We’ve (probably) averted a rail strike. Now what?

Hello MODESians — I have been busy this week writing breaking news on the rail strike. I don’t have a big newsletter for you today. Just a few thoughts. 

The Senate will likely vote Thursday 

What I can share is that we have almost certainly averted the chance of a legal, national rail strike. The House of Representatives voted on Wednesday to step in and force rail laborers to accept the tentative agreement brokered by the White House in September. The House also passed legislation guaranteeing seven days of paid sick leave.

The Senate likely votes Thursday on that legislation. 

We’ve seen an interesting range of politicians speak out about Congress’ intervention into this strike. As you could expect, Sen. Bernie Sanders, I-Vt., and Rep. Peter DeFazio, D-Ore., spoke out against any legislation that would not deliver paid sick leave to rail workers. 

But so too did Sens. Marco Rubio, R-Fla., and Ted Cruz, R-Texas. Whether they will merely tweet about sick leave or actually vote to ensure it is another question. In the House vote on Wednesday, just three out of 210 Republicans voted to include sick leave: Don Bacon of Nebraska, Brian K. Fitzpatrick of Pennsylvania and John Katko of New York. Interestingly, all three represent districts that voted for President Joe Biden in 2020.

The timing is perfect for a rail labor movement…

In a conversation on Monday, longtime rail analyst Tony Hatch corrected me when I asked him about “rail labor strife.” He said what’s happening now isn’t anything shocking or out of the ordinary, but rather part of the negotiation process. After all, according to the U.S. Chamber of Commerce, Congress has intervened 18 times in rail labor negotiations to prevent a strike.

What’s different this time around is a public that’s more pro-union and pro-labor than it has been in decades. After years of honoring essential workers during the pandemic, many Americans were stunned to learn that rail workers did not receive paid sick leave. Even though rail laborers do get generous paid time-off packages, they also reported that they have not been able to use that time off during family or medical emergencies. 

As The Washington Post reported in September, one railroad engineer died of a heart attack weeks after canceling a doctor’s appointment. He missed that appointment because his railroad, BNSF, called him in to work — and his employer had a policy that penalized laborers who turned down shifts, even for medical reasons.

An August poll from Gallup found that 71% of Americans approve of labor unions. That’s the highest recorded since 1965, and a massive uptick from its low in 2010 of 48%.

… but the federal government wants to prevent them from striking

Rail labor leaders argued that Biden’s call to halt a rail strike stripped workers of their right to stop work — and perhaps secure the changes to their contract they demanded.

“A call to Congress to act immediately to pass legislation that adopts tentative agreements that exclude paid sick leave ignores the Railroad Workers’ concerns,” the Brotherhood of Maintenance of Way-Employes Division (BMWED), a rail union affiliated with the International Brotherhood of Teamsters, said in a statement Tuesday. “It both denies Railroad Workers their right to strike while also denying them of the benefit they would likely otherwise obtain if they were not denied their right to strike.”

If Senate Democrats get their way, rail laborers could still secure seven days of paid sick leave. It’s still fewer than the 15 days they had previously demanded, but a healthy bump from the one additional paid day off in the tentative agreement brokered by the White House in September.

A group of labor historians don’t feel so cozy with the idea of an intervention. In a group letter signed by professors from Yale, Harvard and (most importantly) the University of Michigan, they wrote that Biden’s call to intervene on rail labor negotiations could set an anti-labor tone for decades to follow — a jarring move from a man who pledged to be America’s “most pro-union president.”

“[G]overnment suppression of the rights of labor, including the right to strike, has bred violence, repression, and political and social alienation,” the letter states. “You witnessed this in your own lifetime, when Ronald Reagan’s notorious breaking of the PATCO strike in 1981 (which resulted in the jailing of union leaders, the firing and permanent replacement of the striking air traffic controllers, and the decertification of the union) served as the starting gun for an economy-wide assault on workers’ rights and organizations. We are still dealing with the consequences today.”

Some have argued that a rail strike would actually hurt unionized labor, such as automotive workers who depend on manufacturing plants stocked with components moved by rail to do their jobs.

Other kinds of workers and small business owners would be hurt, too. J.B. Edmondson, who runs a small family farm in the Indianapolis area, told me that a rail strike would make it challenging for him to move grain. Delays in rail service the past few years have gummed up the works when it comes to Edmondson and other farmers he knows trying to receive fertilizer or move their own harvests.

Still, Edmondson is sympathetic to the rail workers’ struggles. “I didn’t realize how bad it was,” he said. “They’re just running on a very thin number of employees.”

What if they went on a rail strike anyway?

It’s pretty likely that the Senate will pass legislation barring the chance of a rail strike.

The next question is … what if the rail workers went on strike anyway?

They could. But it would be illegal. John Brennan III, a former senior counsel for Union Pacific Railroad, told FreightWaves Washington correspondent John Gallagher in September that the rail companies could exert enormous pressure on striking laborers to go back to work.

“If Congress passes legislation it would immediately go to Joe Biden for his signature, and the minute he signs it, the unions would be obligated to end the impasse,” Brennan told Gallagher.

Workers have ignored such legislation in the past. But, as Brennan said, “[I]f they try that, the railroads can march into court and get an injunction from a federal judge ordering the union to go back. And if they defy that order, the unions could be hit with hefty fines.”

It might remind some of the 1981 “wildcat” strike of air-traffic controllers and President Ronald Reagan’s move to fire all 11,359 workers who went on strike in defiance of the White House’s orders to get back to work. Reagan declared a lifetime ban on those who went on strike. 

The Federal Labor Relations Authority decertified the union, the Professional Air-Traffic Controllers Association, months later. 

Tensions aren’t going away anytime soon

Even if paid sick leave is secured, rail workers have years of bad feelings around their employers. Jason Doering, who has worked at Union Pacific for 18 years, told me in July that even a good contract would not solve “rock-bottom” morale issues. 

“Everybody goes to work and there’s nothing positive to talk about,” said Doering, who is also the Nevada legislative director for SMART Transportation Division, a labor union of train, airline and other transportation workers. “There are no positive things going on within the industry. You are forced to choose between your career and your life.” 

Doering previously said workdays lasting up to 19 hours, consisting of 12-hour shifts and hours of waiting around for transportation or relief crews, have become the norm. So too has spending more time in motels waiting for one’s next gig than at one’s actual home. 

Others fear that the conductor jobs could get automated out

Email rpremack@freightwaves.com with your thoughts. And don’t forget to subscribe to MODES for more freight insight.

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Editor: Rachel Premack