Big Business Asks And Nancy Pelosi Delivers
Will The Senate Follow Suit?
On Monday, some 400 state and national trade groups publicly petitioned the Congress to enact legislation that would avert a nationwide rail strike. On Tuesday, Nancy Pelosi, the outgoing Speaker of the House of Representatives, happily announced her intent to answer the call.
On Wednesday, the lame-duck House of Representatives delivered, passing legislation that would force the rail unions to accept a previously rejected proposal.
The U.S. House moved urgently to head off the looming nationwide rail strike on Wednesday, passing a bill that would bind companies and workers to a proposed settlement that was reached in September but rejected by some of the 12 unions involved.
The measure passed by a vote of 290-137 and now heads to the Senate. If approved there, it will be signed by President Joe Biden, who urged the Senate to act swiftly.
And just like that, in the space of just a few days, the Congress is on the cusp of once again suspending the rights of rail workers to strike in furtherance of their contractual demands and expectations.
The House legislation essentially rolls everything back to the eleventh-hour proposed agreement the White House and the Department of Transportation brokered between the rail unions and the railroads.
As a consolation prize, the House also passed a measure that would amend the already-rejected September agreement by increasing the number of paid sick days from 1 to 7.
House Speaker Nancy Pelosi responded to that concern by adding a second vote Wednesday that would add seven days of paid sick leave per year for rail workers covered under the agreement. However, it will take effect only if the Senate goes along and passes both measures. The House passed the sick leave measure as well, but by a much narrower margin, 221-207, as Republicans overwhelmingly opposed it, indicating that prospects for passage of the add-on are slim in the evenly divided Senate.
The legislation now moves to the Senate, with several Senators having already adopted stances critical of both the September agreement and the House legislation.
Florida Republican Marco Rubio has reiterated his opposition to government intervention.
Vermont Independent (but allied with the Democrats) Bernie Sanders has been condemning the railroads themselves for their “greed”.
Separately, Sanders has argued that the cost of sick leave to the railroads is merely a fraction of their recent profits, and so should be a very reasonable “ask” by the unions.
(Side note: I have not vetted the factual accuracy of this assertion.)
Yet the disturbing aspect of this legislation is not whether there is or is not an adequate number of paid sick days for rail workers, or even if businesses should offer paid sick days at all. Those are inherently contractual issues that the entire approach of collective barganing between unions and corporations is intended to resolve.
What is disturbing about the House legislation is that it once again deprives rail workers of the same rights other unionized groups enjoy.
Workers in this country enjoy an absolute First Amendment right to peaceably assemble—and the picket line of a strike is undeniably a peaceable assembly (at least conceptually).
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Additionally, the National Labor Relations Act (29 U.S.C. §§151-169) has for decades explicitly guaranteed workers a right to strike. The right is included among the “concerted activities” protected in Section 7 of the Act, covering the rights of employees.
Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 158(a)(3) of this title.
Section 13 of the Act addresses strikes specifically.
Nothing in this subchapter, except as specifically provided for herein, shall be construed so as either to interfere with or impede or diminish in any way the right to strike, or to affect the limitations or qualifications on that right.
There can be no question but that the rail workers, should they ever opt to strike, are well within their rights to do so. Until, that is, the Congress takes that right away from them specifically.
This is not the first time Congress has acted to intervene in railroad-labor relations. In fact, it’s the 19th. The last time a strike was specifically addressed by Congress was in 1992, to end a three day strike.
It is no exaggeration to say that no one wants to see the rail unions out on strike. However, given that striking is specifically expressed in and protected by the National Labor Relations Act, which does not exempt the railroads from its coverage, is not the very essence of the Fourteenth Amendment’s “equal protection of the laws” that no group should be treated differently? How, then, can Congress justify treating rail workers differently, arbitrarily reducing their rights in this fashion?
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