[He didn’t give rail workers paid leave in legislation. But he
can still do it through an executive order.]
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HOW BIDEN CAN UNDO HIS DAMAGE TO LABOR  
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Steven Greenhouse
December 8, 2022
The New Republic
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_ He didn’t give rail workers paid leave in legislation. But he can
still do it through an executive order. _

President Joe Biden signs H.J.Res.100, a bill that aims to avert a
freight rail strike, in the Roosevelt Room at the White House, Friday,
Dec. 2, 2022, in Washington., Manuel Balce Ceneta/AP

 

After pledging
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be the “most pro-union president leading the most pro-union
administration in American history,” Joe Biden disappointed and
angered many union members and labor leaders last week when he called
on
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to block a nationwide rail strike. But it’s not too late for Biden
to defuse that anger and win back union support. He can do that by
issuing an executive order that delivers on something the rail workers
badly need: paid sick days.

In 2015, President Obama issued an executive order
[[link removed]] that
guaranteed seven paid sick days a year to the employees of federal
contractors. But after heavy lobbying by the rail industry, Obama
excluded railroads from that order. Now, after the Senate voted not to
grant the rail workers paid sick days, those workers are urging
[[link removed]] President
Biden to issue a follow-on executive order that extends paid leave
protection to the nation’s freight rail workers. Biden owes them
that much.

The president should follow this course because providing paid sick
days is a basic, civilized, family-friendly thing to do; because
candidate Biden campaigned in support of paid sick days
[[link removed]] in
2020; and because the railroads, which are dominated by two operators
in the East and two in the West, have been making record profits and
can easily afford it. Since 2010, the freight rail companies have
spent $196 billion on stock buybacks and dividends
[[link removed]], some
years spending more than $20 billion on those efforts to enrich
shareholders. That dwarfs the $321 million per year it would cost to
provide rail workers seven paid sick days.
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Unions were right to expect that an avowedly pro-union
president—even as he sought to block a rail strike—would go to the
mat to make sure that freight rail workers receive paid sick days,
something that the freight rail companies refused to budge on in
contract talks. It’s outrageous that workers in hugely taxing jobs
in one of the nation’s most important industries—and a highly
profitable one—are not given paid sick days. (The United States
remains the only wealthy industrial nation
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a national law or rule that guarantees paid sick days.)

Biden acknowledged the omission last week when he signed the
legislation blocking the rail strike into law, using federal powers
under the 1926 Railway Labor Act. “I know this bill doesn’t have
paid sick leave,” he said
[[link removed]]. “But that fight
isn’t over. I didn’t commit we were going to stop, just because we
couldn’t get it in this bill, that we were going to stop fighting
for it.”

 

Still, the fact remains that Biden didn’t press to include paid sick
leave in the contracts that he and Congress imposed on the nation’s
115,000 freight rail workers. Some union members
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allies said
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Biden betrayed organized labor
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as he warned that a rail strike could devastate the economy and cause
up to 765,000 workers
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union and nonunion, to be laid off. To be clear, it was a lack of
Republican support for a bill granting rail workers paid sick
days that caused it to fail in the Senate
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the only Democratic senator who voted against paid leave was West
Virginia’s Joe Manchin. But a push from the president could have
made a difference.

If Biden does issue an executive order directing the railroads to
provide paid sick days, the freight rail companies and their corporate
allies will complain that it’s wrong for the president to give the
workers a benefit that the railroads didn’t agree to in contract
negotiations. They’ll say that shows a lack of respect for the
bargaining process.

But Biden can answer that the Railway Labor Act, passed during the
very conservative administration of President Calvin Coolidge, tilted
the collective bargaining process too far in favor of business and
against unions. The law greatly weakened rail unions by letting
Congress take away the strongest weapon in their arsenal: the ability
to strike. The railroads, knowing that any threatened strike would be
blocked, knew they wouldn’t have to agree to as many of the
unions’ demands, like paid sick days, as they would otherwise.

 

It’s understandable that some union members feel betrayed, but I
lose patience when I hear some union leaders and commentators equate
Biden’s move to block a rail strike with Ronald Reagan’s busting
the air controllers’ strike in 1981. Yes, both involve presidential
intervention against a union. But Reagan fired more than 11,000
striking controllers and decertified (that is, shut down) their union,
the Professional Air Traffic Controllers Organization, or Patco. He
then refused to let the Federal Aviation Administration rehire them
years later. Reagan’s response to the Patco strike was a colossally
anti-union move that greatly emboldened corporate America to take a
more hostile and aggressive stance toward unions. The repercussions
continue to be felt four decades later.

