WHEN IS AN AGENCY PROPOSAL EVIDENCE OF BAD FAITH BARGAINING? 

If you are looking for proof that the agency has engaged in bad faith bargaining, be sure to examine the proposals it has made. The courts have held in the private sector that if “…a demand is clearly designed to frustrate agreement on a collective-bargaining contract,” it can be grounds for declaring that the agency bargained in bad faith. That puts the union on the remedy doorstep of voiding any contract that came out of that bad faith bargaining. For example, an “unrealistically harsh or extreme proposals can serve as evidence that the party offering them lacks a serious intent to adjust differences and reach an acceptable common ground.” See Liquor Indus. Bargaining Group, 333 N.L.R.B. 1219, 1220 (2001) for a good discussion of this body of law. Here are some signs proposals are evidence of bad faith bargaining: 

• Proposals that seek to secure the employer’s right to act in a unilateral and unrestricted fashion on key terms and conditions of employment, e.g., one that lets it make future unspecified changes without bargaining;  (Radisson Plaza Minneapolis,307 N.L.R.B. 94, 95 (1992) – finding that a provision giving an employer the right to change policies at any time constituted bad faith bargaining)
• Proposals that effectively nullify the union’s ability to carry out its statutory function as the employees’ bargaining representative, e.g., proposals that deny union reps the right to be released from duty when unit employees are in investigatory interviews, formal discussions, grievance meetings, ;
• Proposals that deny unit members the right to contest key condition of employment decisions, e.g., excluding from the grievance procedure the right to challenge appraisal, award and similar decisions;
• Proposals so lacking in substantive details that there is nothing for employees to grieve and therefore giving the employer unilateral control, e.g., p Performance Appraisal article merely stating, “The employer will periodically evaluate employees.”
• Proposals lacking any supporting foundation that significantly disadvantage the union or employees; (Unique Thrift Store, 363 NLRB No. 122, (2016); Blue Jeans Corp., 177 NLRB 198, 206 (1969), enfd. sub nom.Amalgamated Clothing Workers of America v. NLRB, 432 F.2d 1341 (D.C. Cir. 1970);  Palestine Coca Cola Bottling Co., 269 NLRB 639, 645 (1984).
• Proposals that give management power over a key condition of employment that lack any foundation or supporting evidence from the agency; (See Apogee Retail, NY, LLC, 363 N.L.R.B. No. 122, 2016 WL 683211, (Feb. 17, 2016) – explaining that good faith bargaining requires parties to justify or explain their positions)
• Proposals that reduce union statutory or regulatory rights, e.g., that make it harder to obtain reasonable and necessary information; (Hydrotherm, Inc., 302 N.L.R.B. 990, 994–95 (1991) – concluding that a proposal requiring the union to sacrifice its statutory rights without offering anything significant in return indicates bad faith)
• Proposals that leave employees worse off than if they never had a union, e.g., that impose a promotion system more subjective than the one provided to non-unit employees;
• Proposals that postpone discussing and reaching agreement on a matter until some future time chosen by the employer or unspecified;

In addition to affirmative agency proposals that suggest bad faith bargaining, an agency may cross the line if does not provide any proposal on key conditions of employment, e.g., refusing to offer any provisions about reassignments which effectively gives the agency the unilateral right to make reassignments during the life of the agreement.

These are very hard cases to win normally, but Trump’s executive orders requiring agencies to take extreme positions in negotiations makes it a little bit easier to argue that the entire collective bargaining system is now designed to frustrate collective bargaining. Be sure to check with your union attorney if you think you have a case. (If you are an agency rep, you should keep these limitations on an employer in mind lest you render an entire round of bargaining void. In other words, ignore this advice at your peril.)

If you want to know more about this litigation tool, we recommend you read, “Staying Above the Surface- Surface Bargaining Claims Under the National Labor Relations Act,” Hofstra Labor and Employment Law Journal, Vol 24, Issue 2 (2007).  If you want to see a more recent NLRB decision touching on this area of law, check out Richfield Hospitality, Inc. as Managing Agent for Kahler Hotels, LLC and Unite Here International Union Local 21. Case 18–CA–151245 August 15, 2019.