The Rail Strike, Explained

On November 30 2022, the U.S. House of Representatives passed a bill aimed at preventing a railroad strike ahead of the holiday season — although the matter was not yet fully settled:

The House on Wednesday [November 30 2022] resoundingly approved legislation to avert a nationwide rail strike by imposing a labor agreement between rail companies and their workers, as lawmakers rushed to shield the economy from the threat of a holiday-season work stoppage and prevent a disruption in shipping across the country … The bill passed on a bipartisan vote of 290 to 137. It goes next to the Senate, where leaders in both parties have indicated they would move quickly to avoid a disruption to the nation’s rail service.

But with liberal Democrats threatening to withhold their votes unless the legislation granted additional paid leave, a key demand of workers, the House also was set to approve a separate measure to add seven days of compensated sick time to the compact. That measure passed largely on party lines by a margin of 221 to 207, as Democrats sent it to the Senate with the support of just three Republicans. A federal law gives Congress the power to intervene in railway labor disputes.

Congressional involvement brought the issue to national attention, but details of the dispute were a bit more complex.

Early Developments in the Railroad Labor Dispute of 2022

A Wikipedia entry, “2022 United States railroad labor dispute,” summarized the events leading up to the November 30 2022 bill.

It indicated that negotiations began in 2019, and moved to meditation back in June 2021:

[Railroad] companies and unions have been negotiating since 2019 and began mediation in June 2021. President Joe Biden convened a Presidential Emergency Board in July 2022, which issued recommendations and a 30-day cooling off period that expired on September 16, 2022. There were significant concerns that a freight rail strike would further exacerbate ongoing supply chain issues.

Following negotiations involving Secretary of Labor Marty Walsh and Biden, a tentative agreement was reached that included an immediate 14.1% wage increase, but only one sick day rather than the 15 unions wanted. The deal was rejected by rank-and-file members of four unions, and should a strike occur it will do so on December 9 [2022].

A May 2022 Politico.com piece about unsuccessful, ongoing negotiations cited supply chain disruptions and unfavorable work conditions as driving factors. According to that reporting, unions asked to be “released” from stalled attempts at mediation:

The low staffing levels are a sign that carriers need to pay better and adopt less punitive attendance policies, among other things, Regan said — or else risk more attrition and further disruption to the economy.

“It would have been rare, say a decade ago, for somebody to start off as a railroader, build their seniority, build their experience, and then walk away from the job mid-career,” [AFL-CIO Transportation Trades Department President Greg] Regan said. “But we’re seeing people walk away now and mid-career in part because of the business practices the railroads are doing.”

The groups have been in mediation at the National Mediation Board since June 2021 and January 2022, respectively. The union coalitions have both since requested to be released, saying that the process has not been productive. The [National Carriers’ Conference Committee] NCCC “does not agree that the parties have reached an impasse and believes the requests for release are premature,” the committee said.

Politico.com mentioned two possibilities if the dispute remained unresolved: U.S. President Joe Biden convening a “Presidential Emergency Board,” and Congressional involvement. Both took place after the article was published:

If the NMB approves the unions’ request, the groups have the option to enter into arbitration, during which a panel will make a binding decision. If one party declines arbitration, there will be a 30-day cooling off period before the groups can engage in so-called self-help by taking actions like strikes or lockouts. President Joe Biden would at that point have the option to create a Presidential Emergency Board to produce recommendations to prevent any work stoppage and resolve the dispute.

The dispute could, at some point, end up before Congress: In a quirk of rail labor law, Congress would be able to vote to mandate the board’s recommendations — in effect, imposing the contract on the parties. It could also take actions like mandating additional cooling-off periods or requiring additional arbitration.

On November 27 2022, Sen. Bernie Sanders (I-Vermont) tweeted about the dispute, asserting that the rail industry was boasting record profits alongside a sharply reduced workforce:

Sanders’ claims aligned with a February 2022 report from LaborNotes.org about conditions endured by rail workers:

Class I railroads—the companies with annual revenues over $900 million—employed fewer workers this January [2022] than any month since 2012, falling below even the early-pandemic slump.

