Today is December 9, where in an alternative world America’s rail workers would be walking off the job and setting up picket lines, fed up with greedy corporations who put profit above their employees’ welfare.
Or, in that world, the strike would not have happened because the U.S. Congress, supporting rail workers’ rejection of an unjust contract, would by now have voted to provide them with a few days of well-deserved paid sick leave.
But we don’t live in that world. Today, rail workers are on the job, supplying the county’s needs, without a day of paid sick leave, and those at home fear that at any moment they could be called into work, regardless of any plans, personal illness, family crisis, funerals or all of the other emergencies that workers should be able to call out of work for without fearing discipline.
Now that the dust has settled and Americans are apparently good with the proposition that some of the most important and profitable companies in the United States can’t possibly afford to give their employees a single day of paid sick leave without threatening their business plan and wreaking havoc on the American economy… let’s see what we’ve learned about life for workers in these United States.
I’ve taken a breath since my initial rant, about the semi-regular screwing of rail workers — and I’ve been reading and listening to everything I can to see if we can draw some lessons — or at least insightful observations — from what we’ve witnessed over the past few weeks. Actually over the last few years. Or decades.
How We Got Here
As we’re probably all aware, after three years without a contract, the rail unions and operators reached a Tentative Agreement last October that provided a decent raise of of 22% (24% compounded), but no sick leave time. Four of 12 unions, representing a majority of rail workers, voted to oppose the agreement because it failed to satisfy rail workers’ demands for paid sick leave and and fixing the railroads’ unpredictable scheduling policies that are disrupting their lives.
Despite the rail worker unhappiness with the legislation, Congress voted overwhelmingly, on a bipartisan basis, to impose on rail workers the previously negotiated — and rejected — tentative agreement.
So what did we see? What did we learn?
The country will not tolerate a rail strike.
Coming out of severe COVID-related supply chain shortages, in the midst-of COVID-related inflation, and fearing a recession, Americans have little tolerance for a rail strike that would revive the supply chain problems, make inflation worse and make a recession more likely. The scare tactics of the rail operators, predicting that a strike would cost $2 billion a day didn’t help. And most people aren’t away of the conditions that rail employees work under.
Politicians of both parties understood this and voted accordingly.
President, Biden was adamant about the need for an immediate settlement. House Speaker Nancy Pelosi, recognized the workers’ concerns, stating accurately “that railroads have been selling out to Wall Street to boost their bottom lines, making obscene profits while demanding more and more from railroad workers.’ But she was nevertheless impervious to arguments about improving on the tentative agreement, announcing that “This week, the House will take up a bill adopting the Tentative Agreement – with no poison pills or changes to the negotiated terms – and send it to the Senate.“
A “poison pill” is the process of killing an otherwise popular piece of legislation by adding a provision that is so unacceptable that many initial supporters back off. In this case, the “poison pill” would have been the addition of paid sick leave — and odd definition of “poison pill” for Democrats.
For those not familiar with legislative terminology, a “poison pill” is the process of killing an otherwise popular piece of legislation by adding a provision that is so unacceptable that many initial supporters back off. In this case, the “poison pill” would have been the addition of paid sick leave — and odd definition of “poison pill” for Democrats.
But Pelosi was forced to back off a bit, fearing they would lose too many Democratic votes on a bill to impose the original agreement if Democrats were not also able to signal their support for rail workers’ demands for paid sick leave. So Pelosi compromised by dividing the baby: introducing one bill that imposes the Tentative Agreement, and a second separate bill that would have added paid sick leave to the contract. This allowed progressive Democrats to strongly supporting rail workers’ demands for sick leave by voting for the sick-leave add-on, but not so strongly that they would risk a strike by passing just one bill — that included sick leave — and forcing Senate Republicans to take the blame.
As expected, the House passed both bills: The bill to impose the original agreement passed with overwhelming bipartisan support. The paid sick leave bill passed 221 to 207, with all but three Republicans — Don Bacon (NE), Brian Fitzpatrick (PA) and John Katko (NY) voting against.
Both bills arrived in the Senate, which unsurprisingly voted 80-15 to impose the original settlement. (One senator, Sen. Rand Paul (R-KY), responded “present.”)
