econ

FOCUS | INTERFERENCE WITH THE RIGHT TO STRIKE

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The prospect of a nationwide rail strike in late 2022 focused attention on a rarely-used legal mechanism infringing workers’ right to strike in the United States. Invoking an “emergency” clause in the specialised labour law governing collective bargaining in the railroad industry, the Biden administration and Congress imposed a legislated collective agreement in December that blocked unions from freely negotiating an agreement, and using strike leverage to achieve it.

The imposed agreement was not back-to-work legislation breaking a strike, but a pre-emptive move to prevent a strike from happening. It was the first time in more than 30 years that Congress imposed an agreement on national rail unions and employers, and only the sixth time since passage of the Railway Labor Act in 1926 (more numerous interventions addressed local bargaining disputes, often in commuter rail transit systems).

In a coordinated communications offensive, railroad employers and business associations had warned throughout 2022 of “disastrous,” “devastating,” “catastrophic” and other doomsday effects on the nation’s economy if railroad workers struck. Many in the media, the academy, think tanks, and the political class parroted these claims. A herd mentality took shape, bellowing that “the Administration and Congress must act!” to avert a strike. And so they did1.

The structure of labour relations in the American railroad industry is an important backdrop to the 2022 story. After mergers and acquisitions, what were a dozen rail freight companies thirty years ago are now just four major carriers. Each is the single dominant force in a major geographic region of the United States.

Empowered by this oligopolistic structure, rail freight employers moved to drastic cost-cutting. By not replacing workers who retired, they reduced the size of the workforce from 200,000 to 125,000 in the past decade. And they imposed intense work systems to extract more productivity from those who remained. Corporate profits and shareholders’ return on investment surged to record levels.

Railroads are the most highly-unionised industry in the United States, with virtually all non- management workers represented by unions. In the freight sector, the four major carriers bargain as a group with a coalition of twelve unions for a master

contract to standardise pay and conditions. Each of the unions represents traditional “craft or class” employees in all the companies – locomotive engineers, conductors and brakemen, dispatchers, maintenance-of-way employees, communications employees, electricians, machinists and others.

The key issue in 2022 negotiations was not pay or benefits. It was time – the issue at the heart of labour-management conflict since the earliest days of trade unionism. When does the employer control workers’ time? And when do workers control their own time? Although railroad workers were first to win the 8-hour day, US law does not prohibit employers from imposing mandatory overtime, compulsory work schedules, and other demands on workers’ time.

In rail negotiations in 2022, a key issue was employers’ practice of forcing workers to use vacation time for sickness and for medical appointments related to sickness. On top of that, employers adopted what they termed Precision Scheduled Railroading (PSR), a kind of “just-in- time” scheduling system requiring mandatory irregular work shifts and increased workloads. The PSR system allowed no leeway for workers to deal with medical issues, and left no other staff in position to fill in for sick or injured workers. Employers enforced the PSR system with harsh disciplinary action against workers who ran afoul of attendance requirements, even if absences were due to illness.

Workers and their unions sought a modest number of paid sick days to cover such events. They wanted to stop using vacation time for sick pay, and to avert absenteeism “points” leading to discipline or discharge. They also sought limits on scheduling abuses that had them working for long stretches beyond the normal work week, often far from their families. But for rail freight management, controlling workers’ time and maintaining their cut- to-the-bone scheduling system were key to continued high profits2.

In mid-November, in tripartite talks brokered by the Secretary of Labor, employers and unions tentatively agreed on a contract that would have added one sick day. The Biden administration triumphantly announced the deal, taking credit for saving the economy from catastrophe3. But they failed to reckon with rank-and-file sentiment.

Congress imposed an agreement that blocked rail unions from negotiating or using strike leverage

US Labour Law and the Right to Strike

Lance Compa is a Senior Lecturer Emeritus at Cornell University’s School of Industrial and Labor Relations in New York

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Workers in four of the unions voted down the agreement, and it got bare majorities in several others, despite union leaders push for ratification4.

Under the unions’ mutual solidarity pact, all would respect picket lines mounted by the four that rejected the contract. This put a nationwide rail freight strike squarely back on the national agenda. The administration, now committed to preventing a strike, called on Congress to legislate a solution.