Railroads have cut as many as 35 percent of workers in some titles over the past [six] years. Overall there were 160,795 Class I rail workers in December 2015, and only 114,499 by December 2021.

At the same time, individual freight trains were hauling, on average, 30 percent more tonnage in 2020 than in 2000.

But all these practices add up to a system that doesn’t function well under pressure—the pressure of a global pandemic, or even just the pressure of normal operations. In stretched-out, just-in-time supply chains with no room for error, delays cascade into more delays.

In the course of that coverage, details emerged around work conditions on one American railway, BSNF, specifically a “points-based system” governing time off:

BNSF announced a new points-based attendance policy for its engineers and conductors, who already have irregular schedules with inconsistent days off. Conductors and engineers work “on call,” working many days in a row and getting called in at wildly different times. Workers have difficulty taking even earned time off, and railroaders don’t have paid sick days.

Under the new system, as one worker described it, after taking off a Saturday and a Sunday together you would have to work weeks or months straight, with no day off, to dig yourself out of the hole.

BLET and SMART-TD, the unions representing the 17,000 workers in these crafts at BNSF, announced that they would call for a strike over the unilateral policy change. BNSF sought, and got, an injunction in federal court against a strike. But while the issue gets fought over in the courts, BNSF implemented the attendance policy on February 1 [2022].

LaborNotes.org linked to a November 2021 ranking of worst American employers, based on information from the site Glassdoor. Of the top five, three were railroads.

What Are Railroad Workers’ Demands?

Generalized coverage about a potential rail strike typically mentioned poor conditions in broad terms, without much time devoted to the demands of the unions.

Several high-profile Twitter accounts tweeted in support of rail unions, referencing some of the concessions sought by the workers. Rep. Jamaal Bowman (D-New York) suggested that Congress might force rail workers to only have three sick days, unpaid, per year:

Bowman’s claim — that rail workers were offered a scant three unpaid days of sick leave scheduled 30 days in advance — sounded like a Dickensian exaggeration. But a November 29 2022 Associated Press article not only corroborated the claim (the three unpaid days off “to tend to medical appointments” are apparently expected to be scheduled well in advance) but added that those conditions were an “improvement” in proposed terms:

Pelosi said the House would not change the terms of [a] September [2022] agreement, which would challenge the Senate to approve the House bill without changes.

The September [2022] agreement that Biden and Pelosi are calling for is a slight improvement over what the board of arbitrators recommended in the summer. The September [2022] agreement added three unpaid days off a year for engineers and conductors to tend to medical appointments as long as they scheduled them at least 30 days in advance. The railroads also promised in September [2022] not to penalize workers who are hospitalized and to negotiate further with the unions after the contract is approved about improving the regular scheduling of days off.

That reporting also noted that the railroads “promised” to not “penalize workers who are hospitalized,” which seemed to indicate that penalizing hospitalized workers was at least on the table.

Labor advocate and politician Nina Turner said workers sought fifteen sick days per year, and were instead offered one [1] sick day in negotiations; Sen. Sanders indicated that workers were not guaranteed sick days, proposing a compromise of seven sick days:

The Recount’s Steve Morris tweeted a video montage of CNN coverage of the railroad labor dispute, which appeared to emphasize the effects to the rail and shipping industries over abusive work conditions for rail employees:

In September 2022, Vice.com spoke with 28 rail workers about the ongoing labor dispute. Several workers described being perpetually on-call, and what that actually meant:

I just think it’s so hard for people to grasp how shitty most railroader’s quality of life is. You literally could get a call to go to work at any minute. Doesn’t matter what you’re doing or where you are, if your phone rings, you have 90 minutes to be at work. You will then work 12 hours, after which, you will be taken to a hotel for an indeterminate amount of time. This hotel time is generally, in my experience, 12 to 36 hours. During this time, you are supposed to get rested, however, you have no idea when that phone will ring, could be midnight; could be 8 in the morning, you never know. When the phone does ring, you work 12 hours and go home. That would conclude one trip. After 12 hours, you start the process again.

This is your life, no set days, no real way to make sure [you’re off] for a doctor’s appointment, a kid’s birthday, anything. Ever. Even if you were to get a day off, you wouldn’t know if you actually had that day off, up until the minute the day off is scheduled to start.

