The Ticktin Minute December 11, 2017 – Good Faith Bargaining Requirement (Unions)

Good Faith Bargaining Requirement (Unions)

When an individual is hired for certain job position and at that job, the workers participate in a Union, then that individual may be required to follow certain formalities, including but not limited to: joining said Union, paying Union fees and engaging in collective bargaining. The National Labor Relations Board (“NLRA”) has put in place certain procedures and guidelines for such Union procedures and activities and failure to adhere to and/or follow any such activities can lead to a labor related claim. One of the more common issues or claims that labor boards tend to hear is failure to bargain in good faith.

Good faith bargaining is a requirement of participating in Union activities. The National Labor Relations Board handles hundreds, if not thousands, of cases related to failure to bargain in good faith. In determining whether a party (employee or employer) is bargaining in good faith, the NLRB looks at what is called the totality of the circumstances. In other words, they look at multiple different factors and determine the whole picture based on applying the facts to those factors. Bargaining in good faith entails an obligation to actively and openly participate in labor negotiations. A good faith bargaining negotiation typically shows a clear present intent of reaching an agreement or finality of an issue imposed. Characteristics of good faith bargaining include an open mind and a genuine desire to reach a final agreement or common ground. Absent this, the National Labor Relations Board may consider that one or both of the Parties are not collectively bargaining in good faith.

Further, the term “good faith” was added to the law to require parties to have a sincere intention of bargaining and not to simply go through the motions. The NLRB also may consider certain conduct made outside of the bargaining table as well (such as a change of a term or condition of an employee’s contract without going through the properly bargaining channels). This could be a relevant factor to tip the scale one way or another under the totality of the circumstances standard.

If you or someone you know has a potential employment law claim and/or questions regarding your rights, contact the attorneys of The Ticktin Law Group for a complimentary consultation.