Schedule Set for Possible National Railroad Strike in Mid-September

Schedule Set for Possible National Railroad Strike in Mid-September

June 17, 2022  | Jeff Davis

U.S. freight railroads and their unions took steps this week to enter the final phase of their latest labor negotiation, setting a possible timetable where Congress might have to vote in mid-September to impose a settlement or else see the first nationwide railroad worker strike since 1992.

The Railway Labor Act of 1926 was enacted by Congress in order to avoid, wherever possible, railroad strikes that had the potential to paralyze the entire U.S. economy.  Airlines were added to RLA jurisdiction in 1936. Any industry not subject to the RLA is regulated by the National Labor Relations Act of 1935 (the “Wagner Act”), as substantially amended in 1947 by the Labor-Management Relations Act of 1947 (the “Taft-Hartley Act”).

It can be more difficult under the RLA to organize a union than it is under the NLRA, because the railroad industry was already heavily unionized when the RLA was written. But once a union is recognized under the RLA, it tends to do pretty well, because the RLA is designed to prevent railroad strikes or lockouts whenever possible, and if a strike is allowed to happen, it can be broader than if under the NLRA. (FWIW, Federal Express has always felt that it had a built-in competitive advantage over its rival United Parcel Service because UPS’s truckers were regulated under the NLRA but FedEx’s truckers were regulated under the RLA, and FedEx’s allies went so far as to break the US Senate in 1996 to keep that advantage.)

Railroad and airline labor disputes are recognized by the RLA as being so important that, if the first round of arbitration fails, the issue gets elevated directly to the President and Congress, which doesn’t happen in ordinary (NLRA) labor negotiations.

Contracts under the RLA never expire. At the end, they just “become amendable.”

Who is negotiating?

The five U.S. “Class I” freight railroads (BNSF, CXS, Kansas City Southern, Norfolk Southern, and Union Pacific, plus elements from the Illinois Central subdivision of Canadian National) have banded together as the “National Railway Labor Conference” to negotiate one big industry-wide contract with the unions (the same way that all the Hollywood studios band together to negotiate a contract with the actors union). They face two separate union negotiating groups, one representing about 80 percent of their workforce, the other representing the other 20 percent:

Negotiating as Coordinated Bargaining Coalition:
American Train Dispatchers Association
Brotherhood of Locomotive Engineers & Trainmen
Brotherhood of Railroad Signalmen
International Association of Machinists
International Brotherhood of Boilermakers
National Conference of Firemen & Oilers
International Brotherhood of Electrical Workers
Transport Workers Union of America
Transport Communications Union
Sheet Metal, Air, Rail, and Transportation Workers – Transport. Division
Negotiating as their own coalition:
Brotherhood of Maintenance of Way Employees
Sheet Metal, Air, Rail, and Transportation Workers – Mechanical Division

What is the scope of the talks?

The BMWE-SMART coalition has released the summaries of the May 18 offer from the railroads and their own May 18 counter. It shows that the two sides are pretty far apart on salaries, going retroactively back to 2020:

Pay Raise Proposals – May 2022
Effective Railroads Unions
July 1, 2020 2.0% 6.0%
July 1, 2021 2.0% 10.0%
July 1, 2022 4.0% 6.0%
July 1, 2023 3.0% 8.0%
July 1, 2024 3.0% 4.0%
plus COLAs

In addition, there are extensive discussions on health benefits, vacation time, and various work rules, including minimum crew sizes in a train, a discussion which the Biden Administration may try to remove from the purview of labor-management talks and instead mandate via a federal safety rulemaking.

Past and Future Timeline of Railroad Labor Negotiations

November 2019 – A coalition of railway labor unions begin talks on a new contract with the major railroads. These talks later get slowed by COVID.

June 17, 2021 – Two rail unions (BMWED and SMART-MD) request National Mediation Board mediation, which is granted.

December 7, 2021 – The U.S. Senate confirms Deidre Hamilton to be a National Mediation Board member.

January 24, 2022 – A coalition of the rest of the railroad unions announces that talks have stalled and asks the NMB to provide its mediation services in the dispute.

January 25, 2022 – Deidre Hamilton is sworn in as the third NMB member, officially switching the Board’s balance from 2 Republicans, 1 Democrat to 2 Democrats, 1 Republican.

February 23, 2022 – BMWED and SMART-MD request that the NMB end mediation and move on to the arbitration phase.

May 18, 2022 – The unions and the railroads exchange offers and are very far apart. “Super mediation” by the three NMB members, in person, is scheduled for May 24-26th.

June 2, 2022 – After the second full week of super mediation, the unions (both coalitions) claim that “the rail carriers will not bargain in good faith” and ask for mediation to end.

June 9, 2022 – After the third full week of super mediation, the unions (both coalitions) again  ask for mediation to end.

June 15, 2022 – The NMB agrees to end mediation and proffer arbitration of the talks between the Class I’s and the larger railroad union coalition and the BMWED/SMART-MD coalition.

June 16, 2022 – The unions do not accept the NMB’s proffer of arbitration by the 5 p.m. deadline.

June 17, 2022 – The Class I’s and the unions are formally released from mediation.

June 18, 2022 – The Railway Labor Act’s mandatory 30-day “cooling off period” begins, during which both strikes and lockouts are illegal.

July 18, 2022 – In the likely event that there is no deal, President Biden appoints a Presidential Emergency Board (PEB) to negotiate an end to the dispute. The PEB has 30 days to hear both sides and issue a report.

No later than August 17, 2022 – The PEB’s report starts a second 30-day “cooling off” period. Strikes and lockouts still illegal.

No later than September 15, 2022 – If there is no resolution, Congress will have to pass a law settling the labor dispute, or else labor unions will be free to strike the railroads, shutting them down, on September 16. Congressional action could extend the second cooling-off period (as in Public Law 99-385), mandate the PEB recommendations as being legally binding on both parties (as Public Law 99-431 did and as H.J.Res. 91, 112th Congress would have done if it had been enacted), impose a new and final arbitration process (as in Public Law 102-306), or create its own compromise.

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