§11.2 Duty to Bargain in Good Faith

• Library: Labor and Employment Law: Private Sector (OSBar) (2011 Ed.)

§11.2 DUTY TO BARGAIN IN GOOD FAITH

§11.2-1 Statutory Provisions

It is an unfair labor practice for an employer "to refuse to bargain collectively with the representatives of his employees." 29 USC §158(a)(5) (NLRA §8(a)(5)). Unions must bargain in good faith with employers. 29 USC §158(b)(3) (NLRA §8(b)(3)). The obligation to bargain collectively is described in 29 USC §158(d) (NLRA §8(d)):

[T]o bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement, or any question arising thereunder, and the execution of a written contract incorporating any agreement reached if requested by either party, but such obligation does not compel either party to agree to a proposal or require the making of a concession.

§11.2-2 Totality of the Circumstances

The National Labor Relations Act (NLRA) does not compel agreements between employers and employees. 29 USC §158(d) (NLRA §8(d)); NLRB v. American Nat'l Ins. Co., 343 US 395, 401-404, 72 S Ct 824, 96 L Ed 1027 (1952). Rather, its underlying theory is that "free opportunity for negotiation with accredited representatives of employees is likely to promote industrial peace and may bring about the adjustments and agreements which the Act in itself does not attempt to compel." NLRB v. Jones & Laughlin Steel Corp., 301 US 1, 45, 57 S Ct 615, 81 L Ed 893 (1937).

Preserving this free opportunity for negotiations is the cornerstone of the NLRA. In H.K. Porter Co. v. NLRB, 397 US 99, 103-104, 90 S Ct 821, 25 L Ed2d 146 (1970), the Supreme Court described the intent of the NLRA as follows:

The object of [the NLRA] was not to allow governmental regulation of the terms and conditions of employment, but rather to ensure that employers and their employees could work together to establish mutually satisfactory conditions. The basic theme of the [NLRA] was that through collective bargaining the passions, arguments, and struggles of prior years would be channeled into constructive, open discussions leading, it was hoped, to mutual agreement. But it was recognized from the beginning that agreement might in some cases be impossible, and it was never intended that the Government would in such cases step in, become a party to the negotiations and impose its own views of a desirable settlement.

H.K. Porter Co. v. NLRB, 397 US 99, 103, 90 S Ct 821, 25 L Ed2d 146 (1970).

An employer's general discussions with a union do not fulfill its statutory obligation to bargain in good faith. Instead, that obligation requires the parties "to participate actively in the deliberations so as to indicate a present intention to find a basis for agreement, and a sincere effort must be made to reach a common ground." NLRB v. Montgomery Ward & Co., 133 F2d 676, 686 (9th Cir 1943).

In evaluating an employer's good faith, the ultimate issue before the National Labor Relations Board (NLRB) or the courts is whether the employer "went through the motions of negotiation as an elaborate pretense with no sincere desire to reach an agreement" or whether "it bargained in good faith but was unable to arrive at an acceptable agreement with the union." NLRB v. Reed & Prince Mfg. Co., 205 F2d 131, 134 (1st Cir 1953). "A party's subjective 'good faith' in bargaining may be ascertained from an examination of the totality of the circumstances indicative of mental state." Local 3-7, International Woodworkers v. Daw Forest Products Co., 833 F2d 789, 794 (9th Cir 1987). See NLRB v. Tomco Communications, Inc., 567 F2d 871, 883 (9th Cir 1978); NLRB v. Pacific Grinding Wheel Co., 572 F2d 1343, 1347 (9th Cir 1978); Prentice-Hall, Inc., 290 NLRB 646 (1988).

An employer's proposal to erode virtually all economic provisions of a contract, and to replace them with severe and predictably unacceptable union concessions, which the employer refused to back off of in any significant way, constituted bad-faith bargaining and going "through the motions of bargaining" only. ConAgra, Inc., 321 NLRB 944, 958-960 (1996), enforcement denied, 117 F3d 1435 (DC Cir 1997).

Because the good-faith standard can be defined only generally, its precise application to the facts of any particular case may be difficult to predict. The totality-of-the-circumstances standard requires the NLRB to review the entire course of bargaining to determine the lawfulness of specific employer conduct. The NLRB may more readily accept a union's allegation that specific conduct constitutes bad-faith bargaining by the employer if the employer has otherwise violated the good-faith bargaining duty, or the NLRA generally. In one case, the NLRB specifically noted it might have found the employer not guilty of an unfair labor practice absent analysis of the larger context of a company's bad-faith conduct. McDaniel Ford, Inc., 322 NLRB 956 (1997).

