When a union that properly represents a unit of employees requests that that the employer bargain, then there is generally an obligation upon the employer to bargain. The National Labor Relations Board, per the National Labor Relations Act or NLRA, and the Washington Office of Financial Management require the parties to negotiate “in good faith.” This negotiating is a good faith attempt to reach an agreement regarding hours, wages, and working conditions for the employees represented by the union.
The Washington Office of Financial Management describes Good Faith Bargaining as “[t]he legal requirement that two parties in a collective bargaining relationship meet and negotiate at reasonable times and places, with a willingness to reach an agreement on the terms of a collective bargaining agreement.” This definition is murky with respect to the meaning of “good faith,” which is a subjective term and is hard to pinpoint.
Sections 8(a)(5) and 8(b)(3) of the NLRA require employers and unions to bargain in good faith with respect to wages, hours, and other terms and conditions of employment. That is to say, it is not sufficient to simply confer regarding the terms and conditions of employment; it must be done in good faith.
The NLRA does not define “good faith.” Generally, it is interpreted as requiring the parties to make a sincere and honest attempt to reach an agreement by offering proposals, considering the other side’s proposals, and returning with counterproposals. The good-faith requirement imposes an obligation on both parties to make honest claims. Note, however, that good faith does not require the parties to reach a settlement, agree to any particular proposal, or make a concession. It requires require that when an agreement is reached, the written contract based on those negotiations incorporates those terms should either party request it. The manner and extent of negotiations necessary to satisfy the good faith requirement varies according to the circumstances. Protracted negotiations alone do not satisfy a party’s obligation under the NLRA.
The NLRA mandates that the parties not act in bad faith. While “bad faith” can be understood as the absence of good faith, the National Labor Relations Board and case law point to several signs that are indicative of a party acting in bad faith:
- Sends to the bargaining table negotiators who do not have authority to make agreements on mandatory bargaining subjects;
- Unreasonably delays negotiations;
- Makes unilateral changes to terms and conditions of employment (“mandatory bargaining subjects”);
- Refuses to discuss proposals;
- Shifts position during bargaining without explanation;
- Withdraws concessions previously granted without explanation;
- Refuses to provide relevant information;
- Engages in merely “surface bargaining” (when one party goes through the motions with the intent not to bargain;
- Prematurely declares an impasse and implements changes in mandatory bargaining subjects;
- Conditions agreement on a mandatory subject to the union’s concession on a permissive bargaining subject; or
- Deals directly with employees over mandatory bargaining subjects.
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