The Duty to Bargain in Good Faith, and Impasse
Good faith is a duty about conduct, not about outcomes. A party may refuse every proposal and still comply with the statute, and a party may agree to a great deal and still violate the Act by the way it went about getting there.
The rule in short
Section 8(d) defines bargaining as the mutual obligation to meet at reasonable times and confer in good faith over wages, hours and other terms of employment, while compelling neither agreement nor concession. A party seeking to modify a contract must give sixty days' written notice and notify federal and state mediation agencies within thirty days after it. On genuine impasse an employer may implement its pre-impasse offers.
The obligation is stated in one sentence and litigated in thousands. Section 8(d) requires the employer and the representative to meet at reasonable times and confer in good faith with respect to wages, hours and other terms and conditions of employment, and to execute a written contract incorporating any agreement reached if either side asks. The same sentence says the obligation does not compel either party to agree to a proposal or to make a concession.
The clock that runs before a contract ends
A party that wants to terminate or modify an existing agreement cannot simply stop performing. It must serve written notice on the other party sixty days before the expiration date, or sixty days before the proposed modification takes effect where the contract has no expiration date. It must offer to meet and confer for the purpose of negotiating a new or modified agreement.
Within thirty days after that notice, if no agreement has been reached, the party must notify the Federal Mediation and Conciliation Service and any state agency established to mediate disputes in the state where the dispute arose. Until sixty days after the notice, or until the contract expires, whichever is later, the terms continue in force without a strike or a lockout. An employee who strikes during that period loses employee status for the purposes of the Act. Health care institutions get longer periods, and a labor organization must give a health care institution ten days' written notice before any picketing or work stoppage.
Hard bargaining, and the imitation of it
A party may bargain hard. It may open with a position it never improves, refuse every proposal, and sign nothing. What it may not do is go through the motions with a closed mind. The distinction is drawn from the totality of conduct, not from any single act, and the recurring markers are familiar: refusing to meet at reasonable intervals, sending an agent without authority, withdrawing proposals already tentatively agreed, insisting on terms that would leave the representative with nothing to represent, and dealing around the union.
Because the finding rests on the whole record, the negotiating file matters more than any speech. Dates offered and refused, counterproposals made, explanations given for positions taken, and the handling of requests for information relevant to bargaining are the evidence that decides the case.
Rejecting a wage demand because the company will not pay it is bargaining. Rejecting it because the company cannot pay it is an assertion of fact, and asserting it triggers a duty to substantiate with financial records on request. Negotiators who describe competitive pressure, market conditions or a desire to control costs stay on the safe side of the line. Negotiators who say the money is not there have made a representation the other side is entitled to test.
Violations that need no proof of motive
Some conduct breaches the duty regardless of how sincerely a party was negotiating. Changing a mandatory subject unilaterally without first bargaining to agreement or impasse is the classic example. So is bypassing the representative to deal directly with unit employees, refusing to furnish relevant information, refusing to sign a written agreement embodying terms already agreed, and insisting to impasse on a subject outside the mandatory category.
| Conduct | How it is judged | Proof required | Ordinary remedy |
|---|---|---|---|
| Hard bargaining on a mandatory subject | Lawful | None; the statute compels no concession | No violation |
| Surface bargaining | Totality of conduct across the negotiation | A pattern showing no intent to reach agreement | Order to bargain in good faith; extension of the certification year |
| Unilateral change to a mandatory subject | Per se | The change and the absence of bargaining | Rescission, restoration of the status quo, make-whole relief |
| Direct dealing with unit employees | Per se | Communication soliciting or bypassing on terms | Cease and desist, notice posting |
| Insisting to impasse on a permissive subject | Per se | The subject's category and the insistence | Order to bargain without the condition |
The last row is the reason the categories matter, and it is worked out in detail in the treatment of mandatory, permissive and illegal subjects. A party can lose a case not because its proposal was unreasonable but because it made a lawful proposal a condition of agreement when the law allowed only a request.
Impasse and what it unlocks
Impasse is a genuine deadlock: both sides have bargained in good faith, both are warranted in believing further discussion would be fruitless, and neither has movement left. The Board weighs bargaining history, the good faith of the parties, the length of negotiations, the importance of the issues on which the parties disagree, and the parties' own contemporaneous understanding of where they stood.
Reaching impasse does not end the relationship. It permits the employer to implement changes reasonably comprehended within the proposals it made before impasse, and no more. Implementing something never offered is a unilateral change with the impasse defense stripped away. Impasse also breaks easily: a new proposal, a shift in economic conditions, or simply enough time can restore the duty to maintain the status quo.
Where the deadlock leads to economic pressure, the rules governing a lockout and the operation of the business during one and the different consequences of an economic strike as against a strike caused by unfair labor practices become the operative law, and both depend on whether the bargaining that preceded them was lawful.
Points to carry away
- The duty is to meet and confer; the statute compels neither agreement nor any concession.
- A party seeking to terminate or modify a contract must give sixty days' written notice to the other party.
- Federal and state mediation agencies must be notified within thirty days after that notice if no agreement is reached.
- Unilateral change to a mandatory subject without bargaining violates the duty regardless of subjective motive.
- Impasse is a genuine deadlock reached after good faith bargaining, judged on the totality of the negotiation.
- After impasse an employer may implement only changes reasonably comprehended within its pre-impasse proposals.
Questions readers ask
Must a party explain why it rejects a proposal?
There is no freestanding duty to give reasons, but silence is evidence. The Board weighs whether a party engaged with the substance of what was offered, made counterproposals, and explained the basis of positions well enough that the other side could respond. A party that rejects everything without comment, offers nothing, and repeats an opening position for months invites a finding that it never intended agreement. Where a position rests on financial inability, an explanation is effectively required, because the claim triggers a duty to substantiate it.
Can the parties agree to keep bargaining after implementation?
Yes, and they usually do. Implementation after impasse does not end the relationship or the duty. The employer must continue to meet on request, and the union may put forward new proposals at any time. A meaningful new offer, a change in economic circumstances, or the simple passage of enough time can break the impasse and restore the obligation to maintain the status quo as to anything not yet implemented. Implementation is a step in bargaining, not an exit from it.
Does the duty survive when a contract expires?
The duty survives, and so does most of the contract. Terms and conditions of employment established by the agreement continue as the status quo and cannot be changed unilaterally. Several clauses are treated as creatures of contract that lapse with it, including the no-strike promise and, historically, the arbitration commitment as to disputes arising after expiration. The treatment of dues checkoff after expiration has been reversed more than once and should be checked rather than assumed from an older source.
Sources
- Cornell Legal Information Institute — 29 U.S.C. 158, Unfair labor practicesSections 8(a)(5), 8(b)(3) and the 8(d) definition of the bargaining obligation and its notice periods.
- Cornell Legal Information Institute — 29 U.S.C. 159, Representatives and electionsExclusive representation, which is why direct dealing with unit employees is unlawful.
- Cornell Legal Information Institute — 29 U.S.C. 173, Functions of the ServiceThe mediation functions triggered by the notices Section 8(d) requires.
- Cornell Legal Information Institute — 29 U.S.C. 160, Prevention of unfair labor practicesThe complaint procedure and the six-month limitation on charges.
- eCFR — 29 CFR Part 102, Rules and Regulations, Series 8How a refusal-to-bargain charge is processed through complaint, hearing and decision.
- National Labor Relations Board — National Labor Relations ActThe statutory text as the agency publishes it, section by section.
Lawwise is a publication, not a law firm. This article states general rules and cites its sources; it is not advice about any particular case, and the law differs by state and changes over time.
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