The sickout is a powerful tactic, even when it is unpopular with the public, says Marianne Garneau. Image via.
New Jersey Transit (NJT) engineers engaged in a successful sick-out yesterday, ultimately cancelling all northern train service.
The job action was over Juneteenth: the employer was refusing to honor the holiday this year, which is observed in New Jersey on Friday. The engineers’ union, the Brotherhood of Locomotive Engineers and Trainmen (BLET), is currently in contract negotiations with NJT. NJT is cynically blaming the union by claiming they are offering to honor the holiday in a contract the BLET has not yet accepted – indeed, other NJT unions are now getting it. But other aspects of the deal on offer, including wages and working conditions, are unacceptable. Instead of recognizing Juneteenth provisionally or in a side letter, NJT tried to use it as a bargaining chip, game-playing, like many other employers, after their professed concern last year for racial equality. So, engineers took matters into their own hands.
The current round of negotiations began in 2019, headed up by Jim Brown, General Chairman of the BLET’s NJT General Committee of Adjustment. Brown is clearly not messing around, saying to members in March “I would like a 100% in favor of a strike if necessary. We must send a strong and united message to the carrier. Rest assure [sic] this GCA is willing [to] fight to the end for a fair and reasonable contact, not the garbage they sold the other unions.”
The last round of negotiations “took over five years and was finally settled in 2016 after two Presidential Emergency Boards and just hours before a strike” Brown said last year.
NJT workers are covered by the Railway Labor Act. Like the later National Labor Relations Act, the RLA was forged in response to massive strikes, and seeks to avoid labor disruptions and channel negotiations into an orderly process. Unlike the NLRA, the RLA imposes much more government intervention and mediation in the bargaining process: first, a sitting National Mediation Board, followed by an ad hoc Presidential Emergency Board. The process is extremely slow, and has mandatory “cooling off” periods built in (reminiscent of the absurdly halting road to a strike in Canada).
The employers’ own decisions led to this
On message boards and social media, engineers and their sympathizers have cited overwork and low pay: “They treated the crews like crap especially during Covid, harsh working conditions, no days off due to staffing shortages” said one poster on Facebook. “NJT has had an engineer shortage for YEARS. They overwork the engineers they do have, and won’t give them an inch when they ask for anything,” said another.
From 2010 to 2017, New Jersey Transit did barely any hiring, as the state underfunded the public train system – part of a general industry trend towards “lean production” and “just-in-time” logistics. This is part of what made yesterday’s sick-out so successful: despite an NJT spokesman saying calls out were only “triple” what they normally would be, the system ground to a halt. The absences had a cascade effect: “One engineer can do four to six trips. If 10 engineers are out, that’s 40 to 50 trips,” NJ Transit President and CEO Kevin Corbett explained in 2018.
Publicly, the employer consistently blames its own workforce for “unexcused” absences, but many of the absences put down as unexcused are in fact legally mandated rest or physicals, and the staffing is so skeletal that the system can barely function on a normal day.
Low pay compounds the problem of understaffing, with NJT engineers paid much less than their counterparts at nearby commuter rail systems. Says one forum commenter, “I can’t imagine an NJT engineer running a MetroNorth Port Jervis train is very happy that he makes $20,000 less than a MetroNorth engineer running on the Hudson Line 20 miles away. So, you walk / swim to a better job. I’ve done that in my career.”
Workers also accuse NJ Transit of not honoring the current contract (under the RLA, contracts are in force until re-negotiated), for example a provision on shift differentials. With grievances as with bargaining, railway unions are shuffled into a bureaucratic process that the Supreme Court has actually bragged is “almost interminable.”
In this context, the turn to tactics like the sick-out is unsurprising.
How does a sick-out work?
A sick-out is when a critical mass of workers simultaneously calls out “sick” to work. Effectively, it works like a strike, but is usually shorter and avoids some of the cumbersome aspects of a strike like balloting and strike pay or even being in a legal position to strike.
Workers covered by the NLRA enjoy protections for “concerted activity,” which means that legally, they can engage in disruptive action in pursuit of their demands (for public sector workers, it varies by jurisdiction). For this reason, private sector workers in the midst of bargaining may well be more legally protected by simply declaring a job action than by calling out sick. (Nearly every contract has a no-strike provision, so this wouldn’t work when the contract is in place.)
Workers under the Railway Labor Act have no concerted activity protections — the more “right” you have to arbitration, the less right you have to strike. Hence BLET members using the sick-out tactic. They are entitled to 5 paid days per the contract.
The tactic comes with some risk to the union – if it can be proven BLET endorsed the action, they can face a major fine. On Thursday, the employer sent a threatening memo in response to rumors that engineers were going to “mark off.” They demanded the union direct workers to work, citing the sanctity of the status quo (a rule that’s apparently only for the other guy), and threatening disciplinary action on any worker who participated.
But workers marked off anyway, because as one social media poster put it, “It’s always easier to beg forgiveness than to get permission, and besides, it would only be for a single day. By the time Juneteenth rolls around again next year, a new contract with the additional holiday in it, could be done.” Direct action, as they say, gets the goods, and in this case it got them Juneteenth.
What about public sympathy?
A good job action maximizes disruption. That can be a scary thing for workers who haven’t done it before. Often their concern centers around public sympathy. Most of the media coverage of yesterday’s sick-out focused on the impact on commuters (although there were a good number of sympathetic soundbites as well). A Charlton D’Souza of something called “Passengers United” was quoted as saying, “What they should’ve done was tell people yesterday that they were going on strike, not do this throughout the day like a wildcat strike and strand people. That is not the way you win support with passengers.”
That’s an instinct you’ll see in workers as well – they want to modulate an action to minimize the disruptive impact (e.g. by having a sick out on a weekend, etc.). This attitude goes hand-in-hand with the increasing premium placed on public sympathy by the “bargaining for the common good” strategy some unions have turned to of late.
But public sympathy isn’t worth nearly as much as worker power, which is a matter of having your hands on the levers. NJT engineers knew there would be angry commuters and public criticism. They also know who runs the trains. Besides, more and better-paid, well-rested engineers means more reliable service for the public. Sometimes you have to be cruel to be kind.