A November 22 2022 Reuters.com article described worker demands, as well as terms of the “tentative deal” in September 2022:

“There’s a lot of anger about paid sick leave among the membership” who kept goods flowing during the early days of the COVID-19 pandemic, said Seth Harris, a professor at Northeastern University.

Labor unions have criticized the railroads’ sick leave and attendance policies and the lack of paid sick days for short-term illness. There are no paid sick days under the tentative deal. Unions asked for 15 paid sick days and the railroads settled on one personal day.

According to that reporting, the National Carriers’ Conference Committee (NCCC) declined to negotiate beyond the September 2022 “tentative deal.” Furthermore, the NCCC signaled that it expected Congress to force unions to accept the deal:

The National Carriers’ Conference Committee (NCCC), which represents the nation’s freight railroads in talks, said the “continued, near-term threat” of a strike “will require that freight railroads and passenger carriers soon begin to take responsible steps to safely secure the network in advance of any deadline.”

The railroads showed no sign of being willing to reopen talks and said, “Congress may need to intervene, just as it has in the past, to prevent disruption of the national rail system.”

Why Congress Intervened in the Railroad Labor Dispute

In the excerpt above, the NCCC raised the prospect of congressional involvement in negotiations. Congress is empowered to “force” a deal in service of averting a strike; a PBS piece explained how railroads could leverage that legislation in order to avoid giving workers sick leave:

Congress can step in to resolve disputes between labor unions and railroads under the 1926 Railway Labor Act, as part of its power under the Constitution to regulate commerce. That law was written to prevent disruptions in interstate commerce.

Congress has previously intervened 18 times in such disputes after the process has proceeded without success to a Presidential Emergency Board, which issues recommendations that the parties may choose to reject.

[…]

The main sticking points in the negotiations have been related to quality of life concerns. Workers have complained about the demanding schedules in the industry that make it hard for some of them ever to take a day off, and the rail unions have been pushing for the railroads to add paid sick time for workers. Railroads have refused to consider adding sick time because they don’t want to spend more on these deals than what they have already offered, and the railroads say the unions have agreed over the decades to forgo paid sick time in favor of higher wages and strong short-term disability benefits.

The NCCC (and the U.S. Chamber of Commerce, which is a lobbying group, not a governmental organization) was placated on November 29 2022, when the Biden administration called upon Congress to intervene. President Biden asked for legislation mandating that the unions accept the September 2022 terms “without any modifications or delay”:

President Joe Biden urged Congress Monday [November 29 2022] to intervene to avert a “potentially crippling national rail shutdown,” after multiple rail labor unions shot down an agreement brokered by the White House in September [2022].

[…]

“I am calling on Congress to pass legislation immediately to adopt the Tentative Agreement between railroad workers and operators – without any modifications or delay – to avert a potentially crippling national rail shutdown,” Mr. Biden said in a Monday evening [November 29 2022] statement. … Congress has the power to adopt the agreement and prevent a shutdown. It should set aside politics and partisan division and deliver for the American people. Congress should get this bill to my desk well in advance of December 9th [2022] so we can avoid disruption.”

[…]

“As a proud pro-labor president, I am reluctant to override the ratification procedures and the views of those who voted against the agreement,” he said. “But in this case – where the economic impact of a shutdown would hurt millions of other working people and families – I believe Congress must use its powers to adopt this deal.”

Unsurprisingly, Biden’s “pro-labor” label did not allay concerns of workers or unions. A November 30 2022 report in The Guardian quoted labor representatives dismayed by the development:

But union leaders are unhappy that Biden’s solution appears to be the imposition of a settlement reached in September [2022] that has already been rejected by many for failing to address members’ concerns about pay, sick days, staff shortages and time off.

“Joe Biden blew it,” said Hugh Sawyer, treasurer of Railroad Workers United, a group representing workers from a variety of rail unions and carriers. “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 Democrats and Republicans are both pawns of big business and the corporations.”

