Re: The Tentative Agreements

I’ve frequently observed that railroad freight labor contract negotiations are the most politicized collective bargaining regime in the private sector. What do I mean by that? First, there is the structured processes of the Railway Labor Act, which provide for an executive branch agency, the National Mediation Board (NMB), with members appointed by the President and confirmed by the Senate. With only the rarest of exceptions, the NMB controls the pace and timing of collective bargaining, with the ability to delay or advance the end of mandatory mediation. That is a critical piece of the RLA ‘map’. The actual terrain of battle is more complex.

Who appoints the NMB matters, as does just who sits on that Board. Who the President appoints to a Presidential Emergency Board (or even if one is to be appointed at all) matters, as does who controls the House and Senate. (And, of course, in the long run, the make-up of the courts, appointed and confirmed in political processes, matters as well.) 

Freight rail management has demonstrated a long-term refusal to engage in serious give-and-take bargaining with the organized workforce. Instead, they have sought political fixes to their labor relations, and it has worked so well that they refuse to depart from a system which they have frequently managed to their benefit. For example, they used political mechanisms to relieve the railroads of their collective bargaining agreements with their employees, in the course of undertaking the mega-mergers that resulted in today’s monopolistic carriers. So, too, with bargaining over changes to agreements. By judicially enforcing participation in multi-employer bargaining, the major railroads’ single representative (National Carriers Conference Committee of the NRLC) deals with all of the unions, on the same timeline. Then, the NMB has virtually non-court-reviewable authority to control the pace of bargaining, by controlling the timing of termination of mandatory mediation; only then can the ‘released’ parties move towards self-help (strike, lockout, or imposition of the employers’ final offer.) 

Because the threat of a total railroad shut-down has national implications, Congress has sometimes legislated, at endgame. Most recently, back in 1991, they passed legislation that, when signed by the President, imposed a Presidential Emergency Board’s (PEB) formally non-binding recommendations for settlement as the new “agreements” between the carriers and their employees, and prohibiting further ‘self-help’. 

So, having some elected and appointed friends sitting at veto points in Washington, DC can make all the difference in the world to railroad workers. Who appoints the NMB matters, as does just who sits on that Board. Who the President appoints to an Emergency Board (or even if one is to be appointed at all) matters, as does who controls the House and Senate. (And, of course, in the long run, the make-up of the courts, appointed and confirmed in political processes, matters as well.)

My first encounter with a PEB was in 1991, PEB 219. The railroads cut train crew size, extracted massive rules concessions without paying for them, instituted health insurance cost-sharing, and enforced wage rates that failed to keep up with inflation, all by persuading the Congress and President G.H.W. Bush to impose PEB 219’s report as the new terms of employment, ending a short national strike. 

Understanding that a national transportation emergency was the predicate for a legislated resolution, we refused to shut down the entire country in 1992 (PEBs 220, 221, 222), limiting picketing to CSX. The railroads weren’t having it. They ceased operations nation-wide, locking-out the unionized workforce, including the employees who were already living under the imposed terms of PEB 219. They created a national emergency to force Congress’ hand.  There was some grumbling, but they got their way: Congress mandated “baseball” last-best-offer interest arbitration of the open disputes, and an end to the lock-out.

In the ensuing years, no nation-wide shutdown has occurred, but the view that the end game in national handling would lead from release by the National Mediation Board to a PEB and then imposition by Congress became a commonly held belief. Of course, that is not what is in the statute, and there is no reason to enshrine a process that management has manipulated to its benefit, as the inevitable result of a big-table impasse.

Let’s catch up with the current round, commencing before the 2020 elections. Trump was demonstrably an enemy of labor. His Federal Railroad Administration chief Ron Batory pretty explicitly said he was there to serve railroad management (per a talk given at RailTrends). The agency killed two-person crew rule making at the state level and declared that the topic is federally preempted; that is, the states could not legislate or regulate on the subject matter. Trump’s administration demonstrated that they are not the sort of people we would want shaping our collective bargaining outcomes!

When bargaining began, while Trump was in office, the railroads served aggressive demands: single-person train crews, work rule concessions for the non-ops, wage erosion, no back pay (contrary to customary expectations. Remember, these talks get dragged on for years…). I saw the carriers’ demands as an attempt to do a rerun of the film of 1991: cut train crews and extract devastating concessions across the board for free, all with the political connivance of the Republicans then in power.

But, the best laid plans, etc. Joe Biden won!

The railroads didn’t get their way. They complained that a release was premature, when the Democratic-majority NMB pressed for serious bargaining, then proffered voluntary arbitration, the start of the count-down to a PEB and possible self-help. This is exactly what the railroads didn’t want, as it would mean an endpoint while the Republicans control neither the White House (and its administrative agency appointees), or the Congress.

