TIPP: Congress railroads into a labor dispute


Two houses of Congress on Thursday did something unprecedented in nearly 30 years. They voted to impose a tentative September agreement between rail companies and 12 independent rail worker unions, although four leagues had rejected its terms, using brute power, Nancy Pelosi style. Worse, the Senate vote, 80-15, to suppress workers’ collective bargaining rights codified into law for generations was even more lopsided.

The imminent rail workers’ strike or lockout threatened to disrupt the holiday shopping season or add to inflationary woes, given that over 30% of the nation’s goods are moved by rail. The workers and railroad companies had been locked in tense negotiations for months – to no avail.

Under The Railway Labor Act, enacted in 1926, the president has the power to intervene in disputes that “threaten substantially to interrupt interstate commerce to a degree such as to deprive any section of the country of essential transportation service.” According to the New York Times, Congress has stepped in 18 times to avert a work stoppage, most recently in the 1990s.

But just because Congress can intervene does not mean it should. President Biden joined many Democrats who claim they are pro-labor and expressed reluctance to force an agreement down workers’ throats.

“I know that many in Congress shared my reluctance to override the union ratification procedures,” President Biden said. “But in this case, the consequences of a shutdown were just too great for working families all across the country. And, the agreement will raise workers’ wages by 24%, increase health care benefits, and preserve two-person crews.”

Threats of labor strikes are nothing new. Over 41 years ago, members of the Professional Air Traffic Controllers Organization (PATCO) were picketing for better pay and working conditions when about 13,000 walked off the job. President Ronald Reagan gave them an ultimatum to return to work or threatened they would be fired. The workers called Reagan’s bluff, and on Aug 5, 1981, the Reagan administration fired 11,345 striking air traffic controllers who had ignored the order and banned them from federal service for life.

It was an extraordinary exercise of presidential power and is still debated in law school classrooms as a case study that suppressed labor unions and the middle class. But what Reagan did then was entirely within his power. The people whose jobs he terminated were federal employees, and the president is the ultimate authority in the U.S. government’s executive branch.

Yet, for forty years, Democrats exploited the politics of his decision and steadily moved to embrace the Labor vote. What gave the Democrats additional political fuel was that PATCO had endorsed Reagan in the 1980 elections, and Democrats cleverly portrayed Reagan’s action as a prime example of betrayal.

What Congress did this week was much broader and hurtful to the principles of fairness. As a third party, Congress injected itself into a labor dispute and decided that one party should win over another. Under our Constitution, this job belongs to the third branch of government, the independent judiciary, which alone has the power to choose winners and losers based on existing laws.

We do not like strikes or lockouts any more than the average person. But the ability to withhold labor as leverage during tense negotiations is a fundamental right of unions. Workers refuse to show up, and companies stand to lose revenue, profits, and customers. The essence of all labor agreements is when both sides push their arguments to the full, and then, as work stoppage becomes truly imminent, they back down and negotiate.

Peter Kennedy, director of strategic coordination and research at Brotherhood of Maintenance of Way Employees, said in an interview with ABC News that Congress took “away our ability to strike more or less. We don’t want to lose that ability because the only way we can get paid sick days is by withholding our labor.”

The unions were demanding 14 days of paid sick leave. The House passed a separate bill granting them seven days. This bill failed to attract 60 votes in the Senate and collapsed.

Despite good intentions, Congress needlessly intervened in a private dispute between two parties – and by passing a law, hopelessly handicapped one party. The four unions must sue to have the law overturned. They indeed have standing, and if labor precedent applies, they can win.



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