Can’t we all just get along? Lawyers, history explain the logic behind SEPTA strike

With all of SEPTA’s city transit services shut down Tuesday morning, you didn’t have to look hard to find frustrated riders roiling over the walkout.

Anger is everywhere. Understanding is in decidedly shorter supply. Many commuters blamed their traffic woes on Transport Workers Union (TWU) Local 234. Some expressed solidarity with their fellow laborers. But all seemed to wonder why a strike was necessary, especially considering that negotiations between the two sides began in July.

As with so many things, lawyers are to blame.

TWU has blamed SEPTA’s outside counsel from Ballard Spahr and Buchanan Ingersoll & Rooney for the slow negotiations, saying they pushed negotiations past the point of mere politicking and into stricken disarray just to run up hourly fees. SEPTA officials have strongly denied those allegations, blaming TWU for the delays.

Fee-gouging allegations aside, there are plenty of reasons why lawyers—on both sides—can sincerely advise their clients to engage in the political maneuvering that has slowed travel in Philadelphia to a galling crawl.  

“It’s not unusual at all that the parties would come down to the last minute in negotiating a collective bargaining agreement…to sort of bring it to that brinkmanship and try to force the other side to make concessions to avoid [a strike],” says Joel Barras, a partner at Reed Smith who represents management in public sector labor disputes like this.

“The union will use the threat of a strike as leverage against SEPTA—or any employer—to gain concessions from the employer in negotiations,” says Barras. If management wants to avoid a strike, they’ll need to concede on wages, health care, or pensions—all major issues in the SEPTA-TWU discussions.

“Otherwise,” Barras says, “You’ll face a strike, face a disruption of all the people who use SEPTA, and you’ll face the bad publicity that results from it.”

Going out on strike means putting your members out of work. TWU employees aren’t getting paid during the walkout, and SEPTA officials said that their healthcare benefits stopped, too, forcing those with ongoing health issues to purchase expensive COBRA coverage while the walkout lasts.

Management plays into the brinkmanship game, too, when it tries to call labor’s bluff, said Barras. When the bosses let the workers walk, they basically say: “We don’t think you have the real will of the employees to engage in a strike, so we’re going to take you down to the wire and make you [the union] give us concessions.”

That financial pain felt by bargaining members when they picket is why a union wants to take an aggressive position in negotiations, says Nan Lassen, a partner at Willig, Williams and Davidson which represented TWU Local 234 when it went on a 7-day strike in 2005. Strikes hurt union workers, Lassen says. “So, obviously, they don’t go on strike until they have maximum leverage.”

And, says Lassen, with an important Presidential election days away, TWU has quite a mighty stick and fulcrum.

“[Local 234] realized they have enormous leverage going on strike reasonably in advance of a large public election because that gets the public actors—not just the public inconvenienced by the strike, but the actors in Harrisburg, City Hall and the Legislature—into the game.”

“I don’t think you’d see the number of people outside the SEPTA microcosm involved in this game, to this extent, but for the fact that there is a massive national election coming up in a week,” says Lassen. U.S. Rep Bob Brady expressed concern over an Election Day strike both before and after it was called.

According to Barras, SEPTA embarked on a risky gambit by declaring its intention to seek a court injunction to suspend the strike on Election Day. “If SEPTA is unsuccessful in an injunction, then they’ve sort of shown their hand,” says Barras.

“They have said: ‘We think this is very important to be back up in operations’,” Barras says. But if SEPTA management loses in court, they’ll have to ask themselves if it’s worth making concessions to get the employees back to work by Election Day.

TWU has limited options, Barras explained: Unions in Pennsylvania can’t go on strike legally until after their contracts expire and that means it’s hard for labor to find itself in a powerful position over management. TWU President Willie Brown said the union would end the strike if SEPTA agreed to binding arbitration, but SEPTA officials said they couldn’t trust third-party arbitrators to dictate their operating budgets.

Leverage also explains why TWU picketers may have blocked SEPTA Regional Rail crews from manning their trains at the Roberts rail yard just before rush hour. TWU spokesman Jamie Horwitz denied that TWU leaders endorsed such an action, saying that the union was “working SEPTA’s lawyers” to make sure the picketing allowed “unfettered access to SEPTA facilities.”  

But if TWU did picket the rail yards on purpose, then it caused dozens of Regional Rail cancellations and thousands of stranded riders. In that case, the union decided to press down— hard—on another, somewhat separate SEPTA pressure point: Suburban ridership, which had been merely inconvenienced so far by the strike, but already frazzled from a summer of terrible commutes.

Increasing both the number and intensity of the region’s frustrated commuters is just an indirect means of making SEPTA’s management more miserable. Like high school jocks playing punch-for-punch, strikes are a just question of which side can handle more pain, says Barras.

“Both sides will continue to face increasing pressure and increasing costs until it becomes too much for one, or both, of them,” Barras says. “Who has the most strengths, the most ability to hold out the longest until the other side is forced to bend and concede.”

Not helping anything for riders: a long and tumultuous history between TWU Local 234 and SEPTA management. “Relationships with management have been stressed and difficult going back generations,” says James Wolfinger, a professor of history at DePaul University and author of ‘Running the Rails: Capital and Labor in the Philadelphia Transit Industry’, a history of TWU Local 234.  TWU has stopped work twelve times on SEPTA since the authority’s creation in 1965.