Mr. Speaker, I include in the Record the following letters from Alex McDonald and Roger King, in opposition to H.R. 5408. Re Opposition to the Faster Labor Contracts Act--H.R. 5408 June 9, 2026. Hon. Tim Walberg, Chairman, House Committee…
Mr. Speaker, I include in the Record the following letters from Alex McDonald and Roger King, in opposition to H.R. 5408.
Re Opposition to the Faster Labor Contracts Act--H.R. 5408
June 9, 2026.
Hon. Tim Walberg,
Chairman, House Committee on Education and Workforce,
Washington, DC.
Dear Chairman Walberg: We are writing regarding H.R. 5408,
the Faster Labor Contracts Act (``FLCA''). The FLCA is a
deeply flawed piece of legislation that should not be
considered by this Congress--or any other. It aims to speed
up negotiations for first collective-bargaining agreements
between employers and workers. The bill's authors evidently
believe that those negotiations take too long. But while
negotiations are long, they are long for a reason:
negotiating a first contract is hard. It involves detailed
financial and operational tradeoffs, which the parties must
negotiate from ground zero. So it is no surprise that
contracts often take weeks, months, or years to finalize.
That ``delay'' is not a sign that the process is broken; it
is a sign that the process is working.
Worse, the bill proposes to solve that problem with a
deeply flawed approach. It would funnel the parties through a
compressed bargaining schedule, terminating in compulsory and
binding arbitration. Parties would have only 90 days to
negotiate their own agreements, after which the bill's
processes would kick in. Those processes would be
exceptionally burdensome and expensive, requiring complex and
cost-heavy hearings to ``prove'' what a ``fair'' contract
would be. America's businesses cannot afford that burden, and
Congress should not force them to swallow it.
If that weren't enough, the bill is likely
unconstitutional. It would raise serious questions under the
Due Process Clause, the Vesting Clauses, and the Appointments
Clause. It would also threaten to convert every collective-
bargaining agreement imposed under its procedures into
``state action,'' dragging constitutional doctrines into the
American workplace. These problems have not been considered,
much less vetted. The bill needs serious rework, and members
should not vote for it if they take seriously their oath to
uphold the Constitution.
Yet despite these problems, some members are pushing the
legislation through with an unusual procedure--the discharge
petition. That procedure is inappropriate in most cases and
especially inappropriate here. This bill is deeply
problematic and needs the scrutiny of ordinary legislative
processes. It should not be rammed through with extraordinary
procedural maneuvers.
We urge you and the other members of Congress to reject the
discharge petition and reject this bill.
As you are aware, the House will be considering H.R. 5408
as a result of a discharge petition signed by certain Members
that requires the House to consider and schedule a vote on
this legislation without the benefit of Committee
deliberation. This discharge protocol and procedure is not
the preferred method to consider legislation. It precludes
meaningful input from all stakeholders who are potentially
impacted by the legislation in question. H.R. 5408 has not
had the benefit of any meaningful Member or staff analysis.
No hearings have been held on this legislation. No
opportunity has been provided for stakeholders to file
comments and submit questions regarding the legislation.
More troubling, no technical analysis has been undertaken
regarding the legislation. And that analysis is badly needed,
as this legislation is technically defective in several
respects and is not in proper form to be considered by the
House of Representatives. No financial or cost analysis has
been undertaken. No Committee markup has occurred regarding
this legislation.
This legislation should be referred back to the House
Education and Workforce Committee (``Committee'') to permit
Members and all stakeholders to consider counterproposals,
amendments, appropriate background research information, and
academic studies regarding the impact of this legislation. We
urge you and your colleagues to have H.R. 5408 returned to
the Committee.
Proponents of H.R. 5408 assert that there is a significant
problem with the time period it takes parties to reach an
agreement on an initial collective bargaining agreement. They
allege that employers are largely responsible for delays, and
such delays in the negotiation process are designed to
undermine union representation. They further allege that such
delay strategies are often part of employers' plans to
decertify or remove a union. There is no reliable data to
support these arguments and allegations.
First, it is very difficult to ascertain the start date of
collective bargaining in negotiations, especially for first
contracts, where the parties may not have any prior
relationship. Does the start date of negotiations begin when
one party sends another party a request for information and
documents?--a procedure often used by unions to prepare for
negotiations. Does the negotiation start date begin when the
parties start general discussions about the issues to be
discussed in negotiations? Does a preliminary discussion
regarding whether the parties should conclude non-economic
issues before moving to economic issues start the negotiation
process? Do mutually agreed upon delay periods in
negotiations--which often occur--count toward the average
time it takes for first contracts to be completed? When does
the negotiation period end? Does it end when a tentative
agreement is reached or when any tentative agreement is
ultimately ratified by bargaining unit members? What if a
tentative agreement is reached between a union and an
employer, but the bargaining unit rejects it? Does the
subsequent period after such a tentative agreement is
reached count toward the average negotiation period for
initial contracts?