Matt Parker, a locomotive engineer and chairman of the Nevada State Legislative Board of the Brotherhood of Locomotive Engineers and Trainmen, said: “The overly simplistic approach that the administration has taken to this whole issue shows how out of touch they are with the plight of railroad workers.”

[…]

Jeff Kurtz, a locomotive engineer in Iowa for more than 40 years, severely criticized the Biden administration’s tentative agreement. “It’s not just about paid time off, it’s about time off period,” said Kurtz, who has now retired. “Basically what the carriers, and now it looks like what Congress is going to say too, is you are pretty well tied to your job for the rest of your life.”

In the railroad agreement, workers were provided with one paid day off and the ability to schedule three doctor appointments annually without being penalized, but Kurtz noted the parameters and restrictions make it nearly impossible to use the time off and provide employers with even greater interference and control over their workers’ healthcare. Workers had sought 15 paid days off in the contract.

On November 30 2022, the House voted on a separate resolution awarding railroad workers a compromise of seven sick days. NPR reported:

The House also voted on a resolution that would provide seven days of paid sick leave to railroad workers. That measure passed 221 to 207. The effort is meant to ease concerns from labor unions and some lawmakers, despite Biden’s request not to alter the carefully negotiated underlying deal. However, the Senate will also vote on both measures separately — meaning its possible the contract could be approved without the sick leave change.

After the House vote, White House press secretary Karine Jean-Pierre told reporters that the administration does not believe the Senate has the 60 votes needed to pass the sick leave measure.

“The president of course supports paid sick leave, including rail workers, but he does not support any bill or amendment that will delay getting this bill to his desk by Saturday and he is he has been very clear about that,” Jean-Pierre said.

Peter Kennedy, a chief negotiator for one of the rail unions, asserted that if Congress planned to “legislate a solution,” it ought to include sick leave. According to NPR, the railroads “warn[ed] Congress” about altering the agreement to include any sick days:

“We continue to ask that Congress do the right thing here, which is: If you’re going to legislate a solution, they should legislate paid sick leave along with the tentative agreements,” Kennedy said.

But railroad managers are already warning Congress against making any changes to the agreement. They, and Biden, urge Congress to pass a bill implementing it as it was negotiated in the fall [of 2022].

After both bills passed in the House, the New York Times spoke with railway workers who felt betrayed by Biden’s actions, perceived as a favoring business interests over workers. The story noted that the resolution pertaining to sick leave had weaker support and a lower shot at adoption:

For many of the more than 100,000 freight rail workers whose unions have been negotiating a new labor contract since 2020, however, Mr. Biden’s intervention amounted to putting a thumb on the scale in favor of the industry.

They say the rail carriers have enormous market power to set wages and working conditions, power that is enhanced by a federal law that greatly restricts the workers’ right to strike compared with most private-sector employees. They complain that after waiting patiently through multiple procedural steps, including a presidential emergency board, they had a narrow window to improve their contract through a labor stoppage and that Mr. Biden has effectively closed that window.

“They should let the guys work it out for themselves,” said Rhonda Ewing, a signal maintainer in Chicago. “We know it’s holiday time, which is why it’s the perfect time to raise our voices. If Biden gets involved, he takes away our leverage.”

A narrower House vote on Wednesday [November 30 2022], 221 to 207, authorized seven paid sick days for the workers, addressing a key demand. But it is unclear whether that provision can win Senate approval.

President of the Brotherhood of Maintenance of Way Employes (BMWE) union Tony Cardwell described Biden’s intervention as occurring “early,” and the story noted “that there was still roughly a week or more to potentially extract concessions before a strike would have occurred.” Daniel Kindlon, an electrician in Albany, New York, told reporters that the request seemed within reason:

“You would think he would just try to get them to throw in a couple days of sick time; that’s really all the guys were asking for,” he said.

Kindlon also disclosed plans to leave the industry, and predicted a “mass exodus” by workers:

Mr. Kindlon, the electrician in New York, said he had already accepted a job in another industry after more than 17 years of railroad work.

“I’m telling you now, as soon as Congress decides to jam this contract down the BMWED and BLET and SMART guys’ throats, you will see a mass exodus like no mass exodus from any industry ever,” he said, alluding to some of the unions involved.

