[Congressional Record Volume 172, Number 100 (Monday, June 15, 2026)]
[Extensions of Remarks]
[Pages E573-E576]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
FASTER LABOR CONTRACTS ACT
______
speech of
HON. TIM WALBERG
of michigan
in the house of representatives
Tuesday, June 9, 2026
Mr. WALBERG. 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
[[Page E574]]
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.
____
June 9, 2026.
Re Policy and Operational Flaws of the Faster Labor Contracts
Act--H.R. 5408
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''). This letter deals
with the bill's policy and operational flaws.
The FLCA also has major policy defects. At bottom, it would
permit the government to mandate, through private arbitral
action, terms and conditions of employment and impose
extensive contract terms on employers, employees, and unions.
This has never happened in the country's history with respect
to private sector labor contracts. There is absolutely no
precedent for this type of government intrusion into the
workplace. Parties in the private sector should be permitted
to negotiate the terms of labor agreements without government
interference. The approach in this legislation is exceedingly
poor public policy. H.R. 5408 should be rejected on this
basis alone.
Further, the pending legislation would prohibit employees
from voting on a government-imposed contract, which could be
binding on the employees for up to two (2) years. This lack
of employee scrutiny and the opportunity for an employee vote
is a substantial interference with employee rights and, on
this basis alone, H.R. 5408 should also be rejected.
The pending legislation also has a number of other defects,
including the duration of mandated contract terms. There is
an extremely important difference that Members may not be
aware of regarding federal labor contract law and common law
contract law. Under common law contract law, the terms and
conditions set forth in an agreement do not continue after
the contract's expiration date. Absent some type of evergreen
or continuation clause, all parts or provisions of a common
law contract become null and void after the expiration date
of the contract. By way of contrast--and this is an extremely
important point for Members to understand--all provisions but
for very few minor exceptions of a collective bargaining
agreement negotiated between unions and employers continue in
full force and effect after the expiration date of the
agreement. Such a continuation of terms and conditions of
employment is a result of federal labor law requirements,
pursuant to the important U.S. Supreme Court decision in the
Katz case. Essentially, the Katz doctrine requires that no
party to a labor agreement can unilaterally change the terms
and conditions set forth in the expired labor contract,
absent mutual agreement of all parties. The practical impact
of the unilateral change doctrine is that contract terms set
forth in an initial agreement have a life expectancy of
literally decades after the agreement is negotiated.
Employees working at a location covered by a collective
bargaining agreement, in addition to not having had the
opportunity to vote on whether they desire union
representation, would also be prohibited from voting on
whether they agree with certain labor contract provisions
mandated by a government-sanctioned private arbitration
panel. The provision in H.R. 5408 stating that a government-
mandated initial contract would only last for two (2) years
is exceptionally misleading for the reasons just described.
In fact, the government-mandated contract terms in an initial
agreement would likely remain in place for decades and could
not be changed unilaterally unless mutually agreed upon by
all parties. This area of contract law under our federal
labor law system is particularly concerning given the
potential for government-mandated imposed agreements to
contain restrictions on an employer's ability to reshape its
business, to change important terms and conditions of
employment, and, in this ever-changing technical age,
including particularly the presence of AI, make important
entrepreneurial decisions. On this basis alone, H.R. 5408
should be rejected.
[[Page E575]]
Additionally, the pending legislation omits or fails to
consider important statutory rights of employees, unions, and
employers under the NLRA. For example, H.R. 5408 omits the
right of unions and employers to appeal National Labor
Relations Board decisions on the composition of bargaining
units. At present, unions and employers who disagree with the
National Labor Relations Board's decisions on which
categories of employees should be included or excluded from a
bargaining unit can appeal those decisions to a federal court
of appeals. This is an extremely important right for all
stakeholders under the National Labor Relations Act,
particularly given the ever-changing nature of Board law and
its constant policy oscillation with respect to important
issues under the NLRA. There have been wide variations among
administrations in how the NLRA is to be interpreted and
applied. One of these important areas is the composition of
bargaining units. H.R. 5408 makes no provision whatsoever for
the continuation of this important appeal right.
