The ratified agreements will now be considered by railroads as patterns to be accepted by the unions that have yet to reach and/or ratify a tentative agreement. Those unions remain at the bargaining table with the National Railway Labor Conference, which represents U.S. Class I railroads and many regionals and short lines. Class I carriers include BNSF, CSX, Kansas City Southern, Norfolk Southern and Union Pacific.

Under the Railway Labor Act, contracts never expire, but continue in force until periodically amended. The National Mediation Board (NMB) controls the process, providing skilled mediators who work to focus the parties on common interests and constructive dialogue.

The Railway Labor Act prohibits strikes or lockouts until the NMB releases the parties. Even then, there is a lengthy process leading to non-binding recommendations by a Presidential Emergency Board (PEB), followed by additional talks before a strike or lockout may occur.

This round of national bargaining over wages, benefits and work rules began almost three years ago. Railroads have been negotiating as a single coalition, while the 12 labor unions voluntarily separated into three separate coalitions.

The largest union coalition, which reached the tentative agreement in October, includes the American Train Dispatchers Association; Brotherhood of Locomotive Engineers and Trainmen; Brotherhood of Railroad Signalmen; International Brotherhood of Boilermakers, Iron Ship Builders, Forgers and Helpers; and Sheet Metal, Air, Rail and Transportation Workers (SMART) Transportation Division (including yardmasters).

Four of those six unions, representing conductors, dispatchers, engineers and signalmen, ratified. The boilermakers rejected the tentative agreement, while the firemen and oilers haven’t completed the ratification vote.

Two other coalitions remain at the bargaining table. One, comprising 22% of unionized rail workers, includes the International Association of Machinists and Aerospace Workers; International Brotherhood of Electrical Workers; Transportation Communications International Union; and Brotherhood Railway Carmen. The third coalition, comprising 20% of unionized rail workers, includes the Brotherhood of Maintenance of Way Employes and the shopcraft side of SMART.

Provisions of the ratified agreement are retroactive to January 2015, and its terms are not subject to renegotiation before January 2020.

There now will be pressure on remaining unions to accept the pattern set. In fact, the NMB can keep those unions at the bargaining table indefinitely – especially if the NMB determines they are not engaged in good-faith bargaining.

If one or more do not reach a tentative agreement that is ratified by its members, the NMB eventually will release them from bargaining, which begins a series of three 30-day cooling-off periods punctuated by appointment of a PEB that will make non-binding settlement recommendations. Should those recommendations—typically mindful of the pattern already set—be rejected, a strike could then occur.

There has not been a national railroad strike since 1991. Historically, Congress steps in within hours with legislation ending a national railroad work stoppage, imposing a third-party settlement most often mirroring PEB recommendations. Railway Labor Act procedures would delay such an unlikely outcome at least until spring. Congress can and has imposed less generous terms on overly truculent unions, and there is practical reason to assume that this current conservative congressional majority would not look kindly on a holdout after most other unions have settled.

In fact, the ratified agreements reflect realization among workers of an economic environment characterized by wage stagnation and increasing healthcare cost burdens on most American workers, and a rail industry coping with a significant reduction in its bedrock coal traffic. Viewing the tentative agreement as equitable in this environment, BLET and SMART-TD members ratified it by overwhelming margins – 80% for SMART-TD and near 90% among BLET members.

The ratified contract, which is still on the table for the unions that have yet to settle, puts at least $33,000 more into the pockets of the highest paid rail workers within just two years and more than $16,000 by mid-2019 to those in the lower wage rungs. And there is not a single work rules change.

Although healthcare co-pays, deductibles and out-of-pocket maximums rise—but more slowly than medical cost inflation, and barely for those in good health—employee monthly insurance premiums are capped at the current level until at least mid-2020. By contract, other private sector and federal workers pay significantly more. In fact, railroads will be paying some 90% of all employee healthcare costs.

Both labor and carrier negotiators were complimentary of the guidance provided the Coordinated Bargaining Coalition by NMB mediator Eva Durham, and in the latter stages by NMB member Linda Puchala, who was a NMB mediator for many years prior to her 2009 elevation as a Senate-confirmed NMB seat.

The confirmations may coincide with emergence of a tentative new agreement on wages, benefits and work rules between most major railroads and one of the three labor-union coalitions with which the carriers are bargaining. The major railroads include BNSF, CSX, Kansas City Southern, Norfolk Southern and Union Pacific. Amtrak, Canadian National and Canadian Pacific bargain separately, but many smaller railroads are included.