“It’s going to be like having a strike without having a strike.”

Finally, the story excerpted an open letter from labor scholars, warning that the Biden administration’s intervention could adversely influence labor relations. It read in part:

… 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.

These dramatic interventions can set the tone for entire eras of subsequent history. In 1916, railway workers won the eight-hour day, a form of economic freedom that millions more workers across industries would win during the 1930s. In other cases, government suppression of the rights of labor, including the right to strike, has bred violence, repression, and political and social alienation. 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.

President Biden, you have vowed to become the “most pro-union president” in American history. You have said that “No one should have to choose between their job and their health – or the health of their children.” You have also issued executive orders and signed legislation claiming to promote the resiliency of our supply chains. What do these commitments mean if the women and men who work in an essential industry like rail cannot count on your support in their fight for basic protections? How resilient is a supply chain staffed by workers who lack basic democratic rights and social protections?

We call on the President, the Secretary of Labor, and Democratic congressional leaders:

1. Renounce your intention to intervene against the railway workers’ exercise of their legal right to withhold their labor in a contract-related strike.

2. Use the full force of their formal and informal powers to ensure that workers win a contract that meets their fair and modest demands regarding paid sick days. If the party leadership cannot or will not do this, we call upon progressives in Congress to reject any imposed settlement that shortchanges workers and undermines collective bargaining and the right to strike.

In a November 29 2022 tweet, film director Boots Riley raised the possibility of a “wildcat strike,” which is a strike carried out without the express authorization of union leaders:

Another tweet articulated the manner in which labor leverage functions:

And on November 30 2022, the Transportation Trades Department (TTD) of the AFL-CIO issued a statement regarding the actions of Biden and Congress with respect to possible strike action. It described the lack of sick leave as a “major omission” and read:

“For more than three years, America’s rail unions bargained in good faith with freight railroads to improve hellish working conditions that pushed workers to the brink of exhaustion, illness, and burn out.

The rail industry’s unchecked corporate greed and bad faith bargaining efforts forced this contract fight to run the full course of the Railway Labor Act, landing at the doorstep of the Biden Administration and the U.S. Congress.

While the unions didn’t get everything their members wanted through the Presidential Emergency Board (PEB) process and subsequent negotiations, they secured some major wins for workers. Today [November 30 2022], Congress has an opportunity to grant sick leave to rail workers, thus rectifying a major omission by the PEB.

Right now, every Member of Congress has an opportunity to be a champion of the working class. We implore these elected leaders to stand with essential workers who are the backbone of our nation’s supply chain. We urge the House and the Senate to vote in favor of guaranteeing seven days of paid sick leave to rail workers.

A worker should not be fired for going to the doctor. Yet it is 2022 and railroaders are fighting for sick leave in the richest country on Earth.

It is unacceptable when the vote for a contract is denied to the union membership. It is also a violation of the core democratic nature of unions and the membership’s right to vote.

Let’s be clear: the blame for this violation rests entirely with the freight railroads. At any moment, they could have chosen to grant a sick leave policy to their workforce.

We are faced with an undeniable truth that freight railroads have shaped themselves into modern day robber barons. By recklessly prioritizing profits over people, they have failed workers, customers, and consumers.

Going forward, it is clear that we need massive systemic reforms to the freight rail industry to improve the lives of rail workers and the service that is provided to freight rail customers.

Transportation labor will aggressively pursue necessary reforms to the rail industry through legislative and regulatory action.

Today, we can achieve paid sick leave for rail workers. Tomorrow, the fight continues.”

Summary

An ongoing labor dispute and the potential of a rail strike came to broader notice on November 29 2022, when U.S. President Joe Biden called upon Congress to immediately intervene and force rail workers to accept a September 2022 “tentative deal” without any of the 15 requested days of sick leave involved; as of September 2022, the National Carriers’ Conference Committee floated the idea of Congressional intervention. On November 30 2022 the House voted, “imposing a labor agreement between rail companies and their workers” (a separate Resolution granting seven days of sick leave passed separately with a narrower margin). Although the bill imposing the conditions seemed likely to pass, the House Resolution pertaining to sick leave faced uncertainty as it headed to the Senate.