In
collective bargaining
Collective bargaining is a process of negotiation between employers and a group of employees aimed at agreements to regulate working salaries, working conditions, benefits, and other aspects of workers' compensation and rights for workers. The i ...
, surface bargaining is a strategy in which one of the parties "merely goes through the motions", with no intention of reaching an agreement. In this regard, it is a form of
bad faith
Bad faith (Latin: ''mala fides'') is a sustained form of deception which consists of entertaining or pretending to entertain one set of feelings while acting as if influenced by another."of two hearts ... a sustained form of deception which ...
bargaining.
Distinguishing surface bargaining from
good faith bargaining is extremely difficult. The entire history of the negotiations must be assessed, including the party's intent, efforts made toward reaching an agreement, and any behavior which may be seen as inhibiting the bargaining process. Surface bargaining tactics may include making proposals the other party could never accept, taking inflexible or unreasonable stands on issues, and/or refusing to offer alternatives to proposals. Reneging on agreements already reached during the collective bargaining process, raising new issues late in the negotiations, or failing to follow generally accepted procedures for collective bargaining may also be seen as signs of surface bargaining.
Based upon the "totality" of a party's actions during collective bargaining, surface bargaining may be found if there was a purposeful effort to avoid or frustrate mutual agreement. Under U.S. law, it is an
unfair labor practice and a breach of the duty to bargain in bad faith.
Surface bargaining is barred under the labour law of many countries. Federal and provincial
Canadian labour law
Canadian labour law is that body of law which regulates the rights, restrictions, and obligations of trade unions, workers, and employers in Canada.
Regulatory framework
The federal, provincial, and territorial governments all regulate labour and ...
bars surface bargaining, and Canadian courts have held that the test for determining surface bargaining is to look at the totality of the negotiations. In New Zealand, surface bargaining is a violation of the
Employment Relations Act 2000
The New Zealand Employment Relations Act 2000 (sometimes known by its acronym, ERA) is a statute of the Parliament of New Zealand. It was substantially amended by the Employment Relations (Validation of Union Registration and Other Matters) A ...
(as amended). A "Code of Good Faith" promulgated by the Employment Relations Authority supplements the legal statute, however, and lays out a number of rules for good faith bargaining. In the United States, surface bargaining constitutes an unfair labor practice under the
National Labor Relations Act. US courts have held that "hard bargaining" (taking a firmly held and well-explained position), failing to make a concession, and/or failing to reach an agreement do not constitute surface bargaining under federal labor law. Additional evidence, such as away-from-the-table statements or behavior, is needed to prove surface bargaining in the U.S.
See also
*
Boulwarism
Boulwarism is the tactic of making a "take-it-or-leave-it" offer in a negotiation, with no further concessions or discussion. It was named after General Electric's former vice president Lemuel Boulware, who promoted the strategy. One example of ...
Footnotes
Bibliography
*
*
*
*
*
*
*
*
*
*{{cite book , last1=Willes, first1=John A. , title=Labour Relations in Canada , location=Scarborough, Ontario, publisher=Prentice-Hall Canada , year=1990 , isbn=0-13-517772-3
Labor relations
Collective rights