The National Labor Relations Board’s General Counsel’s Office, Division of Advice, has ordered dismissal of an unfair labor practice charge alleging bad faith “regressive” bargaining by a union. In this case, after the employees rejected decisively the employer’s final offer, the union bargaining team resumed negotiations with new demands and proposed modifications of previously agreed-upon items. Amalgamated Transit Union Local 1433, 28-CB-127045 (Nov. 19, 2014, released Jan. 9, 2015).

The Division determines whether to issue administrative complaints on alleged unfair labor practices referred to it by Board regional offices in selected cases. During negotiations for a new collective bargaining agreement, the parties reached tentative agreement on many issues, but several items were still unresolved when the employer presented its best and final offer. The union negotiators, while not agreeing to the offer, put it to a vote of the employer’s employees. The employees overwhelmingly rejected the offer and voted to authorize a strike, if necessary.

When the parties returned to the bargaining table, the union presented a revised proposal that was more favorable to the employees. Not only did this proposal add new demands to the open issues, but it also modified a number of proposals the parties had agreed upon prior to the employees’ rejection of the final offer. The employer filed an unfair labor practice charge against the union alleging the union had unlawfully bargained regressively when it made new proposals containing increased demands regarding already agreed-upon issues and open proposals.

The Division noted that withdrawal of tentatively agreed-upon contract proposals could demonstrate bad-faith bargaining and substituting prior proposals with less advantageous ones (regressive proposals), could be viewed as unlawful if doing so was intended to frustrate the possibility of agreement. The Division concluded the union’s actions did not constitute bad-faith bargaining and that no complaint should be issued because the union’s actions occurred only after the employees overwhelmingly rejected the employer’s final offer and authorized a strike.

The Division also stated the union’s new demands, many of which addressed specific employee objections to the employer’s final offer, “… were not so ‘harsh, vindictive or otherwise unreasonable’ as to suggest they were offered in bad faith.” The Division further held the new and modified proposals reflected a strengthened bargaining position and thus a legitimate reason existed to seek improved terms the employees and the union could accept, thus, enhancing the possibility of reaching an agreement. Finally, the Division likened the union’s actions to those of an employer which, having weathered a strike, may lawfully return to the bargaining table with changed and more favorable (less conciliatory) contract terms.

This determination may facilitate a union negotiation strategy whereby rejection of an employer’s final offer, coupled with a strike authorization vote, will allow a union to reopen items previously agreed upon and increase its contract demands. The prospect may be particularly appealing where the union believes the employer cannot easily withstand a strike.