Interestingly, 15 Republicans voted against imposing the original agreement: Susan Collins (ME) , Tom Cotton (AR) Ted Cruz, Josh Hawley (MO), Marco Rubio (FL), Rick Scott (FL), Tim Scott (SC), Dan Sullivan (AK) and Pat Twomey (PA.) The five Democrats who voted “no” were Kristen Gillibrand (NY), John Hickenlooper, Jeff Merkley (OR),Bernie Sanders (VT), and Elizabeth Warren (MA).
Not surprisingly, support for imposing an agreement that would have provided seven days of paid sick leave for rail workers was not quite as popular. Although a 52-43 majority of Senators voted to give the rail workers sick leave, 60 votes were needed for passage. Republican Senators Mike Braun (R-IN), Ted Cruz (R-TX), Lindsey Graham (R-S.C.), Josh Hawley (R-MO.) John Kennedy (R-LA.), and Marco Rubio (R-FL.) voted to support the sick-leave provisions.
The only Democrat to oppose requiring paid sick leave was Joe Manchin (D-W.V.) Yes, you read that correctly. Ted Cruz and Lindsey Graham are to the left of Joe Manchin on this one.
The only Democrat to oppose requiring paid sick leave was (you guessed it!) Joe Manchin (D-W.V.)
Yes, you read that correctly. Ted Cruz and Lindsey Graham are to the left of Joe Manchin on this one.
Another bill, which would have granted the unions and operators two more months to negotiate failed 25-70. Neither the Democrats nor the unions supported the proposal, fearing that things could only get worse when Republicans took over. And the rail workers wanted their long-overdue raise that was included in the Tentative Agreement as quickly as possible.
Of course, given the impending change in the majority in the House of Representatives, it’s understandable why Biden and Pelosi and the unions felt they were under some pressure to resolve the issue as quickly as possible. (Not crashing the economy right before the Georgia Senate run-off election may have also been a factor.) But that’s what happens when you’ve waited until the last minute to resolve the issue.
While most of the media touted the rail operators’ overblown claims that a strike would cost the American economy $2 billion a day, a few came to the workers’ defense. CNN’s Jake Tapper confronted both Senator Sherrod Brown (D-OH) and Transportation Secretary Pete Buttigieg asking them why the most labor friendly administration in recent American history failed to support the workers’ just demands.
What does it mean to press the case if you won’t go to these billionaires and ask ‘How on earth can you sleep at night not letting your railway workers have paid sick leave. That’s not an extravagant benefit., paid sick leave. You get sick, you get to take a few days off. They don’t have that. — Jake Tapper, CNN
Buttigieg, like other Democratic leadership, noted that the agreement was a product of an agreement between union and company leadership, that the Administration strongly backs paid sick leave for everyone, that Republicans are to blame for a failure to have national paid sick leave and that a strike would have been devastating for the American people, the economy, baby formula, clean water as well as thousands of other workers who would be laid off in the event of a strike.
Tapper wasn’t having it.
“I think everybody out there is glad that [the strike has] been avoided. But the question is, these rail lines are making billions of dollars, profits are up for all of them, quite a lot, in some cases.”
“You and I have paid sick leave. My crew has paid sick leave. Why don’t these railway workers deserve paid sick leave?”
What does it mean to press the case if you won’t go to these billionaires and ask ‘How on earth can you sleep at night not letting your railway workers have paid sick leave. That’s not an extravagant benefit., paid sick leave. You get sick, you get to take a few days off. They don’t have that.
So I guess these lofty asperations are one thing, but I didn’t hear any language coming from the administration saying these rail companies need to get serious about offering basic, basic benefits like paid sick leave. I didn’t hear that.
While the outcome of these votes was never in much doubt, there was, as expected, great disappointment among rail workers and the unions that voted to reject the agreement.
In a blistering statement, the Brotherhood of Maintenance of Way Employees Division — one of the unions that voted down the September deal — said: “It is not enough to ‘share workers’ concerns.’ A call to Congress to act immediately to pass legislation that adopts tentative agreements that exclude paid sick leave ignores the Railroad Workers’ concerns.”
“Joe Biden blew it,” said Hugh Sawyer, an Atlanta-based locomotive engineer. “He had the opportunity to prove his labor-friendly pedigree to millions of workers by simply asking Congress for legislation to end the threat of a national strike on terms more favorable to workers. Sadly, he could not bring himself to advocate for a lousy handful of sick days.”
