By Jack Rasmus / CounterPunch
Probably the most important US labor event of 2022 has been the 115,000 US railroad workers and their unions attempt to bargain a new contract with the super profitable Railroad companies. As of December 2, 2022, however, that negotiations has not turned out well for the workers. The US government—the Biden administration and Democrat controlled US Congress with the help of virtually all the Republicans—have repeatedly intervened on the side of the management in the negotiations.
Beginning last September, that intervention has ensured that the workers would not be able to strike in order to advance their interests and demands. This past week both the administration and Congress have made a railroad strike illegal by passing legislation to that effect.
The right of workers to strike has been under attack at least since 1947 when Congress passed what was called the ‘Taft-Hartley’ Act that year. That legislation ensured that government and politicians reserved the right to force workers back to work for 90 days in the event contract negotiations failed and a strike was imminent. During a 90 day ‘cooling off’ period, as it was called, government mediators had the opportunity to join the negotiations, try to browbeat the parties to get them to settle, and to make a recommendation as to the terms of a settlement. During the ‘cooling off’ management of course also had 90 more days to prepare to prepare to defeat a strike once the 90 days was up.
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Taft-Hartley limited the right to strike in many other ways as well. It prohibited sympathy strikes by unions. That’s where unions go on strike to support workers in other unions already on strike. The 1947 law also required any union about to negotiate, and potentially later to strike, to notify the federal government and give it a ‘heads up’ of the pending bargaining and potential strike. A special government body, the Federal Mediation Service, was established to allow government direct intervention in negotiations thereafter if it so decided. Taft-Hartley also embedded in legislation prior anti-strike court decisions, including a Supreme Court decision prior to 1947 that ruled workers could no longer legally engage in what were successful ‘sit down’ strikes of the 1930s and early 1940s.
The 1947 Taft-Hartley Act and its many anti-Labor provisions was patterned after the earlier anti-union, anti-strike Railway Labor Act in 1926 that specifically targeted railroad workers and their unions. Railroad workers’ right to strike has thus been curtailed and denied even before it was for the rest of the US private sector work force by Taft-Hartley in 1947.
After 1926 and 1947 the right to strike was further curtailed by Congressional legislation and court action. Secondary boycotts (refusal to handle struck goods of another company) were outlawed. Courts would rule that union contract clauses in their agreements giving them the ‘right to strike over grievances’ were null and void if there was a grievance procedure spelled out in the union contract. Picketing at company gates in a strike were limited to just a few to each gate. If workers struck a company to force it to recognize the union and bargain, management could call for a government run union recognition election to end the strike and then drag out the union election process three to nine months in order to give the company time to stockpile inventory and make other preparations. Management could hire permanent replacements when union workers went on strike. Unions could no longer act in solidarity with workers in other unions by refusing to handle the goods shipped by the company and workers on strike (called ‘hot cargo’ prohibition). There are countless other measures limiting and preventing strikes by Congress, state legislatures and the Courts that have become law.
A veritable legal web has been built up around workers and unions in the past 75 years since Taft-Hartley tying their hands, making it difficult to strike; and if they do strike, often to face jail time, big fines, government take over of their unions, and workers’ loss of their jobs.
Railroad workers in the US have always been a prime target of government strike prevention. The Railway Labor Act in 1926 set the pattern that was taken up for the rest of the US labor force with Taft-Hartley in 1947 and the further US government anti-strike measures that have followed. The 1926 law has been used as the basis for the US government to ‘lower the boom’, as they say, on railroad workers’ and their unions no fewer than 18 times in the past. So no one should be surprised it has just done so for the 19th time in the current railroad industry dispute.
US capitalists and government political representatives know full well that the transport industry is strategic and US workers if they so decided could bring that entire industry, and the economy in general, to a halt by engaging in a protracted strike to advance their bargaining interests. There aren’t too many industries and workers with that kind of power. The railroad workers are one. The longshore port (dock) workers another. The Teamsters and over the road long haul truckers probably another. Possibly oil industry workers. Maybe sanitation workers if they had a nation wide contract. But none could bring the economy to a halt faster than the railroad workers.
