It remains uncertain whether the nation’s tens of thousands of rail workers will ratify the tentative agreement their unions secured after marathon negotiating sessions last month, orchestrated by the Biden administration so as to narrowly avert a national strike. Nearly half the workers have approved the agreements so far. But as the two largest rail unions head to the polls, an opposition movement has crystallized that appears to be widely resonating with the disaffected workers, many of whom view the deal as insufficient to meaningfully address their concerns. 

The rail workers would be statutorily empowered to strike if they reject the agreement. Analysts forecast that a rail strike could disrupt the national economy and intensify supply chain pressures. Key lawmakers have indicated that Congress may move to forestall such an outcome, either extending the “cooling-off” period during which rail workers are statutorily barred from striking or, under the more aggressive approach, legislatively codifying the tentative agreement, imposing it on the workers.

In a piece published yesterday major management law firm Littler Mendelson explores the implications of the midterm elections for national labor and employment policy. The firm previews that in the House, labor and employment issues may emerge as a centerpiece of the incoming Republican majority’s agenda, highlighting several of the GOP’s antilabor legislative priorities: the Employee Rights Act, the Ensuring Workers Get PAID Act, and the Working Families Flexibility Act, among others. These bills would undermine organized labor and degrade working standards in a variety of ways. Among other things, they would more deeply entrench secret ballot elections, mandate recertification votes, require employee authorization of union political spending, permit employers to purport to self-report wage and hour violations, and authorize time off rather than premium pay as overtime compensation.

In the latest Starbucks news, the coffee giant reportedly plans to shutter a store in Portland, Oregon next month at which employees voted to unionize several weeks ago. While demoralizing, the move is not surprising. As I observed earlier this month, the NLRB recently issued a complaint alleging that, among other things, Starbucks unlawfully retaliated against protected activity by discriminatorily closing several stores in New York. (Under Supreme Court precedent it is unlawful for an employer to shutter a facility so as to inhibit organizing at other parts of the enterprise.) 

In related local news, the owners of Darwin’s, a popular coffee shop in Cambridge, announced they intend to close all locations in the city. In light of the ongoing organizing efforts among the company’s employees, the announcement has unionbusting overtones. Indeed, in an email to the Boston Globe, one of the owners candidly concedes that union activity accelerated their decision to discontinue operations.

While a partial retaliatory closure may violate federal labor law, the Supreme Court has held that the NLRA does not preclude an employer from entirely shuttering operations, even for explicitly antiunion purposes. Still, the NLRA requires that the Darwins bargain over the effects of the closure. They have expressed a commitment to doing so.