Reported by Tim Ryan for Law 360.
Congress is poised to avert a rail strike by passing legislation imposing the terms of a tentative agreement between unions and railroads, but experts and labor advocates said resentment from the action could linger.
The House voted Wednesday to pass a bill adopting the terms of a tentative agreement unions and railroads negotiated earlier this year as well as a separate measure to provide workers seven days of paid sick leave. Four of the 12 unions that represent railroad workers voted to reject the tentative agreement in recent weeks, setting up the prospects of a large-scale strike starting Dec. 9 if the sides could not reach an agreement members would ratify.
The move comes days after President Joe Biden called on Congress to pass legislation adopting the tentative agreement without changes, prompting outrage from workers, unions and some progressive lawmakers.
If the Senate adopts the tentative agreement, it would end a yearslong bargaining process between rail worker unions and the major railroads, but not necessarily the concerns that have led large numbers of workers to vote against the deal. Experts said those issues could linger for the near future, with the agreement set to be renegotiated in 2025.
“There are going to be some scars from this whole process, I don’t think that’s a question,” said Greg Regan, president of the AFL-CIO Transportation Trades Department.
The tentative agreement the House voted to adopt Wednesday would raise wages for rail workers by 24% over the life of the deal, including an immediate 14% raise. While the agreement the unions and railroads negotiated would include an additional day of paid leave for all workers, it did not address scheduling or sick leave policies that were a primary motivator behind workers’ discontent with the deal.
The tentative agreement itself is based on recommendations issued in August by a Presidential Emergency Board, a panel Biden appointed under the Railway Labor Act to help resolve the labor dispute. In its report, the board said it rejected the unions’ proposal to provide workers with 15 paid sick days because they would effectively amount to a substantial expansion of personal days employers could not deny.
Biden called on Congress to adopt the tentative agreement without modifications, but House leadership also allowed a vote on a separate proposal to add seven days of paid sick leave to the deal. Rail workers have complained that attendance policies, which vary across job types, are inflexible and do not provide paid sick days, with some exceptions. The House approved the sick leave proposal by a 221-207 vote, with three Republicans joining Democrats in favor of the plan.
The agreement now goes to the Senate, where its fate is not yet clear. Some Republicans, including Sens. Marco Rubio of Florida and Josh Hawley of Missouri, have publicly suggested they might not support the tentative agreement, while Sen. Bernie Sanders, I-Vt., and a group of 11 Democrats issued a statement Wednesday urging the Senate to pass the sick leave package. At a Tuesday press conference, Senate Republican Leader Mitch McConnell, R-Ky., was noncommittal when asked how his caucus would vote.
Republican support would be necessary for the evenly divided Senate to approve the tentative agreement. The House structured the sick leave agreement as a separate resolution from the bill adopting the tentative agreement, so the tentative agreement could pass the Senate and go to Biden’s desk even if the Senate does not also back the sick leave plan, Regan said.
For many workers, the quick action to impose the tentative agreement from a federal government controlled by Democrats and helmed by a self-proclaimed union champion in Biden would be a letdown, said Marilee Taylor, a retired locomotive engineer who now works with the interunion advocacy group Railroad Workers United. Taylor said the legislation took away the workers’ ability to strike, their most powerful tool to achieve concessions they have long sought.
Taylor said the fact that Democrats took a vote on adding the sick leave proposal
does mitigate some disappointment for workers over the imposition of the tentative
agreement. However, if the measure falls flat in the Senate, Taylor said workers are still
likely to be let down.
“Rail labor does not want to hear, ‘We’ve done the best we can,’ because that’s clearly not
true,” Taylor said
Regan said it is inevitable some workers will be disappointed in the result if the Senate does not approve the sick leave package. However, he said Congress having the power to end a labor dispute is a reality of negotiations under the Railway Labor Act, and the wage increases included in the deal are a genuine positive that will benefit workers.
“Once we have the opportunity to look back at the totality of what is in this contract and how the unions really used every bit of negotiating power and leverage they could to deliver the best possible deal for workers, I’m hopeful people will see this as a win,” Regan said.
He also said that many of the morale and quality-of-life issues that have been the focus of the negotiations come down to the railroads not hiring enough workers, so they could remove those issues from future negotiations by committing to more staff.
The potential for Congress to step in and pass legislation to avoid a strike has been present
throughout the negotiations, and Regan said it likely affected the way the railroads
negotiated once the PEB report came out. If the Senate approves the agreement, it would be
the first time since 1992 that Congress has acted under the RLA to head off a rail strike.
The memory of the relatively swift action from this Congress will not fade by the time the
next negotiations come up and could factor into those talks as well, said Andrea Schneider, a
professor at Yeshiva University’s Benjamin N. Cardozo School of Law who studies dispute
“If the railways think that the government is always going to step in to avert a strike, then in
some ways the biggest negotiation bargaining chip that the unions have has now been taken
away,” Schneider said.
At the same time, she said that could be a risky bet for employers to make again, as the
economic and political conditions during the next labor dispute might be totally different and
produce a different outcome.
Industry groups have also cautioned that Congress adding to the tentative agreement would set a bad precedent for future negotiations. In a statement shortly after the House vote
Wednesday, the Association of American Railroads said the Senate should reject the sick
leave measure, calling it a “push to undermine bargaining.”
“Unless Congress wants to become the de facto endgame for future negotiations, any effort
to put its thumb on the bargaining scale to artificially advantage either party or otherwise
obstruct a swift resolution would be wholly irresponsible and risk a timely outcome to avoid
significant economic harm,” AAR CEO Ian Jefferies said in a statement.
The lasting effects of the resolution of the current round of negotiations also depends on how
much any worker resentment builds into a genuine movement within the rail unions, experts
said. Jeff Schuhrke, a labor studies professor at SUNY Empire State College, said Railroad
Workers United could help focus and energize the frustration with the contract, pointing out
that the four unions that did not ratify the tentative agreement represent roughly 55% of rail
“When the next round of bargaining begins, everything that’s happened recently is still going
to be fresh in everyone’s memory and this is where RWU and the leaders of some of the
unions would want to use this frustration and anger and the organizing that’s happened and
build on it,” Schuhrke said.
Arthur Wheaton, director of labor studies at the School of Industrial and Labor Relations at
Cornell University, said workers will still be able to voice their concerns about their contract
and will have another opportunity to negotiate changes soon. He said the unions could also
agitate against changes that were implemented unilaterally and could be in a stronger
position at the bargaining table in two years if railroads struggle to hire because of the
current work rules.
Taylor of Railroad Workers United also said she believes the frustration over the negotiations
will not stay confined to railroad workers, as other labor organizations have issued
statements of support, including the International Longshore and Warehouse Union. She
predicted a major fight is still to come from railroad workers over what they view as
draconian work rules and did not rule out some form of on-the-job action from workers even
“This is not over, this will ultimately be decided by how many of us are willing to stand as
railroad labor,” Taylor said. “And it will also be determined by how many of our allies are
willing to stand with us.”
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