without freight rail, many U.S. industries would shut down.” The split vote among employee unions prompted hundreds of business groups to urge Congress and the president to step into the deadlocked situation and to prevent a strike.

Already settled are pay raises retroactive to 2020 and rejection of other quality of life concerns from the unions.

Whatever your sense of the specific worker contract provisions, it’s hard to take pride in yet another uncomfortable congressional action that imposes a solution only because we need to protect supply lines.




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