Good faith bargaining is the legal backbone of U.S. collective bargaining. Section 8(d) of the National Labor Relations Act requires both employers and unions to meet and confer honestly with the intent of reaching a deal, and Section 8(a)(5) makes it an unfair labor practice for an employer to refuse. The definition of "good faith" is famously slippery: you don't have to agree to anything, but you have to behave like you're trying. The NLRB has spent 90 years drawing the line, and the line keeps moving with each administration's NLRB majority.
What the NLRA Actually Requires Section 8(d) requires the parties to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment. The duty is procedural, not substantive: you must bargain, not agree. You must also exchange relevant information when the other side asks for it and refrain from unilateral changes to mandatory subjects of bargaining during the negotiation.
The three classes of bargaining subjects matter here. Mandatory subjects (wages, hours, working conditions) require good faith bargaining. Permissive subjects (business decisions, union scope) can be discussed but neither party can insist on them. Illegal subjects (closed shop, hot cargo) cannot be agreed to even if both sides want them.
What Counts as Surface Bargaining? Surface bargaining is the classic bad-faith move: showing up to meetings, going through the motions, and refusing to make any meaningful movement toward a deal. The NLRB looks at the totality of circumstances, not any single action: frequency of meetings, willingness to discuss proposals, willingness to make counter-offers, and conduct outside the bargaining room.
What Happens When Good Faith Breaks Down If an employer refuses to bargain, bargains in bad faith, or unilaterally changes a mandatory subject during negotiations, the union can file a ULP charge with the NLRB. A finding of bad faith usually results in a bargaining order, a make-whole remedy for affected employees, and sometimes an extension of the certification year.
Recent NLRB activity under the current Board has tilted somewhat more employer-friendly on several procedural questions, but the underlying duty to bargain has remained intact. The NLRB's unfair labor practice process is the official reference for how charges are handled.
What HR and Labor Relations Should Document The record matters more than the rhetoric. Keep meeting minutes, track proposals exchanged, log information requests and responses, and document any changes to policies or practices that affect bargaining unit employees. The NLRB evaluates good faith by looking at behavior over time, and a clean paper trail is usually the difference between a ULP win and a ULP loss.
Keep a single point of authority on the management side. Bargaining teams with unclear principals often get accused of delay, even when they're just confused.
Building a Good Faith Bargaining Strategy That Actually Works Good faith bargaining isn't a performance. It's a multi-month relationship where the record you build in each session shows up in the next session, and eventually in any NLRB decision. Prepare proposals you're actually willing to defend. Respond to information requests promptly. Avoid any unilateral move on mandatory subjects. Use mediation or arbitration proactively if impasse looms. The employers that get in trouble on good faith usually didn't intend to; they let operational pressure drive a unilateral decision that tanked the record. The discipline is procedural, and it compounds.
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