The more “essential” workers are, the more they get abused.
Rail workers and their unions are by many measures some of the most powerful unions in the country, able to wreak havoc on the economy if they withhold their labor. And, ironically, it’s that exact reason that the Rail Labor Act exists and the possibility of a strike was shut down so quickly — even though there is public sympathy for paid sick leave.
The fact that the most important workers in this country are the ones most likely to get screwed should be no surprise to anyone.
The fact that the most important workers in this country are the ones most likely to get screwed should be no surprise to anyone.
Public employees, for example, are essential to keeping this country operating. These are the workers who take care of what you flush down the toilet, make sure you have clean water, ensure the safety of our roads and air travel, catch bad guys and watch over them in prison, protect the environment and workplace safety, take care of our mentally and physically ill and on and on. Most of these are not pleasant jobs. In return, they have no federal collective bargaining rights and no right to a safe workplace. Those state, county and municipal public employees who have collective bargaining rights or the right to come home alive at the end of the day do so only with the permission of their state governments.
But think about it. If rail workers are so vital to the survival of Western Civilization as we know it, how can it be that providing them with 7 days of sick leave is too much to ask?
Rail workers don’t just need sick leave because it’s the right thing to do (which it is), but also because they are “essential workers” who kept working through the darkest days of the COVID-19 pandemic. And they’re still suffering. In fact, according to the Centers for Disease Control and Prevention, rail workers in California were twice as likely to die from COVID-19 compared with workers in all other other industries. As Boston University assistant professor Judith Raifman noted, “The workers most likely to need paid sick leave to protect their health and avoid economic hardship are often least likely to have it.”
The 1926 Rail Labor Act needs to be updated.
OK, but even if no one wants a rail strike, why do workers have to pay the price? Mainly because of the 1926 Rail Labor Act (RLA) and how it is implemented. The Rail Labor Act was created precisely in order to provide an orderly way to stop nation-wide rail strikes that regularly threatened to cripple the economy. When it was passed almost 100 years ago, rail was the only way to transport goods. Roads were lousy, cars were expensive, trucks were small and commercial aviation was just getting off the ground. That made crippling nationwide strikes very unpopular — even more unpopular than they are now. An alternative was needed to calling out the army every time rail workers got fed up with their lousy, dangerous working conditions. That system wasn’t working for anyone and at the time, the RLA had significant labor support.
The law was intended to stop strikes by providing a mechanism for negotiations between workers and employers, including mediation, Presidential review and cooling off periods. But if none of that works, Congress has the ability to impose a settlement. The President, on the other hand, can’t really impose anything unilaterally. The 1952 Youngstown Sheet & Tube Co. v. Sawyer Supreme Court decision, responding to President Truman’s seizer of steel plants during the Korean war, prohibits the president from seizing private property unless Congress explicitly authorizes him to do so.
So although a nationwide rail strike would likely not have been tolerated, and the RLA gave the President and Congress wide powers to try to prevent the strike, and while there was clearly a time-limitation on reaching a final contract, as mentioned above, was there any harm in trying to build public support and force the operators’ hands?
Biden didn’t want to take another minute, stating that “Some in Congress want to modify the deal to either improve it for labor or for management. However well-intentioned, any changes would risk delay and a debilitating shutdown.” Could he have tried for a few days to rally the public, reiterating his belief that all Americans — not just rail workers — deserve paid sick leave? #BullyPulpit
History shows us that the special legal treatment of rail and other transportation strikes offers the federal government—and the executive branch in particular—a rare opportunity to directly shape the outcome of collective bargaining, for good or for ill. — 500 Labor Historians
Historian Heather Cox Richardson points out that
While management generally likes the current system, workers point out that it removes their most effective leverage. Employers can always count on Congress to step in to avoid a railroad strike that would bring the country’s economy to its knees. On November 28, CNN Business reported that more than 400 business groups were asking Congress to enforce the tentative deal in order to prevent a strike. At the same time, the Supreme Court in 1952 took away the main leverage the government had against companies.
