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CHAPTER 4 - “GOOD FAITH” Both the federal and state approach to defining the term “good faith” in the bargaining context involve looking at the totality of the parties’ conduct. 1 The standard is a subjective one; in essence, a court or agency attempts to gauge the state of mind of the parties. As the Supreme Judicial Court stated in School Committee of Newton v. Labor Relations Commission: The duty to bargain under G.L. c. 150E § 6 is a duty to meet and negotiate and to do so in good faith. Neither party is compelled, however, to agree to a proposal or to make a concession. “Good faith” implies an open and fair mind as well as a sincere effort to reach common ground. The quality of the negotiations is evaluated by the totality of the conduct. 2 The “totality of conduct” standard includes conduct at the bargaining table as well as conduct occurring away from it. Hostility toward the union is evidence of bad faith, but, standing alone, union animosity is not sufficient to prove a charge of bad faith. The LRC has held, however, that negotiations “which are generaly conducted in god faith can be tainted by the absence of good faith in a single aspect of those negotiations. This is especially true when the offensive conduct is central to the negotiations.” 3 There are two main facets of the good faith requirement. First, the parties are required to go through the required procedures or “externals” of bargaining, i.e. they must arrange meeting times, attend bargaining sessions, appoint negotiators, etc. Second, the parties must possess a bona fide (good faith) intention to reach an agreement. 4 As the LRC indicated in the County of Norfolk case, “The parties must approach the table with an open mind, seeking an agreement which is fair and mutually satisfactory.” 5 Refusal of party to ratify a labor agreement, otherwise fully bargained, by executing it amounts to breach of the duty to bargain collectively in good faith, and same holds true though duty is cast by statute on public rather than private employer. 6 The duty to bargain is a duty to meet and negotiate and to do so in good faith, but neither party is compelled to agree to a proposal or to make a Commonwealth of Massachusetts
Good Faith 4-2 concession, since good faith implies an open and fair mind as well as a sincere effort to reach a common ground, and quality of negotiations is evaluated by totality of conduct. 7 An employer has a duty to bargain in good faith regarding a change of a mandatory subject prior to implementing that change. 8 § 1 GOOD FAITH REQUISITES The duty to bargain is a duty to meet and negotiate and to do so in good faith; neither party is compelled, however, to agree to a proposal or to make a concession. 9 Fundamentally, neither management nor labor may refuse to bargain over a mandatory subject of bargaining. 10 Beyond this requirement, the parties to a labor negotiation have several additional duties which are discussed below. There is a diference between “hard” bargaining and bad faith bargaining. The good faith requirement was not intended to completely tie the hands of the parties or to prevent a party from aggressively advocating its position. The term "good faith" implies an open and fair mind as well as a sincere effort to reach a common ground. 11 Indeed, the very concept of collective bargaining presupposes a desire to reach ultimate agreement. 12 While such an obligation does not compel either party to agree to a proposal or make a concession, it does require that each party enter into discussions with an open and fair mind, have a sincere purpose to find a basis of agreement and make reasonable efforts to compromise their differences. 13 The employer is obliged to make some reasonable effort in some direction to compromise differences with the Union if the good faith requirement imposes any substantial obligation at all. Agreement by way of compromise cannot be expected unless the one rejecting a claim or demand is willing to make a counter suggestion or proposal. 14 § 2 MANAGEMENT VIOLATIONS Aside from the good faith requisites applicable to both parties, there are a number of party-specific duties. Public employers, for example, have a variety of obligations they must fulfill to satisfy the Labor Relations Commission (LRC’s) definition of bargaining in good faith. Commonwealth of Massachusetts
Page 2 and 3: PREFACE Municipal officials and dep
Page 4 and 5: INTRODUCTION Public safety unions h
Page 6 and 7: Table of Contents ii § 2 Entry-Lev