Since 1980 the current US neoliberal capitalist regime in America has succeeded in breaking the back of the industrial unions that once had something of a nearly similar power—auto, steel, electrical, meatpacking, etc.—by relocating their operations offshore. The government has enabled that 40 year effort by providing offshoring companies additional tax incentives to relocate, by passing free trade agreements with foreign countries that allowed offshoring companies to ship their offshore produced goods back to sell in the US without having to pay tariffs at the border, and by deregulating banks and shadow banks and money capital flows to finance their relocation. That led to a breakup of what were once nation-wide bargaining contracts by industrial unions before 1980. A similar strategic undermining of the construction industry unions since 1980 gutted their bargaining power as well by government allowing construction companies to create what was called ‘double breasted’ operations that enabled the companies to de-unionize all but inner city union sites. Along with double breasted operations, supporting measures that limited picketing and made secondary boycotts illegal quickened the collapse of region-wide contracts in the construction industry in the US and broke the bargaining power of construction unions as well, along with the industrial unions.
What was left in the US economy by 2000 were service employees unions aggregated mostly in small local bargaining units with consequent limited bargaining power and public employee unions in government that couldn’t be offshored. The transport unions like railroad, longshore shipping at ports, and trucking which were still potentially powerful. But the Railway Labor Act (railroad unions) and Taft-Hartley (longshore and trucking) are there to prevent workers and their unions from exercising the potential power they have.
The US government and capitalists have thus over the years devised a very successful ‘web’ of no strike measures to tie down the Labor ‘Gulliver’, keep it flat on its back, and unable to move its arms or stand up for itself!
The current 2022 railroad negotiations and government intervention is but the latest example of joint corporate-government intervention in labor negotiations designed to prevent workers from striking.
That government intervention began last August 2022 when the government invoked the Railway Labor Act and intervened in the negotiations.
The railroad workers’ last raise was 2019 three years ago. They began borrowing months ago before their current contract expired July 1, 2022. By August they had agreed to a five year term new contract with the companies. In other words, they were already owed three years back raises for 2020, 2021, and 2022 effect on July 1 for those years. Apart from wages, however, remaining key issues in the negotiations as of August were paid leave, especially paid sick leave, which still does not exist in the industry. The workers demanded 15 paid sick leave days in a new contract. Railroad management and negotiators refused, saying workers could take their personal leave days or their accrued vacation a day at a time in lieu of sick leave.
But paid sick leave days was only the tip of the iceberg. Whenever they tried to take vacation days in lieu of sick leave railroad company management denied them the time off. And if workers called in sick and used a vacation day anyway, management disciplined them or issued them ‘demerits’ that added up eventually to discipline. What good is leave rights, whether paid or not, if it meant discipline (suspensions, demotions, reassignment of work, even discharges) when the leave was exercised?
Railroad management’s abuse of leave scheduling became especially acute during the Covid years. The railroad companies, like many other industries and companies, during Covid shutdowns lost many of their workers. Some estimates are as much as 30% of the railroad work force exited employment in 2020-21. That left the remaining 70% of workers to pick up the slack. That in turn meant they were required to work longer hours and excess overtime. Safety issues grew as a result of the overwork. Maintenance of the physical plant of the railroads also deteriorated exacerbating safety and health on the job. However, railroad management saw a nice rise in profits as their labor costs were reduced due to the 30% decline in the work force (and of course not having to give workers still on the job any raises for three years as well).
The shortage of supply of workers in the industry has contributed significantly to management refusing to allow leave time off, paid or not; or restricting the days when it could be used and how many consecutive days. Railroad workers were driven to work longer and denied time off when they needed. The companies argued it was a matter of ‘management rights’ rules and contract provisions the companies insisted gave them the right to determine, or limit, the use of any leave as they saw fit.
In short, the key issues in the recent railroad negotiations were not just back pay after three years of no raises. It was not just the need for 15 paid sick leave days where previously there were none. It was about the right to take days off when sick, or injured, or even for vacations and personal leave days!
What good is paid sick leave—or any time off whether paid or not—if you can’t take it? And if you do, legitimately ill, and you’re disciplined. Maybe even fired if you accumulate enough ‘demerits’!
