Surface bargaining is when an employer engages in bargaining that is insincere, usually with the

intent to not reach agreement with the union and thus not enter into a new collective bargaining
agreement. Consider surface bargaining as sort of going through the motions. Surface bargaining
is a form of bad faith bargaining.

The National Labor Relations Board looks at the totality of the circumstances when determining
whether a party engages in surface bargaining; this includes the parties’ conduct away from the
bargaining table, as well. As you can imagine, employers are the “party” most likely to engage in
surface bargaining, and there is a very fine line between hard bargaining in good faith and
engaging in surface bargaining.

The Board follows a 7-factor test when analyzing whether a company is attempting to avoid
reaching an agreement. The 7-factors are as follows:

1. Delay tactics
2. Unreasonable bargaining demands
3. Unilateral changes in mandatory subjects of bargaining
4. Efforts to bypass the union
5. Failure to designate an agent with sufficient bargaining authority
6. Withdrawal of already agreed-upon provisions
7. Arbitrary scheduling of meetings

A company that engages in just one of the above factors may be guilty of surface bargaining. The
hard part, though, for people who do not regularly negotiate labor contracts, is knowing for
example what a delay tactic is, or what unreasonable bargaining demands are. The nuances in the
law – coupled with the reinvigorated NLRB – is a recipe for disaster to unseasoned negotiators.

Companies who negotiate their own contracts should heed the warning of unions complaining
about surface bargaining. The threshold for proving a company is surface bargaining is quite
low, yet the penalty is steep: the NLRB can mandate the parties negotiate a certain number of
days per month for a certain number of hours per session until the parties reach impasse or
agreement on a whole contract.

Matt Austin is a Columbus, Ohio lawyer who owns Austin Legal, LLC, a boutique law firm with
offices in central and northeast Ohio that limits its representation to employers dealing with
labor, employment, and OSHA matters. Austin Legal’s Concierge Legal Services program is
relied upon by companies to remain compliant and competitive. If you have employees, you need
Concierge Legal Services. You can call Matt at (614) 285-5342 or email him at
Austin@LaborEmploymentOSHA.com.

Featherbedding-noun

1.
the practice of requiring an employer to hire unnecessary employees, to assign unnecessary
work, or to limit production according to a union rule or safety statute:
Featherbedding forced the railroads to employ firemen on diesel locomotives.
Boulwarism
Part of the Business terms glossary:

In negotiation, a Boulwarism is an offer or counter-offer that is not meant to be negotiated. This

"take it or leave it" strategy is named after Lemuel Boulware, a former vice president of General
Electric. When faced with a strike, Boulware is famous for telling the International Union of
Electrical Workers (IUE) at the onset of negotiations that the company had already evaluated the
workers' needs and was putting forth its "first, last and best offer" on the table.

This was last updated in January 2006

Posted by: Margaret Rouse

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