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 labour rights, rights for ...

, 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 c ...

bargaining. Distinguishing surface bargaining from

good faith In human interactions, good faith () is a sincere intention to be fair, open, and honest, regardless of the outcome of the interaction. Some Latin phrases have lost their literal meaning over centuries, but that is not the case with , which i ...

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 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 US law, it is an

unfair labor practice An unfair labor practice (ULP) in United States labor law refers to certain actions taken by employers or unions that violate the National Labor Relations Act of 1935 (49 Stat. 449) (also known as the NLRA and the Wagner Act after NY Senator ...

and a breach of the duty to bargain in good 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 an ...

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 (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 The National Labor Relations Act of 1935, also known as the Wagner Act, is a foundational statute of United States labor law that guarantees the right of private sector employees to organize into trade unions, engage in collective bargaining, an ...

. US courts have held that "hard bargaining" (taking a firmly held and well-explained position), failing to make a concession 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 US.

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* * * * * * See esp. pp. 616–632. * * * * {{refend Collective rights Labor relations

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