This was the situation as the contracts for 12 railroad unions expired this past July. In August the unions and companies could still not reach an agreement. Management continued to insist they had total ‘managements right’ to schedule work and to deny leave—when sick or not—given the short labor supply in the industry. Managements rights was not negotiable, they argued. Corresponding workers’ right to reasonable paid leave and working conditions was not the issue, they further argued. The workers and unions begged to differ, of course.
In August the Biden administration invoked the Railway Labor Act and intervened in railroad union negotiations—for the 19th time. Biden appointed a PEB, a board of government bureaucrats, to review the negotiations and make compromise recommendations. While the Board deliberated for more than a month, into September, negotiations between railroad companies and the unions of course froze up. Why should the companies agree to anything in the interim until the government issued its report? In other words, government intervention stalled all progress in negotiations between the parties.
It got worse.
The Biden PEB issued its decision in September. That decision and its recommendation came down heavily on the side of the companies and their interests. It called for the companies to add just one additional ‘personal leave’ day. It said nothing about the scheduling problems and workers’ denied rights to take leaves. And as far as the unions’ 15 days of paid sick leave proposal was concerned, the PEB’s position was, to quote from page 86 of their report: “we are simply not in agreement that this sick leave proposal”…”is warranted or appropriate”! Of course, that closed the door, froze up the company’s position, and gave management support to refuse to discuss any paid sick leave concessions going forward—or any other union demand for that matter.
For all intents and purposes, after September railroad management viewed the US government’s PEB report and recommendations as the culmination and end of negotiations.
Like the announcement in August of the government intervention, the September PEB report ensured that any flexibility in the railroad companies position with regard to paid sick leave, scheduling of time off, or changing a managements rights clause to allow workers to take their accumulated leave without fear of reprisal was now completely gone. Management would now just sit behind the protection of the PEB report and refuse to make any further concessions.
Under the Railway Labor Act, negotiating parties had, after the PEB report, another 90 days with which to try to reach an agreement based on the PEB and government’s ‘compromise’ recommendations. Management of course liked the ‘compromise’: only one paid personal leave and no paid sick leave or scheduling practice changes. And, since the PEB said nothing about improvements to the companies’ health cost sharing proposals, it meant they could go ahead implementing a roughly $100/mo. increase in the workers’ share of monthly health insurance premiums—from less than $300/mo. under the old contract to $398/mo. at the end of the five year agreement.
Nor did the PEB make any further recommendations as to retroactive wage increases for the previous three years or for the remaining two years until the agreement. The total ‘wage package’—including back pay and annual bonuses—amounted to only 24% over five years. The backpay barely covered the inflation for the previous three years. And for 2023 and 2024 the new wage increases would be only 4% and 4.5%, respectively—likely much less than the forecasted inflation rates for those years to come.
However, this would not prevent president Biden, in a press conference on December 2, to brag the railroad workers would get a 45% wage increase that he, himself, was responsible for! Both claims of course blatantly false!
By late September the Biden administration had thus come down firmly on the side of the companies and against the unions and workers! Railroad management completely ‘froze up’ in the following 90 days and offered nothing new beyond the PEB’s paltry recommendation of one additional paid leave day (to be take either as a birthday off or additional one day of vacation).
As the 90th day grew closer and it was clear there’d be no deal and the workers’ might strike in the largest four unions (and others in turn would respect their picket lines), the politicians got nervous. In November the companies warned the government they would start shutting down some railroad traffic by the first weekend in December. Nancy Pelosi, Democrat Speaker of the House, publicly responded saying legislation would be drafted by the House to prevent a railroad strike and started the process. That of course froze up company negotiators even more. Why agree to anything more at the 11th hour of negotiations to get an agreement when it appeared the government would pass legislation to make a strike impossible and they’d be able to concede nothing more?
Again, as in August and September the government involvement made it less likely, even impossible, that the parties might reach an agreement. By preventing a strike the government was preventing progress in negotiations.
All union negotiators know that the threat of a possible strike at the 11th hour of bargaining often results in last minute concessions by management to avoid a strike. But if that threat of strike was removed by government intervention and the additional threat of no strike legislation, then the possibility of last minute concessions to avoid a strike no longer existed!
