Duty to Bargain in Good Faith

Each side has the duty to bargaining in good faith during union negotiations. Oftentimes, though unfair labor practice charges are levied against employers alleging a violation of this duty. Given the current make-up of the National Labor Relations Board, proving a violation of the duty to bargaining in good faith is very easy.

The duty to bargain in good faith is an “obligation . . . to participate actively in the deliberations so as to indicate a present intention to find a basis for agreement . . .” The totality of conduct is the standard by which the quality of negotiations is tested. This means an employer is not judged solely on bargaining table behavior, but also by its words and actions away from the bargaining table.

Fortunately, the NLRB overlooks certain misconduct in an effort to preserve the bargaining process. For example, the Board refused to consider statements by the employer’s negotiators to the effect that it would be “their agreement or none at all” as evidencing a refusal to bargain in good faith. There, the Board said, “Although some statements by negotiating parties may show an intention not to bargain in good faith, the Board is especially careful not to throw back in a party’s face remarks made in the give-and-take atmosphere of collective bargaining.”

This give-and-take atmosphere is a significant reason why companies who are not used to negotiating contracts or whose negotiations have become acrimonious should consult a labor relations attorney before accidentally breaching its duty of good faith bargaining. Under some circumstances, refusing to give requested documents to the union is proper, refusing to sign a contract with a union security clause is lawful, refusing to meet when the union demands a meeting is OK, but sometimes each of these on their own are indicators of a company violating its duty to bargaining in good faith.

Combine those examples with a company’s conduct away from the bargaining table, and you can see just how easy it is to breach your duty to bargain in good faith. Unions are generally very wise when it comes to bargaining laws and are able to expose companies who do not have the same level of expertise. Companies should arm themselves with equal bargaining knowledge to obtain the best contract they can negotiate.

Matt Austin is a Columbus, Ohio lawyer who owns Austin Legal, LLC, a boutique law firm with offices in central and northeast Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. Austin Legal’s Concierge Legal Services program is relied upon by companies to remain compliant and competitive. If you have employees, you need Concierge Legal Services. You can call Matt at (614) 285-5342 or email him at Austin@LaborEmploymentOSHA.com.

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