Biden, by contrast, was acting in accordance with those eight freight
rail unions—out of the 12—that ratified the tentative agreements
negotiated with Labor Secretary Marty Walsh’s assistance in
September. Those agreements called for a 24 percent raise over five
years and didn’t include management’s demand that the workers pay
far more for health coverage. They also made the workers’ hugely
taxing work schedules a bit easier, providing a personal day and
making it harder for the railroads to fire or otherwise penalize
workers because they had to take off for medical emergencies. Only
four unions’ rank and file voted to reject the contract (though,
granted, they represented 55 percent of the freight rail workers).

That Biden isn’t Ronald Reagan doesn’t let him off the hook. He
needs to follow up with an executive order extending paid leave to
rail workers. When he does, the railroads will surely sue, as they did
after California, Massachusetts, and Washington State mandated paid
sick days laws for almost all workers, including rail workers. The
lower courts ruled in the railroads’ favor, and when California
appealed, a federal court of appeals ruled
[[link removed]] in
July that the Railroad Unemployment Insurance Act
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a 1938 law, provided the “exclusive” source of sickness and
jobless benefits for railroad workers. But that ruling concerned
federal preemption of state law, not the contours of executive branch
power. Some rail union leaders have suggested, according to
a December 7 report in The Lever
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Secretary of Transportation Pete Buttigieg use his regulatory powers
to rule that the railroads’ strict attendance policies exhaust the
industry’s overstretched workforce to such a degree that those
policies undermine rail safety and that the railroads consequently
need to give their workers seven paid sick days. That’s worth a try
too.

 

Even if Biden or Buttigieg were to lose in court, Biden could call the
bluff of the six conservative Republican senators who, quite
unexpectedly, voted to extend rail workers’ jobless benefits and
invite them to help amend the 1938 law. Senators Ted Cruz, Marco
Rubio, Lindsey Graham, Josh Hawley, John Kennedy, and Mike Braun all
posed as friends of workers when they voted to back the paid sick days
legislation—knowing full well that it wouldn’t pass because so
many other GOP senators opposed it, preventing the legislation from
obtaining the 60 votes needed to overcome a filibuster. As Timothy
Noah noted here
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week, five of the six have lifetime AFL-CIO voting scores lower even
than the average for their fellow Senate Republicans. They have
opposed raising the minimum wage
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childcare subsidies
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working families, and not one of them will endorse proposed
legislation that would make it easier to unionize, when unions play
such an important role in lifting workers. If the six senators balked
at amending the Railroad Unemployment Insurance Act in order to
provide seven paid sick days, Biden could use his bully pulpit to show
what utter phonies they are.

Corporate America is forever preaching the importance of free market
principles and forever railing against presidents, Congress, and
federal regulators for interfering in the economy. But when the
nation’s freight rail unions threatened a strike, the U.S. Chamber
of Commerce and the rest of corporate America begged Biden and
Congress to please, please intervene in the economy and prevent a
strike. It’s so easy for business to jettison its free market
principles when it’s convenient.

There is one truth, an unfortunate one, that many union members have
not faced up to. The Railway Labor Act treats rail workers as
essential workers, much as other laws treat police and firefighters as
essential, and as a result, the law pretty much says that Congress is
never going to let rail workers strike because it’s too dangerous to
the economy. The railroads know they don’t have to make as many
concessions in bargaining as they might because they know their
workers won’t be able to use their strike weapon.

That’s another reason why President Biden, and future presidents,
need to do their best—working within the anti-union constraints of
the Railway Labor Act—to secure rail workers a fair deal. In
pre–Railway Labor Act days, Woodrow Wilson moved to avert a rail
strike by giving the workers what they wanted: an eight-hour day. It
would be great if Congress were to amend the Railway Labor Act to make
it fairer to workers. Unfortunately, the filibuster makes that
unlikely for the foreseeable future.

President Biden upset many union members when he did what he felt he
had to do to protect an economy that might be on the brink of
recession: block a nationwide rail strike. But by issuing an executive
order guaranteeing rail workers seven paid sick days, he can still
show that he means it when he says he’s the most pro-union president
ever.

_STEVEN GREENHOUSE, a senior fellow at the Century Foundation, covered
labor for The New York Times for 19 years and is the author
of Beaten Down, Worked Up: The Past, Present, and Future of American
Labor._

_Your donation to the Fund for THE NEW REPUBLIC provides the
resources we need to produce hard-hitting investigative features,
sustain our cultural coverage, and publish the best writers in
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* railroad workers
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* paid sick days
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* Joe Biden
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* Railway Labor Act
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