H.R. 5408 also fails to mention in any manner the right of
employers to unilaterally implement terms and conditions of
employment if an impasse if reached in negotiations. The
impasse doctrine under the NLRA has been in place for
decades. Although it is a high burden for employers to meet,
it is an important safety valve doctrine that permits an
employer to ultimately implement its last contract offer if a
deadlock or stalemate occurs in negotiations and no agreement
can be reached. It is essential that the impasse doctrine not
be interfered with--it needs to continue to be a part of our
checks and balances in our federal labor laws.
H.R. 5408 is also silent on whether employees have the
right to strike under the various mandates included in this
legislation. An employee's right to strike is one of the
bedrock provisions of our federal labor law and also serves
as a safety valve for employees and unions to respond to what
they believe is employer overreach. H.R. 5408 does not
address this right to strike issue and would appear to
prohibit employees not only from voting on the final
government-mandated arbitration contract terms but from
rejecting such terms altogether and engaging in strike
activity. Again, on this point alone, H.R. 5408 should also
be rejected.
Additionally, this legislation is replete with practical
problems and contains unrealistic time targets. For example,
the bill requires that negotiations begin within ten (10)
days of receiving a written request from the other party.
This ten-day requirement falls far short of the reality of
collective bargaining in this country. Neither unions nor
employers are prepared, within ten (10) days of a request to
begin bargaining, to engage in any meaningful exchange of
proposals. Indeed, it takes considerable time for parties to
begin to prepare for bargaining. For example, negotiating
committee members need to be selected. Negotiation dates and
locations must be agreed upon. Written contract proposals
must be developed, which are exceedingly important because
they have the potential to form the basis for the ultimate
agreement between the parties. Ground rules have to be
established--in fact, negotiation over ground rules often
takes weeks if not months because of issues such as whether a
media blackout should be imposed, location of bargaining,
questions of whether employees will be paid for all of their
time in negotiations, no smoking policies, issues of whether
negotiations can be recorded and/or available for online
access, and the list goes on. Additionally, first contracts
can be delayed by information requests from employers or
unions. In fact, one of the preferred approaches of certain
unions has been to file extensive information requests before
negotiations begin or at certain critical points during
negotiations, therefore significantly delaying the
negotiation process. It is important to remember that first
contracts form the basis of an agreement that may have a
lasting impact. Initial contract terms may be contained in
successive bargaining agreements for decades. Any experienced
negotiator, whether on the employer or union side, will tell
you that the first contract between parties is exceptionally
important. For reasons outlined above, once a contract
provision is in place, it cannot be removed in subsequent
agreements, even after contract expiration, absent a mutual
agreement by the parties.
Further, the requirement that mediation occur within ninety
(90) days after the initial negotiation period is also
entirely unrealistic. At that point in their discussions, the
parties may not be anywhere near agreement on multiple
issues. Mediation is only effective when the parties have
reached well-defined positions on open issues that then can
be ``mediated'' by an outside party. The requirement
mandating ``interest arbitration'' within thirty (30) days
after the completion of mediation is also an unrealistic time
target. If mediation has had any positive impact on the
parties, they will need more than thirty (30) days of
negotiations to reach an ultimate agreement. There are other
impractical and unrealistic time targets in this legislation.
Suffice it to say, the time targets are not based on reality
and also include unrealistic expectations of assistance from
the Federal Mediation and Conciliation Service (``FMCS''), an
entity that has been slated by the Administration for phase-
out or substantial curtailment of its services. The FMCS does
not have anywhere near the personnel to meet the obligations
this legislation would impose upon it.
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
____
June 9, 2026.
Re Constitutional Defects of the Faster Labor Contracts Act--
H.R. 5408
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''). This letter deals
with the bill's constitutional defects.
Finally, the legislation has numerous and substantial
constitutional problems. Indeed, the provisions of this
legislation fly in the face of Supreme Court precedent, which
for a hundred years has told us that ``compulsory''
arbitration violates due process. The bill also violates
well-established constitutional rules against delegating
government power to unaccountable, private decisionmakers.
But most problematically, the bill constitutionalizes every
collective bargaining agreement. Every government-mandated
collective bargaining agreement and every dispute about such
agreement will become a constitutional case. The result will
be chaos in our workplaces and congestion in our courts. This
approach will direct employer resources to litigation and
potentially decrease the amount of wages and benefits an
employer can provide to employees.
