The duty to bargain. Under Section 8 (d) of the National Labor Relations Act (NLRA), the union and the employer are required to engage in collective bargaining once the union has been recognized as representing a majority of the employees in the appropriate unit. Specifically, the statutory language encompassing the bargaining obligation reads as follows:

". . . To 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. . ."

In turn, it has been statutorily declared to be an unfair labor practice for an employer "to refuse to bargain collectively with the representatives of his employees . . .". This unfair labor practice is a Section 8 (a)(5) violation. Similarly, it is an unfair labor practice for a labor organization ". . . to refuse to bargain collectively with an employer". This is a Section 8 (b)(3) violation.

Over the years, this seemingly simple statutory language has caused a magnitude of headaches for employers, unions, and the National Labor Relations Board. Case law interpreting this section has developed the following rules concerning the duty to meet, confer, and negotiate:

Good/bad faith bargaining. Where an employer meets, but repeatedly declares it has no interest in signing a written agreement, the employer has not engaged in good faith bargaining.1 An employer must meet with the intent to negotiate in good faith with the view of reaching an agreement if possible even though the NLRA does not require that the parties agree.

An employer is obligated to bargain in good faith, bargaining which is more than mere negotiation. Bargaining in good faith is negotiation with a bona fide intent to reach an agreement if agreement is possible.2

Mandatory subjects. An employer has an obligation to bargain to impasse on mandatory subjects of bargaining. Mandatory subjects are those negotiation topics which deal with wages, hours, and other terms and conditions of employment.3 An employer must bargain about mandatory topics of bargaining and may insist upon such bargaining proposals to impasse. Impasse is the place at which the parties have reached a deadlock on the issue.

Permissive subjects. An employer may also bargain with the union concerning permissive topics of bargaining. Permissive subjects include issues dealing with internal union affairs, performance bonds, and other topics which are not directly related to "wages, hours, and other terms and conditions of employment".4 Neither party may insist upon negotiating on permissive topics of bargaining to impasse.

Illegal subjects. Bargaining on illegal subjects is discussing topics on which the parties are forbidden to bargain. Even proposing these topics is an unfair labor practice. Topics such as closed shop provisions, contract clauses which discriminate against employees based upon protected classifications and others are illegal topics and may not be brought to the bargaining table.5

Unilateral changes. Certain types of employer conduct are viewed as illegal bargaining without regard to an evaluation of the employer's good or bad faith. As an example, an employer may not unilaterally impose changes in the employment relationship on a mandatory subject of bargaining without first conferring with the union to impasse.6 Because the employer is obligated to bargain about mandatory topics, a precipitous, unilateral change signifies an effort by the employer to bypass the bargaining process.

Examples of bad faith bargaining:

1. It is a violation of Section 8 (a)(5) for an employer to bypass the union bargaining agent and deal directly with employees.7

2. It is a refusal to bargain where an employer refuses to sign a written contract once the terms have been agreed upon.8

3. It is unlawful for an employer to refuse to meet at reasonable times to engage in bargaining. As an example, insistence that all bargaining be done in writing or through the mails would constitute a failure to meet at reasonable times.9

4. The duty to bargain in "good faith" implies a duty to meet with an open mind and a sincere desire to reach an agreement.10 Generally, claims of failure to bargain in good faith will be examined based upon the "totality of conduct" of the employer to determine whether good faith bargaining has occurred.11 As an example, where an employer's position in bargaining is a "take it or leave it" approach exhibiting an unwillingness to discuss, confer, and negotiate in good faith, the "totality of the conduct" may exhibit a refusal to bargain in good faith.12

5. An example of bad faith bargaining is "surface bargaining" where the employer simply goes through "the motions" of bargaining.13

6. Where an employer engages in dilatory tactics or sends negotiators to the table with insufficient authority to carry on meaningful bargaining, the employer also commits an 8 (a)(5) violation.14

Furnishing information. An employer also commits an unfair labor practice when it refuses to furnish relevant information to union representatives during contract negotiations. Such information is deemed by the Board and the courts to be integral to effective bargaining.15 An employer's obligation to make information available does not arise until the union makes a request or demand that the information be furnished. Information which may be relevant includes financial information, as well as sufficient information to allow the union to bargain intelligently and to "service and police the contract".16

The aforementioned list is not designed to be a comprehensive list of every action an employer may take in the bargaining process which could constitute an unfair labor practice. Nonetheless, it should provide an employer with a solid foundation for understanding the essential rights and liabilities a business faces in engaging in collective bargaining with a union.