It is not unusual in the context of heated collective bargaining negotiations for one side or the other to charge their opponent with bad faith bargaining.
It is an unfair labor practice to fail or refuse to engage in good faith collective bargaining. While this allegation is often made, it is rarely proven and more rarely made the subject of an unfair labor practice. Even with all the allegations of bad faith asserted at the bargaining table few unfair labor practices are filed, in part because while it is easy to assert, it is difficult to prove.
Proving Bad Faith Bargaining
It is frequently alleged by unions or management that the other side engaged in bad faith bargaining. When looking at allegations of bad faith bargaining, the FLRA will look at the totality of the circumstances. What does that mean exactly?
What follows are some of the concerns the FLRA will consider: To prove bad faith bargaining, evidence must be provided to answer the following questions:
1. Did the parties approach negotiations with a sincere resolve to reach agreement?
Declaring you will never reach an agreement with the union can be evidence of bad faith bargaining. Refusing to engage in efforts to come to an agreement is evidence of bad faith.
2. Were the parties represented by duty authorized representatives prepared to discuss and negotiate any condition of employment?
A chief negotiator who declares he cannot agree to anything at the table unless his commander agrees to it first can be evidence of bad faith. Negotiators have the right to obtain advice from their principals before agreeing but giving the strong impression that you have no authority to agree absent preapproval from senior management is bad faith.
3. Did the parties meet as frequently as necessary?
A refusal to come to the bargaining table can be evidence of bad faith bargaining. Unilaterally setting a timeline for when bargaining must be completed is also bad faith. While the parties may mutually agree on a set number of negation sessions one side cannot unilaterally establish the number of sessions.
4. Did the parties avoid unnecessary delays?
Unilaterally stalling negotiations, or refusing to meet at reasonable times, may be evidence of bad faith.
5. Did the parties explore and discuss each other’s positions?
Failing to allow a party to ask questions about a proposal, or to engage in back-and-forth discussion, may be considered evidence of bad faith. It’s an unfair labor practice to engage in surface level bargaining whereby one party only goes through the motions of bargaining but in reality makes no attempts to reach agreement.
6. Was an agreement reached with respect to conditions of employment?
A fundamental aspect of collective bargaining is that it must concern conditions of employment. If something is not a condition of employment, a union may not bargain over the matter. The short definition of a condition of employment is that the matter must both pertain to bargaining unit employees and must concern the work of the employees.
7. If requested by either party, was a written document executed that incorporated any collective bargaining agreement reached?
A party to collective bargaining has the right to documented evidence of what was agreed upon by the parties. While oral agreements are enforceable, they are subject to credibility disputes, as to what was agreed upon. Ask that, if one party is refusing to put an agreement in writing, what is their motivation to live up to the agreement?
8. Neither party is compelled to agree to a proposal, or to make a concession.
Neither party is compelled to agree to a proposal, or to make a concession.
While a party cannot compel another party to the bargaining to agree to a proposal, or to make a concession at the bargaining table, the FSIP can impose terms on either party, after FSIP assistance is sought.
Recent Example of Bad Faith Bargaining
In a recent arbitration decision, an arbitrator found an agency had bargained in bad faith, when it refused to consider the union’s proposals and implemented its own when the union did not agree. Arbitrator John T. Nicholas found that management at the Social Security Administration engaged in unfair labor practices, including illegally forcing matters to impasse and engaging in surface level bargaining, when negotiating five different articles of its contract. He ordered the parties to reopen the contract and begin new bargaining over the articles.
