President Signs Bill Averting Rail Strike

President Signs Bill Averting Rail Strike

December 02, 2022  | Jeff Davis

President Biden has signed into law H. J. Res. 100, a resolution imposing a contract on the four railroad unions who had rejected the agreement reached in September 2022 between rail carriers and the rest of their unions. The law prevents a railroad strike/lockout that was otherwise on schedule to begin December 9.

The base bill, imposing the deal negotiated by Biden’s own Labor Secretary at an all-night White House meeting, was broadly popular, passing the House by a vote of 290 to 137 (with Democrats splitting 211 to 8 in favor and Republicans against by a 79 to 129 margin) and then passing the Senate by a vote of 80-15 (10 Republican “no,” 5 Democrat or D-aligned independent “no,” and 2 D and 2 R absentee), with Rand Paul voting “present.”

But progressive frustration with the terms of the deal almost derailed it after the Speaker decided to allow the House and Senate to vote and change the deal by adding a mandatory paid sick days for all railroad employees. That sidecar amendment passed the House by a narrow party-line vote of margin of 221 to 207. All 218 Democrats presented voted yes, and all but three Republicans present voted “no.” (The three GOP “yes” votes were Don Bacon (R-NE), Brian Fitzpatrick (R-PA), and John Katko (R-NY)). Then, it managed to pick up 6 of the 10 Republican votes it would need to be adopted by the Senate under expedited procedures. (Senators Mike Braun (R-IN), Ted Cruz (R-TX), Lindsey Graham (R-SC), Josh Hawley (R-MO), John Kennedy (R-LA), and Marco Rubio (R-FL) all voted to mandate the sick leave.)

But Joe Manchin (D-WV) voted with the rest of the Republicans, meaning that they were still 5 votes short of 60. Add absentees and the final vote was 52 yeas, 43 nays. (Earlier, the Senate voted down a Sullivan (R-AK) amendment to extend the railroad-union negotiations by another 2 months, which was rejected by a vote of 25 to 70.

The whole thing put Biden in an odd position. The deal in the base bill was one that he had cut himself through his labor Secretary and convinced the railroad CEOs and union leaders to take. It was based on the recommendations of the Emergency Board that Biden himself had appointed, which comprehensively rejected labor’s entire framing of the sick leave issue. 8 of the 12 unions did voted to take the deal. But once four of them did not, mostly by narrow margins, and once the midterm elections had passed, it was as if no one took the President as seriously as they had before the elections.

The White House released a strong Statement of Administration Policy in favor of the base bill without ever mentioning the option of adding sick days. After the House vote, Biden released a statement asking the Senate to vote as soon as possible: “The Senate must now act urgently.  Without the certainty of a final vote to avoid a shutdown this week, railroads will begin to halt the movement of critical materials like chemicals to clean our drinking water as soon as this weekend.  Let me say that again: without action this week, disruptions to our auto supply chains, our ability to move food to tables, and our ability to remove hazardous waste from gasoline refineries will begin. The Senate must move quickly and send a bill to my desk for my signature immediately.”

But, again, Biden’s statement made no mention of the sick leave amendment. The White House press secretary later said “The President believes that a bill averting a rail strike needs to reach his desk by this weekend…Of course, of course he supports paid sick leave for all Americans, including rail workers, but he does not support any bill or amendment that would delay getting that bill to his desk by this Saturday.” (See a long back-and-forth on this subject starting just after the 52 minute mark here.)

During his joint press conference with the President of France an hour before the Senate vote, Biden sounded almost Trumpian, saying “I negotiated a contract no one else could negotiate.  The only thing that was left out was whether or not it was paid leave. You know I’ve been trying to get paid leave not just for rail workers, for everybody.  But that other team — they’re called the Republicans — they voted against it.  They said we couldn’t do it…I think we’re going to get it done but not within this agreement — not within this agreement.  We’re going to avoid the rail strike, keep the rails running, keep things moving, and I’m going to go back and we’re going to get paid leave not just for rail workers but for all workers.”

And at the signing ceremony this morning, Biden said “we still have more work to do, in my view, in terms of ultimately getting paid sick leave not just for rail workers but for every worker in America.  That is a goal I had in the beginning, and I’m coming back at it.”

There was discussion in the progressive policy Twittersphere last night that progressives will now push for Biden to amend Executive Order 13706, which requires all federal contractors to provide employees with the opportunity to earn at least 7 paid sick days per year, so that EO 13706 also covers railroads, all of the Class I’s of which have some federal contracts somewhere. But the legality of such a move is far from certain. Even if this strike had not just been settled by law, it is not certain if the Railway Labor Act allows this kind of thing (railroads are exempt from an awful lot of labor law because the RLA was their first, just like railroads are exempt from Social Security because they had their own special federal retirement system there first). And even if the RLA itself is vague, the fact that Congress just passed, and Biden just signed, a special law specifically ordering the railroads and their unions to adopt a contract that does not have sick days would be weighed heavily in a court against some kind of distant Spending Clause hook for enforcement of an expanded Executive Order.)

(Ed.  Note: With this contract out of the way, it seems unlikely that there will be another rail labor negotiation that gets to this kind of endgame under the Biden Presidency. But the fact that industry struck a deal with President Biden that the leaders of Biden’s party in Congress then tried to overturn won’t soon go away. In the future, will the private sector trust that this White House will be able to get the deals it cuts through Congress, as-is, or will the agreement of Leaders Schumer and Jeffries also be required throughout the negotiating process in order to keep the final deal from being altered?)

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