GOOD MANAGEMENT OR BARGAINING IN BAD FAITH?

Good Management or Bargaining in Bad Faith?



Good Management or Bargaining in Bad Faith?

Introduction

Each of the labor relations statutes in Vermont requires representatives of employees and the employer to bargain in good faith with respect to mandatory subjects of bargaining, and it is an unfair labor practice to refuse to bargain collectively in good faith.1 In this section, elements of good faith bargaining are discussed. The duty to bargain in good faith is an obligation to participate actively in the deliberations so as to indicate a present intention to find a basis for agreement (Forsyth, 2011). This implies an open mind and a sincere desire to reach an agreement, as well as a serious intent to adjust differences and to reach an acceptable common ground. Generally, employer bad faith bargaining can be characterized as a means to an illegal end or an attempt to expedite or "short-cut" normal collective bargaining deliberations.4 Employer bad faith bargaining may be manifested in many ways (Forsyth, 2011). The employer may intend to subvert the authority of the bargaining representative, avoid settlement altogether, or attempt to effect an agreement on terms substantially dominated by management.5 The totality of the employer's conduct must be analyzed and the context in which the bargaining took place must be evaluated to determine if bad faith exists.

Discussion

The attachment of the good faith requirement to permissive bargaining in the federal sector is underscored by the wording in 5 USC 7116(a)(5), which connects the good faith requirement to the process of bargaining, in contrast to 5 USC 7117, which addresses good faith in the context of the subject matter. In other words, permissive topics are not excluded from the parameters of the good faith requirement. This law simply states that any negotiation that takes place between NATCA and the FAA cannot violate any federal law or a rule or regulation that applies to the entire federal government. When confronted with the assertion that a party is not bargaining in good faith, the FLRA attempts to determine the “overall pattern of conduct.” In other words, they attempt to determine whether or not a party isintent on or at least sincere about reaching agreement. There is another form of bad faith bargaining that could be attributed to an agency, that being one of “repudiation.” An agency may be found to have bargained in bad faith if they ...