What is a Duty to Bargain in Good Faith?

The duty to bargain in good faith is found in Section 8(d) of the National Labor Relations Act.and governs negotiating collective bargaining agreements between labor unions and management. Both unions and employers must bargain in good faith. To bargain in good faith means to meet at reasonable times and confer in good faith with respect to wages, hours, and others terms and conditions of employment. However, neither side is obligated to agree to any proposal or concession.

Sounds pretty straight forward, right? Well, it’s not. Section 8(d) is frequently used by labor unions as a sword to get what they want from employers during bargaining. Unions sometimes file unfair labor practice charges even before negotiation begin when the parties can’t agree on the dates, times, and location of negotiating sessions.

Unions frequently want to hold meetings at the employer’s place of business and employers don’t – or shouldn’t – want to hold meetings there. Union’s counter by offering their union hall as a place to bargain, and employers usually decline that location, too. When employers offer to split the cost of a neutral place, like a conference room at a hotel, airport, library, or community center, unions generally refuse to split the rental cost. When this stalemate occurs, unions file unfair labor practice charges alleging employers are not bargaining in good faith. These ULPs force the employer to either spend money defending a frivolous charge or agree to meet at an undesirable location.

Equally as contentious as the “where” to bargain is the “when” to bargain. Though unrealistic, unions typically claim to want to bargain around the clock every day until an agreement is reached. When an employer declines to agree to bargain on such a ridiculous schedule, unions allege – wrongly – that the employer is not bargaining in good faith. Employers like to hold bargaining sessions whenever those sessions disrupt production the least. For employers who run a single shift, bargaining sessions outside normal work hours is least disruptive. For employers running two or more shifts, alternating between shifts and days is usually least disruptive. Contrary to an employer’s desire, unions try to have bargaining sessions occur during the work day (and have employers pay employees for attending bargaining) so that the workers’ personal time outside of work is not impacted. When the dates and time of bargaining cannot be agreed to, unions file unfair labor practice charges with the National Labor Relations Board in an effort to force the employer to yield to bargaining sessions that disrupt production.

Other times unions file unfair labor practice charges under Section 8(d) of the National Labor Relations Act are when employers refuse to provide all the documentation requested by unions during negotiations. To be clear, unions are entitled to certain information – a topic to discuss on another day – but employers are also allowed to withhold certain information. And then there’s those documents that fall into the gray area between must turn over and don’t have to turn over. When these gray documents are requested and not turned over, allegations of bad faith bargaining surface.

When employers cancel bargaining sessions, unions allege that the cancellation is really just to stall bargaining and get the bargaining unit employees to turn against the union. I have cancelled negotiations for such varied reasons as bad weather making travel impossible, death, and the scheduled negotiating session falling on a major federal holiday. Each time I cancelled, the union alleged – erroneously – bad faith bargaining.

The last major target of union alleging employers are not bargaining in good faith is over negotiation pay. As stated above, unions try to get employers to pay employees who are on the bargaining committee and attend bargaining sessions. Employers are not required to pay employees for this time unless the parties agree or a previous collective bargaining agreement says so. Unions take the position that not paying employees to sit at the bargaining table is not bargaining in good faith because the employer is forcing the employees to decide to work and make money or attend bargaining and not make money; the union’s position is wrong. Ironically, unions are free to pay bargaining committee employees for the time they are sitting in negotiations, but unions don’t like to talk about that.

Matt Austin is a Columbus, Ohio labor lawyer who owns Austin Legal, LLC, a boutique law firm that limits its representation to employers dealing with labor, employment, and OSHA matters. Matt can be reached by email at
Matt.Austin@Austin-Legal.com or by phone at 614.285.5342.

NLRB Issued Third Social Media Guidance Memo

As appeared in the Human Resource of Central Ohio (HRACO) monthly newsletter 

NLRB Issued its Third Social Media Policy Guidance Memorandum 

The National Labor Relations Board recently issued its third Social Media memorandum. The memo is supposed to help employers understand what social media policies are deemed legal by the NLRB and is likely the result of employer reaction to the first two memos that left them wondering whether any meaningful social media policy could pass Board muster. Unfortunately, this third memo leaves us even more perplexed.

These are only NLRB guidelines and courts of law will likely render a final rule on social media policy language in the future. However, the NLRB governs employers with and without labor unions. So, if you’re an employer and you have a social media policy, the NLRB likely has the power to regulate that policy.

My labor relations article in HRACO’s April newsletter dealt with the NLRB and social media. That article included language that social media policies should and should not contain. My opinions in that article have not changed. This third memo adds some additional social media policy language considered both legal and illegal by the Board. Although there are more, here are a few of the examples that leave employers more confused than before:

Legal Policy Language

Illegal Policy Language

Employees may be suspicious when asked to disclose confidential information. Release of confidential guest, team member, or company information is prohibited.
Employees should not harm the image and integrity of the employer. Any harassment, bullying, discrimination, or retaliation that is not permissible at work is not permissible online even if it is done after hours, from home, and on home computers. Offensive, demeaning, abusive, or inappropriate remarks are as out of place online as they are offline.
Respect all copyright and other intellectual property laws for the Employer’s protection as well as yours. Get permission before reusing others’ content or images.

The acting General Counsel of the NLRB (the same guy who keeps writing these “guidance” memos) provides what he considers to be a lawful, model social media policy:

Use your best judgment and exercise personal responsibility. Take your responsibility as stewards of personal information to heart. Integrity, Accountability and Respect are core [Employer] values. As a company, [Employer] trusts—and expects—you to exercise personal responsibility whenever you participate in social media or other online activities. Remember that there can be consequences to your actions in the social media world—both internally, if your comments violate [Employer] policies, and with outside individuals and/or entities. If you’re about to publish, respond, or engage in something that makes you even the slightest bit uncomfortable, don’t do it.

But just because the acting General Counsel approves this policy today, does not mean that it is iron-clad. If you intend to use this policy, make sure that it is consistent with your othercorporate policies and consider including any of the other Board-approved language found in my article from HRACO’s April newsletter.

Matt Austin is a Columbus, Ohio labor lawyer who owns Austin Legal, LLC, a boutique law firm that limits its representation to employers dealing with labor, employment, and OSHA matters. Matt can be reached by email at
Matt.Austin@Austin-Legal.com or by phone at 614.285.5342.