The NLRA and Good Faith Bargaining

Section 8(d) of the National Labor Relations Act sets forth what is encompassed within the duty to bargain collectively. Section 8(b)(3) of the Act makes it unlawful for a labor organization or employer to refuse to bargain with one another, or refuse to bargain in good faith.

What is "good faith" bargaining?

Good faith bargaining is the obligation to participate actively in deliberations for the purpose of finding agreement. This requires an open mind, a sincere desire to reach an agreement and a sincere effort to reach common ground. If either labor or management comes to the table and simply goes through the motions, is resistant to scheduling meetings at reasonable times, is inflexible in agreeing to the location of meetings or doesn't share the cost, they are not operating in good faith.

Conduct away from the bargaining table may also be relevant. If an Employer were to make a unilateral change in the terms and conditions of employees employment without bargaining, that would be an indication of bad faith. Failure to supply information, unilateral changes, refusals to hold grievance meetings, and direct dealings violate Section 8(a)(5) of the NLRA.

The duty to bargain in good faith includes the processing of grievances and other labor-management meetings. 29 U.S. Code § 158(d) states that an Unfair Labor Practice has occurred if labor or management fails to meet their obligation to bargain collectively: The section reads as follows:
d) Obligation to bargain collectively
For the purposes of this section, 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.

In determining if either the union or the employer failed to meet its obligation to bargain in good faith, their actions and attitudes at the table and away can be a determining factor.