Both parties have a responsibility to bargain in good faith. “Good faith bargaining” generally means the willingness of both parties to meet, at agreed upon times and places in order to discuss issues which are proper subjects of bargaining, with the intent of reaching an agreement.

Incidents of bad faith include failure to meet at reasonable times and places, placing unreasonable restrictions as a prerequisite to meeting, refusing upon reasonable written request to provide public information, or refusing to negotiate because of an unwanted person on the opposing team. (See Types of Bad Faith Bargaining below for more examples, additionally you may read Section 447.203(17), Florida Statutes).

Florida statutes require that the Public Employees Relations Commission (PERC) look at the total conduct of both parties during the entire course of contract negotiations, as well as the specific incidents of alleged bad faith in determining whether a party failed to bargain in good faith.

In order to show a violation of the employer’s bargaining obligation, the union must show that the employer refused to conduct meaningful negotiations.

To accommodate the parties’ legal right to “hard bargain” and the protection of the parties’ right of free speech set forth in Section 447.501(3), Florida Statutes, the conduct at issue must establish a total futility in requesting or participating in negotiations.

A refusal to bargain occurs when a party signals a rejection of its obligation to collective bargaining. It is often based upon a singular, egregious event. A clear example of a refusal to bargain is an employer unilaterally changing wages, hours, or terms and conditions of employment.


Surface bargaining is characterized as a mere pretense at negotiations calling into question whether there is a true intent to reach agreement. Surface bargaining may be manifested by foot-dragging, deliberate delays, ‘considering’, ‘studying’ and other tendencies that neither accept, reject nor modify proposals. “Surface bargaining,” or the pretense of bargaining, does not satisfy the obligation of an employer to collectively bargain with employees’ representatives under the National Labor Relations Act and is unlawful.


Employers may lawfully take a hard approach about bargaining that may at times include threats of higher dues or express a desire to exclude fundamental topics such as disciplinary procedures so long as they express and overall desire to negotiate in good faith.


While hard bargaining is entirely lawful; surface bargaining is not. Surface bargaining by definition may look like hard bargaining and is difficult to detect and hard to prove. Distinguishing hard bargaining from surface bargaining calls for sifting through a complex array of facts, including the employer’s lack of receptiveness to legitimate union requests regarding the mechanics of meeting times and places.

It is important to note that a public employer cannot lawfully be compelled to make a specific concession so long as its refusal to do so is not motivated by a desire to frustrate bargaining. PERC will often examine an employer’s conduct away from the bargaining table to determine if they are surface bargaining.


Regressive bargaining is not unlawful unless it is for the purpose of frustrating the possibility of agreement, for ex. elimination of an arbitration clause in retaliation for the union filing grievances.

PERC has ruled that revocation of a tentative agreement is not by itself evidence of a failure to bargain collectively in good faith. Rather, proof of “a course of systematic and constant revocation of tentative agreements in the absence of sufficient cause” is required.


The employer’s delegated bargaining team must have the authority to represent the views of the employer. It is not necessary that the bargaining team have final authority, but merely represent the employer’s views, consult with the employer timely, and ultimately support ratification. “The failure of a superintendent to recommend ratification of a final and complete agreement negotiated by his own delegated subordinate by itself violates the chief executive officer’s duty to bargain in good faith.”


Florida Statutes, expressly preserves a public employer’s right to engage in non-coercive communications (that which does not contain a threat of reprisal or a promise of benefit) with its employees, even during ongoing contract negotiations.

Both the NLRB and PERC have ruled that the fact that an employer chooses to inform employees of the status of negotiations, or of proposals previously made to the Union, or of its version of a breakdown in negotiations will not alone establish a failure to bargain in good faith.

The test applied by PERC in Gadsden Classroom Teachers’ Association FTP-NEA v. School Board of Gadsden County as to whether an employer’s communication to its employees is informational or unlawful hinges upon whether it has the effect of enlisting unit employees to withdraw or abandon their support of their certified agent through coercive statements.

In the complaint, Local 1158, Clearwater Fire Fighters Association, Inc., International Association of Fire Fighters v. East Lake Tarpon Special Fire Control District, PERC found that the district had violated Florida statutes when they conducted interrogation of bargaining unit members about their communications and interaction with a fire lieutenant/EMT who served as union vice-president interfered with and coerced bargaining unit members in the exercise of their right to engage in protected activities.


Employers may not “direct deal” with employees, nor can a union “direct deal” with its school board by offering proposals to the Board which have not yet been exchanged with its bargaining team. Having said this, it is perfectly lawful for the Board to communicate directly with teachers, or for the Union to communicate directly with the Board on proposals that have already been exchanged in collective bargaining negotiations.


