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How Biden Can Undo His Damage to Labor

He didn’t give rail workers paid leave in legislation. But he can still do it through an executive order.

Biden leaves the Roosevelt Room
Chip Somodevilla/Getty Images
Biden leaves the Roosevelt Room of the White House after signing bipartisan legislation averting a rail workers’ strike on December 2.

After pledging to 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 Congress 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 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 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 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, 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.

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 without 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. “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 and labor allies said that Biden betrayed organized labor even as he warned that a rail strike could devastate the economy and cause up to 765,000 workers, 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; 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 unionsout of the 12that 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 in July that the Railroad Unemployment Insurance Act, 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, that 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 last 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 and increasing childcare subsidies for 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.