With Bi-Partisan Support, The Senate Strips Rail Workers Of Their Right To Strike

In a vote that surprised exactly no one, the US Senate joined the House of Representatives in telling America’s rail workers they do not have a right to go on strike.

The Senate passed legislation Thursday to avoid an economically catastrophic rail strike, one day after the House approved the measure.

It now goes to President Joe Biden, who said he "will sign the bill into law." He had pleaded with Congress to act swiftly, warning of major harm to supply chains that could disrupt clean drinking water and gasoline in an already fragile economy.

As in the House, the legislation enjoyed support from both sides of the evenly split chamber. With 60 votes needed to overcome any filibuster attempt, the bill passed 80 to 15. A majority of Senate Republicans sided with the Democrats on the matter.

We must again note the speed with which all of this has transpired.

On Monday a slew of trade groups openly petitioned Congress to act.

US Trade Groups Want Congress To Legislate Away The Threat Of A Rail Strike

On Tuesday outgoing Speaker of the House Nancy Pelosi took up that call and with Senate Majority Leader Charles Schumer, committed the Congress to passing the requested legislation.

Congress Commits To Preventing A Railroad Strike

On Wednesday, Nancy Pelosi delivered on the House side.

Big Business Asks And Nancy Pelosi Delivers

Yesterday Charles Schumer delivered the Senate—both sides of it.

The Senate version, however, was not as kind to the rail workers as the House. Where the House had voted to amend the September contract to include 7 paid sick days (the unions had been seeking 15), that vote died in the Senate.

Another amendment, offered by Sen. Bernie Sanders (I-Vt.), was also rejected in a 52-43—it needed 60 votes—despite support from some Republicans, including Sens. Mike Braun (R-Ind.) and Marco Rubio (R-Fla.). The amendment would have added seven days of paid sick leave to the agreement, as the House did.

Sanders has been quite vocal about his support for the amendment in the House, and sought similar support in the Senate.

Bernie Sanders @SenSanders

Let me congratulate the 221 Members in the House for taking on the greed of the rail industry and voting to guarantee 7 paid sick days to every rail union worker in America. It is absolutely unacceptable that rail workers have ZERO paid sick days. The Senate must do the same.

For his part, Florida Republican Marco Rubio, remained one of the more outspoken critics of the current legislation just passed as well as of the September agreement.

Marco Rubio @marcorubio

The railroad fight is NOT just a typical industry vs. union dispute Union bosses & Biden sold out the workers to make a deal Tens of thousands of workers rejected their deal And now Biden & the union bosses want Congress to impose their deal on the workers

While the legislation just passed will no doubt prevent considerable pain and suffering in the US economy, as a nationwide rail strike would have been hugely damaging, there is also no doubt that this prevention comes at the cost of rail workers right to strike.

As I outlined yesterday, the right to strike is not only touched on by the First Amendment, but is explicitly protected by the National Labor Relations Act (29 U.S.C. §§151-169).

Today, for the 19th time, the Congress has established that such protection does not extend to rail unions.

Indeed, rail unions’ capacity to collectively bargain—something also protected by the NLRA—seems subject to Congressional whimsy. In passing its version, the House voted to amend the September agreement by adding 7 paid sick days. The Senate declined to give the unions even that much of a consolation prize.

Thus not only are rail workers being told they do not have a right to strike, Congress has taken it upon itself to tell the workers what will or will not be in their new contract.

In both the vote to gift 7 days of sick leave to rail workers and the vote to deny them that gift, both chambers of the Congress have told rail workers the government can and will rewrite—and thus potentially write—their labor contracts. Rail workers will get what the Congress deems in the “best interest” of the country, not what they can secure for themselves through a process of collective bargaining, policed on the labor end by the possibility and threat of a strike, and on the industry end by the possibility and threat of a lockout.

Whether the collective bargaining process is the ideal way for labor and management to reconcile their differences is not the issue here. Whether rail workers deserve paid sick days as part of their contract is ultimately not the issue either.

What is the issue is that the collective bargaining process is the process that is guaranteed by law for both sides. It is what is supposed to happen between labor and management. Aside from making sure there are no shenanigans or improprieties, the government is not supposed to put its thumb on the scale in either direction.

The undeniable macroeconomic benefit in the US of avoiding a nationwide rail strike is equally an undeniable placing of the government thumb on the scale, and in this instance on the management side of the scale.

Consider the implications: All any industry need do to supersede the guarantees of the NLRA is lobby the Congress to declare that industry of vital national importance, and then Congress can with abandon dictate terms of employment to that industry’s workers. As we have seen with the latest episode of Congressional interference in labor relations, it would not take long for this sequence to happen.

This is not to say that it will happen, but only that it could happen.

Which calls to our attention another important Amendment to the US Constitution, the Fourteenth (emphasis mine):

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The standard of the law is that it is meant to apply to all people equally. No one is to be above the law, but also no one is to be below the law.

Only by equality before the law can any of our civil liberties prevail. The moment the law treats people differently for whatever reason, those liberties are reduced to mere privileges, bequests doled out by an hopefully benificient government.

I am no fan of labor unions, and certainly no lover of big business combines. However, the rights of unionized workers are a reality enshrined in US law, and, like all rights, they must exist for all unionized workers or they exist for no unionized workers.

This week Congress has effectively told all unionized workers their rights of collective bargaining and, if necessary, striking, presumptively guaranteed by law, in truth do not exist except at the whimsy of the Congress.

That is not a positive message for the government of the United States to send anyone.