What Congress could do to avoid a rail strike — and why unions are upset

On Monday evening, President Joe Biden urged Congress to end the risk of a potential rail strike that could bring US commerce to a halt, by forcing labor unions to accept an agreement the administration helped negotiate.

“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,” Biden said in a statement.

The Biden administration averted a rail strike in September by brokering a deal that increased worker pay, but that failed to address concerns on-call workers have about paid sick days. Now, four of the 12 rail unions involved in contract ratification discussions are pushing for more negotiations. Those four unions — which represent 55 percent of the rail workers affected by an agreement — have rejected the deal because it doesn’t offer the paid sick time they’ve asked for. Currently, rail workers do not receive any paid sick days and have to use vacation time instead.

Eight unions have supported the agreement, which also contained a 24 percent pay increase over five years and one additional personal day. But all 12 of the unions — which cover more than 115,000 workers — would participate in the event of a strike since they’re unlikely to cross each other’s picket lines.

Biden is pushing Congress to act quickly, as the deadline to reach an agreement is December 9 — and he doesn’t think negotiations are headed toward a settlement. If the unions and the railroads don’t reach a deal by then, any possible strike would likely interrupt the availability of goods and services, and be devastating for the US economy. Such a stoppage could cost the economy up to $1 billion in its first week, according to Anderson Economic Group.

Biden’s demand only addressed one way that Congress could respond, however. Lawmakers could agree to Biden’s request — which Speaker Nancy Pelosi has already indicated she plans to do — and require the unions to accept the existing agreement. They could also add provisions to the agreement that include paid sick time for workers, or extend unions’ negotiating time.

Biden argued that any modifications to the existing agreement could lead to dangerous delays and has pressed lawmakers to simply approve the agreement as is. Biden has claimed that a strike would hurt workers throughout the economy, and that railroad workers need to forego their fight for sick leave because of the harms a work stoppage could cause. In the process of doing so, he seemingly sent a contradictory message to workers who he, and his party, have often claimed to support. “A call to Congress to act immediately to pass legislation that adopts tentative agreements that exclude paid sick leave ignores the Railroad Workers’ concerns,” the Brotherhood of Maintenance of Way Employees, one of the four unions that has voted down the deal, wrote in a statement.

Congress’s role in curtailing rail strikes, briefly explained

Normally, Congress can’t end a strike or become too involved in private industry labor disputes. But because the US supply chain and economy are so dependent on rail, the Railway Labor Act was passed in 1926 to give Congress the authority to curtail strikes and resolve them if they do happen.

It hasn’t used this power frequently, and the most recent application of it was roughly 30 years ago, when Congress acted to end a rail strike in 1992. At the time, Congress lawmakers passed a resolution setting up an arbitration system to address disputes between workers and the railroads.

The Railway Labor Act gives lawmakers a lot of leeway over how they could approach the current situation.

“Given that they have the power to force a settlement, I don’t think there are any limits on that,” says Cliff Winston, an economic policy expert at Brookings.

In practice, they could require the unions and carriers to accept the September agreement as is, an option Biden, and business leaders, are advocating for. They could impose additional conditions of their own, including the requirement of paid sick time, taking workers’ reason for striking off the table. They could extend the existing cooling-off period so both sides have more time to negotiate. Or they could turn the talks over to independent arbitrators who would be tasked with finding a resolution.

Any resolution would need the support of 60 members in the Senate, including 10 Republicans. Getting that backing, ultimately, could limit which option lawmakers decide to take.

Sen. Bernie Sanders (I-VT) has emphatically said that congressional action should not omit paid sick time.

“If the rail industry can afford to spend $25.5 billion this year to buy back its own stock and hand out huge dividends to its wealthy shareholders, please do not tell me it cannot afford to guarantee paid sick days to its workers and provide them with a decent quality of life,” he wrote in a post last week. Sen. Marco Rubio (R-FL), too, has spoken out about finding a deal that incorporates more worker demands.

Previously, though, Republican Sens. Richard Burr (NC) and Roger Wicker (MS), pushed a resolution that would force workers to adhere to the contract without changes. And Pelosi has already said that the House will vote on legislation this Wednesday that would push workers to accept the existing contract.

“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,” she said in a statement. “It is my hope that this necessary, strike-averting legislation will earn a strongly bipartisan vote, giving America’s families confidence in our commitment to protecting their financial futures.”

While the outcome is more uncertain in the Senate, enough members of the GOP could join with Democrats to pass the House bill, despite the opposition in both parties.

Democrats’ push muddles their message to workers

In his statement urging congressional action, Biden referred to himself as a “proud pro-labor president.” While past stances, like his support for policy like the pro-union Pro Act, support that, his current request seems to contradict it. Rather than call for congressional action more broadly, he specifically asked for lawmakers to push for the existing agreement, which omits key demands from labor.

“Labor may not like it, but there’s too much of a political cost to him for it to not be worked out,” says Winston.

Biden’s efforts seem aimed at ensuring Democrats don’t get blamed for any shocks that could result from a rail strike, during an already tenuous time when the country is on edge about inflation and supply chain problems. In his statement, Biden focused heavily on how significant the economic fallout would be if there is no resolution to this standoff. More than 750,000 people could be out of work during the strike, and transportation of food, fuel, and other commodities could come to a standstill, he noted.

It’s a move that has frustrated some union members, who argue that Biden’s request ignores key gaps that haven’t yet been addressed.

“Passing legislation that excludes paid sick leave won’t address rail service issues. Rather, it will worsen supply chain issues and further sicken, infuriate, and disenfranchise Railroad Workers as they continue shouldering the burdens of the railroads’ mismanagement,” wrote the Brotherhood of Maintenance of Way Employees.

The potential strike has left Democrats in a difficult situation politically, with each course of action likely to upset some supporters. Ultimately, Biden said in his statement, concerns about the impact of a strike pushed him to call for a swift resolution in spite of labor’s opposition to congressional action.