There are due-process issues with this litigation. A
century ago, in three (3) separate cases, the Supreme Court
held that a state cannot force employers and workers to
decide the terms and conditions of their own workplaces
through government-mandated arbitration that ``deputized''
private sector arbitrators to act as agents of the federal
government. These cases are known as the Wolff Packing
trilogy, after the name of the employer involved. The cases
came out of a Kansas law that required employers and workers
in certain industries to submit their disputes over wages and
other working conditions to a government agency. That agency
then set the terms for them through arbitration. And this
same law barred employees from striking during the
arbitration process.
The Supreme Court had no problem finding that law
unconstitutional. Three times, the Court said that employers
and employees cannot be forced to make their contracts
through arbitration. Arbitration has to be agreed to by both
sides. Whatever power the government has to regulate working
conditions itself, it cannot impose a contract on private
parties through an arbitral process.
Some individuals may argue that the Wolff Packing trilogy
is no longer good law. They are wrong.
First, while we may have a different economy today and the
presence of new technology, we still have the same
Constitution. Due process means the same thing today that it
meant when the Framers adopted the Fifth Amendment. And due
process has meant, since the Magna Carta, that no one may be
deprived of their rights except by a generally applicable
law. While the government can set minimum standards applied
generally to all people and all business entities, it cannot
compel a special result for one employer and one union in a
government-imposed ``contract'' that specifically applies to
them and no one else. Congress cannot set aside the Framers'
vision just because some individuals and organizations
believe those freedoms are outdated.
Second, the Wolff Packing decisions are still good Supreme
Court precedent. They have never been revisited or
overturned. The Congress does not have the option to overturn
Supreme Court precedent--only the Supreme Court can do that.
There are also delegation issues with this legislation.
Article I of the Constitution says that ``all'' legislative
power is vested in Congress. Likewise, Article II states that
all executive power is vested in the President. The articles
don't say ``some'' power is vested in these branches; they
don't say that these branches have only as much power as they
decide not to give away. No--they say that all power is
vested in those branches. And they say that for a reason.
Congress and the President have to face the voters: every
election cycle, they are accountable to the people. If they
use public power in a way the people don't like, the people
can replace them. But that isn't true about private people.
If private people are given government power, they can use
that power without answering to anyone. And worse, the people
who are supposed to use that power--the Congress and the
President--can avoid responsibility for the results.
That is why the Constitution does not permit the government
to delegate unlimited government power to private
individuals. The Congress cannot just say to some consultant,
go write the laws. Indeed, if Congress wants to utilize
private expertise, the government has to supervise the
private experts. Congress has to make sure that these private
people are only helping government, not making government
policy. Courts call this principle ``subordination.'' It
means that the private party has to be subordinate to some
accountable public official. The public official has to be
able to review, modify,
[[Page E576]]
or reject what the private party does. Otherwise, the
Congress will have delegated power to private people without
the proper limits. This legislation clearly violates the
Vesting Clauses of the Constitution.
That's exactly what this bill would do. After forcing
employers and workers into arbitration, it would assign their
case to a panel of private arbitrators. These arbitrators
would then be authorized to write an agreement and impose it
on the parties. Parties might object to the mandated
agreement. But no party would have any way to challenge it.
Once the arbitrators made a decision, the decision would be
final. No public official would review it; no public official
would make sure that it was fair. The arbitrators are private
people, and this bill would give them ultimate power to
regulate the workplace. That's a major Vesting Clause
problem.
Some might argue that H.R. 5408 does not delegate any
government power. Is not this all about labor contracts? But
that would be wrong. These contracts are not really
contracts. A contract is a legally binding agreement that
parties mutually agree to; and parties under this proposed
legislation will have no right to challenge the imposed
contract terms. Instead, the terms are imposed by law--this
law. They are effectively regulations. And regulating the
workplace is a government power. So, the government cannot
give that power to private people without building in public
oversight. This bill has no oversight. It is flagrantly
unconstitutional.
There are also Appointments Clause and delegation issues
under the proposed legislation. Under the Appointments
Clause, all officers of the United States have to be
appointed by the President and confirmed by the Senate.
Likewise, inferior officers have to be appointed by the
President, the head of a department, or a court. The line
between officers and inferior officers can be unclear. But it
is clear, however, that if someone has final say imposed by
legislation, that person is an inferior officer. So at
minimum, the person must be appointed by the president, a
department head, or a court.
