President Biden Signs H.J. Res. 100 Into Law (Updated 3:45 p.m ET, Dec. 2)Written by Frank N. Wilner, Capitol Hill Contributing Editor
There will not be a rail strike Dec. 9, and unionized rail workers will not gain from Congress an unfunded mandate of seven railroad-paid sick days annually. President Joe Biden signed H.J. Res. 100, the House- and Senate-passed resolution imposing the Tentative Agreement resulting from Presidential Emergency Board 250, into law on Dec. 2.
Although the House on Nov. 30 passed two resolutions (H.J. Res. 100 and H.Con. Res. 119) to impose on four balking rail unions the Tentative Agreement accepted by eight others, and to amend that Tentative Agreement to include seven days of paid sick leave (that unions couldn’t gain in collective bargaining), the Senate on Dec. 1 agreed only to impose the Tentative Agreement.
The Senate also defeated—by a 69-26 vote—an amendment offered by Sen. Dan Sullivan (R-Alaska) to extend the status quo (no strike, no lockout) another 60 days and send the parties back to the negotiating table.
The House-passed paid sick leave resolution was defeated by not achieving a 60-vote threshold to avoid a filibuster. It attracted only 52 affirmative votes and 43 “nays.” The lone Democrat voting “no” was Joe Manchin of West Virginia. Six Republicans—Mike Braun of Indiana, Ted Cruz of Texas, Lindsay Graham of South Carolina, Josh Hawley of Missouri, John Kennedy of Louisiana and Marco Rubio of Florida—voted in favor.
The House-passed resolution to impose the Tentative Agreement was approved by a 80-15 vote.
now goes to the White House where President Biden said he will sign it into law.
Nov. 30 Reporting
By a 290-137 vote, the House of Representatives Nov. 30 passed a resolution (H.J. Res. 100, downloadable below) to head-off a threatened rail work stoppage Dec. 9 by imposing on railroads and their 12 labor unions a Tentative Agreement amending wages, benefits and work rules. There were 79 Republicans voting “yes” and eight Democrats voting “no.” The eight Democrats were Judy Chu, Mark DeSaulnier and Norma Torres of California; Jared Golden of Maine; Donald Norcross of New Jersey; Mary Peltola of Alaska; Mark Pocan of Wisconsin; and Rashida Tlaib of Michigan.
A second resolution (H. Con. Res. 119, reproduced below), amending the Tentative Agreement by adding seven days of paid sick leave, passed by a vote of 221-207. This second resolution gives labor and management 30 days to agree on contract language implementing the seven days of paid sick leave, with failure to agree on implementation requiring binding arbitration superintended by the National Mediation Board (NMB). There were three Republicans voting “yes”—Don Bacon of Nebraska, Brian Fitzpatrick of Pennsylvania and John Katko of New York—and 0 Democrats voting “no.”
Both House-passed resolutions—with resolutions having the same effect as legislation, and each applying to most Class I railroads and their 12 labor unions—now proceed to the Senate where passage will be trickier, owing to that chamber’s unique parliamentary rules.
Collective bargaining between the National Carriers Conference Committee (NCCC), which represents railroads, and the 12 rail labor unions began in January 2020. Under provisions of the Railway Labor Act, railroad wage, benefits and work rules contracts never expire, but are periodically amended.
Failure to reach an agreement through collective bargaining—even with mediation assistance of the NMB—led to creation of a Presidential Emergency Board (PEB) that made non-binding settlement recommendations. Those recommendations resulted in carrier-provided sweeteners to their previous offers and acceptance by eight of the 12 unions. The failure of four unions to ratify the Tentative Agreement triggered a strike deadline of Dec. 9 and the current congressional attempt to prevent such an economy-jolting nationwide rail shutdown from occurring.
Initially, and at the urging of President Joe Biden, House Speaker Nancy Pelosi advanced only H.J. 100, which was limited to imposing legislatively the Tentative Agreement, with no changes, as if it had been ratified by all 12 unions. Many House Republicans indicated their support.
