Bad Faith Bargaining Defense for Employers

An employer engages in bad faith bargaining when it goes through the motions of negotiating with an employee or their representative without a real intent to reach agreement. Under Section 8(a)(5) of the National Labor Relations Act (NLRA), employers with unionized workforces have a legal duty to bargain in good faith with the union that represents their employees. The NLRA does not require employers to agree to union proposals or concede to specific demands, but it does require them to make a sincere effort to reach common ground through regular meetings and honest discussion.

When the NLRB investigates a charge of bad faith bargaining, it evaluates whether the employer’s actions show a real effort to reach agreement or a strategy to avoid one. If an employer maintains firm positions for legitimate business reasons and continues meaningful discussions, the NLRB treats that conduct as lawful hard bargaining. If an employer uses negotiations to delay or prevent an agreement, the NLRB treats that conduct as surface bargaining and finds a violation under Section 8(a)(5).

What the NLRA Requires

The NLRA requires employers to meet at reasonable times with union representatives who have authority to negotiate on behalf of employees. “Reasonable times” means scheduling sessions in a timely manner after a request to meet or after the prior session, and often enough to make real progress. When employers refuse to schedule sessions or send a representative who doesn’t have the authority to bargain, the NLRB treats that conduct as a refusal to bargain under Section 8(a)(5).

Mandatory subjects of collective bargaining include:

• Wages and pay structure

• Work hours and scheduling

• Employee benefits, including health and retirement plans

• Leave and attendance rules

• Discipline, layoffs, and promotions

• Workplace health and safety conditions

Under the NLRA, employers have a duty to furnish relevant information that supports or relates to their bargaining proposals when the union requests it. This requirement covers data the employer relied on to develop or justify a proposal, like payroll figures considered to calculate a wage offer, unless a specific confidentiality rule limits disclosure.

If an employer claims confidentiality, it is required to identify the specific confidentiality interest and to provide the non-confidential portions. Employers are also required to work with the union on an accommodation that lets the union evaluate the proposal while protecting the confidential material.

Examples of Bad Faith Bargaining

Bad-faith bargaining claims tend to follow familiar patterns. The details may differ, but the Board looks for signs that the employer treated bargaining as a formality instead of a real exchange.

Failure to Engage in Genuine Bargaining

Unions allege bad faith employers slow the bargaining process by postponing meetings or refusing to address required subjects. A long string of cancellations or minimal participation can signal that the employer entered bargaining without any real intent to reach an agreement.

Failure to Provide Information

Unions file bad-faith charges when employers refuse or delay providing information the union requests to evaluate bargaining proposals. The NLRB examines whether the information relates to the subjects under negotiation and whether the employer had a valid reason to withhold it. If the employer keeps relevant data from the union without a lawful justification, the Board treats it as a refusal to bargain under Section 8(a)(5).

Premature Declaration of Impasse

Premature declarations of impasse create another common basis for an allegation that an employer is bargaining in bad faith. The NLRB expects employers and union representatives to continue discussing unresolved issues until they either resolve them or reach a genuine deadlock. When employers change pay rates or workplace rules while negotiations are still ongoing, the NLRB views it as evidence that the employer stopped bargaining before the parties reached a real impasse.

Building a Strong Defense

When the NLRB reviews a bad-faith bargaining charge, it looks for evidence that the employer took the process seriously and participated with consistency. Employers build a stronger defense when they can point to clear documentation that shows what happened at the negotiation table and why they took certain positions.

Maintaining a Bargaining Record

Written evidence carries the most weight when the NLRB reviews a bad-faith bargaining case. Notes that identify the date of each session and the people who attended show that the employer met as required and sent representatives with authority to negotiate. Copies of proposals and correspondence between sessions prove that management continued to meet, provide information when requested, and generally take part in active bargaining.

Documenting Business Reasons

The NLRB gives more weight to a defense when the record explains the basis for each proposal. When an employer refuses to share information because it is protected by privilege or confidentiality rules, the record should say so and describe what alternative was offered to the union. Notes that reference financial reports or operational limits show that decisions were grounded in real business considerations and help the Board distinguish firm bargaining positions from tactics meant to delay agreement.