Further, how should legitimate litigation initiatives be
counted under the days it takes to negotiate an initial
contract? A union or an employer may have good faith reasons
to contest a decision of the National Labor Relations Board
(``NLRB'' or ``Board'') regarding the categories of employees
that the Board included or excluded from the bargaining unit.
Well-established federal labor law permits unions and
employers to appeal decisions through the federal court of
appeals--test of certification cases. Such appeal periods
can, at a minimum, take months if not over a year depending
on if a circuit-worthy appeal is filed. Additionally, what if
a union legitimately believes it needs certain information
from an employer before it can sufficiently bargain or
conclude bargaining? For example, information regarding the
cost of certain employer-provided health benefits and limits
of coverage of any employer policy could be information that
the union believes is necessary to make proposal in the
health insurance area. Should the period it takes the NLRB to
resolve any dispute of the scope of the information request
be included in calculating the time period to negotiate an
initial collective bargaining agreement? There are many other
examples that could be listed and should be analyzed and
considered in calculating the number of days that it takes
parties to negotiate labor contracts.
Absent a comprehensive and thorough analysis of the details
of hundreds of initial collective bargaining negotiations
over an extended period of time, there can be no meaningful
or reliable data to support any conclusions about the average
time it takes parties to negotiate such agreements.
Even if thoughtful or comprehensive studies could be
conducted to determine the average time it takes parties to
reach an initial collective bargaining agreement--which has
not been done to date--the results of any studies, in all
probability, would show it takes a substantial amount of time
to reach initial labor contract agreements. Such an analysis
may very well show that it takes in excess of over four
hundred days (400) on average to reach an agreement. Members
of Congress need to understand that this is a complex
process. Labor contracts often contain many articles and, in
some cases, are over one hundred (100) pages. These initial
agreements also often contain appendices, memoranda of
understanding, and ``side letters.'' These agreements,
especially from the union perspective, attempt to cover
virtually all of an employee's relationship with their
employers. The bottom line is that bargaining these contracts
takes time--considerable time.
The importance of carefully and thoughtfully negotiating
first contracts and their terms cannot be emphasized enough.
Such negotiations are critical for employees, unions, and
employers. There are good reasons that it takes time to
negotiate initial collective bargaining agreements. The
parties are not just negotiating over wages. They are
constructing a comprehensive workplace contractual framework,
including work schedule details, health and retirement
benefits, paid time off and holidays, discipline standards,
grievance and arbitration procedures, and dozens of other
topics critical to employees and employers. These
negotiations can be time-consuming because the results of
such negotiations and the contents of an initial collective
bargaining agreement are critical for the union to continue
as a representative for employees and for the employer to
continue its business operations.
Additionally, there are other reasons that may explain that
a significant amount of time is needed to negotiate initial
collective bargaining agreements. For example, either unions
or employers may exercise lawful, legitimate litigation
rights that must be resolved before and during negotiations.
Further, a union may have made a considerable number of
promises in its campaign prior to an election--a tactic that
is often used by unions and is lawful under the National
Labor Relations Act (``NLRA'' or ``Act''). It may take the
union a considerable period of time to try to convince an
employer of the merits of its proposals related to campaign
promises to bargaining unit members. Alternatively, it may
take considerable time in negotiations before a union and its
members conclude that an employer will not agree to such
proposals. The union may also attempt to obtain an agreement
on issues that fall into the category of ``permissive
subjects of bargaining'' under the NLRA. An example would be
a union proposal regarding the number of employees that an
employer would be required to hire to run its business,
including staffing on certain units or departments. An
employer may lawfully disagree with the unions proposal
regarding these permissible bargaining proposals. These types
of negotiations can be very time consuming.
Initial collective bargaining agreements are also
singularly important to the parties because they carry much
greater weight than common law contracts. As explained in
more detail below (see discussion of the Supreme Court's Katz
no unilateral change doctrine), the terms included in a first
contract do not expire when the contract expires. In effect,
they are legally presumed to continue indefinitely, until or
unless they are expressly altered by mutual agreement of the
parties. This unusual characteristic of federal labor law
contracts gives their provisions a kind of initial inertia
that tends to carry them through many successful agreements
for literally decades.
It is important for members of Congress to understand the
significance and complexity of initial collective bargaining
agreements before enacting any regulation or oversight. H.R.
5408, unfortunately, is an improper intrusion into the
collective bargaining process and, as further detailed below,
fails to recognize the complexity and time necessary to
negotiate an initial collective bargaining agreement.
H.R. 5408 should be rejected, and this legislation should
be returned to the House Education and Workforce Committee
for further deliberation.
Sincerely,
G. Roger King,
King Labor Law.
Alex MacDonald,
Co-Chair, Littler Mendelson Workplace Policy Institute.