A group of 500 labor historians sent a letter to President Biden and Labor Secretary Marty Walsh pointing out that
History shows us that the special legal treatment of rail and other transportation strikes offers the federal government—and the executive branch in particular—a rare opportunity to directly shape the outcome of collective bargaining, for good or for ill. During the Gilded Age, presidents sent armed soldiers to break rail strikes. During World War I, Woodrow Wilson and Congress averted a rail strike by giving the workers what they wanted: the eight-hour day.
The century-old RLA clearly needs to be updated. Labor relations, worker rights, peoples expectations and the work environment in general have advanced significantly in the last century. The RLA preceded the 1935 National Labor Relations Act which gave collective bargaining rights to most (non-rail) public sector workers, including the right to strike. Today, the country’s supply chain is not totally dependent on rail as it was 100 years ago. We have trucking and airplanes. And people have cars and buses.
The RLA was also passed way before COVID, where rail workers were expected to work through a deadly pandemic without a single day of paid sick leave. Workers today actually expect to be able to spend time with their families — especially during a family crisis — and not be on call 24 hours a day, 7 days a week, 365 days a year. They expect to be able to not come to work sick, take care of their sick family members, and attend funerals of their loved ones.
The Root Cause
The root cause of this debacle is not just the evil, greedy personalities of the rail operators; it’s baked into the business model developed by the railroads — namely “precision scheduled railroading,” which has drastically reduced the number of rail employees to the point where rail operator profits leave absolutely no cushion for labor shortages, important family events and tragedies, or even illness. Over the past few years, rail employment has declined by one-third.
The root cause of this debacle is not just the evil, greedy personalities of the rail operators; it’s baked into the business model developed by the railroads
For the railroads, paying for sick leave is not just the cost of compensating a worker to stay home for a couple of days. Because of short staffing, providing sick leave would mean the railroads would have to hire additional workers to step in for those who get sick. And rail work is highly skilled — the operators can’t just go to a temp agency to fill in shortages when workers get sick.
Economist and New Yorker writer John Cassidy puts it this way:
Unfolding in one of the country’s oldest and most far-flung industries, it is a story of deregulation, consolidation, downsizing, under-investment, and intensification of work practices. Most of all, though, it is a story of financialization, and of prioritizing payments to wealthy stockholders over everything else, including serving the public interest.
Since deregulation in the 1980s, we’ve seen a major consolidation of rail companies — from 33 major railroads in 1980 to 7 today. What we’re seeing, therefore, is monopoly control of America’s most important industry.
Let me put it more clearly. The rail operators business model is to hold the American economy hostage to the point where they claim that economic catastrophe will ensue if they are forced to provide 7 days of sick leave to their employees. And being as they’re pretty much a monopoly (try building an alternative railroad to compete), they get their way.
The rail operators business model is to hold the American economy hostage to the point where they claim that economic catastrophe will ensue if they are forced to provide 7 days of sick leave to their employees.
But the burden on rail workers isn’t the only problem. It’s also a safety issue. Railroads are also cutting back on train personnel while making the trains longer. Trains are now reaching two to three miles long and the operators what to reduce staff on the trains from two (currently) to one. (And possibly none in the future.)
Think about how that works. Suppose there’s a problem on the train, two or three miles back. Does the single engineer have to leave the lead locomotive to walk back an hour to figure out what’s going on? Maybe at night, in the snow? Supposedly the railroads will have rapid-reaction teams to fly to the rescue to diagnose and fix the problem. But out the middle of nowhere, dozens or hundreds of miles from an office? And what if the train is carrying hazardous materials?
We saw a few years ago in Lac Megantic, Canada, how budget cutting, poor maintenance, understaff and overwork threatens not just railroad workers, but also anyone living in the vicinity of rail lines, when an unmanned, disabled train carrying tank-cars full of highly explosive crude oil barreled into the city of Lac Megantic, derailing, bursting into flame and incinerating 47 persons.
The “Good” News (for rail operators)
But it’s not all bad news — especially if you own a railroad: “PSR helped the railroad corporations make record profits. In 2021, revenue for the two largest railroad corporations in the U.S., the Union Pacific and BNSF (owned by Warren Buffett), jumped 12% to $21.8 billion and 11.6% to $22.5 billion, respectively.”
