Bad faith bargaining is what happens when a party at the negotiating table goes through the motions without any real intent to reach an agreement, or takes actions that undermine the bargaining process itself. Common examples of bad faith bargaining include surface bargaining, dealing directly with employees behind the union’s back, making unilateral changes to working conditions during negotiations, withdrawing proposals the other side had already accepted, presenting take-it-or-leave-it offers, and refusing to share information the other side needs to bargain. Section 8(d) of the National Labor Relations Act requires both employers and unions to meet at reasonable times and genuinely try to agree on wages, hours, and working conditions, though neither side has to accept any particular proposal or make a concession.1Office of the Law Revision Counsel. 29 USC 158 – Unfair Labor Practices Violating that duty is an unfair labor practice.
Surface Bargaining
Surface bargaining is probably the most common bad faith tactic and the hardest to prove. A party shows up to every session, sits through every meeting, and technically does everything right on paper while making zero genuine effort to reach an agreement. The giveaway is the pattern: scheduling meetings weeks apart, recycling the same rejected proposals, refusing to explain why standard industry terms are unacceptable, and never moving on anything that matters.
The NLRB evaluates surface bargaining by looking at the totality of a party’s conduct across the entire negotiation, not any single act in isolation. One stubborn position on health insurance doesn’t prove bad faith. Combine that with infrequent meetings, proposals that would strip employees of protections they’d already have without a contract, and circular justifications for rejecting reasonable terms, and a pattern forms. The Board has found bad faith where a party’s proposals, taken as a whole, would leave employees worse off than if no contract existed at all.2National Labor Relations Board. Collective Bargaining (Section 8(d) and 8(b)(3)) That’s a strong indicator a party is trying to run out the clock rather than find common ground.
Direct Dealing With Employees
Once employees select a union, that union becomes their exclusive representative for bargaining over pay, hours, and working conditions.3GovInfo. 29 USC 159 – Representatives and Elections Direct dealing happens when an employer bypasses the union and goes straight to individual workers with proposals about contract terms. An employer who emails a wage increase offer to the entire workforce before the union has seen it isn’t being generous; they’re undermining the bargaining process by cutting the union out.
The tactic works by creating a wedge. Employees who see the offer may pressure the union to accept it without negotiation, or resent the union for not immediately agreeing. Meanwhile, the union never got the chance to evaluate the financial details, suggest alternative distributions, or counter with a different package. Section 8(a)(5) makes it an unfair labor practice for an employer to refuse to bargain with the employees’ chosen representative, and direct dealing is one of the clearest violations. The typical remedy is a cease-and-desist order requiring the employer to stop communicating about contract terms outside the bargaining table.
Unilateral Changes to Working Conditions
While negotiations are ongoing, employers must maintain existing terms and conditions of employment. If a contract expires before a new one is finalized, nearly all its terms continue in effect during bargaining.4National Labor Relations Board. Collective Bargaining Rights An employer who increases healthcare premiums, cuts shift differentials, or eliminates a holiday benefit without first bargaining to agreement or genuine impasse has made a unilateral change, and that’s a textbook unfair labor practice.
The damage goes beyond the immediate financial hit. Once the change takes effect, the bargaining dynamic shifts. The union is no longer negotiating over a proposal; it’s fighting to undo something that has already happened. Employees are already paying the higher premium or working the new schedule, and restoring the old terms requires a Board order.
The Impasse Exception
There is one scenario where unilateral changes are lawful. If both sides have bargained extensively and in good faith but simply cannot agree, the employer can declare impasse and implement its last offer. The catch is that the impasse must be real. The NLRB will examine the full history of negotiations and the positions of both parties to decide whether a true deadlock existed.5National Labor Relations Board. Employer/Union Rights and Obligations Manufacturing a fake impasse through surface bargaining and then making unilateral changes is one of the more aggressive bad faith strategies, and the Board sees through it regularly.
Regressive Bargaining
Negotiations are supposed to move forward. Regressive bargaining goes the other direction: a party withdraws a proposal the other side had already accepted, or replaces a previous offer with something meaningfully worse. If an employer offered a $2,000 signing bonus in March and then dropped it to $500 in June without any new economic justification, that backward movement is strong evidence of bad faith.
A single instance of pulling back a proposal doesn’t automatically prove a violation. Circumstances change, and a party might have legitimate reasons, like a sudden drop in revenue, for revising its position. When the regression happens repeatedly, or when the party can’t articulate any reason beyond wanting a better deal, the Board will view it as part of a pattern designed to frustrate agreement rather than reach one.
Take-It-or-Leave-It Bargaining (Boulwarism)
This tactic gets its legal name, Boulwarism, from a General Electric vice president named Lemuel Boulware who in the 1960s presented the company’s offer directly to employees and announced it was final before the union had any chance to negotiate. The NLRB and the courts found GE guilty of refusing to bargain in good faith. The core problem is that collective bargaining requires genuine give-and-take. A party that walks in with a single proposal and flatly refuses to discuss modifications has effectively rejected the bargaining process itself.
