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Railroad Companies Almost Inflicted an Economic Disaster on the U.S.

All because they chose profits over humane working policies. What this fight is really about: the persistent difficulty some large corporations have in understanding that their workers are human beings, and not just one more piece of machinery.

If you were planning to spend Thursday stocking up on toilet paper in advance of a seemingly imminent freight-railroad strike or lockout, you woke up to welcome news. President Joe Biden has announced a tentative agreement to avert the disruption and the body blow it would have caused the economy and our supply chains. The deal isn’t final—workers will soon vote on it—but, nonetheless, it’s a relief following a week of headlines warning about the potential of $2 billion a day in economic loss, including disruptions to passenger trains, grain shipmentscarmakers, and refiners.

What was missing from these headlines? The actual reason for the conflict between railroad workers and their employers. The potential strike or lockout was not because of any dispute over pay, but because of inhumane attendance policies that currently mean railroad engineers and conductors are either working or “on call” 90 percent of the time. When they’re on call, they can be summoned to work on two hours’ notice or less, and then may be away from home for days at a time. Workers report that they have no sick days, paid or unpaid. If they have to take time off unexpectedly, even because of illness, they lose points in a convoluted, points-based attendance system. That means workers are at risk of being disciplined or fired for getting sick, going to a doctor’s appointment or a family funeral, or for any other absence that can’t be planned far in advance.

As railroad worker Hugh Sawyer told the American Prospect, this meant that on his 65th birthday this year, he got home at 7:30 in the morning after working 12 hours the day before, slept for five hours, and then spent the day refreshing his computer to see if he was being called back to work. Another worker, describing the onerous requirements for scheduling off-time in advance, wrote on Facebook, “How do you schedule a funeral in October if it’s only February?” He also noted that he gets 30 days fully off for the entire year, no weekends. And the wife of an engineer told Vice, “They go to work sick, they miss funerals of loved ones, they miss final goodbyes to parents on hospice, they miss holidays, birthdays, all of it.”

As the unions put it in a statement on Sunday, “these policies are destroying the lives of our members.” The unions initially pushed for paid sick leave, but later sought only unpaid sick leave. Yes, really: They’ve had to fight in order not to be punished for taking unexpected, urgently needed unpaid sick leave. It appears that the tentative agreement between the parties would address these attendance and leave policies by creating “voluntary assigned days off,” granting one additional paid day off, allowing workers to attend medical appointments without penalty, and creating exemptions from attendance policies for hospitalizations and surgeries.

It should not be controversial to say it, but: People should have sick leave so they do not have to come to work when they get sick. They should be able to take leave to attend doctors’ appointments or deal with family emergencies without risking their jobs. Workers should also have regular time off, not be on call almost every day of their lives. This strike or lockout was threatened because of the railroad companies’ refusal, right up until the last minute, to accept these basic human needs, and their willingness to bring an already weary country to the brink of yet another economic disaster, all in the name of ever more profits.

The United States, unlike many countries, does not have a national law guaranteeing sick leave; if we did, the railroads’ attendance systems would be clearly illegal. The kind of point-based attendance systems that railroads employ can still be considered unlawful retaliation if workers lose points for taking leave that is legally protected, such as for absences guaranteed by the Family and Medical Leave Act, the Americans with Disabilities Act, or state or local sick-leave laws. Apart from questions of legality, it is grossly irresponsible to punish people for unexpected illnesses ever, and especially during a pandemic.

The fact that the threat of a strike or lockout came as Americans’ approval for unions is at a record high and midterm elections are around the corner makes it tempting to speculate about the railroads’ motivations. Were they betting the unions would ultimately fold (an unwise wager since workers will vote on any ultimate agreement)? Have companies been engaged in a four-dimensional chess attempt to tamp down national pro-union sentiment by demonstrating their power over the railroad workers’ union? By announcing that certain shipments would stop even before any strike was announced, were they trying to pressure Congress to force the workers to fold? Did they want to harm Democrats’ chances in the midterms?

But the likely reason the companies held out on more humane scheduling and leave policies is more obvious: The status quo is more profitable. Rail companies reported record profits in 2021. Part of this results from recent decisions to drastically reduce staffing: During the past few years rail companies have cut their workforce by about 29 percent, or 45,000 jobs. They’ve also long been pressing to shift from two-person to one-person crews on certain routes, a move which a recent Transportation Department proposed rule would likely curb if enacted.

Meanwhile, one of the rail companies, BNSF, reported a net income of nearly $6 billion in 2021. It’s owned by Berkshire Hathaway, the multinational conglomerate whose chairman and CEO is Warren Buffett, one of the world’s wealthiest men. Company stock buybacks, even just this year, have added to shareholders’ wealth. These companies are making, in technical terms, a gazillion boatloads of money. Their financial viability cannot possibly rest on such a slender thread that disaster would ensue if workers could take unpaid leave without penalty for unexpected medical and family issues.

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This is not how American businesses should be run. If the only way a company can operate is to penalize or ultimately fire someone for taking their kid to an emergency room, that’s a major operational failing. That’s not appropriate for companies of any kind—even the most nonessential ones, much less in an industry so central to our economy. If staffing is too thin to allow for humane working conditions, that’s a liability to address, not an asset to drill down on. In fact, hundreds of railroad workers have already quit because of the harsh attendance policies, exacerbating existing challenges. The answer to current staffing shortages isn’t digging in on bad policies that are already driving experienced people out. It’s fixing the problem.

Perhaps the railroad companies had backed themselves into a corner, extracting profits over the past several years through progressively leaner—and ultimately unsustainable—staffing levels, making it difficult to implement humane working conditions in the short term. To the extent this may be the case, there’s not even any sign that the companies acknowledge, as a general matter, that there’s anything wrong with the current system. Until last night, there was no public sign that they’d offered any concessions, not even some warped, dystopic, split-the-baby option like: Your attendance record takes a hit if the hospital trip is for your sick child, but not for your own personal heart attack.

While it’s a relief in the short term that there will not be a strike or lockout, the current situation, created by the rail companies, already affects all of us. Overworking people or making them work while sick is just plain dangerous. It’s not good for anybody if the engineers operating trains carrying explosive hazardous materials show up to work dragging their feet and seriously ill because they’ll be penalized or fired if they don’t.

In the end, railroad companies are highly complex operations with extremely sophisticated logistics. It’s not plausible that it’s an unsolvable challenge for them to find a way for workers to take unpaid unscheduled leave for urgent reasons without penalizing them, which is perhaps why they ultimately made concessions. Maybe it was hard for companies to look Biden and Labor Secretary Marty Walsh in the face and say they just couldn’t figure it out.

Meanwhile, as we breathe a sigh of relief that there will not be a strike or lockout on Friday, we should remember what this fight is really about: the persistent difficulty some large corporations have in understanding that their workers are human beings, and not just one more piece of machinery

[Terri Gerstein is director of the Project on State and Local Enforcement at Harvard Law School’s Labor and Worklife Program.

Jenny Hunter is a labor lawyer, writer, and consultant who lives in D.C.]