What is meant by bargaining duty?

Both the employer and the union are said to have a bargaining duty. This means that they are required by law to negotiate in a good-faith attempt to reach agreement. The union and employer are expected to bargain until an agreement is reached or the parties reach an impasse. If an employer has a duty to bargain, its refusal to bargain is unlawful.

Does the employer have a duty to bargain? The issue of whether a bargaining duty exists, however, is a major point of contention. Because the employer is not required to bargain until a union makes a bargaining request, the employer might assert that the union's request was not sufficiently clear. An employer might also argue that the union waived its right to bargain over a particular matter through its actions, and therefore the employer does not have a bargaining duty. Perhaps an employer has reasons to doubt that the union actually represents a majority of bargaining-unit employees. It is often unclear whether an employer is required to bargain with a union that represented employees of a company that it has acquired. The attempt to clarify the employer's bargaining duty under these various situations accounts for a great deal of litigation before the National Labor Relations Board.

What does it mean to bargain in good faith? The parties engaged in collective bargaining must demonstrate a sincere intent to reach an agreement. The entire conduct of the party will be considered in determining whether it really intended to bargain meaningfully. Both the form and the content of bargaining sessions will be assessed. Procedurally, the parties engaged in collective bargaining must make a legitimate effort to:

• set and attend timely negotiation sessions;

• avoid undue delay; and

• cooperate generally with the negotiation process.

Surface bargaining. The substantive offers made by a party often reveal whether a genuine agreement is truly desired. An employer or union will be engaged in bad-faith bargaining if it makes illusory offers, does not sincerely consider the other party's positions or contract offers, and only appears on the surface to be negotiating. This is referred to as surface bargaining, and it is considered an unlawful refusal to bargain.

Hard bargaining. However, an employer can engage in hard bargaining. Hard bargaining occurs when either the employer or the union remains firm on a position which puts the other party at a disadvantage. Even if one of the parties appears unyielding on a point that is of particular importance to it, if the party still shows an intention to reach an agreement, then its negotiating conduct is acceptable.

Checklist: Examples of bad faith bargaining

Keeping in mind that the NLRB will look at all relevant facts in determining whether or not an employer has bargained in good faith, here are some examples that may indicate bad faith bargaining:

• dilatory or delaying tactics;

• holding to a predetermined position throughout the bargaining;

• take-it or leave-it bargaining;

• shifting positions on bargaining issues whenever an agreement seems to be reached;

• taking unilateral action on matters under negotiation;

• rejecting previously agreed upon terms;

• following a pattern intended to undermine the union and avoid agreement;

• refusing to furnish relevant information;

• offering less favorable proposals as negotiations proceed.