We may see a rail shutdown on or after Friday — the culmination of a long contract dispute between the major railroads and their many unions.
The door was opened to a shutdown on Aug. 16 when a Biden-appointed Presidential Emergency Board issued its nonbinding settlement recommendations. Under the Railway Labor Act, the parties have had 30 days to consider these recommendations. After Friday, the parties may engage in “self-help,” a legal euphemism for a national strike by workers or lockout by management.
A rail strike is not a certainty at this point, but here is my own prediction:
- 50-75% likelihood of a strike or lockout that lasts up to seven days.
- 25-50% chance of a strike or lockout that lasts more than seven days.
- 25% or less chance of avoiding a strike or lockout.
A few others in the rail sector may provide different odds, but most won’t even make a guess. The last rail strike occurred in 1992, and only a few hardy souls remember those days. My prediction is based on the underlying legalities, our current divisive politics and the procedural difficulties faced by Congress in moving settlement legislation.
My thinking is undoubtedly colored by my memories of the Guilford rail strikes of the 1980s, when I was a young railroad attorney just out of law school. Like war, rail strikes are often unpredictable and the results can be disastrous.
Passengers would be affected, in addition to freight
If a rail shutdown occurs, the nation’s freight trains will halt along with many commuter and Amtrak intercity routes. The potential impact on passenger trains has been little reported, but the majority of U.S. commuter and Amtrak intercity trains operate at least partly over freight tracks. For example, Chicago’s Metra system runs over Union Pacific and BNSF tracks, serving some 14 million riders annually. Virginia Railway Express, which serves more than a half-million annual riders in northern Virginia and Washington, D.C., runs over CSX and Norfolk Southern.
Some commuter operations own their own tracks, like MBTA in Boston or Trinity Railway Express in Dallas-Fort Worth. But these operations are still intertwined with the freights. Amtrak’s West Coast and long-distance operations use mostly freight tracks. All these passenger trains could be forced to stop in a freight shutdown.
Military shipments will also halt, which could affect our national readiness.
Even Amtrak’s Northeast Corridor might not be immune. CSX and Norfolk Southern operate freight on portions of the Northeast Corridor, so the unions could send picketers to Amtrak facilities.
Who can stop a rail shutdown?
The railroads, unions and federal government have exhausted all available remedies under the Railway Labor Act. The only entity with the power to end a shutdown is Congress, which must pass a law to do so. This last happened during the 1992 strike.
In general, Congress has three basic options to stop a shutdown:
1. Cram down. Congress could impose contractual terms on both labor and management. The unions clearly expect a generous deal from the current Democratic Congress, but the railroads have enough votes to block excessive wage increases or other onerous terms tilting toward the unions. Therefore, an immediate settlement may be difficult to pass. If settlement legislation is blocked by partisan political maneuvering, the rail shutdown will simply continue until Congress reaches agreement. Absent specific legislation ending the shutdown, there is no other legal option to reopen the rails.
2. Punt. Congress could simply extend the status quo for a period of time (say, six months) and send the parties back to the negotiating table. The unions will oppose this because a future Republican Congress will not be as generous to labor.
3. Play ball! To avoid election year distraction, Congress could freeze the status quo and send the dispute to independent third-party arbitrators. This was done during the 1992 strike when Congress ordered “baseball arbitration.” Through this method, Congress directed the appointment of three arbitrators — one each from labor and management and a third jointly selected by both parties. The arbitrators were instructed to pick between the final offers of labor and management. No revision of the final offers was allowed. This strategy was highly effective and caused the parties to settle rather than risk the arbitrator’s decision.
Current partisan politics may complicate rail labor negotiations
Unfortunately, passage of any settlement legislation may be difficult in our divided Congress. Expedited passage of legislation requires unanimous consent to suspend the usual procedural rules, which set specific timelines for hearings, consideration of legislation and so on. With unanimous consent, Congress can shift from slow to full speed ahead.
But there are drawbacks.
On the House side, unanimous consent turns members into senators for a day. Individual House members will have the power to thwart the proceedings by refusing consent, offering amendments or invoking procedural rules. The possibility for theatrics will be endless, especially with the midterm elections looming. And by blocking the rail settlement, a member could receive unlimited free publicity.
In the Senate, the problem could be even worse. A single senator could halt the settlement legislation. If this happens, 60 votes would be needed for cloture, or ending the debate and taking a vote — a challenging hurdle to achieve.
So it is important for both parties to work together in crafting a rail settlement. Strong-arm tactics will inevitably backfire. If either side attempts to tilt the legislative playing field, the result could be a prolonged strike. Internal party discipline is also important.
In 1992, legendary Chairman John Dingell of the House Energy and Commerce Committee corralled liberal members who wanted to do more to help labor. Dingell controlled his members’ earmarks, so they took his warnings seriously. Current party leadership lacks the leverage that Dingell once had. Radicals on both sides have little to lose by taking an independent stance, even if it ends a rail shutdown.
Baseball arbitration could prevent a disastrous outcome
That’s why baseball arbitration is such a good bet. The legislation would be completely neutral. By delegating decision-making power to experienced, independent arbitrators, the legislation would avoid any hint of political controversy during a heated election season.
Congress must focus on keeping the trains running. Otherwise, the U.S. rail system could be shut down for weeks or even months. If this happens, trucks will not be able to fill the gap. Factories will close, food and fuel supplies will dwindle and inflation will soar. In addition, America’s international military posture could weaken as our rail supply chains grind to a halt.
The successful 1992 baseball arbitration legislation is available here. Congress just needs to tweak the dates.
America has bigger things to worry about right now and a rail shutdown would hurt everyone.
John J. Brennan III is the retired chief counsel for the Federal Transit Administration and former senior counsel for the Union Pacific Railroad. During the 2000s, he served as Republican staff director and counsel for the House of Representatives Subcommittee on Railroads, Pipelines and Hazardous Materials. Brennan belongs to the bar in Massachusetts and Nebraska and holds degrees from the University of Massachusetts-Boston and Suffolk University Law School. He is currently a rail and transit legal consultant.