But on the evening before a scheduled House vote on H.J. Res. 100, Pelosi created a significant new wrinkle that embraces what previously was seen as a Hail Mary by Sen. Bernie Sanders (I-Vt.). That second resolution is strongly opposed by House Republicans, explaining the wide margin of victory for H.J. Res. 100 (including 79 Republican “yes” votes) and the slim margin of victory for H. Con. Res. 119 (the paid sick leave provision, gaining only three Republican “yes” votes).
In the Senate, Majority Leader Chuck Schumer (D-N.Y.) will seek “unanimous consent” (UC) to send the two separate House-passed resolutions to the Senate floor for vote, where each will need only 51 votes for passage. In fact, passage needs zero Republican votes if all 50 Democrats vote “yes” and Vice President Kamala Harris casts the 51st vote in her role as President of the Senate. Some Republican “yes” votes are expected.
Significant is that if any senator objects to UC, Schumer must file what is known as a “cloture petition,” requiring 30 hours of debate and one intervening day, at the end of which there must be 60 votes (out of 100 senators) to advance the House-passed resolutions to the Senate floor for a vote (again, requiring just 51 votes for passage). The rub is whether 10 Republican votes can be found to reach cloture on the paid sick leave resolution.
Another rub is that having to go through the cloture process for even one of the House-passed resolutions will extend Senate action throughout the weekend and perhaps into next week, sending a signal to those shippers who have rail alternatives that a rail shutdown is possible within a few days, and that they should begin diverting traffic to truck.
Passage by the House of the paid sick leave resolution should now satisfy Sen. Bernie Sanders (I-Vt.) who had threatened to object to UC in the absence of a paid sick leave provision.
Sen. Marco Rubio (R-Fla.), however, may object to UC on both resolutions, as he was quoted Nov. 29 that he would oppose congressional attempts at preemptively preventing a work stoppage. Rubio has been bloviating of late that Republicans should make greater effort to attract union members to the GOP. Whether having a paid sick leave provision as part of the Senate floor-vote process quiets Rubio remains to be seen. Of course, 98 other senators have the potential to object and force the delay as cloture is sought.
Based on estimates by the PEB of what a 15-day paid sick leave provision (which the PEB rejected) would cost railroads, the seven-day provision would be equivalent to a 3.3% additional wage increase, or more than $340 million annually. Railroads would seek to recover most of that additional cost from captive shippers.
The Senate is expected to pass H.J. Res. 100 heading off the railroad work stoppage. If the Senate also passes H. Con. Res. 119, adding paid sick leave to the Tentative Agreement, there are several reasons why.
- Many Republican Senators agree with Democrats that American workers are entitled to paid sick leave. The Department of Labor’s Bureau of Labor Statistics report that 75% on non-agriculture private second workers already have paid sick leave.
- A railroad assertion that the unionized workforce already has paid vacation and personal leave days—even though such absences require advance permission, while illness arrives randomly—is flimsy.
- Sleep medicine experts are in agreement that going to work tired is equivalent to going to work drunk, and that going to work sick (so as to avoid lost paydays) can be equally dangerous for rail workers with safety responsibilities. The Economist magazine, for example, recently reported that “Being even mildly sick can impair brain function as much as high altitude. It is difficult to exercise proper judgment if one cannot focus on the task at hand.”
- There is broad agreement that railroads have been earning substantial profits evidenced by stock buybacks and dividend boosts and can well afford the sweetener.
- Republicans and Democrats can each use the vote favoring paid sick leave to bolster their standing with labor. In fact, the big political loser may be President Biden, who has been left to eat Nancy Pelosi’s dust as she takes her own victory lap, no matter the result of House and Senate vote. What will be remembered is that Biden opted for less than Pelosi.
