How a railroad labor dispute ended up in Congress' lap

Congress has spent the week caught up in a bitter contract dispute between freight railroads and their unions. At President Joe Biden's request, lawmakers imposed contract terms on workers to head off a strike that threatened to ravage the economy.

The president, who often touts his pro-union credentials, said he acted after concluding there was no chance the two sides would reach an agreement on their own, alienating some of his supporters in organized labor who wanted a better deal for the rail workers.

It's a situation Congress has rarely found itself in, at least in recent decades. Here's a look at how we got here.

Three years and counting

The previous round of contracts between a dozen labor unions and freight railroad operators ran out in 2019 and the sides have been engaged in on-again, off-again negotiations for the past two years. Things came to a head this fall when the Biden administration stepped up its involvement in hopes of brokering a deal that would run through 2024.

Biden announced on Sept. 15 that a tentative deal was struck, following a marathon bargaining session at the Labor Department’s headquarters in D.C. But the agreement needed to be ratified by the membership of each individual union, and four of the 12 ultimately voted it down, citing its shortcomings on paid leave and other work conditions they object to.

Those rejections raised the prospect of workers going on strike, and a stoppage by any one union would halt the entire freight rail system as none of the other unions would continue to work across another’s picket line. A strike would reverberate throughout the economy, with shipments of everything from consumer staples to chemicals for clean drinking water halted. The railroad industry has estimated that a strike would cost the country $2 billion per day, in addition.

What’s made sick leave the paramount issue

The biggest sticking point in negotiations has been paid sick leave, which most rail workers don’t get in the traditional sense. Railroads argue that their paid leave is generous — up to five weeks a year — and if workers are out sick for a week or more, they can get partial pay for their absence.

But workers point out that those benefits don’t help if you wake up with Covid or the flu, or your kid has an ear infection and needs to go to the doctor because they can’t get paid leave without advance notice. In those cases, workers can “mark off” that they won’t be available to work that day — but they won’t get paid, and they could get disciplined for missing work without advance notice.

Rail operators have taken a firm line against widely expanding this type of unscheduled time off, in part because of the emergence of “precision-scheduled railroading,” an approach that has dramatically reshaped how freight rail operates in search of maximizing efficiency. Making matters worse, railroads have shed about a third of their workforce over the past six years to cut costs. Some workers have complained that railroads have cut staffing so sharply that time off is difficult to get approved, and they fear retaliation if they try.

Why can Congress intervene

Labor law works differently for railroad workers, who are covered by a 1926 law called the Railway Labor Act. (Airlines were later included in this law as well.) The law established an intentionally long and elaborate process of national mediation and arbitration, as well as “cooling-off periods” at many points along the way to encourage the two sides to come to an agreement given the crucial role railroads — and now, airlines — play in the economy.

Yet, it’s not the RLA but the commerce clause of the Constitution that gives Congress the authority to intervene to prevent a strike. Congress can pass a law to impose the recommendations of presidentially appointed arbitrators, contract agreements that have been rejected by workers or anything else they like.

How have things played out previously

Though labor negotiations in this sector are often fractious, they have rarely fallen into Congress’ lap in recent decades.

The most comparable recent example came two decades ago when rail workers went on strike and Congress brought it to an end within a day.

But congressional intervention was more frequent earlier in the 20th century and has occurred 18 previous times since the law’s inception.