Authority at the Table

The NLRB examines whether the employer sent people to the table who had real authority to bargain. When management sends people who can only relay messages back to others, negotiations stall because the union has no one to engage with on real terms. Using low-level representatives without authority turns bargaining into a delay tactic, turns bargaining into a delay tactic, which the NLRB views as evidence of bad faith. Records showing that authorized representatives attended each session help demonstrate genuine participation.

Impasse Documentation

The NLRB examines how negotiations ended to decide whether an employer’s assertion that the parties reached an impasse is legitimate. Employers can show good-faith bargaining by keeping a record that outlines the last proposals and the issues that remained unresolved. When those notes reflect repeated discussion of the open subjects with no new movement from either side, they help establish that further bargaining would not have changed the outcome.

Remedies and Risk

Corrective Orders

If the NLRB finds that an employer bargained in bad faith, it issues a remedial order requiring the employer and the union representative to return to the last lawful terms and resume negotiations from there until they reach agreement or reach a genuine impasse.

Restoring Employee Terms

When an employer changes pay or workplace policies before bargaining is complete, the NLRB requires the employer to undo the changes and reimburse employees for any losses those changes caused. The NLRB then requires the employer to provide employees with a written notice that confirms the reversal and repayment, and states that they are going to resume bargaining in good faith.

Financial Exposure

The NLRB does not issue fines or civil penalties for bad-faith bargaining. Instead, it requires employers to pay employees for financial losses that resulted from unlawful conduct, and interest accrues daily until the payment is made in full.

Recent decisions have expanded the scope of monetary remedies and the Board now orders employers to pay employees for losses that flow directly from the violation, which increases the potential cost of noncompliance.

Limiting Penalties

Employers can limit financial losses by fixing problems fast. If an employer changed pay or workplace policies before bargaining was completed, it should reverse the changes right away and compensate employees for any money they lost while the change was in place. By acting quickly, employers can shorten the period that back pay and interest build up, and avoid additional financial obligations like paying employees for missed overtime opportunities and lost bonuses. Employers who act early also reduce the chance that the Board will impose additional obligations like ongoing monitoring, which can extend the case, increase legal fees, and expose other compliance issues.

Preventing Bad-Faith Allegations

Employers reduce the risk of bad-faith allegations by preparing their bargaining teams before negotiations begin. Training should explain which subjects fall within mandatory bargaining, how to communicate and respond to proposals, and what details each session record should include.

Before negotiations start, management should:

• Review past bargaining history and the company’s economic data that may shape proposals.

• Identify who has authority to make commitments on behalf of the employer.

• Establish a documentation plan for tracking proposals, counterproposals, and explanations.

Employers also prevent allegations by showing consistent participation throughout bargaining. Meetings should be scheduled in advance, confirmed in writing, and followed by a short summary that captures progress. Summaries help create a clear record showing that management stayed engaged and treated negotiations as a genuine exchange.

Bad-faith charges often stem from information-request disputes. Employers can reduce those claims by replying promptly and explaining their position in writing.

• When a request involves data tied to a bargaining issue, the employer should provide it.

• When the request concerns confidential information, the employer should explain why it cannot be released and offer another way for the union to review the material without disclosing protected details.

Bad Faith Bargaining Defense with Conn Maciel Carey, LLP

Conn Maciel Carey LLP’s national labor and employment group represents employers in labor and employment matters nationwide. The firm advises management through every stage of collective bargaining and defends against claims of bad-faith negotiation before the NLRB.

To speak with an attorney about a bargaining dispute or NLRB charge, call us at (202) 715-6244 or send a message through our contact page.

This article is for informational purposes only and does not constitute legal advice. While we strive to ensure accuracy, laws and regulations may change, and unintended errors may occur. This content may not address every aspect of the relevant legal requirements. For guidance on your specific situation, consult your attorney.