So what's going on with railroads?

Oct 12, 2022

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By Eleanor Mueller and Nick Niedzwiadek

With help from Shayna Greene

QUICK FIX

— A rail-workers strike is back in play after a union voted down last month's tentative deal.

— The Labor Department rolled out revamped rules for determining independent contractors.

— The Supreme Court will hear arguments today in a case concerning overtime pay.

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Driving the Day

ABOUT THOSE RAILROADS: Earlier this week, the third-largest freight rail union said that its members had voted against ratifying a tentative agreement struck last month — sparking a wave of media coverage Tuesday and today about what that could mean for a potential strike that would devastate the already-delicate economy.

Long story short: It's not great.

Just one of the dozen unions covered by the proposed contract can trigger a strike, because none of the others would cross a picket line, your host and Tanya Snyder explained Tuesday. For consumers, the result would be empty shelves and delayed shipments during the time of year they rely on them most" — the holidays.

"It is a trade union principle that if a railroad union goes on strike, other railroad unions honor that strike," said Peter Kennedy, who directs strategic coordination and research at the union, Brotherhood of Maintenance of Way Employes (yes, they really spell it that way). And at this point, reaching a new tentative agreement seems "dubious at best."

But it's not the end of the road, either. There are still several weeks left in a cooling-off period that takes strikes off the table so negotiators can reach a compromise. And AFL-CIO Transportation Trades Department President Greg Regan points out that more unions have voted for ratification than against it — four so far (though not two of the last-minute holdouts that kept negotiators at the Labor Department overnight last month). That could bode well for union and railroad presidents being able to reach a new compromise if, and in BMWE's case when, they return to the table.

Leaders are "working on answering questions from membership and educating their members on what is and what is not in these agreements," Regan told Weekly Shift. "No one wants to sign a TA that they didn't think could pass. So people are hopeful they can try to find a pathway forward."

Your dose(s) of realism: Any new tentative agreement is very unlikely to contain the additional days off that many members have hung their hats on. Last month's contract contained just one, versus the five unions initially pushed for — and employers will be wary to cede more given that Biden's Presidential Emergency Board did not recommend any when it weighed in earlier this year.

"Money was not the primary or secondary driver — it's all about the attendance policies," Arthur Wheaton, a Cornell University professor and former AFSCME employee, told Weekly Shift. "It's difficult to have that kind of leverage to try to change that."

And while Congress has for now opted against intervening legislatively, which they have the ability to do, that's not to say they wouldn't if a strike actually took place, particularly with the busy holiday season approaching.

"The best solutions are always at the bargaining table," Wheaton said. "But that doesn't mean that the Biden administration is going to allow a large strike to cripple our already horrible supply chain in the US. They're not going to let it stand as a strike that blows up Christmas."

Mark your calendars: BMWE has extended its cooling off period until Nov. 18. IAM's ends Dec. 19. We'll know the results of two outstanding ratification votes this Thursday and Friday, and the other four between then and Nov. 17.

On the Hill

BURR QUESTIONS NIXING IRAP: The top Republican on the Senate HELP committee hammered the Labor Department for its recent decision to rescind authorization for Industry-Recognized Apprenticeship Programs.

"It makes no sense for the federal government to impede industry training workers with skills that are actually relevant to industry," Sen. Richard Burr (R-N.C.) said in an Oct. 6 letter to Secretary Marty Walsh. "By eliminating IRAPs, DOL is creating an unnecessary obstacle for workers to have access to these additional high-quality training opportunities."

The Biden administration scuttled the system in the belief that they lack sufficient federal oversight compared to Registered Apprenticeships, which are regulated directly by the government.

Around the Agencies

THE NEW INDEPENDENT CONTRACTOR: The Labor Department on Tuesday unveiled an overhaul of its guidelines for distinguishing employees from independent contractors that is likely to make it tougher for businesses to classify workers as contractors, Nick reports for Pros.

The proposed rule broadly parallels the model adopted by the Obama administration that was later scuttled under former President Donald Trump.

