Staying Above the Surface- Surface Bargaining Claims Under the National Labor Relations Act

Under section 8(a)(5) of the National Labor Relations Act ("NLRA" or "the Act"), employers must bargain collectively with the unions that represent their employees or risk unfair labor practice ("ULP") charges. 1 Under section 8(d), employers are further obligated to confer in good faith with respect to wages, hours and other terms and conditions of employment and to the negotiation of agreements between the parties, and read together, sections 8(a)(5) and 8(d) require parties in a collective bargaining relationship to negotiate in good faith with regard to terms and conditions of employment. 2 The concept of bargaining in good faith is a broad notion in labor relations, and governs facets of collective bargaining as simple as reducing an agreement to writing and as complex as bargaining to impasse.This article will explore how the National Labor Relations Board ("NLRB" or "the Board") and judicial determinations of good faith govern the concept of "surface bargaining," i.e., seemingly engaging in arms length negotiations while concealing a purposeful strategy to make bargaining futile and to avoid reaching an agreement.3 Using Board determinations and judicial decisions as its framework, this article will identify the different types of conduct that have been deemed either violative of, or consistent with, good faith standards, and will attempt to offer guidance on conduct that falls into uncertain middle Senior Counsel, Proskauer Rose LLP.Associate, Proskauer Rose LLP. 1. 29 U.S.C. § 158(a)(5) (2000).2. 29 U.S.C. § 158(a)(5),(d).3. See NLRB v. Reed & Prince Mfg.