Good faith bargaining is the legal duty, imposed on both employers and unions by Section 8(d) of the National Labor Relations Act, to meet at reasonable times and negotiate honestly over wages, hours, and other working conditions with a genuine intent to reach agreement. The law demands sincere effort, not a particular result. Neither side has to accept a proposal or make a concession, but each has to actually try.1Office of the Law Revision Counsel. 29 USC 158 – Unfair Labor Practices
What the Law Actually Requires
Section 8(d) defines collective bargaining as a shared obligation. Both the employer and the employees’ representative have to meet at reasonable times, discuss wages, hours, and working conditions in good faith, and reduce any agreement they reach to writing if either side asks.1Office of the Law Revision Counsel. 29 USC 158 – Unfair Labor Practices
The statute is explicit that the duty does not force either party to agree to a proposal or make a concession. You can hold firm on a position. What you cannot do is walk into negotiations with a closed mind, or treat sessions as a formality.
The obligation runs in both directions. Section 8(a)(5) makes it an unfair labor practice for an employer to refuse to bargain with the certified union. Section 8(b)(3) puts the same duty on unions.1Office of the Law Revision Counsel. 29 USC 158 – Unfair Labor Practices
How the NLRB Judges Good Faith
The National Labor Relations Board does not decide good faith on a single moment or statement. It looks at the totality of the circumstances: whether a party is actively participating with an open mind and a genuine desire to reach agreement, or just sitting at the table.2National Labor Relations Board. Employer/Union Rights and Obligations
The Board weighs specific factors. Whether meetings happen at reasonable times and intervals. Whether the people at the table have real authority to make decisions. Whether conduct away from the table lines up with what’s being said during sessions. An employer that changes workplace rules while negotiations are ongoing signals bad faith regardless of how cooperative its negotiators sound.2National Labor Relations Board. Employer/Union Rights and Obligations
Because the test is holistic, a party can lose on this issue even when individual sessions look productive. Everything gets weighed together: proposals, counterproposals, delays, tone, information sharing, and what happens between meetings.
What Good Faith Looks Like at the Table
Good faith shows up in behavior more than words. The clearest indicators:
- Meeting consistently, at reasonable times, without dragging on scheduling.
- Exchanging real proposals and counterproposals that address the issues, rather than repeating the same position.
- Sharing information the other side reasonably needs. Data about wages, hours, and working conditions is treated as presumptively relevant, so the requesting side does not have to explain why it needs it.
- Sending representatives who can actually agree to terms, not people who have to check with someone on every point.
- Genuinely considering what the other side puts forward, and explaining why specific terms get accepted or rejected.
None of that requires giving in on substance. A party can reject every proposal the other side makes and still bargain in good faith, as long as it engages with those proposals and explains its own positions.
What Crosses the Line
Bad faith takes recognizable forms. The Board sees the same patterns often enough that experienced negotiators learn to spot them early.
Surface Bargaining
Surface bargaining is the most common violation. A party goes through the motions without any real intent to reach a deal. The good faith requirement was written specifically to prevent this.2National Labor Relations Board. Employer/Union Rights and Obligations
Classic tactics include offering proposals designed to be rejected, refusing to make counterproposals, withdrawing previously agreed terms without explanation, and spacing sessions so far apart that nothing builds. Surface bargaining often looks like bargaining from the outside, which is why the Board examines the whole picture rather than any single session.
Unilateral Changes
Under the Supreme Court’s decision in NLRB v. Katz, an employer that changes working conditions without first bargaining with the union commits an unfair labor practice, even without any separate finding of bad faith. The Court held that a unilateral change during negotiations is itself a refusal to negotiate over those conditions.3Legal Information Institute. NLRB v. Katz, 369 US 736
In practice, that means no raising or cutting wages, changing schedules, modifying benefits, or altering other working conditions being negotiated until the parties reach agreement or a genuine impasse.
Bypassing the Union
Dealing directly with employees on matters that belong at the bargaining table is a separate violation. Negotiating individual side deals, polling workers about their willingness to accept terms, or floating proposals to employees before presenting them to the union all undermine the union’s role as the exclusive bargaining representative.1Office of the Law Revision Counsel. 29 USC 158 – Unfair Labor Practices
Withholding Information
Both sides owe information the other reasonably needs to bargain. For employers, that usually means pay rates, benefits data, job classifications, and similar workplace information. Because it relates directly to wages and working conditions, it is presumptively relevant.
Financial records are the exception. An employer generally does not have to open its books unless it specifically claims it cannot afford what the union is asking. There is a real difference between “we can’t pay that” and “we won’t pay that.” Only the first triggers a duty to back the claim with documentation.
What You Can and Cannot Bargain Over
Not every topic can be pushed the same way. The law sorts subjects into three categories.
Mandatory subjects are the core: wages, hours, and other working conditions. Pay, health insurance, retirement benefits, schedules, overtime, grievance procedures, and workplace safety all sit here. Both sides must bargain in good faith over mandatory subjects when either side raises them.1Office of the Law Revision Counsel. 29 USC 158 – Unfair Labor Practices
Permissive subjects can be discussed if both sides are willing, but neither can force the issue. Adding supervisors to the bargaining unit, displaying a union label, and settling unfair labor practice charges as part of a contract are examples. The critical rule: a party cannot insist on a permissive subject all the way to impasse.4National Labor Relations Board. Collective Bargaining (Section 8(d) and 8(b)(3))
Illegal subjects are off the table entirely because agreeing to them would violate federal law. Closed-shop provisions requiring union membership before hire are the classic example. Neither side can propose or agree to include an illegal term, even if both sides want it.4National Labor Relations Board. Collective Bargaining (Section 8(d) and 8(b)(3))
When Talks Reach Impasse
Good faith bargaining does not guarantee a deal. When both sides have genuinely exhausted the room on a mandatory subject and cannot bridge the gap, negotiations reach impasse.
After a legitimate impasse, an employer gains the right to implement its last offer on the disputed terms. This is the one situation where unilateral changes are permissible, because the duty to negotiate has been temporarily fulfilled. The employer can only implement what it actually put on the table, though, not something new or more aggressive. Unions may call a strike once impasse is reached.
Impasse does not last forever. Changed circumstances can break it and restart the duty to bargain. The union requesting clarification of the last offer, or new economic conditions affecting either side, can be enough. An employer that keeps making unilateral changes after impasse has broken is back in unfair labor practice territory.
If the Other Side Won’t Bargain in Good Faith
The remedy is an unfair labor practice charge filed with the NLRB. Employers, unions, and individual employees can all file. The charge must be filed within six months of the conduct, and missing that window generally ends the case.
A regional office investigates. If the regional director finds merit, the office issues a complaint and the case moves to an administrative law judge. If the Board ultimately finds a violation, Section 10(c) gives it broad authority to order the party to stop the conduct, resume bargaining, and post a notice of employee rights.5Office of the Law Revision Counsel. 29 USC 160 – Prevention of Unfair Labor Practices
The typical remedy for a refusal to bargain is a cease-and-desist order paired with a directive to return to the table. The Board does not usually order back pay or monetary relief based on what a hypothetical agreement might have looked like. That means the practical cost of delay tends to fall on the employees waiting for a contract, and it is one of the most persistent criticisms of how the current system works.