A bottom line is that if the Senate follows the House lead and grants unionized rail workers paid sick leave, it will be a major blow to the image of the Association of American Railroads (AAR), whose lobbying abilities have been celebrated for generations. Already, cracks have appeared in the AAR’s ability to hold back undesired economic regulatory edicts from the Surface Transportation Board (STB), while the Federal Railroad Administration (FRA) is poised to impose a minimum crew size requirement over AAR objections.
Key takeaways from the Nov. 30 House debate on the two resolutions:
- House Speaker Pelosi: “Going to a proctologist is not a reason why people would take a day off.”
- House Rail Subcommittee senior Republican Rick Crawford of Arkansas attributed Pelosi’s second resolution granting paid sick leave to her inability otherwise to “get votes on her side of the aisle” for H.J. Res. 100.
- House Transportation & Infrastructure Committee senior Republican Sam Graves of Missouri called Pelosi’s second resolution on paid sick leave “a political stunt. Who needs a National Mediation Board and Presidential Emergency Board when one side or both sides can skip actual bargaining” and seek from Congress what they can’t otherwise achieve?
- House Rail Subcommittee Chairperson Donald M. Payne Jr. of New Jersey took the floor to announce that Transportation & Infrastructure Chairperson Peter DeFazio (D-Ore) was absent because he was taking “a paid sick day.” Payne observed that all railroad management enjoys paid sick leave as does all Democratic and Republican staff.
Pelosi: “Dear Democratic Colleague“ Memo
“As you know, President Biden has called on Congress to take action to protect the economic security of America’s working families and avert a devastating nationwide rail strike,” Speaker Pelosi said in her late-Nov. 29 memo to House Democrats. “Tomorrow [Nov. 30], the House will take up urgent and necessary legislation to that end: adopting the Tentative Agreement reached after months of hard-fought negotiations.
“Democrats know that the middle class is the backbone of our Democracy—and the middle class has a union label on it. Proudly, we have long stood with the hard-working railroaders in their fight against greedy railroad corporations for fairer wages, benefits and working conditions. And it is outrageous that every developed country in the world has paid sick leave, yet America does not.
“It is with great reluctance that we must now move to bypass the standard ratification process for the Tentative Agreement. However, we must act to prevent a catastrophic strike that would touch the lives of nearly every family: erasing hundreds of thousands of jobs, including union jobs; keeping food and medicine off the shelves; and stopping small businesses from getting their goods to market.
“After hearing from our Members, we are in agreement that a nationwide rail strike must be prevented—and that more must be done to secure the paid sick leave that hard-working railroaders deserve. Therefore, we will proceed with the following procedure on the Floor tomorrow:
“First, we will consider the strike-averting legislation to adopt the Tentative Agreement, as negotiated by the railroad companies and labor leaders. Next, we will have a separate, up-or-down vote to add seven days of paid sick leave for railroaders to the Tentative Agreement. Then, we will send this package to the Senate, which will then go directly to President Biden for signature.
“It is my hope that we will have a strong, bipartisan vote to support our legislation—which will give America’s families and businesses confidence in our economy this holiday season. Thank you for your strong commitment to safeguarding the financial future of our families and our nation.”
AAR RESPONSE: “A WHOLLY FALSE PREMISE”
Following Pelosi’s announcement that the House would take up new legislation the AAR describes as “separate from a bill to implement the neutrally arbitrated agreements already ratified by the majority of unions,” AAR President and CEO Ian Jefferies late on Nov. 29 issued the following statement:
“Just last night, President Biden spoke clearly on the appropriate need for Congress to implement the agreements already ratified by eight of the twelve unions, which represent a clear pattern. Doing so was never anti-worker; in fact, it would reward all rail workers with historic deals—particularly those who already ratified—as well as the millions of workers across the economy who would suffer from a rail strike.”
“Now, after the Speaker stated publicly this is the most prudent path, the House is considering a new measure to the equation based on the wholly false premise that rail employees do not get paid sick leave. The ramifications of approving such a measure would disincentivize future voluntary agreements for freight railroads, Amtrak and airlines if a party in bargaining believes it can obtain a better deal from Congress than it could through good faith negotiations and the statutory PEB process under the Railway Labor Act. This ignores more than 100 years of precedent and clearly usurps longstanding bargaining procedures.”