An open letter signed by 500 US labour historians told President Biden, “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 liveable and dignified work life schedule”. Unfortunately for them and other union supporters, it did not sway the White House.

The collective agreement imposed on the unions in December gave workers the one sick day already promised, but no more. At that point, the Biden administration just wanted to close a deal and say they saved the nation from economic calamity. But many workers saw the move as a betrayal by a president and administration that claimed to be “the most pro-union” ever5.

The Railway Labor Act

The legal basis for Congress’s imposition of a collective agreement is found in the Railway Labor Act (RLA) of 1926, the first major national labour law. Most comparative labour law analysts, and even most labour lawyers in the United States, are more familiar with the National Labor Relations Act (NLRA) of 1935, also called the Wagner Act for its Senate sponsor. The NLRA governs labour relations in the entire private sector except for railroads and airlines (airlines were added to RLA coverage in 1936).

Congress adopted the NLRA in 1935 amid a wave of large-scale organising and strike movements in mass production manufacturing industries. In the same way, enactment of the RLA in 1926 followed decades of railroad workers’ struggles to form unions and bargain collectively. Not by pleading with legislators, but by going into combat – literally – against the “robber baron” railroad owners and their private armies of Pinkerton agents and hired gun thugs.

The national railroad strikes of 1877 and 1890 are legend in American labour history. Workers and their unions demanded the 8-hour day, better wages and conditions, and the right to bargain collectively with employers. When the Pinkertons couldn’t break a strike, local authorities sent police; state governors sent national guard forces; and the federal government sent military troops to beat workers into submission. But only for the moment. Railroad workers continued building their trade unions and preparing for future battles.

World War I created conditions for a breakthrough. The need to keep rail traffic running to ports to supply American soldiers in Europe led the Woodrow Wilson administration to nationalise the railroads in 1917, and to mandate the 8-hour day, recognition of trade unions, and collective bargaining alongside no-strike and no-lockout guarantees. Ownership reverted to the railroad companies in 1920. But now, the unions had a foundation not only to withstand employers’ efforts to revert to pre-war conditions, but to go on the offensive with new organising, bargaining, and strikes in the early 1920s.

In what amounted to peace negotiations to end conflict in the railroad industry, companies and unions negotiated a deal between themselves and presented it to Congress. With no substantial change, it became the Railway Labor Act of 1926. The Act guarantees the right to organise and bargain collectively, prohibits reprisals or other discrimination for union activity, and obligates employers to bargain in good faith.

In many respects, the RLA is more favourable to workers than the NLRA:

■ Employers cannot use many of the vicious anti-

union tactics allowed under the NLRA to break workers’ organising efforts, such as captive- audience meetings marked by fear-mongering and intimidation;

■ The RLA requires company-wide bargaining units for each “craft or class” of workers, not atomised bargaining units at each company location like most of those covered by the NLRA;

■ Unlike the NLRA, the RLA does not contain a “right-to-work” provision allowing states to prohibit agreements requiring all represented workers to pay union dues;

■ The RLA allows front-line supervisors to organise and bargain – a right that was part of the original Wagner Act, but stripped away by the reactionary Congress that enacted the 1947 Taft-Hartley Act, when half a million union-represented supervisors suddenly had no union and no bargaining rights;

■ The NLRA contains strict prohibitions on secondary boycotts (i.e. solidarity strikes), but the RLA allows them, and rail unions have often used this right to make important gains;

■ The RLA imposes civil fines and criminal penalties on employers who violate the Act, unlike the NLRA, whose remedies contain no such sanctions.

The RLA and Strike Avoidance Alongside its protections, the RLA created a

complex dispute resolution mechanism making it difficult for railroad workers to exercise the right to strike. It requires mandatory mediation of bargaining disputes by a government agency called

Employers reduced the

workforce and imposed intense

work systems for those who remained.

Corporate profits surged

the National Mediation Board (NMB), and empowers the NMB to control the timing and progress of bargaining. Unions cannot strike, and employers cannot lock out, unless the agency, at its sole discretion, “releases” them for such “self-help” measures (quote marks indicate the language of the RLA).

