It all seemed so good after the Biden administration intervened in lengthy multi-union, multi-employer railway negotiations.
The parties had a tentative agreement to provide the industry’s 115,000 workers with a 24% wage increase between 2020 and 2024, and it appeared that an agreement could be reached without a national strike that would calamitously idle about 30% of the nation’s freight movement.
The agreement could be off the rails because it is unacceptable to the workers who drive the trains and the negotiations. But there are ways to fix the problem and prevent catastrophe.
Strike Process Needs Reform
The current situation highlights the need for reform of both the National Labor Relations Act’s Taft Hartley emergency strike procedures and the Railway Labor Act’s antediluvian negotiation procedures that take years to complete.
Both NLRA statutory procedures need fixing. These culminate in an 80-day injunction and last-best-offer strike ballot, and cover the longshore negotiations should they erupt in strife. The 1926 railway labor law contains its own deficiencies that necessitate reform.
The sticking point in this year’s railway dispute is what is now characterized as work-life balance and the unacceptability of unavailable paid sick leave, coupled with penalties for calling in sick.
The pandemic, which required the railroads’ “essential” workers to be on the job as the Covid-19 pandemic raged, produced in its wake draconian attendance policies where workers lose “points” leading to discipline for days taken off for emergency sickness or fatigue. The unions sought 15 paid sick days per year as an answer.
These concerns were deep-sixed by President Joe Biden’s Public Emergency Board, created to provide recommendations and resolve disputes between the rail carriers and unions. The board rejected the union positions on the basis of written submissions and the assertion by the railroads that this demand would cost $680 million per year.
Appreciating “how deeply” the board understood the union position, it nonetheless rejected anything more than one day of additional leave, stating that the unions could protest arbitrary denials of leave through the lengthy industry grievance-arbitration process.
That recommendation triggered the present divide, producing worker anger over long shifts and attendance infraction penalties as company profits soared sevenfold during the last two decades to $23 billion in 2021.
As cooling off periods wind down next month, the Biden administration and lame-duck Congress will be called upon to provide a basis for settlement. Inflation, as well as supply chain problems, make imperative a substitute for the strike.
Trucking would have to increase its fleet by 460,000 to take up the slack in an industry with its own labor shortages. But the prerequisite to any ad hoc legislative approach must guarantee responsiveness to legitimate worker grievances.
This will mean a nuanced form of so-called baseball arbitration, or a “final offer” system, adopted widely in the public sector and similar to what was employed in the 1992 railway dispute.
Any arbitrator with authority to bind the parties should be required to submit a draft of their award privately to the parties, so that negotiations can take place after the parties’ submissions and subsequent to receipt of the draft.
The arbitrator can use the opportunity between the draft award and a final binding award to get it right. This is in contrast to this year’s emergency board that got it wrong.
In his 2023 State of the Union Address, Biden should present proposals to revise emergency procedures in both the Railway Labor Act and the NLRA. Both statutes cover industries—longshore, rail, and trucking—where nationwide strikes and lockouts are simply unacceptable and where the status quo can produce unfairness.
Part of the reform initiative should include a mandate to expedite all aspects of dispute resolution procedures while the current contract remains in effect. Bargaining over the new contract should be finished before the old one expires or in that date’s immediate aftermath.
Law reform, however subordinate to other considerations in the union organizing arena, cannot provide a magically intoned formula in any circumstance. But law is relevant and the country needs better procedures than we have today.
This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.
William B. Gould IV, a former chairman of the National Labor Relations Board, is the Charles A. Beardsley Professor of Law, Emeritus, at Stanford Law School.