The law doesn’t require concessions on every issue. You can hold firm on a position you genuinely believe is fair. The difference is engagement: a good faith negotiator explains their reasoning, listens to counterproposals, and at least considers alternatives. A Boulwarism practitioner treats the negotiation as a formality and the outcome as predetermined.
Refusing to Share Relevant Information
Both sides need facts to bargain effectively. The duty to bargain in good faith includes an obligation to provide information that is relevant and necessary to the other party’s role as bargaining representative. For unions, this typically means requesting data on wages, benefit costs, staffing levels, and similar employment conditions. When an employer stonewalls those requests, the union can’t evaluate proposals or develop realistic counteroffers, and the whole process stalls.
The obligation becomes even more pointed when an employer claims it can’t afford a union proposal. The Supreme Court held in NLRB v. Truitt Manufacturing Co. that an employer asserting inability to pay must attempt to substantiate that claim. In practice, that means opening up financial records like balance sheets or profit-and-loss statements so the union can independently assess whether the claim holds up. Refusing to share that evidence after putting your finances at issue is strong grounds for a bad faith finding.
Confidentiality Concerns
Employers sometimes have legitimate reasons to protect sensitive data, like trade secrets or individual medical records. The NLRB recognizes these interests but doesn’t let them become a blanket excuse to withhold everything. An employer who raises a confidentiality concern must negotiate with the union to find a workable middle ground, such as providing redacted documents or requiring union representatives to sign a confidentiality agreement before reviewing the data. Simply refusing the request and citing “confidentiality” without proposing any accommodation is itself a bargaining violation.
Bad Faith on the Union Side
Bad faith isn’t exclusively an employer problem. Section 8(b)(3) of the Act makes it equally unlawful for a union to refuse to bargain collectively. The same principles apply in reverse, though the specific violations look somewhat different in practice.
- Refusing to meet at reasonable times. Long, unjustified gaps between sessions can amount to a complete rejection of the bargaining obligation.
- Insisting to impasse on non-mandatory subjects. A union that holds up negotiations over a proposal outside the scope of wages, hours, and working conditions commits a per se violation, regardless of its overall good faith on other issues.
- Refusing to sign an agreed-upon contract. Section 8(d) specifically requires execution of a written agreement when one is reached, and refusing to put a deal in writing is one of the clearest possible violations.
- Striking without required notice. Before striking to modify or terminate an existing contract, a union must provide written notice to the employer and notify federal and state mediation agencies.2National Labor Relations Board. Collective Bargaining (Section 8(d) and 8(b)(3))
How the NLRB Evaluates Bad Faith Claims
The Board uses a totality-of-conduct standard, meaning it won’t find a violation based on a single misstep or one tough bargaining session. Instead, it looks at the full picture: the history between the parties, what happened at the table over weeks or months, the reasonableness of proposals, the willingness to explain positions, and whether either side made any real movement. A party can drive a hard bargain on every issue and still be bargaining in good faith, as long as the engagement is genuine.
The line between hard bargaining and bad faith often comes down to whether a party’s conduct, viewed as a whole, reveals an intent to reach agreement or an intent to avoid one. Proposals designed to be unacceptable, explanations that go in circles, and a pattern of delay all point toward the latter. The Board also considers whether a party’s overall package would leave employees with fewer protections than they’d have under the Act with no contract at all. When the proposals themselves tell the story, the Board doesn’t need a smoking-gun email to find bad faith.
Filing a Charge and Getting a Remedy
If you believe the other side is bargaining in bad faith, the enforcement mechanism is an unfair labor practice charge filed with the NLRB. You have six months from the conduct you’re challenging. That deadline is strict, and missing it means the Board cannot issue a complaint no matter how egregious the behavior was.
File Form NLRB-501 for a charge against an employer or Form NLRB-508 for a charge against a union, through the NLRB’s e-filing system or with the nearest regional office.6National Labor Relations Board. Filing Board agents then investigate by gathering evidence and taking statements. A decision on the merits typically takes seven to fourteen weeks. When the investigation finds sufficient evidence and no settlement is reached, the NLRB issues a formal complaint and the case proceeds to a hearing before an administrative law judge.7National Labor Relations Board. Investigate Charges
Remedies are designed to restore the situation to what it would have been without the violation, not to punish. The most common is a cease-and-desist order requiring the offending party to stop the unlawful conduct and bargain in good faith. Where an employer made unilateral changes, the Board can order those changes reversed and require the employer to make employees whole for financial losses, such as reimbursing increased healthcare premiums or restoring eliminated benefits. In information refusal cases, the remedy is typically an order compelling disclosure. In some cases the Board extends the certification year for a new union so an employer’s delay tactics don’t run out the clock on the union’s protected status.5National Labor Relations Board. Employer/Union Rights and Obligations