How Biden Can Undo His Damage to Labor
After pledging to be the “most pro-union president leading the most pro-union administration in American history,” Joe Biden disappointed and angered many union members and labor leaders last week when he called on Congress to block a nationwide rail strike. But it’s not too late for Biden to defuse that anger and win back union support. He can do that by issuing an executive order that delivers on something the rail workers badly need: paid sick days.
In 2015, President Obama issued an executive order that guaranteed seven paid sick days a year to the employees of federal contractors. But after heavy lobbying by the rail industry, Obama excluded railroads from that order. Now, after the Senate voted not to grant the rail workers paid sick days, those workers are urging President Biden to issue a follow-on executive order that extends paid leave protection to the nation’s freight rail workers. Biden owes them that much.
Biden acknowledged the omission last week when he signed the legislation blocking the rail strike into law, using federal powers under the 1926 Railway Labor Act. “I know this bill doesn’t have paid sick leave,” he said. “But that fight isn’t over. I didn’t commit we were going to stop, just because we couldn’t get it in this bill, that we were going to stop fighting for it.”
If Biden does issue an executive order directing the railroads to provide paid sick days, the freight rail companies and their corporate allies will complain that it’s wrong for the president to give the workers a benefit that the railroads didn’t agree to in contract negotiations. They’ll say that shows a lack of respect for the bargaining process.
But Biden can answer that the Railway Labor Act, passed during the very conservative administration of President Calvin Coolidge, tilted the collective bargaining process too far in favor of business and against unions. The law greatly weakened rail unions by letting Congress take away the strongest weapon in their arsenal: the ability to strike. The railroads, knowing that any threatened strike would be blocked, knew they wouldn’t have to agree to as many of the unions’ demands, like paid sick days, as they would otherwise.
Biden, by contrast, was acting in accordance with those eight freight rail unions—out of the 12—that ratified the tentative agreements negotiated with Labor Secretary Marty Walsh’s assistance in September. Those agreements called for a 24 percent raise over five years and didn’t include management’s demand that the workers pay far more for health coverage. They also made the workers’ hugely taxing work schedules a bit easier, providing a personal day and making it harder for the railroads to fire or otherwise penalize workers because they had to take off for medical emergencies. Only four unions’ rank and file voted to reject the contract (though, granted, they represented 55 percent of the freight rail workers).
That Biden isn’t Ronald Reagan doesn’t let him off the hook. He needs to follow up with an executive order extending paid leave to rail workers. When he does, the railroads will surely sue, as they did after California, Massachusetts, and Washington State mandated paid sick days laws for almost all workers, including rail workers. The lower courts ruled in the railroads’ favor, and when California appealed, a federal court of appeals ruled in July that the Railroad Unemployment Insurance Act, a 1938 law, provided the “exclusive” source of sickness and jobless benefits for railroad workers. But that ruling concerned federal preemption of state law, not the contours of executive branch power. Some rail union leaders have suggested, according to a December 7 report in The Lever, that Secretary of Transportation Pete Buttigieg use his regulatory powers to rule that the railroads’ strict attendance policies exhaust the industry’s overstretched workforce to such a degree that those policies undermine rail safety and that the railroads consequently need to give their workers seven paid sick days. That’s worth a try too.
Corporate America is forever preaching the importance of free market principles and forever railing against presidents, Congress, and federal regulators for interfering in the economy. But when the nation’s freight rail unions threatened a strike, the U.S. Chamber of Commerce and the rest of corporate America begged Biden and Congress to please, please intervene in the economy and prevent a strike. It’s so easy for business to jettison its free market principles when it’s convenient.
There is one truth, an unfortunate one, that many union members have not faced up to. The Railway Labor Act treats rail workers as essential workers, much as other laws treat police and firefighters as essential, and as a result, the law pretty much says that Congress is never going to let rail workers strike because it’s too dangerous to the economy. The railroads know they don’t have to make as many concessions in bargaining as they might because they know their workers won’t be able to use their strike weapon.
President Biden upset many union members when he did what he felt he had to do to protect an economy that might be on the brink of recession: block a nationwide rail strike. But by issuing an executive order guaranteeing rail workers seven paid sick days, he can still show that he means it when he says he’s the most pro-union president ever.
Steven Greenhouse, a senior fellow at the Century Foundation, covered labor for The New York Times for 19 years and is the author of Beaten Down, Worked Up: The Past, Present, and Future of American Labor.
Your donation to the Fund for The New Republic provides the resources we need to produce hard-hitting investigative features, sustain our cultural coverage, and publish the best writers in American journalism.
We can’t do this without you. To donate or subscribe please visit: https://newrepublic.com/