According to Martin J. Oberman, the current chair of the Surface Transportation Board:
Between 2011 and 2021, the big railroads spent a hundred and ninety-one billion dollars on dividends and stock buybacks, which was far more than the hundred and thirty-eight billion dollars they spent on capital investments in the industry’s infrastructure. “Where would rail customers, rail workers, and the public be if a meaningful portion of that hundred and ninety-one billion dollars had been reinvested in expanding service and making service more predictable, reliable, and on time?” Oberman asked.
Is this any way to run a railroad? Some investors think not as they launch shareholder resolutions seeking paid sick time for railroad employees.
Trillium Asset Management, which filed the resolution with Union Pacific, said it was reasonable for railroads to offer paid sick time because railroad employees are essential workers who keep critical commodities moving.
“Focusing on the short term at the expense of workers poses potential risks to the company and the economy,” Kate Monahan, a director at Trillium, said in a statement. “As shareholders, we are asking management to reprioritize and take the longer-term view that safeguarding the health and safety of their workers will better position them for the future.”
Workers and the labor movement need much stronger support from politicians, particularly Democrats.
Joe Biden portrays himself (with some justification) as the most labor-friendly President in recent American history. Sadly, that may be true. Indeed, if you pull just one paragraph out of his letter to Congress, you’d be encouraged:
I share workers’ concern about the inability to take leave to recover from illness or care for a sick family member. No one should have to choose between their job and their health – or the health of their children. I have pressed legislation and proposals to advance the cause of paid leave in my two years in office, and will continue to do so. Every other developed country in the world has such protections for its workers.
But with the next breath he called on Congress “to pass legislation immediately to adopt the Tentative Agreement between railroad workers and operators – without any modifications or delay.”
As discussed above, there was some time constraint to reaching a final settlement, tut was immediate and unconditional capitulation to the rail operators the only solution?
The labor historian’s letter warned President Biden and Labor Secretary Marty Walsh that “Instead of imposing a contract that these workers have already rejected, we urge you to put the full force of your Administration behind the eminently just demands of the railway workers, especially those that provide them with a livable and dignified work life schedule.”
Indeed. What if Biden, Pelosi and Schumer had declared that the people had spoken and called on the rail operators to listen to the workers and provide the sick leave that every American — especially America’s most essential and overworked workers — deserved? What if they had called on Congress to pass not two bills, but a single piece of legislation defending this administration’s core principle that every worker deserves paid sick leave?
What if the American public had been educated about the rail operators profitability and business plan that necessitates screwing workers
They may not have won. They may have had to back down at the last minute. But it would have been clear to the unions and the American people who the good guys were and who the bad guys. were. Seems kind of like something that most labor-friendly President in American history might do.
Congress needs to investigate the rail operators’ operating model
The rail operators are not only exploiting and burning out their workers by implementing Precision Scheduled Railroading, but they’re also endangering the American public. The railroads are run like a military organizations with a long history of exploiting workers.
In fact, the high number of injuries and deaths suffered by rail workers (as well as passengers) in the 19th and early 20th centuries sparked the development of trauma care and occupational medicine.
For rail workers and passengers of the 19th and early 20th centuries, train travel — while miraculous for the speed with which it carried people across vast distances — presented ghastly dangers. Brakemen commonly lost hands and fingers in the hazardous coupling of cars. Exploding boilers released high-pressure steam that scalded stokers. Passengers were maimed or crushed when trains jumped the tracks, or telescoped into tangles of wreckage. And in the hours they spent aboard, travelers and workers suffered heart attacks, strokes, seizures, all the health hazards of daily life, but far from their family doctor — or sometimes any doctor. One in every 28 railroad employees was injured on the job in 1900 — and 1 in 399 died.
And the rail operators continued to abuse and mistreat rail workers to the present day. Much of this came out in hearings leading to the Rail Safety Act of 2007 (RSA). Long after the RSA was passed, for example, rail operators continued to illegally punish workers for reporting injuries. Punishing workers for reporting injuries is unfortunately a common practice throughout American industry. What is astounding even in the present day is not so much that rail executives continued to punish workers for reporting industries but during my time at OSHA, they actually defended this practice as the only way to force rail workers to work safely. And retaliation against workers for exercising their health and safety rights remains rampant. For example, OSHA recently cited CSX for illegally retaliating against workers.