Republicans Gerald W. (Trey) Fauth III and Kyle Fortson were nominated by President Trump earlier this year, but Senate action has been on hold pending nomination of a Democrat. That came Sept. 15, with nomination of Linda A. Puchala to a third term. She had been nominated twice previously by President Obama, with the first of her two previous Senate confirmations coming in 2009.

Separately, an outline of a new five-year wage, benefits and work rules agreement between the railroads’ collective bargaining arm, the National Railway Labor Conference, and one of the three labor-union coalitions with which railroads have been bargaining is said to have emerged from contract talks that began in January 2015. The Railway Labor Act provides that existing agreements remain in force until new ones are forged.

The 13 rail labor unions, bargaining as part of three separate coalitions, represent some 145,000 rail workers. The coalitions have bargained under what many of their leaders consider a dark cloud of national politics. Absent a voluntary settlement, the NMB could declare a bargaining impasse. That would allow President Trump to name a Presidential Emergency Board to make non-binding settlement recommendations that could be converted to a legislatively-imposed result by a conservative Republican- controlled Congress – a potential especially unsettling to unions.

The outline of a tentative agreement with the largest of the three labor-union coalitions – representing almost 60% of affected employees including train and engine workers, signal workers and dispatchers – is said to provide a wage boost over five years and impose greater employee cost-sharing of healthcare insurance premiums. All three coalitions have been bargaining with the aid of NMB mediators.

Even with a tentative agreement with one of the union coalitions, two other coalitions remain in negotiations. And craft-by-craft membership ratification is required of every tentative agreement, which is a multi-month process. There has not been a national rail work stoppage since 1992.

If confirmed by the Senate, Fauth would succeed Democrat Harry Hoglander, who was first nominated to the NMB by President George W. Bush in 2002, making Hoglander the third-longest serving NMB member in the agency’s 83-year history. Fortson would succeed Republican Nicholas Gaele, who voluntarily departed the NMB earlier this year to become chief of staff to Labor Secretary R. Alexander Acosta.

Fauth has been associated with railroad economics and consulting since 1978 at G.W. Fauth & Associates, founded in 1957 by his late father, and of which he is now president. For four years, he was chief of staff to Surface Transportation Board Republican member Wayne O. Burkes, where he was involved with labor arbitration and dispute resolution arising from rail mergers and the resultant harmonizing of separate collective bargaining agreements. He earned an undergraduate degree in history and government from Hampden Sydney College.

Fortson has been labor policy director and labor counsel for the Senate Health, Education, Labor and Pensions (HELP) Committee since 2004. She previously was a policy analyst for the Senate Republican Policy Committee, and legislative counsel to Sen. Tim Hutchinson (R-Ark.) and Rep. Spencer Bauchus (R-Ala.). She earned an undergraduate degree in history from the University of Colorado, and a law degree from The George Washington University.

Puchala was a NMB senior mediator for 10 years prior to becoming a Senate-confirmed member in 2009, and has skills in alternative dispute resolution. Previously, she was president of the Association of Flight Attendants. Puchala earned an undergraduate degree in business from Cleary University.

The HELP Committee is not expected to hold a public confirmation hearing. Instead, the nominees will meet informally with senators who extend such invitations. The HELP Committee will then vote on whether to send the three names – which is expected owing to no interest in a formal committee hearing – to the Senate floor for a confirmation vote.

As an independent (from the Executive Branch) regulatory agency, the NMB administers the Railway Labor Act that applies equally to interstate freight, passenger and commuter railroads, and interstate airlines. The NMB provides mediation in collective bargaining disputes, voluntary alternative dispute resolution programs, binding arbitration to resolve contract interpretation and employee discipline disputes, and establishes rules for conducting union representation elections.

One controversial issue the NMB could face is whether to establish a fee schedule for resolving contract interpretation and employee discipline disputes. Where airlines and their unions share those costs of such arbitration, taxpayers fund those activities for railroads and their unions, at an estimated $1.2 million annual cost for arbitrator fees, travel, meals and lodging. Advocates say shifting those costs to the users will eliminate the filing of frivolous grievances.

In 2004, a Republican controlled NMB issued a Notice of Proposed Rulemaking proposing such fees. Railroads were supportive; rail labor unions opposed. While Republican member Read Van deWater voted to finalize the rule, Democrat Hoglander voted “no.” For 18 months, until he departed the NMB, Republican Edward Fitzmaurice abstained from voting. The rule was never finalized. It could be advanced again by the incoming Republican majority.