The NMB often withholds “release” for many months, and sometimes longer. But unions and employers do not silently wait. Behind-the-scenes manoeuvring is constantly underway. If unions or employers believe they will have a weaker hand in a test of economic strength, they will often publicly demand release, but privately tell the NMB to continue its mediation efforts, hoping it can cajole the other side into an agreement.

When the NMB finally releases the parties to take industrial action, it makes a “proffer of arbitration” to the parties, inviting them to submit the dispute to binding arbitration by a neutral outside arbitrator. But both sides must agree to arbitration, which never happens. They do not want to put their fate in the hands of an arbitrator.

When the parties decline the “proffer of arbitration”, a 30-day “cooling-off period” commences. After 30 days, the unions can strike, or companies can lock out workers to force agreement with employers’ final contract offer. But such “self- help” is still theoretical.

Before a strike or lockout begins, the NMB can ask the President to create an “Emergency Board” of three neutral experts appointed by the White House to address the dispute. They are normally experienced, well-known and well-regarded professional mediators and arbitrators. The NMB can take this step, again in its sole discretion, by simply asserting that a strike or lockout, in the words of the RLA, “threatens substantially to interrupt interstate commerce to a degree such as to deprive any section of the country of essential transportation service.”

Naming the Emergency Board triggers another 30-day period when the parties cannot take industrial action. The Emergency Board often asks for extension of this period to complete its report and recommendations.

Unions and employers normally accede to the request – they do not want to offend the Emergency Board because they want recommendations favourable to their interests.

The Emergency Board does not arbitrate the dispute. It issues recommendations for achieving a settlement. The recommendations are not binding on the parties, who now – still theoretically – can move to a test of economic strength by strike or lockout. But the recommendations also go to the White House and to Congress, creating the basis for a legislated solution imposing a collective agreement on the parties. That is what happened in December 2022.

2019-2022 Negotiations The railroad companies and unions actually

began their bargaining in 2019. With no progress toward agreement, the NMB initiated mandatory mediation in January 2022. The Board “released” the parties in June 2022, starting the first 30-day cooling-off period. As a strike became probable, the NMB asked President Biden to create an Emergency Board.

President Biden named an Emergency Board in July 2022, which started another 30-day no- strike/no-lockout period. The Emergency Board issued its recommendations in August. The cooling- off period was extended while the White House and the Labor Department brokered an agreement they hoped would resolve the dispute. They reached a tentative agreement on 15 September, the day before a strike was to begin. But when four unions later rejected the deal and a strike again became imminent, Congress took the final step of legislating a collective agreement that blocked workers’ exercise of the right to strike.

The fallout from the rail negotiations and the imposed contract is still being felt. The president of one of the unions who supported the White House deal was replaced by a rank-and-file leader who supported striking6. Other union leaders are also facing challengers opposed to their stance in the dispute. The Biden administration, still touting itself as the unions’ champion, is scrambling to restore its credibility after imposing the rail contract on workers7. Underneath all is the continuing question of whether US labour law, in this case the RLA, comports with international standards on the right to strike – and if not, what can be done to change it.

Coming Back to the NLRA

US workers’ right to strike is relatively unfettered under NLRA, at least in the most common scenario where the union is seeking a first contract or a renegotiated contract upon expiration of the prior agreement. When collective bargaining is nearing conclusion, unions conduct a “strike authorisation” vote empowering their bargaining committee to initiate a strike. Workers almost always grant such authority to their leadership to strengthen their hand at the bargaining table. Union leaders can call a strike when they choose, and no further vote is required8.

The original NLRA did not restrict workers’ right to strike at all. But in 1946 elections, an anti-union Republican majority took control of Congress. In 1947 it enacted the Taft-Hartley Act amendments to the NLRA, effectively enshrining a “Magna Carta for management” undermining many features of the Wagner Act. The amendments included a strict ban on sympathy strikes, called “secondary boycotts” in the Taft-Hartley Act, supporting other workers and unions. They also added a “national emergency” provision allowing Congress to legislate a collective

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A key issue was employer demands to use vacation time for sickness and medical appointments

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agreement and force striking workers to return to their jobs.