This is the third OSHA whistleblower merit finding in 10 months related to CSX retaliating against workers who reported safety concerns. In July 2021, OSHA ordered the employer to pay $221,976 in back wages, interest and damages to a worker terminated in New Orleans for reporting safety concerns. In October 2020, OSHA ordered CSX to reinstate an employee and pay more than $95,000 in back wages and $75,000 in punitive damages after a worker in Rebecca, Georgia, reported an unsafe customer gate and an on-the-job injury. Similar whistleblower investigations resulted in reinstatements and payment of back wages and damages in the New York area in 2016 and 2010.
It’s unlikely that the Republican-controlled will spend much time investigating the abuse of rail workers, what with how incredibly busy they’ll be investigating other vitally important issues like Hunter Biden’s laptop and how Nancy Pelosi was to blame for the January 6 insurrection. But this rail contract expires again in less than two years, so there is time and opportunity for the Democratically-controlled Senate to investigate the railroads and educate not only Congress, but the American public about rail workers’ working conditions and the operators’ refusal to improve the situation. Given the importance of efficient rail operation for the American economy, it should be a high priority in the new Senate.
Unions need to better organize and prepare
Rail workers are not only highly organized into unions, but there are also rank-and-file caucuses that actively opposed the Tentative Agreement and are critical of union leadership for depending far too much on Biden to pull a rabbit out of a hat at the last minute, and focusing far too little on mobilizing their members to oppose an inadequate contract and to strike if necessary. (Check out the work of Railroad Workers United (RWU), for example. You can listen to the rank-and-file workers’ view in this excellent podcast featuring Ross Grooters of Railroad Workers United, Deven Mantz of BMWED-Teamsters, and Jonah Furman of Labor Notes.)
Signing a tentative agreement that didn’t have support of their members didn’t help. Strikes are enormously painful, not just for the country, but for the workers as well. Union leadership will often agree to take a weak agreement back to the members to see gauge where they’re at. In this case however, the word “tentative” somehow got lost in the shuffle and the rail workers were portrayed as going back on an deal they had agreed to.
What would more internal organizing have accomplished? Imagine the scenario, for example, if all of the 12 rail unions had voted by overwhelming margins against the agreement. Imagine if the rail unions had been lobbying, educating and warning Congress for the past three years, and imagine if leadership had been preparing their members for a possible strike should they reject the agreement.
The unions were unlikely to follow the path of PATCO — striking in violation of the law — but real preparations for a strike may have made Biden, Pelosi and many Congressional representatives think twice about calling for immediate imposition of the widely despised tentative agreement.
Some labor leaders also fear that these events could impact on current organizing efforts at Amazon, Starbucks and other companies, as well as the impact on other labor-management relationships. Flight attendants, for example, also operate under the RLA and fear that there could be an impact on their future contract negotiations if there employers know that Congress will always keep them from striking.
Some of the rank and file organizations are even calling for a government takeover of the railroads — or at least the tracks. It’s unlikely to ever happen in this country, many of whose citizens still see a Communist behind every Democrat, but think about this: Do a few trucking companies own the roads they travel on? Do the airlines own the airports and flight paths?
So where do we go from here? This 5-year contract was settled three years past the expiration of the last contract, meaning that it expires only 23 months from now. That gives the rail unions a short amount of time to mobilize for the next fight. It gives Congress time to investigate, hold hearings and propose legislation. It gives the Biden administration (which hopefully will still be in office in 2025) time to figure out a strategy to get sick leave for workers before they are once again faced with a last-minute dilemma forcing them to knuckle under the operators’ blackmail.
The future prospect for rail workers isn’t great under the current system. As Heather Cox Richardson points out, “the railway struggle was about more than sick leave. It was about a system that has historically made it harder for workers than for employers to get what they want. And it is about consumers, who—in the past at any rate—have blamed strikers rather than management when the trains stopped running.”
Bottom line: We’re all going to need to do a massive job of re-educating the public, and changing Congress (especially the Senate) to finally bring justice for rail workers and rail unions need to organize internally much earlier and better than they have.
Addendum (Dec 10):
Some observers, including Bernie Sanders (I-VT) and labor reporter Steve Greenhouse argue that Biden should issue an Executive Order providing paid sick leave to rail workers similar to the Executive Order he issued at the beginning of his Administration requiring federal contractors to pay their employees $15/hour. Railroads are also major-league federal contractors. The courts might not look kindly on that type of action, but it’s one tool the administration has not tried.