Could the 2016 SEPTA Strike Be the Last One Ever?

In the wake of the latest transit disruption, two legal avenues for preventing future strikes are being discussed. We recommend a third way.

SEPTA 15th Street Station closed - locked gate

Two laws offer the possibility of making scenes like this a thing of the past. | Photo: Dan McQuade

Now that Transport Workers Union Local 234 has ratified a new, five-year contract that was pretty much what SEPTA had offered it on the eve of this latest transit strike — and which completely fails to address any of the valid scheduling matters the union raised during the run-up to the strike — it may be time to ask once again: Isn’t there some way we can get SEPTA and the TWU to end this recurring brinksmanship?

The answer to that question might be “yes,” but remember, this is Philadelphia, where old habits don’t die without a fight and contentious labor relations have a long and storied history. The union that has represented the bulk of SEPTA’s workforce since 1944 has a history of militancy, and it’s managed to maintain that reputation by walking more often than not when contract renewal time comes.

It’s been claimed that SEPTA is the nation’s most strike-prone transit agency, and when you add at least two Railroad Division strikes — one the longest in agency history and the other short-circuited by a federal law (about which more below) — to the 12 strikes TWU Local 234 has called since 1971, that claim probably holds up.

Which means that every time there’s a strike, there are also calls for laws to make sure there won’t be another one. And this time is no different. There are two legal avenues being advocated that are designed to short-circuit strikes; I’d like to add to them a change that has the potential to make strikes less likely to occur in the first place. Let’s start with the most restrictive change first.

Outlawing transit union strikes outright.
Advocates of this position, such as author and journalist Thom Nickels, hold up New York State’s “Taylor Law” as a model to follow. That law, which applies to public employee unions statewide, fines striking union members two days’ pay for each day they remain on the picket line.

A similar option would be to extend current Pennsylvania law governing “essential personnel” such as police and firefighters to mass transit workers. In 2009, state Rep. Kate Harper (R-Montgomery) introduced, and in 2014 revived, a bill of this type that would apply only to SEPTA personnel. However, it lacked a provision contained in the law governing the first responders that the parties in the dispute submit their final offers to binding arbitration. The TWU, not surprisingly, opposed the bill.

New York’s Taylor Law contains provisions that mandate binding arbitration for first responders and nonbinding arbitration for all other employees. SEPTA opposes arbitration, making a Pennsylvania version of the Taylor Law a nonstarter. This brings us to the other legal option.

Applying Federal Railway Labor Act rules to transit disputes.
This would not require action in Washington, for it could be done at the state level, but the model would be the federal law that ended the 2014 Regional Rail strike on the same weekend it was called. (Such is the TWU’s reputation that at least one national reporter attributed this strike to the TWU too.)

This law mandates a series of procedures for resolving disputes between railroads and their employees, including mediation and arbitration, and prohibits strikes unless all of the avenues for resolution specified in the law and their associated “cooling-off periods” have been exhausted. Exhausting those avenues can take a lot of time, and as a result, railroad strikes are extremely rare. Gov. Tom Corbett invoked the act in order to end the Railroad Division strike.

Governments and government agencies blanch at arbitration provisions because the arbitrators tend to split the difference between management and union proposals, which from a management standpoint means the union wins. This tendency can be abated by including in any law with an arbitration provision a clause requiring arbitrators to include ability to pay in reaching their decisions.

The third reform isn’t a legal one, and it could be pursued independently of any other proposed means to end strikes at SEPTA. But it could reshape the agency’s labor relations, and its overall operations, for the better and make strikes less necessary.
For this, we would take a page from the German corporate-oversight playbook.

Require SEPTA board members to have transit experience, and remake the board to include representatives of labor and the riding public.
German corporate boards are constituted according to a principle that has largely fallen out of favor in the United States: A company has a responsibility to look out for the interests of all its stakeholders, including the people who work for it and the communities in which it operates. SEPTA is a public trust providing an essential service, but as of now, the only people who have a say in how it carries out that trust are politically appointed officials — and over SEPTA’s history, we’ve seen how political interference and considerations hamper the agency’s effectiveness.

I wouldn’t argue for getting rid of politics entirely in choosing the board, since it is spending taxpayer money to run the system. But I would argue for adding other considerations in putting together the board. For starters, board members should demonstrate some familiarity with, or have prior experience in, transit industry operations. In addition to this, there should be board members representing the interests of the other stakeholders in the system — specifically, representatives of labor and the riding public. These representatives would pass that first test by virtue of doing the work of carrying the riders and by using the system every day.

Granted, this last reform would not guarantee an end to transit strikes, but not even the legal avenues have done that: When a union feels its concerns are important enough, it can strike even under the provisions of the laws above. They’d pay a high price for doing so, but New York public-employee union leaders and their members have paid it in the past, and there’s no reason to believe that their Pennsylvania cousins wouldn’t be willing to pay it either. Giving them a voice on the board, however, would enable them to raise issues before contract renewal time arises, which would be better for SEPTA operations all around.

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