Before the ban on secondary boycotts, workers on strike in a “primary” dispute could request help from unions at “secondary” companies doing business with the struck employer. Now such solidarity appeals are prohibited, even though a company that continues selling to or buying from a firm involved in a labour dispute is helping that firm to prevail in the dispute with its workers. Moreover, workers at the secondary company may not act on their own to help workers in the primary dispute.

Both appealing for help and offering help are strictly prohibited and subject to onerous financial penalties, while employers can continue doing business with each other as if no dispute existed. The US blanket prohibition on solidarity action is contrary to the view of the ILO Committee of Experts, who said “a general prohibition on sympathy strikes could lead to abuse . . . Workers should be able to take such action, provided the initial strike they are supporting is itself lawful”9.

In addition to the ban on solidarity strikes, the Taft-Hartley Act also set in place an “emergency” mechanism based on the Railway Labor Act model. It empowers the President to create a “board of inquiry” to determine if a looming strike or lockout would disrupt interstate commerce or “imperil the national health or safety.” The board can recommend that the President seek a federal court injunction to halt the strike or lockout. Presidents have done so more than 30 times since 1947, usually in connection with potential strike action that would shut the nation’s ports. Only once did a court deny the President’s request for an injunction.

The injunction can remain in place for 80 days. After 60 days, the NLRB conducts a secret-ballot election among employees on whether they accept the employers’ last offer. But employees have never defied their union and voted to accept an offer that their bargaining committee has rejected.

After 80 days, workers can strike and employers can lock out. But as with the RLA, the President can ask Congress to step in and legislate a solution to the dispute, imposing a contract on the two sides. As

this article is written, the Biden administration is closely watching negotiations in West Coast ports. Port employers and business associations are beating the same drums they did in the rail freight dispute: that a port workers’ strike will crash the still- recovering economy. Will the outcome be the railroad story retold? Or will the White House find a way to avoid seeming again to intervene on the side of employers?

1 See Zolan Kanno-Youngs and Emily Cochrane, “Biden Signs

Legislation to Avert Nationwide Rail Strike: President had called on Congress to act, saying a rail strike would ‘devastate our economy,’” New York Times, 2 December 2022.

2 See Noam Scheiber and Niraj, Chokshi, “Workers Say Railroads’ Efficiency Push Became Too Much: Employees say the inflexibility of scheduling upended their personal lives. The companies say they maintained service while using fewer resources,” New York Times, 15 September 2022.

3 See Jim Tankersley, “Railroad Unions and Companies Reach a Tentative Deal to Avoid a Strike: President Biden praised the agreement as a “big win” for workers and the rail companies,” New York Times, 15 September 2022.

4 See Noam Scheiber, “Key Freight Rail Union Rejects Deal, Increasing Strike Risk: The tentative agreement, brokered in September with help from the Biden administration, had averted a strike before the midterm elections,” New York Times, 21 November 2022.

5 See Noam Scheiber, “Some Rail Workers, Seeking Sick Days, Say Biden Betrayed Them: The request for Congress to impose contract terms that several unions had rejected rankled rank-and- file members who had rallied behind the president,” New York Times, 30 November 2022.

6 See Jonah Furman, “Frustrated Over Contract, Locomotive Engineers Vote to Oust President,” Labor Notes, 14 December 2022.

7 See Lauren Kaori Gurley and Toluse Olorunnipa, “After forcing rail deal, Biden works to smooth over labor relations: The self- proclaimed ‘most pro-labor president’ stopped by a union phone bank on Friday after pushing through a union contract to protect the economy,” Washington Post, 2 December 2022.

8 One important exception is found in the health care sector, where hospital workers’ unions must give 10 days’ advance notice to management before striking to give management time to arrange for continued care or to transfer patients to other facilities.

9 See Report of the Committee of Experts on the Application of Conventions and Recommendations, International Labor Conference, 76th Sess., Rep. III, Part 4A, 234, 238-239 (1989).

An open letter signed by 500 US labour historians urged President

Biden not to impose a contract.

Unfortunately it did not sway the

White House