Surface bargaining is when an employer engages in bargaining that is insincere, usually with the intent to not reach agreement with the union and thus not enter into a new collective bargaining agreement. Consider surface bargaining as sort of going through the motions. Surface bargaining is a form of bad faith bargaining.
The National Labor Relations Board looks at the totality of the circumstances when determining whether a party engages in surface bargaining; this includes the parties’ conduct away from the bargaining table, as well. As you can imagine, employers are the “party” most likely to engage in surface bargaining, and there is a very fine line between hard bargaining in good faith and engaging in surface bargaining.
The Board follows a 7-factor test when analyzing whether a company is attempting to avoid reaching an agreement. The 7-factors are as follows:
- Delay tactics
- Unreasonable bargaining demands
- Unilateral changes in mandatory subjects of bargaining
- Efforts to bypass the union
- Failure to designate an agent with sufficient bargaining authority
- Withdrawal of already agreed-upon provisions
- Arbitrary scheduling of meetings
A company that engages in just one of the above factors may be guilty of surface bargaining. The hard part, though, for people who do not regularly negotiate labor contracts, is knowing for example what a delay tactic is, or what unreasonable bargaining demands are. The nuances in the law – coupled with the reinvigorated NLRB – is a recipe for disaster to unseasoned negotiators.
Companies who negotiate their own contracts should heed the warning of unions complaining about surface bargaining. The threshold for proving a company is surface bargaining is quite low, yet the penalty is steep: the NLRB can mandate the parties negotiate a certain number of days per month for a certain number of hours per session until the parties reach impasse or agreement on a whole contract.
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.