AAR stressed a “few points for lawmakers and the public to understand”:
- “Every single union gets some form of paid sick leave. The terms of these sickness benefits are the product of multiple rounds of collective bargaining in addition to extended paid sickness benefits not enjoyed by employees in any other industry.
- “These benefits are no accident—they are the result of decades of collective bargaining in which unions have repeatedly agreed that time off for shorter illnesses may be unpaid in favor of higher compensation and more generous long-term sickness benefits. Rail employees are in the top 7% of U.S. wage earners.
- “Most rail workers are scheduled employees who work predictable schedules and have ample paid time off. On average, workers have three weeks of vacation and up to 14 days of holidays and personal leave days. More-senior employees receive up to five weeks of vacation for a total of up to seven weeks paid leave.
- “The Presidential Emergency Board (PEB) took concerns about paid leave into account when they released the very generous recommendations on which the tentative agreements are based.”
“Now is not the time for Congress to put its thumb on the scale and selectively add to labor contracts, including agreements already ratified by employees, created through a multi-year process,” Jefferies concluded. “It is in direct conflict with the President’s statement, and the Speaker and Congress must think of the long-term implications of such actions. A vote for terms above and beyond those recommended by the PEB, agreed to at the bargaining table, and ratified by a majority of the unions and voting employees, would upend the time-tested bargaining process in rail and other industries.”
BIDEN’S ORIGINAL STATEMENT
“I am calling on Congress to pass legislation immediately to adopt the Tentative Agreement between railroad workers and operators—without any modifications or delay–to avert a potentially crippling national rail shutdown,” Biden said in a Nov. 28 White House-issued statement. “This agreement was approved by labor and management negotiators in September. On the day that it was announced, labor leaders, business leaders and elected officials all hailed it as a fair resolution of the dispute between the hard-working men and women of the rail freight unions and the companies in that industry.
“The deal provides a historic 24% pay raise for rail workers. It provides improved health care benefits. And it provides the ability of operating craft workers to take unscheduled leave for medical needs. Since that time, the majority of the unions in the industry have voted to approve the deal.
“During the ratification votes, the Secretaries of Labor, Agriculture and Transportation have been in regular touch with labor leaders and management. They believe that there is no path to resolve the dispute at the bargaining table and have recommended that we seek Congressional action.
“Let me be clear: A rail shutdown would devastate our economy. Without freight rail, many U.S. industries would shut down. My economic advisors report that as many as 765,000 Americans—many union workers themselves—could be put out of work in the first two weeks alone. Communities could lose access to chemicals necessary to ensure clean drinking water. Farms and ranches across the country could be unable to feed their livestock.
“As a proud pro-labor President, I am reluctant to override the ratification procedures and the views of those who voted against the agreement. But in this case—where the economic impact of a shutdown would hurt millions of other working people and families—I believe Congress must use its powers to adopt this deal.
“Some in Congress want to modify the deal to either improve it for labor or for management. However well-intentioned, any changes would risk delay and a debilitating shutdown. The agreement was reached in good faith by both sides.
“I share workers’ concern about the inability to take leave to recover from illness or care for a sick family member. No one should have to choose between their job and their health—or the health of their children. I have pressed legislation and proposals to advance the cause of paid leave in my two years in office and will continue to do so. Every other developed country in the world has such protections for its workers.
“But at this critical moment for our economy, in the holiday season, we cannot let our strongly held conviction for better outcomes for workers deny workers the benefits of the bargain they reached, and hurl this nation into a devastating rail freight shutdown.
“Congress has the power to adopt the agreement and prevent a shutdown. It should set aside politics and partisan division and deliver for the American people. Congress should get this bill to my desk well in advance of December 9th so we can avoid disruption.”