8.3 Collective Bargaining Process and Good-Faith Conduct

What bargaining covers: three categories of subjects

Collective bargaining is the process of negotiating a contract over employment terms with the employees' elected representative. Section 8(d) defines the duty and divides subjects into three categories the PHR loves to test:

A party may insist on a mandatory subject all the way to impasse; insisting on a permissive subject to impasse is itself a ULP.

Who sits at the table and union security

The union bargains as the exclusive representative of everyone in the unit, members and nonmembers alike, so an employer cannot bypass the union to negotiate individually with represented employees (direct dealing is a ULP). Contracts in non-right-to-work states may include union-security clauses: a union shop requires employees to join (or pay fees) after a grace period of at least 30 days (7 days in construction); an agency shop requires fee payment without formal membership; maintenance-of-membership keeps current members in for the contract term; and a dues check-off authorizes payroll deduction of dues.

Closed shops (membership required before hire) are illegal under Taft-Hartley. These terms are recurring PHR vocabulary.

Good faith does not mean agreement

Good-faith bargaining means approaching negotiations with an open mind and intent to reach agreement: meeting at reasonable times and places, sending representatives with authority, exchanging proposals, and not engaging in surface bargaining (going through the motions with no real intent to agree). It does not require either side to make a concession or accept any particular term — a common PHR distractor claims good faith means saying yes to union proposals.

Bad-faith indicators include: refusing to meet, delaying tactics, withdrawing already-agreed items, bypassing the union to deal directly with employees, and refusing to furnish relevant information. The employer must provide relevant information the union needs to bargain and administer the contract — wage scales, benefit costs, staffing data — though confidential or proprietary data may get accommodations.

Impasse and lawful implementation

If the parties bargain in good faith on a mandatory subject and reach a genuine impasse (a deadlock after exhausting prospects of agreement), the employer may lawfully implement terms reasonably comprehended within its last, best, and final offer. Impasse can be broken by changed circumstances, new proposals, or a union concession, reviving the duty to bargain. The Federal Mediation and Conciliation Service (FMCS) may assist; under Section 8(d), a party seeking to modify a contract must give 60 days' notice and notify FMCS 30 days before any strike or lockout.

Bargaining strategies and stages

PHR items sometimes name negotiation approaches. Distributive (positional) bargaining is a win-lose contest over a fixed pie — the classic wage haggle. Integrative (interest-based) bargaining seeks mutual-gain solutions by focusing on underlying interests, expanding options, and joint problem-solving; many parties use it for non-economic issues. The typical sequence runs through preparation (data gathering and costing), ground rules, presentation of demands, narrowing and trading, and closing.

As issues are settled, the parties initial tentative agreements (TAs); the full package then goes to the union membership for a ratification vote, and TAs are not binding until ratified.

HR's role and a worked example

HR supports bargaining by costing proposals (translating cents-per-hour into total annual cost across the unit), preparing lawful responses to information requests, keeping accurate caucus and table notes, aligning operating managers on what the company can live with, and then converting ratified language into payroll, HRIS configuration, benefit enrollment, and supervisor guidance. HR also tracks the Section 8(d) timelines and coordinates with the Federal Mediation and Conciliation Service (FMCS) when a mediator is needed.

Worked example: mid-contract, an operations manager wants to change shift start times for represented employees next week. Because hours are a mandatory subject, HR must check the contract language and the duty to bargain before implementing — a unilateral change to a mandatory term during the contract, absent a clear management-rights waiver, is a Section 8(a)(5) refusal-to-bargain violation. Common traps: treating scheduling as an automatic management right when a CBA and bargaining duty are in play; equating hard bargaining with bad faith; or insisting to impasse on a permissive subject, which itself is a ULP.

First contracts, costing, and total compensation

A first contract after a new certification is the hardest to reach; the Board treats failure to bargain a first agreement seriously, and prolonged delay can itself signal bad faith. When costing proposals, HR should think in total compensation, not just base wage: a proposed 50-cent raise must be loaded with payroll taxes, overtime impact, pension or 401(k) match, and health-premium increases to show the true annual cost across the unit. HR also models roll-up effects — how a base increase cascades through shift differentials, overtime, and benefit formulas.

Presenting bargaining proposals as accurate, defensible numbers keeps management aligned and supports an honest claim of inability to pay if the employer ever pleads financial hardship, which (if asserted) obligates the employer to open its books to substantiate the claim.