A company's statement that it did not want a contract may be evidence of sham or surface bargaining. United States Ecology Corp., 331 NLRB 223 (2000). However, an employer's hard-sell bargaining position based on business considerations is not unlawful just because the company anticipated that its demands would not likely be acceptable to the union, and had prepared a contingency plan based on its belief that no contract agreement could be reached. ConAgra, Inc. v. NLRB, 117 F3d 1435, 1444-1445 (DC Cir 1997). Preparing for a breakdown in negotiations is not the same as "surface bargaining" or trying to cause a breakdown. ConAgra, Inc., 117 F3d at 1444-1445.

Likewise, an employer's unlawful acts do not always reflect its intent to negotiate without reaching agreement. American Commercial Lines, 291 NLRB 1066, 1068 (1988). When the totality of circumstances demonstrates good-faith bargaining, a "take it or leave it" offer does not violate the NLRA. Industrial Elec. Reels, 310 NLRB 1069, 1071 (1993). An employer's insistence to impasse on an unlimited right to subcontract unit work does not constitute bad-faith bargaining if other circumstances show good-faith bargaining. University of Pittsburgh Med. Ctr. v. International Union United Plant Guard Workers Local 502, 320 NLRB 122, 123 (1995). An employer's overall good faith will also be evaluated in light of a union's total unwillingness to compromise. NLRB v. Hi-Tech Cable Corp., 128 F3d 271, 277-278 (5th Cir 1997) (involving a company-proposed no-smoking policy).

Antiunion attitudes expressed by the employer, along with the employer's refusal to accept specific union proposals, may contribute to a finding of bad-faith bargaining. See NLRB v. Hospitality Motor Inn, Inc., 667 F2d 562, 563 (6th Cir 1982); St. George Warehouse Inc., 341 NLRB 904 (2004). "[G]ood faith or the lack of it depends upon a factual determination based on overall conduct." Altorfer Machinery Co., Lift Truck Div., 332 NLRB 130, 130 (2000).

§11.2-3 Conditions to Bargaining

An employer may not lawfully condition good-faith negotiations on the union's withdrawal of unfair labor practice charges against the employer, NLRB v. Kit Mfg. Co., 335 F2d 166, 167-169 (9th Cir 1964); on the union's abandoning a strike, Gibson Greetings, 310 NLRB 1286, 1288-1289 (1993), rev'd in part, aff'd in part, and remanded, 53 F3d 385 (DC Cir 1995); Binder Metal Products, Inc., 154 NLRB 1662, 1666-1667 (1965); on the union's dismissing a lawsuit against the company, Peerless Food Prod., 231 NLRB 530, 534 (1977); on the union's consent to audiotape meetings, Water Ass'n, 290 NLRB 838, 839 (1988); or on the union's agreement with the legal position of the company, Gibson Greetings, 310 NLRB at 1288-1289.

§11.2-4 Concessions, Content, and Withdrawal of Proposals

Although the National Labor Relations Board (NLRB) generally will not determine an employer's good faith on the basis of the substance of particular proposals to or from the union, NLRB v. American Nat'l Ins. Co., 343 US 395, 408-409, 72 S Ct 824, 96 L Ed 1027 (1952), or make subjective evaluations of an employer's generosity, Prentice-Hall, Inc., 290 NLRB 646 (1988), an employer's consistent refusal to make concessions or counterproposals may indicate bad-faith bargaining, NLRB v. Montgomery Ward & Co., 133 F2d 676, 687-688 (9th Cir 1943); see Texas Coca-Cola Bottling Co., 146 NLRB 420, 429 (1964), enforced, 365 F2d 321 (5th Cir 1966).

An employer destroys the bilateral process of negotiations and engages in bad-faith bargaining, or "Boulwareism," when the employer presents the union with a contract offer based on its research into industry standards and employee surveys, indicates that it does not intend to modify the terms of the offer except to correct items that could be shown to be based on erroneous information, and engages in a publicity campaign aimed at convincing employees of the desirability and firmness of the employer's offer. General Electric Co. (New York, N.Y.), 150 NLRB 192 (1964), enforced, 418 F2d 736 (2d Cir 1969) (other subsequent history omitted).

An employer's withdrawal of assent to items previously agreed to in negotiations may also constitute evidence of an intent not to reach agreement. Valley Oil Co., Inc., 210 NLRB 370, 385 (1974). Collective bargaining negotiations must be "something more than 'a mere exchange of ideas.'" NLRB v. Alterman Transport Lines, Inc., 587 F2d 212, 221 (5th Cir 1979) (quoting Great Southern Trucking Co. v. NLRB, 127 F2d 180, 185 (4th Cir 1942)). If an employer repeatedly changes position or withdraws concessions previously made, a finding of bad faith may be made because those actions are evidence that the employer intends to delay negotiations and to avoid reaching agreement. NLRB, 587 F2d at 226-228.

However, an employer's withdrawal of a prior proposal it has made, or withdrawal of its prior agreement to a proposal by the union, "does not establish per se the absence of good faith." NLRB v. Randle-Eastern Ambulance...