This bill has nothing like that. Instead, one arbitrator is
appointed by a union, one by an employer, and the third
arbitrator, unless mutually agreed upon by the parties, would
be appointed by the Federal Mediation and Conciliation
Service--which, as previously noted, does not have sufficient
personnel to even begin to undertake the mandated mediation
and arbitration procedures contained in this legislation. So,
private parties will have appointed individuals acting as
government officers, and there is no requirement that they be
appointed by a department head. And once they're appointed,
they have final say over the agreement's terms. At minimum,
that makes them inferior officers, who exercise ``substantial
executive power.'' This is clear from the holdings in cases
like the Supreme Court's decisions in Freytag v. Commissioner
and Lucia v. SEC, both of which dealt with lower-level
adjudicators. And in fact, in both cases, the parties who had
their cases tried by the adjudicators could at least appeal
to someone. The parties would have no right to appeal under
this bill. These arbitrators would have even more power. This
bill makes no effort to comply with the Constitution's
appointment rules.
Perhaps the most important constitutional defect of this
bill is that it would turn every initial collective
bargaining agreement written by government-mandated private
arbitrators into a constitutional litigation battleground.
Normally, private contracts do not have to satisfy the
Constitution. That's because the Constitution only concerns
government action. Under well-established NLRA case law,
employers and unions are required to bargain in good faith,
with the ultimate objective of reaching an agreement. It is
important to note, however, that well-established law also
permits any party in collective bargaining to refuse to agree
to the other party's proposals or positions. They can always
stand on their own positions. So anything they do agree on is
ultimately a private decision. And because it is a private
decision, the government does not have a say over the final
terms. In other words, the agreement involves no ``state
action.'' And when there's no state action, there's nothing
to trigger a constitutional analysis.
This bill turns that principle on its head. It forces
employers and employees to accept an agreement imposed over
their objection. And it imposes that agreement by law. The
agreement, therefore, is not really an agreement at all: it
is a regulation. And because it's a regulation, it is state
action. Everything in it has to pass constitutional muster.
That's a real problem. Today, if collective bargaining
agreements had to satisfy the Constitution, most of them
would fail. Let's just run through a few common examples.
Start with compulsory dues. Compulsory dues and fees are
payments that non-member employees have to pay to the union
in order to keep their job. In right-to-work states, they're
illegal. But twenty-four (24) states still allow them. And
when they are included in an agreement, employees have to pay
the dues or fees whether they want to or not.
But the government cannot impose compulsory payments. In
Janus v. AFSCME, the Supreme Court said that the government
could not force public employees to pay fair-share fees
because there was not a sufficient government interest. That
was classic compelled speech, which the Constitution does not
allow.
To date, courts have understood Janus as being limited to
the public sector. That's because only in the public sector
does the state directly force employees to pay the fees. But
once this bill passes, that distinction will disappear. The
government will be involved whenever an arbitral-created
contract requires fair-share fees. All of those contracts
will be open to attack in our courts. All of them will be
subject to First Amendment scrutiny.
Today, many contracts give the union the right to come into
the workplace and speak with the employees at certain times.
In a private contract, that's fine. But under constitutional
analysis, it's a ``taking.'' In Cedar Point Nursery v.
Hassid, the Supreme Court held that California could not
force farmers to give unions access to their property. In
effect, California had extracted a right to access--an
``easement.'' An easement is property. And the government
cannot take property without just compensation. California
gave the farmers no compensation, and neither would this
bill. So any time this bill imposed a contract with union
access rights, it would take property and violate the Fifth
Amendment.
There are even more problems in the constitutional area
regarding this legislation. For example, grievance procedures
would have to comply with constitutional due process. No-
strike clauses would have to comply with the Thirteenth
Amendment. The problems are endless. We have no idea how far
they would go, because the people who wrote this bill didn't
think about them. The authors have never explained how we're
going to deal with constitutionalizing every government-
mandated initial collective bargaining agreement. They have
never explained how we're going to deal with the flood of
litigation that will wash over our courts. They have never
explained any of it--because they can't. This bill is a
constitutional disaster waiting to happen.
Sincerely,
G. Roger King,
King Labor Law.
Alex MacDonald,
Co-Chair, Littler Mendelson
Workplace Policy Institute.
____________________