Biden appointed an Emergency Board, as provided for in the Railway Labor Act. PEBs were meant to involve distinguished persons, reporting on who is being unreasonable, in order to apply public pressure on the recalcitrant party. But they have evolved into something like ad-hoc interest arbitrations, although that is not their intended role under the Act. The RLA provides for voluntary interest arbitration, not mandatory litigation of wages and rules, decided by a panel of arbitrators.

This PEB 250 was pro labor. It didn’t go quite far enough on wages and kicked the can down the road on attendance policy reform. But having failed to play out the process in a boss-friendly political moment in Washington, the carriers totally failed to advance their agenda. To top it off, the Secretary of Labor and even the President himself leaned on the employers to address the operating crafts’ non-monetary concerns. So: tentative agreements averted a major transportation/supply chain disruption.

They care nothing for their workers, and, ironically, don’t give a damn about the shippers that they promised to service when they sought support for their mega-mergers. It is symptomatic of finance-driven late capitalism.

Score sheet: Unions got their friends to drag the railroads, kicking and screaming, to the bargaining table. Carriers got bupkis. Workers didn’t get everything they deserve, but made real gains WHILE DODGING THE MASSIVE CONCESSIONS THAT WOULD HAVE RESULTED IF THE RAILROADS WOULD HAVE DELAYED THE PROCESS LONG ENOUGH TO HAVE REPUBLICANS SITTING AT THE VETO POINTS.

This is a huge win. It is time to say “Yes!’, ratify, and celebrate!

But. (There is always a but!) The abusive nature of the railroads has so inflamed worker sentiments that there is a real desire to strike, to get more. The carriers are essentially monopolies that are seeking monopoly rents. They care nothing for their workers, and, ironically, don’t give a damn about the shippers that they promised to service when they sought support for their mega-mergers. It is symptomatic of finance-driven late capitalism.

I’ve led successful strikes, but I’ve also seen my wife replaced by scabs, in a lost strike in the early 1980’s. Strikes are valuable weapons in our arsenal. To be successful, they need to be part of a strategy grounded in concrete analysis of concrete conditions. Done right, they should be based on extensive planning, including structure tests to build and assess member support, participation, and resolve. If mishandled, they can lead to a panic and rout. Strikes are not to be trifled with. You deploy powerful weapons carefully.

So, if the ratifications fail, and we’re out on strike: What happens on Day 2? Day 3? What is the plan? Not to blow off steam, but to move the needle, back at the bargaining table? Will Congress get involved? If so, with a split Senate what mischief will the friends of the bosses play? Does resolution get pushed back to 2023?

We don’t know. I don’t want to find out.

Right now, there are some people urging a ‘no’ vote on ratification. Internet revolutionaries that have never organized a worker or actually led a successful strike manage to show up, play on members’ anger and frustration, and call for rejection and strike. But they offer nothing but magical thinking in how that might translate to a better deal. Check it out: One sect is openly seeking the destruction of the unions, to be replaced by non-existent “rank-and-file committees”. Another website urges a ‘no’ vote. Their agenda? Agnostic on who to support in the 2016 and 2020 elections, saying there was no real difference between the parties, they are promoting yet another dead-end third-party effort. They are offended that Biden acted to prevent a strike. Of course he did! The threat of a strike applies pressure for a deal, and a deal makes a strike unnecessary. 

Who else wants you to vote ‘no’? Industry pundit Frank Wilner has been bellyaching that the NMB released the parties too soon, before the November election. (Yes, Frank, we screwed up the carriers’ plan!) In his Railway Age column, he features remarks of Mark Mix, president of the National Right to Work Committee, that long-time enemy of the organized labor movement. Mix opines that, even if the tentative agreements are rejected by the membership, the union leaderships may impose it anyway. How touching, that he would suddenly show up, just now, to fan rank-and-file suspicions. No, they don’t come out and say ‘vote no’, but they clearly relish the disruption failed ratifications could cause.

These people have their own agendas. The ultra”left” winds up in an unholy alignment with the ultra-right and the bosses. When people tell you who they are, believe them…

Take the win. Ratify. A system that can be manipulated by the railroads to allow them to avoid serious give-and-take bargaining and, if the political winds blow their way, to transfer wealth from the workforce to their bloated coffers is not one that should go unchallenged. That is a heavy lift that should be, must be addressed. But a strike, now, won’t advance the ball, and runs the risk that the rail bosses will get a do-over.

You won. You deserve it, and more. And think about thinking strategically: how best to approach the next round? First identify the sources of the problem. Then, consider how we might work to reform a system that the railroads have held onto for decades because they often got politicians to give them labor concessions, concessions they can’t win at the bargaining table. You don’t have to be an elected officer to think about the big picture!

In Solidarity – Bill Bon

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