Bad Faith Bargaining - U.S. Test

"XVIII. Standards Defining the Concept of Bad Faith Bargaining - Federal Labor Laws" by Paul K. Rainsberger, Director University of Missouri – Labor Education Program. Revised, January 2004

B. Evidence of Bad Faith

1. An important decision of the National Labor Relations Board identified seven distinct indicators of surface bargaining. While this list is not dispositive, it provides a good summary of the types of elements that will suggest a finding of surface bargaining. These common tactics include:

• a. Delaying tactics,

• b. Proposing unreasonable bargaining demands,

• c. Implementing unilateral changes in conditions of employment,

• d. Direct dealing, or implementing steps to by-pass the union,

• e. Failure to designate an agent with sufficient authority to negotiate,

• f. Withdrawal of proposals after tentative agreement has been reached on those items,

• g. Arbitrary scheduling of meetings.

2. Some of the tactics outlined in the Atlantic Hilton case are potential unfair labor practices independent of a showing of bad faith. For example, unilateral changes cannot be implemented unless a bargaining impasse has been reached. Other independent unfair labor practices that may be evidence of bad faith include:

• a. Failure to provide information, or unreasonable delays in providing required information,

• b. Insistence to the point of impasse on settlement of nonmandatory subjects of bargaining,

• c. Refusal to sign an agreement after the union accepted a comprehensive employer proposal,

• d. Threats, discriminatory discharges, or other violations of § 8(a)(1) or 8 (a)(3), that are designed to undermine the bargaining process.

3. Other tactics employed in bargaining may be legal if used in isolation, but will still be taken as evidence of bad faith. Other examples of such tactics include:

• a. Causing long delays or postponements in scheduling bargaining sessions,

• b. Refusing the union even minor access to workers (posting of notices on bulletin boards) before formal negotiations have begun,

• c. Giving minor concessions on some items with no negotiations over major items,

• d. Making no counterproposals at all to the union,

• e. Insisting on procedural formalities for bargaining with little discussion of mandatory items,

• f. Making direct appeals to the membership,

• g. Rejecting proposals with no explanation,

• h. Submitting last minute, surprise proposals to thwart negotiations,

• i. Engaging in regressive bargaining, or following one proposal with a subsequent proposal offering lesser terms.