QUESTION: Management’s bargaining team can never make a decision. We pass out our proposals and they just say they will have to take them back to the board, and then we just wait four weeks until the next bargaining session. Can’t we make them bargain with us?

ANSWER: No. Bargaining agents are only required to have that authority necessary to move negotiations forward by representing the employer’s side. They aren’t required to have final authority but must ultimately recommend ratification. However, if the employer persists in refusing to answer, it might be considered surface bargaining.

QUESTION: Management said their proposal “expires” tonight, and if we do not agree, then the next proposal will not be as generous. Isn’t that regressive bargaining?

ANSWER: No. Regressive bargaining involves a collective retributive effort to eliminate the union. Facts such as these should be reviewed cumulatively to determine whether the employer is impermissibly hard bargaining.

QUESTION: Management sent out an e-mail to our bargaining unit saying it is the union’s fault that they have not gotten a raise yet because we are dragging things out. Isn’t that direct dealing?

ANSWER: No. Management may communicate with the unit even during bargaining so long as the communication is not coercive to the extent that it is designed to waiver support for the bargaining agent. However, if the e-mail stated that layoffs will be instituted if the union does not agree to certain management proposals, or that the employer will be able to give larger raises if employees drop their union membership, the email would likely be found to cross the line into coercion.

QUESTION: We know management wants to impose bad language on us. Can we agree to their proposal to keep it from going to impasse and then just tell the bargaining unit not to ratify it?

ANSWER: No. The union’s bargaining team must bargain in good faith which also means not recommending that the unit refuse to ratify a tentative agreement reached.

QUESTION: We TAed on something, but now that we’re at impasse, management says they are withdrawing their TA. How can they do that?

ANSWER: Either party may withdraw a tentative agreement so long as there is sufficient cause and the withdrawals are not constant.

QUESTION: Management’s bargaining team is refusing to meet with us unless we tell the crowd of people we brought to leave. Isn’t this a sunshine law violation?

ANSWER: Yes. Public employers must allow meetings to be held in the open. A public employer also cannot require that the union agree to negotiation “ground rules” which places limitations on how the union conducts itself in bargaining (such as only having one speaker, only spending up to 5 minutes per issue, etc.). Private employers are entitled to limit the audience to the bargaining team alone.

QUESTION: Management sent us a bunch of MOUs over e-mail and want a response. They say we do not need to meet. Are they correct?

ANSWER: Bargaining does not have to take place in person, so long as it is done in good faith with the intent to reach a timely agreement. However, this is often a tactic management uses to avoid public scrutiny of proposals it wants passed. Unions are advised to proceed with extreme caution if management wants a bunch of proposals signed without a public meeting. In any case, such MOUs must still be ratified in order to have effect.

QUESTION: Our health insurance pool is running low. Management wants to raise rates and make us pay for it, and says if we do not agree they can implement the new rates anyway because they are in an emergency situation. Can they do that?

ANSWER: Florida Statutes regarding Financial Urgency enables the employer to proceed more rapidly through the impasse process to impose the changes it seeks, and prevents the union from filing unfair labor practices during negotiations. Absent a declaration of financial urgency, employers must negotiate in good faith before reaching impasse and imposing the desired changes. Generally, depending upon the past practice and the CBA, employers may unilaterally raise health insurance premium rates as long as the rates and the policy reflected in the CBA stay the same.

