US Labour Law and the Right to Strike Lance Compa (bio) The prospect of a nationwide rail strike in late 2022 focused attention on a rarely-used legal mechanism infringing workers' right to strike in the United States. Invoking an "emergency" clause in the specialised labour law governing collective bargaining in the railroad industry, the Biden administration and Congress imposed a legislated collective agreement in December that blocked unions from freely negotiating an agreement, and using strike leverage to achieve it. The imposed agreement was not back-to-work legislation breaking a strike, but a pre-emptive move to prevent a strike from happening. It was the first time in more than 30 years that Congress imposed an agreement on national rail unions and employers, and only the sixth time since passage of the Railway Labor Act in 1926 (more numerous interventions addressed local bargaining disputes, often in commuter rail transit systems). In a coordinated communications offensive, railroad employers and business associations had warned throughout 2022 of "disastrous," "devastating," "catastrophic" and other doomsday effects on the nation's economy if railroad workers struck. Many in the media, the academy, think tanks, and the political class parroted these claims. A herd mentality took shape, bellowing that "the Administration and Congress must act!" to avert a strike. And so they did1. The structure of labour relations in the American railroad industry is an important backdrop to the 2022 story. After mergers and acquisitions, what were a dozen rail freight companies thirty years ago are now just four major carriers. Each is the single dominant force in a major geographic region of the United States. Empowered by this oligopolistic structure, rail freight employers moved to drastic cost-cutting. By not replacing workers who retired, they reduced the size of the workforce from 200,000 to 125,000 in the past decade. And they imposed intense work systems to extract more productivity from those who remained. Corporate profits and shareholders' return on investment surged to record levels. Railroads are the most highly-unionised industry in the United States, with virtually all non-management workers represented by unions. In the freight sector, the four major carriers bargain as a group with a coalition of twelve unions for a master contract to standardise pay and conditions. Each of the unions represents traditional "craft or class" employees in all the companies – locomotive engineers, conductors and brakemen, dispatchers, maintenance-of-way employees, communications employees, electricians, machinists and others. The key issue in 2022 negotiations was not pay or benefits. It was time – the issue at the heart of labour-management conflict since the earliest days of trade unionism. When does the employer control workers' time? And when do workers control their own time? Although railroad workers were first to win the 8-hour day, US law does not prohibit employers from imposing mandatory overtime, compulsory work schedules, and other demands on workers' time. In rail negotiations in 2022, a key issue was employers' practice of forcing workers to use vacation time for sickness and for medical appointments related to sickness. On top of that, employers adopted what they termed Precision Scheduled Railroading (PSR), a kind of "just-intime" scheduling system requiring mandatory irregular work shifts and increased workloads. The PSR system allowed no leeway for workers to deal with medical issues, and left no other staff in position to fill in for sick or injured workers. Employers enforced the PSR system with harsh disciplinary action against workers who ran afoul of attendance requirements, even if absences were due to illness. Workers and their unions sought a modest number of paid sick days to cover such events. They wanted to stop using vacation time for sick pay, and to avert absenteeism "points" leading to discipline or discharge. They also sought limits on scheduling abuses that had them working for long stretches beyond the normal work week, often far from their families. But for rail freight management, controlling workers' time and maintaining their cut-to-the-bone scheduling system were key to continued high profits2. In mid-November, in tripartite talks brokered by the Secretary of Labor, employers and unions tentatively agreed on a contract that would have...
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