Biden, Pelosi, the Democrats and Congress in general were concerned, they said, that a rail strike would bring the slowing US economy to a halt and accelerate forward the likelihood of the recession being predicted for early 2023 by even most mainstream economists. In addition, a strike meant key resources for production and goods for consumers being in short supply. That would raise inflation at the same time. Biden’s various measures to control inflation in 2022 were proving a failure at dampening price increases much, especially for food, rent and fuel. And the Federal Reserve’s policy of raising interest rates throughout 2022 had yet to have much impact on inflation by December. These were the excuses given by the politicians for invoking anti-strike legislation.
In early December the US House, under Pelosi’s leadership, passed two pieces of legislation. One provided for making a strike illegal and essentially ordering both parties to accept the PEB recommendations. A second vote placated the unions by ordering the addition of 7 paid sick leave days to the recommendations.
But this second vote was a fraud. It was a measure the Democrats knew full well would never pass the US Senate where it required 60 votes. Even if it were voted on requiring only 51 votes to pass that was not going to happen either. Democrat Senate leader, Schumer, never tried to invoke the Senate rule that would have enabled only 51 votes. He knew no doubt that Manchin and Sinema, Democrat Senators, would vote against it. The second vote for 7 paid sick leave days thus predictably failed, while the first banning a strike passed the Democrat controlled Senate with a wide majority of Democrats and Republicans.
Not even able to get a paltry 7 paid sick leave days for railroad workers, which was passed in his Democrat controlled US House, when asked by reporters on December 2 what he proposed to do next, Biden replied: “We’re going to go back and get paid leave for all workers”!
By breaking out the two votes in the House—the one to ban the strike and the other to pass the 7 days leave—Pelosi and the Democrats engaged in a tactic that was similar to how, the year before in November 2021, they shot down and tabled their own Build Back Better spending bill. In that earlier case, breaking out infrastructure spending from the social programs in Build Back Better also resulted in the infrastructure part being passed and the rest of Biden’s Build Back Better proposals being shelved for good. If the social programs and infrastructure had remained in one bill both might have passed. The same legislative tactic was employed by Pelosi and the House in the case of the railroad negotiations votes this past week: The anti-strike first vote was voted up but the 7 paid leave days voted down. If the 7 days had been embedded in the strike ban first bill, it might well have passed and the railroad workers might have gotten their 7 paid leave days. Those who wanted the strike ban, who were in both parties, might have accepted the 7 paid leave days as a necessary measure in order to get their much preferred strike ban bill passed. But such are the ‘too clever’ maneuvers of politicians.
Going forward it is unlikely that the unions and workers will try to defy the strike ban legislation hanging over them like a sword of Damocles. If they struck, management and Congress would likely imposed fines on their unions that would break them financially for years to come. They might even declare any leader guilty of a felony if they allowed a strike, not to mention strikers themselves. They might even follow up by taking over the unions themselves. The Reagan PATCO precedent, and other lesser known precedents, exist for a government take over of unions. It’s called getting the Labor Department to put the unions in a kind of government ‘receivership’, appoint some bureaucrat to run the union for years, during which there’s no bargaining or striking whatsoever.
If the four railway unions who haven’t accepted the government’s September ‘deal’ decided to go on strike at this point nonetheless, the legal pressure would increase immensely to prevent the other 8 railroad unions to honor their picket lines. If that occurred, the strike could be lost.
Other AFL-CIO and independent unions like the Teamsters might also increase pressure on the striking railroad unions, arguing behind the scenes that a strike would only lead to possibly more stringent anti-union legislation—especially as the Republicans are set to take over the US House in January.
But other US unions should make no mistake: the events of the past six months show that there are no ‘friends of labor’ in either political party, in Congress, or the Biden government when ‘push comes to shove’ in critical union negotiations. International Longshore Workers Union, ILWU, on the west coast, now in negotiations themselves should especially beware. So too should the new leadership of the Teamsters union, which will undertake strategic negotiations with UPS Corp. next year.
We are in a period when the US ruling elites are willing to attack any challenge to their hegemony and power domestically, as well as internationally. As those elites prepare to take on global challengers of Russia and China, they will not hesitate as well to ensure firm control of class relations at home in the USA as well. The government’s recent intervention to deny railroad workers the right to strike is but the latest and most visible expression of the elites’ class war policy at home.