1. See, e.g., Duval County School Board v. Public Employees Relations Commission, 353 So. 2d 1244 (Fla. 1st DCA 1978), aff’g,3 FPER 96 (1977). Professional Association of City Employees, Inc. v. City of Jacksonville, 29 FPER ¶ 83
2. Section 447.203(17), Florida Statutes.
3. See also Duval Teachers United v. Duval County School Board, 3 FPER 96 (1977), aff’d, 353 So.2d 1244 (Fla. 1st DCA 1978); School Board of Escambia County v. PERC, 350 So.2d 819 (Fla. 1st DCA 1977); Teamsters Local Union 444 v. Pasco County Board of County Commissioners, 12 FPER ¶ 17041 (1985); Florida State Lodge, Fraternal Order of Police v. City of Riviera Beach, 7 FPER ¶ 12109 (1981).
4. City of Jacksonville, 6 FPER ¶ 11047 at 79; see also IBEW Local Union No. 1945 v. Taylor County Board of County Commissioners, 10 FPER ¶ 15067 at 108 (1984). State of Florida, (Department of Management Services), 26 FPER ¶ 31262
5. Professional Association of City Employees, Inc. v. City of Jacksonville, 29 FPER ¶ 83.
6. Cf. Utility Board of the City of Key West v. Local Union 1990, International Brotherhood of Electrical Workers,14 FPER ¶ 19040 (1988) (Union flatly refused to bargain).
7. Teamsters Local Union 444 v. Pasco Cty. Bd. of Cty. Comm’rs, 505 So. 2d 541, 544 (Fla. Dist. Ct. App. 1987).
8. N.L.R.B. v. Cable Vision, Inc., 660 F.2d 1, 108 L.R.R.M. (BNA) 2357, 92 Lab. Cas. (CCH) ¶12985 (1st Cir. 1981). Duval County School Board v Florida Public Employees Relations Com. (1978, Fla App D1) 353 So 2d 1244. School Board v Public Employees Relations Com. (1977, Fla App D1) 350 So 2d 819.
9. § 8(a)(5), (d) of the National Labor Relations Act (NLRA) (29 U.S.C.A. § 158(a) (5), (d)). The Eighth Circuit in N.L.R.B. v. Hardesty Co., Inc., 308 F.3d 859, 171 L.R.R.M. (BNA) 2006, 147 Lab. Cas. (CCH) ¶10124, 189 A.L.R. Fed. 693 (8th Cir. 2002).
10. Citrus County, 21 FPER ¶ 26057. Board of County Comers of Sarasota County v. Citrus, Cannery Food Processing & Allied Workers, Drivers, Warehousemen & Helpers, Local Union and Florida Public Employees Relations Commission, 738 So.2d 953 (1998). A “take it or leave it” approach, however, is considered an unfair labor practice. Orlando v International Asso. of Fire Fighters 384 So 2d 941 (1980, Fla App D5).
11. K-Mart Corp. v. N.L.R.B., 626 F.2d 704, 105 L.R.R.M. (BNA) 2431, 89 Lab. Cas. (CCH) ¶12235 (9th Cir. 1980).
12. The First Circuit in Eastern Maine Medical Center v. N.L.R.B., 658 F.2d 1, 108 L.R.R.M. (BNA) 2234, 92 Lab. Cas. (CCH) ¶12981 (1st Cir. 1981).
13. Telescope Casual Furniture, Inc. 326 NLRB 588 (1998). Mgmt. & Training Corp. & Serv. Employees Int’l Union Local 668, 198 L.R.R.M. (BNA) ¶ 1527 (N.L.R.B. Div. of Judges Jan. 30, 2014).
14. International Association of Machinist and Aerospace Workers District Lodge 166 and Local Lodge 2152 v. City of South Bay, Fla., 39 FPER ¶ 53 (2012).
15. Liberty County NEA v. School Board of Liberty County, 6 FPER ¶ 11012 (PERC 1979). Marion County School District, 18 FPER ¶ 23288. Orange County, 24 FPER ¶ 29205. See Florida Statutes Section 447.309
16. Section 447.501(3)
17. Gadsden Classroom Teachers’ Association, FDP-NEA v. The School Board of Gadsden County, Florida, 9 FPER ¶ 14202 (1983). Procter & Gamble Manufacturing Co., 160 NLRB 334, 340, 62 LRRM 1617, 1620 (1966); see also IBT, Local 59 v. Stanley Oil Co., Inc., 213 NLRB 219, 225 (1974).
18. Orange County, 24 FPER ¶ 29205.
19. Local 1158, Clearwater Fire Fighters Association, Inc., International Association of Fire Fighters v. East Lake Tarpon Special Fire Control District, 33 FPER ¶ 315 (2008). (Also see Section 447.501(1)(a), Florida Statutes)
20. See e.g. Escambia Education Assn v. Sch. Bd. of Escambia County, 10 FPER 15160 (1984), Georgia Power Co. v. N.L.R.B., 427 F.3d 1354.
21. Orlando v International Asco. of Fire Fighters (1980, Fla App D5) 384 So 2d 941.
22. See International Association of Machinist and Aerospace Workers District Lodge 166 and Local Lodge 2152 v. City of South Bay, Fla., 39 FPER ¶ 53 (2012)
23. See City of Deerfield Beach, 7 FPER ¶ 12438 (1981)
24. Section 447.4095, Florida Statutes (“Financial Urgency”)
25. See Bradford County School Board, 28 FPER (LRP) P33,062 (2001) and Citrus, Cannery, Food Processing & Allied Workers, Drivers, Warehousemen & Helpers, Local 173 v. City of Sarasota, 29 FPER (LRP) P87 (2003).