President Biden today signed an executive order to create a presidential emergency board (PEB) under the Railway Labor Act to help resolve the ongoing labor dispute in the freight-rail sector. The PEB will be established officially on Monday, and it will be composed of three members, appointed by the president.
Biden was expected to make this move, as about 125,000 rail workers would have been permitted to go on strike on Monday had he not done so. The announcement of the PEB comes amid numerous transportation-sector strikes around the world.
The Railway Labor Act gives the president power to appoint a PEB if the National Mediation Board, an independent federal agency, determines that the labor dispute “threatens substantially to interrupt interstate commerce to a degree such as to deprive any section of the country of essential transportation service.” Industry-wide labor action in freight rail certainly meets that standard.
Once the board is assembled on Monday, it will have 30 days to investigate the facts of the dispute and put together a report to the president. The report will contain non-binding recommendations on how to resolve the dispute. After the report is issued (which will almost certainly be on the 30th day), there will be a 30-day cooling-off period. During both the investigation phase and the cooling-off period, striking will not be permitted. If no agreement is reached after the cooling-off period, work stoppages are permitted. That puts the earliest possible strike/lockout date at September 16.
Unlike other industries, contracts under the Railway Labor Act do not expire on set dates. The negotiation process is open-ended by design. We got to this point with fixed deadlines because of the inability of labor and management to agree, combined with the actions of the Democratic majority on the National Mediation Board.
The NMB currently has two Democrats and one Republican. It has a long-established reputation for independence from the president and a cooperative approach to resolving labor disputes.
But in this year’s negotiations, in a two-to-one vote, it cut off mediation after only two months. “The NMB release from mediation is thus one of the shortest, if not the shortest, on record,” labor-relations expert Frank Wilner wrote in June when the decision was made.
Who are these Democratic NMB members? “One of the NMB’s two Democrats, Linda Puchala, is a former President of the Association of Flight Attendants, while the second Democrat, Deirdre Hamilton, is a former Teamsters Union attorney,” Wilner wrote. Two of the twelve unions covered under the labor agreement are affiliated with the Teamsters.
In an article for Railway Age, Wilner speculated that the Democratic members of the NMB were cozying up to organized labor with their decision to end mediation so soon. In the past, when a work stoppage occurs, Congress intervenes and resolves the dispute by legislation. By setting the date for a work stoppage at September 16, the logic goes, unions are guaranteed time before the midterm elections for the Democratic majorities in both houses of Congress to write them a favorable agreement. The unions put out a statement urging members to contact members of Congress and ask them for “labor-friendly legislation” to resolve the dispute.
That could mean entrenching inefficient and expensive practices in freight rail, such as mandating two-man crews and limiting automatic track inspection, that unions have wanted for years. All while being cheered on by Biden and his party in Congress, who claim to want to fix supply chains.
But this strategy has backfired for organized labor before, Wilner notes. In 1991, rail unions got their labor dispute before a Democratic-controlled Congress, but Ted Kennedy voted against labor in the Senate and the House passed a carrier-favorable bill by a vote of 400–5.
The difference then: a Republican at 1600 Pennsylvania Avenue. This time around, it’s the self-described “most pro-union president leading the most pro-union administration in American history.”