A rail strike – or railroad lockout – could take place in early December if unions and railroads fail to reach a collective bargaining agreement that satisfies everyone. Congress has the power to stop a strike. So why is it so hard for everyone to come to a solution? Here are five things to consider:
How we got to where we are
A new collective agreement for each of the 12 unions has been in the works since January 2020, but negotiations between the unions and the railways have not progressed. In July, President Joe Biden appointed three independent experts to serve on the Presidential Emergency Board (PEB), a body formed by federal law when negotiations reach an impasse.
The PEB held hearings this summer and received input from stakeholders on ways to break the impasse for unions and railways. PEB then issued its recommendations, which would serve as a starting point for a new treaty.
Since September, members of eight unions have voted to ratify their collective agreements. But four don’t: the Brotherhood of Maintenance of Way-Employes Division (BMWED), the Brotherhood of Railroad Signalmen (BRS), the International Brotherhood of Boilermakers (IBB), and the Transportation Division of the International Association of Sheet Metal, Air, Rail , and transport workers (SMART-TD). SMART-TD is divided into different segments, with the shipyard masters voting to ratify the agreement while the remaining members do not.
The reflection period lasts until December
With the refusal to ratify the agreement, the four unions are returning to the negotiating table with the rail freight companies. During this period, union members and the railways are not allowed to strike or lock out under the Railway Labor Act up to a certain number of days after the rejection of a collective agreement.
This period of time when neither party can take action is called the “cooling-off period,” or the period when the parties maintain the status quo. The reflection period for the four unions ends on December 8; Immediately after midnight on December 9th, the unions or the railways can take corrective action.
Reaching an agreement that pleases everyone is a challenge
Sick leave seems to be one of the outstanding issues. Union members have argued that sick leave arrangements should allow workers to respond more quickly to individual or family needs; Unionized machinists say their sick pay takes seven days to kick in. Restrictive attendance policies also discourage workers from taking vacation in lieu of sick leave, members have argued.
Railroads say union members have holiday pay, and they note that the PEB has not included a comprehensive response to sick leave in its list of recommendations. In addition, the current system was set up years ago by the unions and the railways. A change would require negotiations, but those negotiations should take place in a forum other than treaty negotiations.
“Any claim that railway workers cannot take time off when they are ill is easily refuted. Rail employees can and will take sick leave and receive comprehensive paid sick leave that begins after as little as four days of absence, depending on the vehicle, and lasts up to 52 weeks,” according to the National Carriers Conference Committee website of the Freight Rail Representation at the Negotiating Table group.
“The structure of these benefits is a function of decades of negotiations in which unions have repeatedly agreed that short-term absences would go unpaid in favor of higher compensation for days worked and more generous sick pay for longer absences,” NCCC said.
“The recommendations of the PEB remain the framework for an agreement. Now is not the time to introduce new demands that revive the prospect of a rail strike. Airlines have therefore warned unions that the latest proposal will not be accepted and that they must accept agreements based on the framework recommended by the PEB,” NCCC said.
The railroads have also argued that the tentative agreement, as it stands, had the potential to improve predictability because a provision in the agreement requires the parties to work railroad by railroad to fulfill work schedules and work orders, according to the Association of American railways. The preliminary agreement also included arbitration, the rail freight trading group said.
According to the NCCC, the provisions in the employment contracts provide for the largest wage increases in almost five decades and maintain platinum-level health care for employees.
Neither party really wants to get to the point where Congress needs to intervene
Observers doubt whether an agreement will be reached, because BMWED has been sitting at the negotiating table for weeks and the union and railway have not yet been able to reach an agreement.
This perceived lack of progress is why shippers are concerned. Over 300 trade groups sent a joint letter urging congressional leaders to stop a strike. Chemical shippers say a month-long strike could siphon $160 billion from the US economy, while agricultural shippers say a potential strike would come at catastrophic timing as low water levels on the Mississippi impede shipping and shippers need the rail option .
While some rank and file members have expressed their desire to strike, observers and stakeholders have said that union and railroad leaders do not want the situation to get to the point where Congress has to intervene because of the uncertainties Congress might take (see below). If that happens, there is a perception that the railroads could have the upper hand, especially if the issue drags on beyond the lame duck session.
“It can all be settled through negotiations and without a strike. A settlement would be in the best interests of workers, the railroads, shippers and the American people,” SMART-TD President Jeremy Ferguson said in Monday’s press release as he announced his union’s voting results.
Congressional leadership and the White House have been watching closely as events unfold, and there is behind-the-scenes action to determine what legislative action could be taken to limit, if not outright, a pre-emptive shutdown by the railroads, a union to prevent leaders said. The railroads had begun shielding and halting dangerous goods shipments days before a possible mid-September strike, as it was unclear whether SMART-TD and BLET and the railroads could reach a tentative agreement that could be sent to union members for a ratification vote.
The hope is that Democrats can rally around sick leave policy legislation so union members can not only vote their conscience, but the legislation could prevent a freight shutdown, the union leader said.
Congressional intervention could become complicated and messy
The reason stakeholders don’t want Congress to intervene is because there is so much uncertainty about what could happen. There are several legislative options for Congress to pursue, but the challenge is finding the best option that has the greatest likelihood of passing the House and Senate and being signed into law by President Joe Biden.
According to Seth Harris, a senior fellow at Northeastern University’s Burns Center for Social Change, there is no limit to how Congress could intervene, but there are three options Congress could pursue. Harris was also Biden’s top labor adviser, and he was the acting Secretary of Labor and Deputy Secretary of Labor to former President Barack Obama.
“The three most likely options are, first, they pass legislation mandating a longer cooling off period, second, they pass legislation ending the strike – if there is a strike – and third, they pass legislation ending the strike and imposes conditions on the parties and essentially sets a collective agreement for the parties,” Harris told FreightWaves.
“It is very difficult to know which legislation is most likely. The simplest is the reflection period, perhaps combined with ending the strike,” he continued. “It’s harder to get terms and conditions because I don’t think there’s any reason to think the parties in Congress are any more likely to reach an agreement than they were able to agree at the negotiating table.”
Complicating matters further, the legislation must have significant bipartisan support. Harris said Senate Democrats need 10 Republican senators, or 60 total votes, to get the bill through this chamber. The 60 votes would be needed to overcome a possible filibuster in the Senate.
“It will be extremely difficult to come to a generally acceptable solution. The complexity and the politics will make it difficult for Congress to act,” Harris said.
“If there is a strike now I think it will be just as difficult or maybe more difficult for them not to act. But that’s the balance they need to find – which way is harder: action or inaction?’
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