The blueprint includes an "economic realities" test , which allows the Labor Department to take into account a wide array of factors when determining employee status, such as employer control of their tasks and how much workers invest in their own equipment.

It also directs DOL to analyze the "totality-of-the-circumstances" for a given worker, rather than look for discrete criteria in making determinations regarding employment status. The new framework does not prioritize any factors in that assessment — shifting away from the Trump-era guidelines, which emphasized an individuals' degree of control over their work and "opportunity for profit or loss" above others.

Employer groups and their Republican allies hammered DOL's proposal , arguing it stifles business innovation and will unleash litigation. Uber and Lyft, two large companies whose operations rely heavily on independent contractors, saw their stock prices plummet on the news.

NLRB JUDGE RULES AGAINST STARBUCKS: A National Labor Relations Board judge ruled that the coffee chain illegally fired an employee in Michigan because she participated in union activism and in a labor board proceeding.

The decision requires Starbucks to offer the worker reinstatement with back pay. The company must also hold a meeting with employees as well as representatives of management, the government and the union to read a notice about workers' rights and "about the agency's determination that the company broke the law," Bloomberg reports.

The ruling is the first in which an administrative law judge decided that Starbucks broke the law in its ongoing struggle with the upstart union.

More Starbucks news: "Starbucks Ex-Manager Says He Was Told to Punish Pro-Union Employees," from Bloomberg.

In the Workplace

EMPLOYERS BRANCH OUT AMID LABOR SHORTAGE: More businesses are looking to hire people who have previously served prison time to fill empty positions.

"In recent years, small businesses and big U.S. companies including banks and pharmacy chains say they have recognized that so-called second-chance hiring offers a chance to ease societal inequities," The Wall Street Journal reports.

Historically, roadblocks such as job applications with felony conviction questions and background checks have made it difficult for formerly incarcerated people to find steady work, leading to a higher unemployment rate for this population.

Unions

ELECTION COMING TO L.A. STRIP CLUB: The NLRB has granted a union recognition election for a group of dancers working in North Hollywood.

Making history: If workers choose to be represented by a union, it would make them the only strippers in the country to have union representation. Once the NLRB certifies the results, the bargaining unit "could be affiliated with Actors' Equity Association, the national labor union representing more than 51,000 professional actors and stage managers employed in live theater," Deadline reports.

Next steps: The ballots will be mailed on Oct. 14, are due Nov. 4 and will be counted on Nov. 7.

More union news: "911 Dispatchers Call for Exodus From Scandal-Tainted Clerical Union," from THE CITY.

In the States

FORGET IT, JAKE: The fallout from the release of a taped recording of members of the Los Angeles City Council involving racist comments remains ongoing, but it has stretched into California's labor world.

Ron Herrera has resigned from his post at the Los Angeles County Federation of Labor, and the AFL-CIO's Liz Shuler has condemned the remarks. (H/T to Bloomberg's Josh Eidelson for summing up the convoluted union backstory.)

Meanwhile the California labor federation has gripped about the legality of the recording and asked those with any information about the leak to contact its chief of staff — who happens to be married to the chief of staff for Nury Martinez, the council member at the heart of the episode.

Martinez has resigned as president of the body — but not her elected seat — and on Tuesday said she would take a leave of absence in a bid to quell the furor over her denigrating the Black son of another member.

The White House on Tuesday said the president believes all those implicated should resign.

More state news: " Deliverista accuses grocery delivery company Gorillas of wage theft in federal court complaint," from Brooklyn Paper.

Immigration

BORDER WAR: The conservative Center for Renewing America is pushing a plan to shut down legal border crossings and declare war on Mexican drug cartels, Axios reports.

"It asks Congress to consider passing a trigger mechanism shutting down legal ports of entry at the border based on the number of migrants and asylum seekers crossing illegally. It also looks to the Navy to interdict drug smuggling vessels and Treasury to sanction specific cartel leaders."

More immigration news: " In Record Numbers, Venezuelans Risk a Deadly Trek to Reach the U.S. Border," from The New York Times.

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