Page 8 and 9: Table of Contents iv § 8 Other Ben
Page 10 and 11: Management Rights 1-2 management ri
Page 12 and 13: Management Rights 1-4 organized pub
Page 14 and 15: Management Rights 1-6 arbitrate a d
Page 16 and 17: CHAPTER 2 - SCOPE OF ARBITRATION Mu
Page 18 and 19: Scope of Arbitration 2-3 There are
Page 20 and 21: Scope of Arbitration 2-5 Northborou
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Page 26 and 27: Scope of Arbitration 2-11 20 Masach
Page 28 and 29: Subjects of Bargaining 3-2 When a p
Page 30 and 31: Subjects of Bargaining 3-4 § 2 NON
Page 32 and 33: Subjects of Bargaining 3-6 each new
Page 34 and 35: Subjects of Bargaining 3-8 47 Whitm
Page 38 and 39: Good Faith 4-3 A. REFUSAL TO NEGOTI
Page 40 and 41: Good Faith 4-5 When a contract is i
Page 42 and 43: Good Faith 4-7 assignments an inher
Page 44 and 45: Good Faith 4-9 A union's obligation
Page 46 and 47: Good Faith 4-11 employees' terms an
Page 48 and 49: Good Faith 4-13 3) Contractual Waiv
Page 50 and 51: Good Faith 4-15 impasse is reached
Page 52 and 53: Good Faith 4-17 1 Harwich School Co
Page 54 and 55: Good Faith 4-19 59 Commonwealth of
Page 56 and 57: Assignment 5-2 Despite the fact tha
Page 58 and 59: Assignment 5-4 condition of re-issu
Page 60 and 61: CHAPTER 6 - PROMOTIONS The promotio
Page 62 and 63: Promotions 6-3 list is due to expir
Page 64 and 65: CHAPTER 7 - APPOINTMENTS The appoin
Page 66 and 67: Appointments 7-3 providing the unio
Page 68 and 69: Appointments 7-5 entry-level wage o
Page 70 and 71: Appointments 7-7 union requests bar
Page 72 and 73: CHAPTER 8 - BARGAINING UNIT WORK A
Page 74 and 75: Bargaining Unit Work 8-3 private se
Page 76 and 77: Bargaining Unit Work 8-5 § 1 REMED
Page 78 and 79: Bargaining Unit Work 8-7 2) Absence
Page 80 and 81: Bargaining Unit Work 8-9 33 Safeway
Page 82 and 83: Reorganization 9-2 the work is supe
Page 84 and 85: Reorganization 9-4 bargaining unit
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Reorganization 9-6 If the union dem
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Reorganization 9-8 41 See Commonwea
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Sick and Injury Leave Rules 10-2 Wh
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Sick and Injury Leave Rules 10-4 §
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Sick and Injury Leave Rules 10-6 wh
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Sick and Injury Leave Rules 10-8 Up
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Sick and Injury Leave Rules 10-10 P
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Sick and Injury Leave Rules 10-12 1
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Light Duty 11-2 leave if they are c
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Light Duty 11-4 § 2 INJURED ON DUT
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Light Duty 11-6 1 Votour v. City of
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Defibrillators 12-2 they affect gre
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CHAPTER 13 - WORKPLACE RULES AND PR
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Workplace Rules and Practices 13-3
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Changing Schedules 14-2 § 1 CONTRA
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Changing Schedules 14-4 legitimate
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CHAPTER 15 - MINIMUM STAFFING The n
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Minimum Staffing 15-3 that “a min
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Minimum Staffing 15-5 1 Chapter 594
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Benefits, Compensation and Leaves 1
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Employee Performance 17-2 The emplo
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Employee Performance 17-4 compellin
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Employee Performance 17-6 37 See se
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APPENDIX A-2 SAMPLE NOTICE FORM (OP
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APPENDIX A-4 SAMPLE NOTICE FORM (OP
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APPENDIX A-6 SAMPLE FORM 5 SAMPLE D
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APPENDIX A-8 6. The employee to be
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APPENDIX A-10 CONSENT I agree that
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APPENDIX A-12 to maintai
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